Schwartz v. Abex Corp., E.D. PA CIVIL ACTION NO. 2:05-CV-02511-ER

Decision Date27 May 2015
Docket NumberE.D. PA CIVIL ACTION NO. 2:05-CV-02511-ER
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
PartiesJOSEPH SCHWARTZ, et al., Plaintiffs, v. ABEX CORP., et al., Defendants.





I. BACKGROUND ............................................... 3
II. LEGAL STANDARD ........................................... 6
III. DISCUSSION ............................................... 7

A. Defendants' Arguments ................................ 8

B. Plaintiffs' Arguments ............................... 10

C. Manufacturer Liability Under Pennsylvania Law ....... 12

1. Restatement (Second) of Torts § 402A ............ 14
2. Pennsylvania Social Policy ...................... 32
3. Doctrinal Trends ................................ 38
4. Asbestos-Related Pennsylvania Authority ......... 47
5. Prediction of Pennsylvania Law .................. 55
a. Strict Liability Claims ..................... 59
b. Negligence Claims ........................... 62

D. General Application of Strict Liability and Negligence Principles .......................................... 74

E. Resolution of the Present Case ...................... 84

IV. CONCLUSION .............................................. 86

Before the Court is the issue whether, under Pennsylvania law, a manufacturer Defendant is liable for harm arising from asbestos-containing component parts that it neither manufactured nor supplied, but which were used with its product. In the vernacular of the asbestos bar, this is the issue of whether Pennsylvania law recognizes the so-called "bare metal defense."2 To date, the Pennsylvania Supreme Court has never squarely addressed this issue in the context of an asbestos case. Therefore, it will be necessary to predict Pennsylvania state law on this issue in order to resolve Defendant's motion.

For the reasons that follow, the Court now predicts that under Pennsylvania law a manufacturer (or supplier) of a product (1) is not liable in strict liability for aftermarket asbestos-containing component parts that it neither manufactured nor supplied, even if used in connection with that manufacturer's (or supplier's) product, but (2) has a common law duty — creating a potential cause of action in negligence — to warn of the asbestos hazards of such aftermarket component parts if it (a) knew that an asbestos-containing component part of that type would be used with its product, and (b) knew at thetime it placed its product into the stream of commerce that there were hazards associated with asbestos.3 To be clear, a product manufacturer is not liable in strict liability for asbestos-containing component parts that it neither manufactured nor supplied (even if it knew those parts would be used with its product), but can be liable in negligence if it knew those component parts would be used with its product, knew asbestos was hazardous, and failed to provide a warning that was adequate and reasonable under the circumstances.4


This case was initially filed in the Philadelphia Court of Common Pleas, and was thereafter removed by Defendant to the United States District Court for the Eastern District of Pennsylvania on grounds of federal officer jurisdiction,pursuant to 28 U.S.C. §§ 1331 and 1442, where it became part of MDL-875.

Plaintiffs in asbestos litigation are generally workers (or their heirs) who were exposed to asbestos while working with or around asbestos-containing products. Defendants who raise the so-called "bare metal defense" in asbestos litigation are manufacturers of various products (such as pumps, valves, boilers, turbines, and airplane engines), which were used with asbestos-containing component parts (such as gaskets, packing, or external insulation) that Defendants neither manufactured nor supplied.

Plaintiffs typically bring both negligence and strict product liability claims against Defendants, alleging that Defendants are liable for failing to warn of the hazards of asbestos in component parts manufactured and supplied by entities other than Defendants but used with Defendants' products after Defendants had placed their products into the stream of commerce. As in the present case, Defendants often move for summary judgment on the ground that they are not liable for injuries caused by asbestos products or component parts (such as insulation, gaskets, and packing) that were used in connection with their product, but which they did not manufacture or supply. In other words, Defendants assert the so-called "bare metal defense."

As to the claims now before the Court, Joseph Schwartz, the Decedent in the present action, was employed as an airplane propeller mechanic and crew chief during the years 1957 to 1967, working at two Air Force bases in Pennsylvania. Defendant Pratt & Whitney manufactured airplane engines used with external insulation.5 Mr. Schwartz was diagnosed with mesothelioma, for which Plaintiff alleges Defendant is liable. He was deposed in April of 2005 and died in February of 2006.

Plaintiff concedes that she has not proffered evidence that Defendant manufactured or supplied the particular asbestos-containing component part (external insulation) from which the asbestos exposure at issue is alleged to have occurred. Instead, she argues that Defendant Pratt & Whitney is, nonetheless, liable for injury arising from this insulation because it knew or could foresee that its products (engines) would be used with asbestos-containing external insulation and failed to warn about this anticipated dangerous use of its engines.

Plaintiff's claims against Defendant Pratt & Whitney are governed by Pennsylvania law.6 The Court now considers whether and when, under Pennsylvania law, a product manufacturer is liable for injury caused by asbestos-containing component parts used with its product, but which it neither manufactured nor supplied.7


Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is"genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

The Court will view the facts in the light most favorable to the nonmoving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250.


Defendant has moved for summary judgment arguing that, as a matter of law, it cannot be held liable for injuries caused by asbestos-containing component parts that it did not manufacture or supply, but which were used in connection with its products.8 Plaintiff disagrees and contends that product manufacturers such as Defendant can be liable under existing Pennsylvania law because they have a duty to warn of hazardsarising from the component parts used with their products - even though they did not manufacture or supply those component parts. The Court next examines the arguments and authorities advanced by the parties in further detail.

A. Defendants' Arguments

Defendants9 argue that they are entitled to summary judgment because they cannot be liable for products or component parts that they did not manufacture or supply. In support of this argument, Defendants rely upon three decisions from the Pennsylvania Superior Court:10 Eckenrod v. GAF Corp.,11 375 Pa.Super. 187, 544 A.2d 50, 52-53 (Pa. Super. Ct. 1988); Toth v. Economy Forms Corp.,12 391 Pa. Super. 383, 571 A.2d 420, 420 (Pa.Super. Ct. 1990); and Schaffner v. Aesys Technologies, LLC, 2010 WL 605275 (Pa. Super. Ct. Jan. 21, 2010).

B. Plaintiffs' Arguments13

Plaintiffs contend that, under Pennsylvania law, product manufacturers have a duty to warn of the known asbestos-related hazards of component parts used with their products. In support of this assertion, Plaintiffs rely upon Section 402A of the Restatement (Second) of Torts,14 Berkebile v. BrantlyHelicopter Corp.,15 462 Pa. 83, 337 A.2d 893, 898 (Pa. 1975) (later abrogated as to certain other points of law), Chicano v. General Electric Co., 2004 WL 2250990 (E.D. Pa. Oct. 5, 2004) (O'Neill, J.), and In re Asbestos Products Liability Litig. (Hoffeditz v. AM General, LLC), 2011 WL 5881008 (E.D. Pa. July 29, 2011) (Robreno, J.) (hereinafter "Hoffeditz").16

Plaintiffs assert that there is evidence that Defendants (1) knew of the asbestos-related dangers of theasbestos-containing component parts at issue17 (including replacement parts such as gaskets and packing), which were used in connection with their products and, (2) in some cases, designed their products such that they could not be properly used without the asbestos-containing components (such as external insulation) that led to Plaintiffs' injuries - and that Defendants therefore had a duty to warn of those hazards.18

C. Manufacturer Liability Under Pennsylvania Law

The Supreme Court of Pennsylvania has never addressed the issue of the so-called "bare metal defense" in the context of asbestos litigation. Therefore, it will be necessary to predict Pennsylvania state law on this issue...

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