Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania recently addressed the novel issue of whether Pennsylvania recognizes the so-called "bare metal defense" in the context of an asbestos case.1 The court predicted that if the Pennsylvania Supreme Court considered the bare metal defense, it would rule that under Pennsylvania law, a manufacturer (or supplier) in Pennsylvania is not liable in strict liability for asbestos-containing parts that it neither manufactured nor supplied, even if it knew those parts would be used with its products. However, the court went on to rule that a manufacturer can be liable in negligence if it knew that asbestos 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.2 In other words, the court predicted that the manufacturer does have a common law duty to warn of the hazards of aftermarket component parts even though the manufacturer never made or had any control over the manufacture of the parts.
In Schwartz, the decedent-plaintiff ("Plaintiff") was employed as an airplane propeller mechanic and crew chief from 1957 to 1967 at two Air Force bases in Pennsylvania. Defendant Pratt & Whitney ("Defendant") manufactured airplane engines. When installed, the engines were insulated, often with asbestos-containing insulation manufactured by another company. Plaintiff was diagnosed with mesothelioma allegedly caused by asbestos exposure and died in February 2006. Plaintiff did not allege that Defendant manufactured or supplied the asbestos-containing insulation, but rather, that Defendant knew or should have foreseen that its engines would be used with asbestos-containing insulation. Plaintiff alleged that Defendant failed to warn about the anticipated dangerous use of asbestos insulation with its engines and was therefore liable for the alleged resulting harm.
The court looked to the Restatement (Second) of Torts § 402A, which has been adopted by Pennsylvania courts. Under Section 402A, a manufacturer can be liable in strict liability for harm caused by its product if the product is expected to, and does, reach the user without substantial change.3 The court's decision in Schwartz turned on the court's interpretation of both the term "product" and the phrase "substantial change." The court found that "product" refers to the discrete part produced by the manufacturer, prior to the addition of any asbestos-containing components.4 The court further held that the addition of an asbestos-containing component would always constitute a "substantial change" to the manufacturer's product.5 The effect was to bar all strict liability claims under the bare metal defense.
As a result, the court granted Defendant's summary judgment motion, barring all strict liability claims. The court further granted summary judgment as to the negligence claims, finding that while Defendant knew its products would be used with asbestos-containing insulation, it was unaware at the time of the hazards of asbestos.
The court's holding in Schwartz will allow manufacturers of products that were subsequently used with asbestos containing parts—such as gaskets, packing, or external insulation—to assert a defense against strict liability claims in asbestos cases. However, the decision in Schwartz still allows for plaintiffs to succeed in proving liability under a theory of negligence where it can be shown that the defendant knew of the hazards of asbestos and had knowledge that its product would be used with hazardous asbestos-containing materials.
Judge Robreno's decision is not binding in Pennsylvania state courts. In addition, it is based on a number of policy decisions that he believes represent the state of the law in Pennsylvania. Whether the ruling in Schwartz will be adopted by the trial and appellate courts in Pennsylvania will depend on future arguments by plaintiffs and defendants challenging or supporting the rationale set forth in the opinion.
1 Schwartz v. Abex Corp., et al., MDL-875, E.D. PA Civil Action No. 2:05-CV-02511-ER, 2015 U.S. Dist. LEXIS 68074 (E.D. Pa. May 27, 2015).
2 Id. at *3-*4.
3 Restatement (Second) Torts § 402A.
4 "[T]he Court finds that, when applying Section 402A, Pennsylvania law would construe the term 'product' such that an aftermarket component part is not the manufacturer's 'product.' . . . [T]he concept of 'strict liability,' as commonly understood, precludes such liability for the product manufacturer when the asbestos injury was caused by asbestos in the aftermarket component part—a part that was never in the control of the product manufacturer." Schwartz, 2015 U.S. Dist. LEXIS 68074, at *74-*75.
5 "[T]he Court predicts that, when applying Section 402A, Pennsylvania law would hold that, as a matter of law, replacement of original component parts (and/or addition of a component part such as external insulation) constitutes a 'substantial change' to the manufacturer's product, for purposes of strict liability." Id. at *76-*77 (emphasis in original).
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