On July 7, 2021, U.S. District Court Judge Eduardo C. Robreno, who oversees the asbestos multi district litigation (MDL 875) in the Eastern District of Pennsylvania, applied a new standard set forth by the U.S. Supreme Court in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019) in granting summary judgment for two turbine defendants accused of causing the decedent’s asbestos-related disease. Defendants General Electric (GE) and CBS Corporation (CBS) allegedly incorporated asbestos-containing components on their products to which the decedent was later exposed. Judge Robreno concluded that, even under the Supreme Court’s new maritime bare metal test, plaintiffs failed to show that the turbines supplied by defendants required the incorporation of asbestos insulation and that the defendants therefore had no duty to warn of any alleged hazards. Whether a defendant’s product “required” the incorporation of an asbestos-containing component is a threshold factor in determining if the defendant can be liable for causing or contributing to an asbestos-related disease under the Supreme Court’s new standard. Devries, et al., v. General Electric Co., et al., Case No. 5:13-cv-00474.

Background

Plaintiffs contended that John B. DeVries died of mesothelioma from exposure to asbestos in the U.S. Navy between 1957 and 1960. Defendants GE and CBS manufactured steam turbines aboard the ship on which Mr. DeVries served. Mr. DeVries was allegedly exposed to asbestos dust from insulation attached to those turbines. GE and CBS, however, delivered the turbines to the shipyard “bare metal,” meaning without any external insulation. Instead, the insulation was later installed on the turbines at the shipyard by naval contractors.

In 2014, the district court granted summary judgment for GE and CBS on these facts, finding they were not liable based on the “bare metal defense” and holding that manufacturers were not liable for injuries caused by asbestos parts not supplied by that manufacturer. The U.S. Supreme Court later accepted the case to resolve a circuit court split on the legal duty to warn in such circumstances under maritime law. On March 19, 2019 the Supreme Court announced the new maritime bare metal test for district courts to employ in determining the existence of a duty to warn.

Under the new test, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize the danger. The Supreme Court directed the district court to reconsider its prior grant of summary judgment under the new test – resulting in Judge Robreno’s July 7, 2021 order.

The “Requires” Prong of the Maritime Bare Metal Test

Under the new maritime bare metal test, a manufacturer can only be liable for a defendant’s injuries if it “required” the part that allegedly caused the injury at issue. A product “requires” a part under this test when (i) a manufacturer directed that the part be incorporated into the product, (ii) a manufacturer itself made the product with a part that the manufacturer knew would require replacement with a similar part, or (iii) a product would be useless without the part. Granting summary judgment for GE and CBS, the Eastern District of Pennsylvania found that plaintiffs were unable to establish that the defendants “required” the application of asbestos-containing insulation to its turbines, thus failing the initial prong of the new test.

First, plaintiffs failed to show that GE and CBS directed asbestos insulation be incorporated onto the turbines. Plaintiffs only produced evidence that the defendants manufactured some land-based turbines with asbestos-containing insulation. Judge Robreno, however, found that plaintiffs produced no relevant evidence that GE and CBS specified or directed the incorporation of asbestos insulation on their maritime turbines.

Second, there was “no serious dispute” that GE and CBS sold and delivered the turbines at issue without asbestos-containing insulation. The parties agreed that the turbines left defendants’ custody without any external insulation. Finally, both parties agreed that non-asbestos-containing insulation, a functionally equivalent insulation that would have enabled proper turbine functioning, was available and approved by the Navy. Therefore, the turbines would not have been “useless” without the asbestos-containing insulation later applied by the naval contractors and plaintiffs could not establish that defendants “required” the insulation that allegedly caused decedent’s disease. The court did not address the remaining elements of the maritime bare metal test after plaintiffs were unable to satisfy this threshold inquiry.

Insights

Judge Robreno’s decision provides insight into the application of the new maritime bare metal test adopted by the Supreme Court. With the new test, plaintiffs bear the burden of producing compelling evidence that the injury causing product required a specific part. Here, it was significant that the parties agreed that GE and CBS sold and delivered the turbines without asbestos-containing insulation. This weighed heavily on plaintiffs’ ability to show whether the insulation was required. Notably, other defendants were denied summary judgment after the court found “genuine disputes as to the material fact” of whether products were sold with asbestos-containing parts and/or whether the defendants knew they would be replaced with similar parts. Clearly, then, the new test depends heavily on fact-specific scenarios and (for now) narrowly applies only in the maritime context.

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Photo of Danielle Luisi Danielle Luisi

Danielle defends product liability, premises liability, toxic tort and environmental claims. Serving as part of national coordinating counsel and trial teams for corporations in toxic tort litigation, Danielle has been instrumental in formulating defense strategies and managing cases in some of the nation’s

Danielle defends product liability, premises liability, toxic tort and environmental claims. Serving as part of national coordinating counsel and trial teams for corporations in toxic tort litigation, Danielle has been instrumental in formulating defense strategies and managing cases in some of the nation’s busiest mass tort jurisdictions on behalf of a diverse group of clients. Through her strong advocacy, effective motion practice and trial preparation, Danielle secures dismissals and cost-effective resolutions in the overwhelming majority of cases.

Photo of Erin Beachum Erin Beachum

Erin defends clients in toxic tort and product liability matters.

Erin first came to the legal industry as a paralegal and quickly realized that the field would be an excellent fit for her love of writing and public speaking. However, what she enjoyed

Erin defends clients in toxic tort and product liability matters.

Erin first came to the legal industry as a paralegal and quickly realized that the field would be an excellent fit for her love of writing and public speaking. However, what she enjoyed most about her paralegal role was simply working with clients: Erin loved getting to know their businesses and observing how the firm worked to customize legal strategies to fit individual client goals. Enthusiastic about the opportunity to work more directly with clients and help them get to where they wanted to be, Erin enrolled in law school.

As a law student, Erin soon discovered that she was especially fascinated by her tort classes. She knew mass tort would be a practice area applicable to a wide variety of clients and businesses, and she contributed to product liability research during her summer associateship at Husch Blackwell. Today, Erin represents clients in both mass tort and product liability litigation and particularly enjoys getting to know each individual client’s business.

Many of the matters Erin works on take place in highly contentious Illinois venues for toxic tort cases, allowing her to draw on her experience as a judicial extern in Cook County. Erin’s externship gave her the opportunity to work directly with a Cook County judge, getting a full perspective on how courts work and observing the interplay between judges and attorneys. She also draws on her award-winning work in law school moot court, where she learned to think quickly on her feet and to know her argument backwards and forwards.

At the end of a case, Erin wants clients to be confident that she’s done everything in her power to fight for them.