In re Asbestos Products Liability Litigation (No. VI), 100317 FED3, 16-2602

Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
Attorney:Richard P. Myers [ARGUED] Robert E. Paul Paul Reich & Myers Counsel for Appellants John S. Howarth Wilbraham Lawler & Buba Counsel for Appellee Buffalo Pumps, Inc. Shay Dvoretzky [ARGUED] Emily J. Kennedy Jones Day Counsel for Appellee CBS Corp. Lee J. Janiczek Reilly Janiczek McDevitt Herich & C...
Judge Panel:Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges
Opinion Judge:VANASKIE, Circuit Judge
Party Name:IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) ROBERTA G. DEVRIES, Administratrix of the Estate of John B. Devries, Deceased, and Widow in her own right, Appellant IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) SHIRLEY MCAFEE, Executrix of the Estate of Kenneth McAfee, Deceased, and Widow in her own right, Appellant
Case Date:October 03, 2017
Docket Nº:16-2602, 16-2669
 
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IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI)

ROBERTA G. DEVRIES, Administratrix of the Estate of John B. Devries, Deceased, and Widow in her own right, Appellant

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) SHIRLEY MCAFEE, Executrix of the Estate of Kenneth McAfee, Deceased, and Widow in her own right, Appellant

Nos. 16-2602, 16-2669

United States Court of Appeals, Third Circuit

October 3, 2017

          Argued March 29, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania District Judge: Honorable Eduardo C. Robreno (D.C. Nos. 5-13-cv-00474, 5-13-cv-06856, 2-01-md-00875)

          Richard P. Myers [ARGUED] Robert E. Paul Paul Reich & Myers Counsel for Appellants

          John S. Howarth Wilbraham Lawler & Buba Counsel for Appellee Buffalo Pumps, Inc.

          Shay Dvoretzky [ARGUED] Emily J. Kennedy Jones Day Counsel for Appellee CBS Corp.

          Lee J. Janiczek Reilly Janiczek McDevitt Herich & Cholden, PC One South Penn Square Suite Christopher J. Keale Afigo I. Okpewho-Fadahunsi Sedgwick Counsel for Appellee Foster Wheeler LLC

          Timothy E. Kapshandy John A. Heller Sidney Austin Rebecca K. Wood Wen W. Shen Sidley Austin Counsel for General Electric Co.

          Joseph I. Fontak Leader & Berkon Counsel for IMO Industries, Inc.

          Laurie J. Hepler Greines Martin Stein & Richland One Embarcadero Center Counsel for Appellee Warren Pumps

          Carol A. VanderWoude Marshall Dennehey Warner Coleman & Goggin Counsel for Appellee Ingersoll Rand Co.

          Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges

          OPINION

          VANASKIE, Circuit Judge

         These asbestos cases involve the availability of the "bare-metal defense" under maritime law. The defense's basic idea is that a manufacturer who delivers a product "bare metal"-that is without the insulation or other material that must be added for the product's proper operation-is not generally liable for injuries caused by asbestos in later-added materials. A classic scenario would be if an engine manufacturer ships an engine without a gasket, the buyer adds a gasket containing asbestos, and the asbestos causes injury to a worker. May the manufacturer be held liable? Some courts say no-never. Others rely on a more fact-specific standard and ask whether the facts of the case made it foreseeable that hazardous asbestos materials would be used. Neither this Court nor the Supreme Court has confronted the issue.

         In that void, we survey bedrock principles of maritime law and conclude that they permit a manufacturer of even a bare-metal product to be held liable for asbestos-related injuries when circumstances indicate the injury was a reasonably foreseeable result of the manufacturer's actions- at least in the context of a negligence claim. The District Court had instead applied the bright line rule approach and entered summary judgment against the plaintiffs. We will vacate the entry of summary judgment on the plaintiffs' negligence claims, affirm the entry of summary judgment on the plaintiffs' product liability claims (which we conclude were abandoned on appeal), and will remand, for further proceedings.

         I.

         Appellants Roberta G. Devries and Shirley McAfee are the widows of deceased husbands who served in the United States Navy. Each couple filed a Complaint in Pennsylvania state court alleging that the husband contracted cancer caused by exposure to asbestos. Devries alleges that on the U.S.S. Turner from 1957-60, her husband was exposed to asbestos-containing insulation and components that were added onto the ship's engines, pumps, boilers, blowers, generators, switchboards, steam traps, and other devices. McAfee alleges her husband was similarly exposed through his service on two ships and in the Philadelphia Naval Shipyard.

         Devries and McAfee named a number of defendants, of which Appellee manufacturers ("Manufacturers") are a subset.1 The Manufacturers each made their products "bare metal, " in that if they manufactured an engine, they shipped it without any asbestos-containing insulation materials that would later be added.

         Devries and McAfee's Complaints each allege claims of negligence and strict liability. The Manufacturers removed to the Eastern District of Pennsylvania and invoked the bare-metal defense in support of their respective summary judgment motions, arguing that because they shipped their products bare metal, they could not be held liable for the sailors' injuries. The District Court agreed and granted the Manufacturers summary judgment motions.

         Devries and McAfee each appealed separately, raising an issue as to whether the District Court's decision addressed their negligence claims. We summarily remanded with instructions that the District Court address the negligence issue and also consider a split in authority as to whether a bright-line rule or a fact-specific standard governed the bare-metal defense's availability. In re Asbestos Prods. Liab. Litig., No. 15-2667, Order (3d Cir. May 12, 2017) (McAfee); In re Asbestos Prods. Liab. Litig., No. 15-1278, Order (3d. Cir. Feb. 5, 2016) (Devries).

         On remand, the District Court applied the bright-line-rule version of the bare-metal defense, and clarified that summary judgment had been entered in favor of the Manufacturers on both the strict liability and negligence claims. The Court reasoned that the rule approach was best because, according to the Court's view of the precedents, maritime law favors uniformity and the rule approach was the majority view.

         Devries and McAfee appealed for a second time. We consolidated their appeals and ordered coordinated briefing.

         II.

         The District Court had federal-officer jurisdiction under 28 U.S.C. § 1442(a)(1), and maritime jurisdiction under 28 U.S.C. § 1333(1). We have jurisdiction under 28 U.S.C. § 1291. We review the District Court's grant of summary judgment de novo. Faush v. Tues. Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015).

         III.

         The key question in this case is the bare-metal defense's availability: When, if ever, should a manufacturer of a product that does not contain asbestos be held liable for an asbestos-related injury most directly caused by parts added on to the manufacturer's product? Neither the Third Circuit nor the Supreme Court has addressed the question, and the courts from other jurisdictions that have are split. Some courts apply a bright-line rule, holding that a manufacturer of a bare-metal product is never liable for injuries caused by later-added asbestos-containing materials. See, e.g., Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492, 494-97 (6th Cir. 2005); Cabasug v. Crane Co., 989 F.Supp.2d 1027, 1038-43 (D. Haw. 2013). Others apply a more fact-specific standard, stating, for example, that a bare-metal manufacturer may be held liable if the plaintiff's injury was a reasonably foreseeable result of the manufacturer's conduct. See, e.g.,

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