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Date: 10-13-2017

Case Style:

In Re: Asbestos Products Liability Litigation (No. VI)

Third Circuit Court of Appeals - Philadelphia, Pennsylvania

Case Number: 16-2602 & 16-2669

Judge:

Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania (Philadelphia County)

Plaintiff's Attorney: Richard Myers and Robert Paul

Defendant's Attorney: John Howarth for Buffalo Pumps, Inc.


Shay Dvoretzky and Emily J. Kennedy for CBS Corporation


Lee J. Janiczek and Christopher J. Keale for Foster Wheeler, LLC


Timothy E. Kapshandy, John A. Heller, Rebecca K. Wood and Wen W. Shen for General Electric


Joseph I. Fontak for IMO Industries, Inc.


Lauire J. Hepler for Warren Pumps


Carol A. Vander Woude for Ingersoll Rand Co.

Description: 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
5
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 asbestoscontaining
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
6
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 baremetal
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-linerule
version of the bare-metal defense, and clarified that
summary judgment had been entered in favor of the
1 The Appellee-Manufacturers are Air & Liquid
Systems Corp., CBS Corp., Foster Wheeler LLC, General
Electric Co., IMO Industries Inc., Warren Pumps LLC, and
Ingersoll Rand Co.
7
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 asbestosrelated
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
8
held liable if the plaintiff’s injury was a reasonably foreseeable
result of the manufacturer’s conduct. See, e.g., Quirin v.
Lorillard Tobacco Co., 17 F. Supp. 3d 760, 768-70 (N.D. Ill.
2014) (determining whether the addition of asbestos material
was “foreseeable” by asking whether addition of asbestoscontaining
materials was “inevitable,” and whether those
added materials were “necess[ary]” or “essential” to the
manufacturer’s product); Chicano v. Gen. Elec. Co., 2004 WL
2250990, at *6 (E.D. Pa. Oct. 5, 2004) (asking if the addition
of asbestos-containing materials was “foreseeable”).2
In addressing this question, we (1) examine the
doctrinal roots of the bare-metal defense, and (2) address how
2 Illustrative of the unsettled status of this issue, we
recently certified to the Pennsylvania Supreme Court the
question of whether under Pennsylvania law a manufacturer of
a product can assert the bare metal defense in the context of a
negligent failure to warn claim arising out of exposure to
asbestos. See In re Asbestos Products Liability Lit. (No. VI),
Crane Co., No. 16-3704 (3d Cir. Sept. 27, 2017) (Petition for
Certification of Question of State Law).
Whether, under Pennsylvania law, a manufacturer has a duty
to warn about the asbestos-related hazards of component parts
it has neither manufactured nor supplied.
If such a duty exists, what is the appropriate legal test to
determine whether the company is in fact liable for failing to
warn about the risks of asbestos?
Id. at 11.
9
it should be applied in Devries and McAfee’s negligence
actions.
A.
The doctrinal root of the bare-metal defense has proved
to be a particularly vexing question. Some courts have rooted
the defense in causation: When if ever can it be said that a
bare-metal manufacturer causes an asbestos-related injury?
See, e.g., Thurmon v. Ga. Pac., LLC, 650 F. App’x 752, 756
(11th Cir. 2016) (“the ‘bare metal defense’ is, essentially, a
causation argument”). Others locate the defense in duty: Can
a manufacturer’s duty to act with reasonable care with respect
to reasonably foreseeable risks and plaintiffs, be said to extend
to asbestos-related injuries? See, e.g., Quirin, 17 F. Supp. 3d
at 767-70 (reviewing the issue as one of “legal duty”). The
question is more than academic. If the elemental root is duty,
the defense should be expected to operate differently in strict
liability as compared to negligence, because a defendant’s duty
of course differs between the two types of actions. See Chesher
v. 3M Co., 234 F. Supp. 3d, 693, 700-03 (D.S.C. 2017)
(holding that the defense should apply in a weaker fashion in a
negligence action, as compared to strict liability). The opposite
might be true too—the defense should operate in similar
fashion in both negligence and strict liability if it is rooted in
causation, because the proximate cause inquiry cuts across the
two types of actions. See, e.g., Lindstrom, 424 F.3d at 492
(suggesting the defense applies similarly under “both
negligence and strict liability theories”).
We find that both approaches are correct: the defense
is rooted in both duty and cause because its keystone is the
concept of foreseeability. When parties debate the bare-metal
defense, they debate when and whether a manufacturer could
10
reasonably foresee that its actions or omissions would cause
the plaintiff’s asbestos-related injuries. The bright-line rule
approach says it is never reasonably foreseeable, and the factspecific
standard approach says it sometimes is. This debate
over foreseeability sounds in both duty and cause, because
foreseeability is a concept embedded in each element. See
Gibbs v. Ernst, 647 A.2d 882, 891 (Pa. 1994) (highlighting “the
common law notion of foreseeability as found in the concepts
of duty and proximate cause”). In the duty element in a
negligence action, foreseeability limits a defendant’s liability
to only the risks and plaintiffs that are reasonably foreseeable.
See Restatement (Third) of Torts: Phys. & Emot. Harm § 7,
cmt. j (2010 Am. Law Inst.) (acknowledging “widespread use”
of foreseeability as an aspect of the duty of reasonable care,
despite the Restatement’s disagreement with such an
approach). And in proximate cause, foreseeability limits a
defendant’s liability to only the injuries that are a reasonably
foreseeable result of the defendant’s actions. Id. § 29, cmt. j
(discussing foreseeability as an aspect of proximate cause in
both negligence and strict-liability actions).3 Thus, the bare-
3 Instead of starting from subject-specific asbestos
cases, we begin our focus with the ordinary and traditional
principles of maritime and tort law, as exemplified in the most
reliable treatises and restatements. Cf. M&G Polymers USA,
LLC v. Tackett, 135 S. Ct. 926, 929-30 (2015) (abrogating a
circuit’s labor-law-specific rule for contract interpretation, and
calling on lower courts in labor-law cases to still adhere to
“ordinary” and “traditional” principles of contract law);
Paroline v. United States, 134 S. Ct. 1710, 1719-20 (2014)
(citing, as authority for the federal common law of proximate
11
metal defense is nothing more than the concept of
foreseeability, as embedded in the duty of reasonable care in a
negligence action and the proximate cause standard in a
negligence or strict-liability action, as applied to the facts of a
certain subset of asbestos cases.
This dual-elemental home for the defense does not,
however, totally explain when or whether the defense’s
application should differ from strict-liability to negligence. It
might be that the defense could apply the same in both types of
actions, because of the shared proximate-cause element. Or
the differences in the two actions’ duty elements might mean
the defense is more forceful in one action than the other. See,
e.g., Chesher, 234 F. Supp. 3d at 700-03 (holding that the
defense is weaker in negligence and stronger in strict liability,
because in strict liability the manufacturer’s duty is limited to
the product, but with negligence the duty extends further); Bell
v. Foster Wheeler Energy Corp., No. 15-6394, 2016 WL
5780104, at *5-7 (E.D. La. Oct. 4, 2016) (same). And of
course the facts of a given case could be the most important
variable.
We need not settle these doctrinal distinctions today,
because Devries and McAfee waived their strict liability claim
in this appeal. As a general matter, an appellant waives an
argument in support of reversal if it is not raised in the opening
brief. McCray v. Fidelity Nat’l Title Ins. Co., 682 F.3d 229,
241 (3d Cir. 2012). Here, in this appeal Devries and McAfee
focused the entirety of their briefing on their negligence
claims, yet attempted to also incorporate their strict-liability
cause, the Restatement (Third) of Torts, Prosser and Keeton’s
treatise on torts, and LaFave’s treatise on criminal law).
12
claim through a footnote: “By concentrating on [negligence]
issues in this brief, Appellants do not waive any issues argued
in their original briefs as to Defendants’ liability under [the
strict liability claims].” (Appellants’ Br. at 2 n. 1). This
attempt to shoehorn in an argument outside the briefs is
insufficient to raise an issue on appeal. See John Wyeth &
Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n. 6
(3d Cir. 1997) (stating that “arguments raised in passing (such
as, in a footnote), but not squarely argued, are considered
waived”); see also Skretvedt v. E.I. DuPont De Nemours, 372
F.3d 193, 202-04 (3d Cir. 2004) (declining to consider
arguments not properly raised and therefore waived). In
particular, it fails to give fair notice of the claims being
contested on appeal. Thus, Devries’s and McAfee’s waiver of
their strict-liability arguments means that we will affirm the
District Court’s decision to that extent, and need not fully
explore the precise contours of the defense’s distinctions in
strict liability and negligence, beyond the unifying principle of
foreseeability.
B.
For the negligence claims, rooting the bare-metal
defense in foreseeability does not on its own resolve the issue,
because the split in authority can be characterized as a debate
over what a bare-metal manufacturer could reasonably
foresee—no asbestos-related injuries, see, e.g., Lindstrom, 424
F.3d at 492, 494-97, or some, see, e.g., Quirin, 17 F. Supp. 3d
at 769-70.
13
These two choices raise familiar tradeoffs between rules
and standards.4 A rule is a legal directive that attempts to
capture a background principle into an easy-to-apply form that
is predictable and efficient. A speed limit is a good example:
its goal is road safety, but because liability turns on speed
rather than the amorphous definition of “safety” itself, it is
easier for drivers, police, and insurers to shape their conduct
accordingly. Rules have downsides though too, in that they
necessarily result in errors of over- and under-inclusion. In the
case of the speed limit, it furthers the policy of road safety, but
does so imperfectly: speedy drivers get punished even if they
speed safely, and slow drivers go free even if they amble along
haphazardly.
A standard, on the other hand, collapses the background
principle into the actual legal directive, resulting in better
accuracy and “fit” with the underlying purpose, and fewer
errors of over- and under-inclusion. Another road-safety
example would be a reckless-driving prohibition that simply
prohibits driving that is “reckless.” Such a prohibition is less
predictable and efficient than the speed limit, in that it is harder
to predict what a decisionmaker will find to be “reckless” than
whether he or she will agree that 76 miles per hour exceeds a
4 For a review of the characteristics and tradeoffs of
rules and standards, see Bryan A. Garner et al., The Law of
Judicial Precedent 78 (2016) (noting that “rules and standards
. . . denote different levels of specificity for norms” and
“judicial holding[s]”); Kathleen M. Sullivan, The Supreme
Court, 1991 Term—Foreword: The Justices of Rules and
Standards, 106 Harv. L. Rev. 22, 58-59 (1992).
14
70 m.p.h. speed limit. But liability better tracks the actual goal
of road safety, because almost all “reckless” drivers are unsafe.
The point is there are tradeoffs, and courts face those
tradeoffs in choosing an approach to the bare-metal defense.
The rule-based approach is efficient and predictable—baremetal
manufacturers are simply not liable—but the downside
is some deserving sailor-plaintiffs will not receive their due.
On the other hand, the standard-based approach is bound to be
less predictable and less efficient, because the standard’s factcentered
nature will push more cases into discovery, see, e.g.,
Quirin, 17 F. Supp. 3d at 771-72 (denying defendant’s motion
to dismiss after applying the standard), but the most-deserving
sailor-plaintiffs are less likely to be denied compensation.
Thankfully, we do not weigh these tradeoffs in a
vacuum. Maritime law is undergirded by established
principles, at least four of which are implicated here. First and
perhaps foremost, maritime law is deeply concerned with the
protection of sailors, due to a historic and “special solicitude
for the welfare of those men who undertook to venture upon
hazardous and unpredictable sea voyages.” Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 387 (1970). This “special
solicitude” developed “unknown to the common law,” and so
maritime law is at times more lenient toward a sailor than a
state’s common law may be to a similarly-situated plaintiff. Id.
This divergence is acceptable if not appropriate because the
“humane and liberal character of” maritime law counsels that
it is better “to give than to withhold the remedy” wherever
“established and inflexible rules” do not require otherwise. Id.
(quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C. Md. 1865)).
For example, in Moragne v. States Marine Lines, the Supreme
Court made it permissible for maritime plaintiffs to bring
wrongful death actions even though the common law
15
disapproved of such actions. 398 U.S. at 381-88, 408-09. In
arriving at that holding, the Court explicitly referenced and
discussed maritime law’s special solicitude for sailor safety
and how that solicitude permitted maritime law to have more
sailor-friendly rules than the common law. Id. at 386-88.5
Here, maritime law’s special solicitude for sailors’
safety similarly favors the adoption of the standard-like
approach to the bare-metal defense. A standard will permit a
greater number of deserving sailors to receive compensation,
and compensation that is closer to what they deserve. Given
that results for sailor-victims will differ under a rule as
compared to a standard, and since no “established” or
“inflexible” rule prohibits the more forgiving standard, the
“humane and liberal character” of maritime law counsels that
we follow the standard. Even if certain states’ common laws
would call for a more stringent rule, maritime law’s more
liberal attitude permits us to diverge from that path.
Second, maritime law is built on “traditions of
simplicity and practicality,” Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 631 (1959), but that principle
cuts in both directions and does not provide much guidance.
On one hand, “simplicity” might be seen as favoring the rulebased
approach, because simplicity is related to predictability,
and it is easier to predict how a rule will apply than a standard.
5 Moragne’s holding was based most directly on
principles other than the special solicitude for sailor safety, but
the special solicitude was still crucial to the Court’s decision
because it explained why the Court’s ruling was appropriate
even though it likely diverged from the common law.
Moragne, 398 U.S. at 386-88.
16
On the other hand, “simplicity” could also be seen as favoring
a foreseeability-based standard, because simplicity is related to
familiarity, and foreseeability is such a familiar and key part of
tort law. See id. at 631-32 (choosing to adopt a familiar
standard over a “foreign” and “alien” rule while invoking
maritime law’s “traditions of simplicity and practicality”).
The third and fourth principles implicated in this case
are also not particularly helpful. Maritime law has a
“fundamental interest” in “the protection of maritime
commerce,” Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S.
603, 608 (1991) (quoting Sisson v. Ruby, 497 U.S. 358, 367
(1990)), and seeks out “uniform rules to govern conduct and
liability,” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-
75 (1982). Here, the parties all argue these two principles
encourage the Court to side with whatever side is winning in
the split in authority. The idea is that the sooner one side wins
out over the other, the sooner the split in authority is ended and
the goals of seamless commerce and uniformity of rules will
be achieved. The rub, however, is determining which view is
the majority. The bright-line rule could be said to be in the
lead because it has on its side the Sixth Circuit, the only court
of appeals to weigh in. Lindstrom, 424 F.3d at 492, 494-97.
The standard could similarly be said to be the majority view
because the courts that have confronted the question most
recently have generally favored the standard, and have done so
after a much more thorough analysis than that found in the
Sixth Circuit’s opinion in Lindstrom, which was decided much
earlier in the debate over the bare-metal defense. Compare
Chesher, 234 F. Supp. 3d at 696-712 (analyzing in painstaking
detail the split in authority and adopting a version of the
standard); Bell, 2016 WL 5780104, at *3-7 (same), with
Lindstrom, 424 F.3d at 494-97 (not mentioning the split in
17
authority). We need not decide which approach is winning in
terms of wins and losses—it is enough that the score is too
close for us to say that the goals of seamless commerce and
rule-uniformity push in one way or the other.
In sum, the special solicitude for the safety and
protection of sailors is dispositive, because it counsels us to
follow the standard-based approach, and none of the other
principles weigh heavily in either direction. The standardbased
approach is the one we will therefore follow:
foreseeability is the touchstone of the bare-metal defense; a
manufacturer of a bare-metal product may be held liable for a
plaintiff’s injuries suffered from later-added asbestoscontaining
materials if the facts show the plaintiff’s injuries
were a reasonably foreseeable result of the manufacturer’s
failure to provide a reasonable and adequate warning; and
although cases will necessarily be fact-specific, alreadydecided
precedents show, for example, that a bare-metal
manufacturer may be subject to liability if it reasonably could
have known, at the time it placed its product into the stream of
commerce, that
(1) asbestos is hazardous,6 and
(2) its product will be used with an asbestoscontaining
part,7 because
6 See Bell, 2016 WL 5780104, at *5.
7 See id.
18
(a) the product was originally equipped
with an asbestos containing part that
could reasonably be expected to be replaced over
the product’s lifetime,8
(b) the manufacturer specifically directed
that the product be used with an asbestoscontaining
part,9 or
(c) the product required an asbestoscontaining
part to function properly.10
These may or may not be the only facts on which liability can
arise. The finer contours of the defense, and how it should be
applied to various sets of facts, must be decided on a case-bycase
basis.
IV.
Finally, the Manufacturers advanced two alternative
arguments in support of an affirmance on the negligence
claims. They argued (1) insufficient evidence had been
presented as to causation and was fatal to Devries and
McAfee’s claims, and (2) the government-contractor defense
should insulate the Manufacturers from liability. These
arguments were also presented below, but the District Court
8 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F.
Supp. 3d at 769-71.
9 See Bell, 2016 WL 5780104, at *5, 7.
10 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F.
Supp. 3d at 769-70.
19
declined to rule on them because its bare-metal-defense
holding was sufficient to enter summary judgment in favor of
the Manufacturers. The Manufacturers urge us to address them
now, on the grounds that we may affirm a judgment for any
reason supported by the record. Brightwell v. Lehman, 637
F.3d 187, 191 (3d Cir. 2011). Addressing alternative grounds
for affirmance, however, is a matter left to our discretion. See
Gov’t of the V.I. v. Walker, 261 F.3d 370, 376-77 (3d Cir.
2001) (declining to reach arguments raised before but not
decided by the lower court, and instead remanding). Given that
we are without the benefit of the District Court’s well-regarded
expertise, and the parties’ briefing and oral argument was
appropriately focused on the bare-metal defense, we will leave
the insufficient-evidence and contractor-defense arguments to
be dealt with on remand.

Outcome:
In conclusion, maritime law’s special solicitude for the
safety and protection of sailors counsels us to adopt a standard based
approach to the bare-metal defense that permits a
plaintiff to recover, at least in negligence, from a manufacturer
of a bare-metal product when the facts show the plaintiff’s
injuries were a reasonably foreseeable result of the
manufacturer’s conduct. We will affirm the decision of the
District Court with respect to Devries and McAfee’s strict
liability claims, and remand for further proceedings on their
negligence claims consistent with this Opinion.

Plaintiff's Experts:

Defendant's Experts:

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