Bare With Me: The Effect of Tincher v. Omega Flex, Inc. on Equipment Defendants in Asbestos Litigation in Pennsylvania

Pump and valve manufacturers are often sued in asbestos cases for injuries allegedly resulting from plaintiffs changing packing and gaskets in and on respective equipment. Typically, the plaintiff encounters a pump or valve that has been in service for years and has had the originally supplied gaskets and packing replaced. The new gaskets and packing are typically obtained from a gasket or packing manufacturer, which is a separate and distinct company from the equipment manufacturer. The legal question that inevitably arises is whether an equipment manufacturer can be held liable for aftermarket gaskets or packing when it neither manufactured nor supplied the component but where the replacement of the component is foreseeable. This question has been answered in the negative in various jurisdictions across the nation where the “bare metal defense” is recognized. The bare metal defense is a legal doctrine invoked by defendants and represents the theory that a manufacturer of a piece of metal equipment does not owe a duty for injuries allegedly resulting from exposure to asbestos through a component part manufactured and supplied by other entities.

In Pennsylvania there is no appellate authority specifically addressing the bare metal defense in the context of asbestos cases, but there is a strong legal basis for recognizing the defense under the Superior Court’s holding in Toth v. Economy Forms Corp., 571 A.2d 420, 422-423 (Pa. Super. 1990). In that case, the court affirmed that the appellee, a scaffolding manufacturer, could not be liable for failure to warn, or for negligence, when defective wooden planks manufactured and supplied by another company, but attached to its scaffolding system, broke and caused the decedent to fall to his death. Of particular importance, the court held that the product claims for design defect and failure to worn liability could not stand where the appellee did not design, manufacture or sell the product. The holding in Toth should be expanded to asbestos litigation given the Pennsylvania Supreme Court’s recent holding in Tincher v. Omega Flex, Inc., 2014 Pa. LEXIS 3031 (Pa. Nov. 19, 2014), overruling Azzarello v. Black Bros, Inc., 391 A.2d 1020 (Pa. 1978), insofar as Tincher is inspired by California case law, which also recognizes the bare metal defense.

The landscape of product liability law in Pennsylvania changed dramatically with the Pennsylvania Supreme Court’s decision in Tincher. Now, in Pennsylvania, “the cause of action in strict product liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.” In reaching the foregoing conclusion, the Supreme Court relied principally on the “core insight” made by the Supreme Court of California in Barker v. Lull Engineering Co., Inc., 573 P.2d 443 (Cal. 1978) (holding that the consumer expectations test and risk-utility test apply in the alternative). This paradigm of alternative tests is born out of the “[e]xpectation that all sellers in the distributive chain are legally responsible for the product [at issue] in strict liability.” The Pennsylvania Supreme Court took notice that the insufficiency of negligence causes of action more often manifests, not in claims against the actual manufacturer of the product, but with respect to other entities (such as suppliers). Tincher, 2014 Pa. LEXIS 3031, *196 (quoting William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099, 1116-17 (1960)). It is where the product at issue passes “through the hands of a whole line of other dealers” whom the “plaintiff may have good reason to sue” that negligence fails or at least may come up short. Prosser, 69 Yale L.J. at 1116 (emphasis supplied). The emphasis on a defendant’s role in the chain of distribution of the defective product in Tincher is not only logical, but it is legally significant. Similarly, modeling Pennsylvania’s product liability standard, at least partially, on the California paradigm strongly supports the formal adoption of the bare metal defense under Pennsylvania law.

In California, a manufacturer of equipment cannot be held liable under either negligence or strict liability (consumer expectations or risk-utility) for after-market component parts that the manufacturer did not place into the stream of commerce. O’Neil v. Crane Co., 266 P.3d 987, 991, 1005 (Cal. 2012) (holding that “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product” and expressly noting that “forseeability alone is not sufficient to create an independent tort duty”). In fact, “California law restricts the duty to warn to entities in the chain of distribution of the defective product.” Id. at 999 (quoting Taylor v. Elliott Turbomachinery Co. Inc., 171 Cal. App. 4^th 564, 575 (2009)). In O’Neil, it was held that forseeability of the replacement of originally supplied asbestos-containing components with aftermarket asbestos-containing components does not trigger a duty to warn about the aftermarket component where the equipment manufacturer neither manufactured nor distributed the component. A key aspect to the dismissal of the plaintiff’s claim in O’Neil was that the “[i]mposition of strict liability requires a showing that the plaintiff’s injuries were caused by an act of the defendant or an instrumentality under the defendant’s control.” While the acts of a defendant were previously irrelevant under the Azzarello regime, Tincher has possibly opened the door to an analysis identical to that which was done in O’Neil.

While not in the context of asbestos litigation, the Pennsylvania Superior Court’s holding in Toth is nearly identical to that in O’Neil with respect to whether a manufacturer has a duty in connection with aftermarket parts placed into or onto its equipment. Simply put, Toth tells us that Pennsylvania law does not permit the imposition of such a duty. In the wake of Tincher, Pennsylvania’s product liability standard is arguably similar, or at least analogous, to the standard in California. Similarly, Pennsylvania case law (Toth) is analogous to California case law (O’Neil) with respect to the recognition that a manufacturer does not have a legal duty with respect to aftermarket components attached to its equipment. The question of whether the bare metal defense applies in asbestos litigation in Pennsylvania remains to be seen and will be answered through the “targeted advocacy” invited by Tincher.

*Josh, an associate in our Philadelphia, Pennsylvania office, can be reached at 215.575.2751 or jdscheets@mdwcg.com.

^{Defense Digest, Vol. 21, No. 1, March 2015}

^{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}