Eastern District Court of Pennsylvania Predicts Applicability of the “Bare Metal” Defense in Pennsylvania Asbestos Litigation

By Melissa D. Cochran, Esq.*

Known in the asbestos community as the “bare metal” defense is the theory that a product manufacturer cannot be held liable for alleged harms caused by asbestos component parts used with its product when it did not manufacture, distribute or supply the component part. This theory is most commonly raised by valve and pump defendants as a bar to claims of harm caused by third-party-manufactured asbestos-containing packing and gaskets used on their equipment. While the “bare metal” defense has been accepted by the high courts in several jurisdictions, including California in O’Neill v. Crane, Co., 266 P.3d 987 (Cal. 2012) and Washington in Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), the Pennsylvania Supreme Court has yet to consider and decide upon the applicability of the “bare metal” defense to asbestos cases pending in the Commonwealth.

Generally, Pennsylvania does not impose liability on product manufacturers for harm caused by component parts that the manufacturer did not make or supply. In Toth v. Economy Forms Corp., 571 A.2d 420 (Pa.Super. 1990), the Pennsylvania Superior Court found that the defendant, a manufacturer of a scaffolding system, was not liable when a wooden plank attached to the scaffolding gave way, leading to the death of the plaintiff-decedent. The wooden plank was manufactured and sold by another party, not the scaffolding manufacturer.

Toth argued two bases for strict liability to apply to the scaffolding manufacturer: (i) defective design based on the manufacturer’s failure to provide the wooden planks and (ii) defective warning for failing to instruct on the proper use of the planks. However, the Superior Court rejected both arguments, explaining, “There is no legal authority supporting appellants’ attempt to hold a supplier liable in strict liability for a product it does not even supply.” The court likewise rejected the plaintiff’s attempt to impose liability in negligence for failure to provide proper field services, including appropriate warnings. This holding was bolstered by the court’s determination that the plaintiff did not offer any evidence that the manufacturer had breached a duty to ensure the proper use of the wooden plank. The Superior Court concluded that, instead of suing the manufacturer of the scaffolding system, the plaintiff “must look to the lumber supplier” who actually made the faulty wooden plank.

On its face, Toth would seemingly translate to apply to an asbestos case, protecting a manufacturer (such as a pump defendant) from a plaintiff’s claim that he or she were harmed from exposure to asbestos related to replacement of another manufacturer’s gaskets and packing utilized in repairing a pump. Yet, Pennsylvania’s appellate courts have not been faced with or ruled upon the issue of whether the “bare metal” defense is applicable in the Commonwealth. Further, the Courts of Common Pleas of Pennsylvania are not in agreement as to whether this defense applies.

For example, the Common Pleas Court’s decision in Kolar v. Buffalo Valves, Inc., 15 Pa.D.&C.5^th 38, 46 (C.P.Phila. Aug. 2, 2010), demonstrates the Philadelphia Court of Common Pleas’ willingness to apply the “bare metal” defense because the plaintiff could not prove that he ever worked on a pump with original, asbestos-containing parts and did not offer any evidence to prove that the asbestos-containing component parts at issue were required by the pump manufacturer. Accordingly, the court granted summary judgment in favor of the defendant. Likewise, the Butler County Court of Common Pleas, citing Toth, granted summary judgment to a defendant valve manufacturer after finding no evidence that the plaintiff was near work on a valve that contained its original packing material or that the defendant supplied replacement packing. See, Milich v. Anchor Packing Co., 2009 Butler County Court of Common Pleas No. A.D. 08-10532 (March 16, 2009).

However, in Allegheny County, the second most active jurisdiction for asbestos litigation in the Commonwealth, the Courts of Common Pleas have vacillated on the applicability of the “bare metal” defense. During Judge Robert Colville’s time on the bench, he chose to apply the “bare metal” defense, in part, finding that a defendant could not be held strictly liable for harms allegedly related to exposure from after-market asbestos-containing replacement parts used on a manufacturer’s product, but the manufacturer could be liable for negligence related to those same component parts if the plaintiff could prove that the defendant manufacturer knew or should have known that asbestos-containing replacement parts would be used with its product and that the components could pose a risk to one’s health. Abandoning Judge Colville’s partial application of the “bare metal” defense, Judges Michael Marmo and Arnold Klein more recently have summarily dismissed the notion that Toth is transferrable to asbestos litigation and that the defense applies at all. The Court of Common Pleas of Allegheny County, now and for the foreseeable future, holds defendant manufacturers both strictly liable and liable in negligence for alleged harms caused by asbestos components utilized with their products or equipment, even if the defendant did not manufacture, distribute, supply or specify the use of such components.

In the backdrop of nationwide litigation, where some states’ higher courts have applied the “bare metal” defense to product manufacturer defendants in asbestos litigation, and against the backdrop of the varying Commonwealth jurisprudence, how will the Supreme Court of Pennsylvania rule when faced with the applicability of this defense? While the ultimate answer may be a coin flip, the U.S. District Court for the Eastern District of Pennsylvania has carefully analyzed the “bare metal” defense in the context of Pennsylvania product liability theories, social policy, and national and common pleas decisions.

In Schwartz v. Abex Corporation, 2015 U.S. Dist. LEXIS 68074 (E.D. Pa. May 27, 2015), Judge Eduardo C. Robreno considered whether a manufacturer of airplane engines could be held liable for another manufacturer’s asbestos-containing external insulation applied to its engines. The District Court acknowledged that the Pennsylvania Supreme Court has not addressed a product manufacturer’s liability under such circumstances. In predicting Pennsylvania’s position, the District Court found that a product manufacturer could not be held strictly liable for component parts that it neither made nor supplied.

The District Court in Schwartz further held that a product manufacturer could not be held liable for negligent failure to warn unless the plaintiff proves that the manufacturer knew that: (i) any asbestos-containing component part of that type would be used with its product; and, (ii) at the time it placed its product into the stream of commerce, there were hazards associated with asbestos. Having addressed both applicable theories of liability, the court made it clear that strict liability is foreclosed to a plaintiff when the product manufacturer did not make or supply the component part. Conversely, the court did leave the door open to negligence-based claims but emphasized that “a product manufacturer is not liable in negligence for injury arising from all foreseeable use of asbestos-containing component parts[,]” as this “would create an undue burden on those product manufacturers.”

The District Court in Schwartz ultimately granted summary judgment for the defendant on both the strict liability and negligence claims. The court’s decision in Schwartz and its analysis, while not binding on the Pennsylvania state and appellate courts, certainly points to the direction in which Pennsylvania courts may eventually rule on this issue.

*Melissa, a shareholder in our Pittsburgh, Pennsylvania office, can be reached at 412.803.1150 or mdcochran@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 3, September 2016. 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}