MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

TABLE OF CONTENTS

  I.  BACKGROUND                                                               628

 II.  LEGAL STANDARD                                                           630

III.  DISCUSSION                                                               630

     A.  Defendants' Arguments                                                 630

     B.  Plaintiffs' Arguments                                                 631

     C.  Manufacturer Liability Under Pennsylvania Law                         632

        1.  Restatement (Second) of Torts § 402A                          633

        2.  Pennsylvania Social Policy                                         641

        3.  Doctrinal Trends                                                   644

        4.  Asbestos-Related Pennsylvania Authority                            648

        5.  Prediction of Pennsylvania Law                                     651

           a.  Strict Liability Claims                                         653

           b.  Negligence Claims                                               654

     D.  General Application of Strict Liability and Negligence Principles     659

     E.  Resolution of the Present Case                                        663

 IV.  CONCLUSION                                                               664

Before the Court is the issue whether, under Pennsylvania law, a manufacturer Defendant is liable for harm arising from asbestos-containing component parts that it neither manufactured nor supplied, but which were used with its product. In the vernacular of the asbestos bar, this is the issue of whether Pennsylvania law recognizes the so-called "bare metal defense."2 To date, the Pennsylvania Supreme Court has never squarely addressed this issue in the context of an asbestos case. Therefore, it will be necessary to predict Pennsylvania state law on this issue in order to resolve Defendant's motion.

For the reasons that follow, the Court now predicts that under Pennsylvania law a manufacturer (or supplier) of a product (1) is not liable in strict liability for after-market asbestos-containing component parts that it neither manufactured nor supplied, even if used in connection with that manufacturer's (or supplier's) product, but (2) has a common law duty — creating a potential cause of action in negligence — to warn of the asbestos hazards of such aftermarket component parts if it (a) knew that an asbestos-containing component part of that type would be used with its product, and (b) knew at the time it placed its product into the stream of commerce that there were hazards associated with asbestos.3 To be clear, a product manufacturer is not liable in strict liability for asbestos-containing component parts that it neither manufactured nor supplied (even if it knew those parts would be used with its product), but can be liable in negligence if it knew those component 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.4

I. BACKGROUND

This case was initially filed in the Philadelphia Court of Common Pleas, and was thereafter removed by Defendant to the United States District Court for the Eastern District of Pennsylvania on grounds of federal officer jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1442, where it became part of MDL-875.

Plaintiffs in asbestos litigation are generally workers (or their heirs) who were exposed to asbestos while working with or around asbestos-containing products. Defendants who raise the so-called "bare metal defense" in asbestos litigation are manufacturers of various products (such as pumps, valves, boilers, turbines, and airplane engines), which were used with asbestos-containing component parts (such as gaskets, packing, or external insulation) that Defendants neither manufactured nor supplied.

Plaintiffs typically bring both negligence and strict product liability claims against Defendants, alleging that Defendants are liable for failing to warn of the hazards of asbestos in component parts manufactured and supplied by entities other than Defendants but used with Defendants' products after Defendants had placed their products into the stream of commerce. As in the present case, Defendants often move for summary judgment on the ground that they are not liable for injuries caused by asbestos products or component parts (such as insulation, gaskets, and packing) that were used in connection with their product, but which they did not manufacture or supply. In other words, Defendants assert the so-called "bare metal defense."

As to the claims now before the Court, Joseph Schwartz, the Decedent in the present action, was employed as an airplane propeller mechanic and crew chief during the years 1957 to 1967, working at two Air Force bases in Pennsylvania. Defendant Pratt & Whitney manufactured airplane engines used with external insulation.5 Mr. Schwartz was diagnosed with mesothelioma, for which Plaintiff alleges Defendant is liable. He was deposed in April of 2005 and died in February of 2006.

Plaintiff concedes that she has not proffered evidence that Defendant manufactured or supplied the particular asbestos-containing component part (external insulation) from which the asbestos exposure at issue is alleged to have occurred. Instead, she argues that Defendant Pratt & Whitney is, nonetheless, liable for injury arising from this insulation because it knew or could foresee that its products (engines) would be used with asbestos-containing external insulation and failed to warn about this anticipated dangerous use of its engines.

Plaintiff's claims against Defendant Pratt & Whitney are governed by Pennsylvania law.6 The Court now considers whether and when, under Pennsylvania law, a product manufacturer is liable for injury caused by asbestos-containing component parts used with its product, but which it neither manufactured nor supplied.7

II. LEGAL STANDARD

Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Court will view the facts in the light most favorable to the nonmoving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

III. DISCUSSION

Defendant has moved for summary judgment arguing that, as a matter of law, it cannot be held liable for injuries caused by asbestos-containing component parts that it did not manufacture or supply, but which were used in connection with its products.8 Plaintiff disagrees and contends that product manufacturers such as Defendant can be liable under existing Pennsylvania law because they have a duty to warn of hazards arising from the component parts used with their products — even though they did not manufacture or supply those component parts. The Court next examines the arguments and authorities advanced by the parties in further detail.

A. Defendants' Arguments

Defendants9 argue that they are entitled to summary judgment because they cannot be liable for products or component parts that they did not manufacture or supply. In support of this argument, Defendants rely upon three decisions from the Pennsylvania Superior Court:10 Eckenrod v. GAF Corp.,11 375 Pa.Super. 187, 544 A.2d 50, 52-53 (Pa.Super.Ct.1988); Toth v. Economy Forms Corp.,12 391 Pa.Super. 383, 571 A.2d 420, 420 (Pa.Super.Ct.1990); and Schaffner v. Aesys Technologies, LLC, 2010 WL 605275 (Pa.Super.Ct. Jan. 21, 2010).

B. Plaintiffs' Arguments13

Plaintiffs contend that, under Pennsylvania law, product manufacturers have a duty to warn of the known asbestos-related hazards of component parts used with their products. In support of this assertion, Plaintiffs rely upon Section 402A of the Restatement (Second) of Torts,14 Berkebile v. Brantly Helicopter Corp.,15 462 Pa. 83, 337 A.2d 893, 898 (Pa.1975) (later abrogated as to certain other points of law), Chicano v. General Electric Co., 2004 WL 2250990 (E.D.Pa. Oct. 5, 2004) (O'Neill, J.), and In re Asbestos Products Liability Litig. (Hoffeditz v. AM General, LLC), 2011 WL 5881008 (E.D.Pa. July 29, 2011) (Robreno, J.) (hereinafter "Hoffeditz").16

Plaintiffs assert that there is evidence that Defendants (1) knew of the asbestos-related dangers of the asbestos-containing component parts at issue17 (including replacement parts such as gaskets and packing), which were used in connection with their products and, (2) in some cases, designed their products such that they could not be properly used without the asbestos-containing components (such as external insulation) that led to Plaintiffs' injuries — and that Defendants therefore had a duty to warn of those hazards.18

C. Manufacturer Liability Under Pennsylvania Law

The Supreme Court of Pennsylvania has never addressed the issue of the so-called "bare metal defense" in the context of asbestos litigation. Therefore, it will be necessary to predict Pennsylvania state law on this issue in order to resolve Defendant's motion. As this MDL Court sits in Pennsylvania, it is well-situated to predict Pennsylvania law on this issue.19 In doing so, the Court looks to relevant state precedents, dicta, scholarly works, and other reliable sources. See, e.g., In re Asbestos Products Liability Litigation (No. VI), 278 F.R.D. 126, 133 (E.D.Pa.2011) (Robreno, J.) (setting forth methodology for predicting Illinois state law in the absence of any precedent on the issue from the Supreme Court of Illinois). It is axiomatic that, in predicting the future course of state common law, "`a federal court must be sensitive to the doctrinal trends of the state whose law it applies.'" Charles Shaid of Pennsylvania, Inc. v. George Hyman Const. Co., 947 F.Supp. 844, 852 (E.D.Pa.1996) (Robreno, J.) (quoting Clark v. Modern Group Ltd., 9 F.3d 321, 327 (3d Cir.1993)). With these principles in mind, the Court examines various sources of authority that will inform its prediction of Pennsylvania law regarding the so-called "bare metal defense."

1. Restatement (Second) of Torts § 402A

The Supreme Court of Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts, which provides, in pertinent part:

Restatement (Second) of Torts § 402A (1965) (first adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853, 854 (1966)) (emphasis added).

In order to apply the provisions of Section 402A, the Court must consider its applicability and construe the language contained therein. In addressing the issue presented by the so-called "bare metal defense," different courts have construed and applied Section 402A in different ways. Some courts have construed it to indicate that a manufacturer of a product (such as pumps, valves, boilers, condulets, or engines) is not liable for injury caused by — and has no duty to warn about hazards presented by — component parts used with its products (such as gaskets, packing, or external insulation) that it neither manufactured nor supplied.20 Other courts have considered Section 402A, yet have held that a product manufacturer can still potentially be liable for injuries arising from — and may have a duty to warn about dangers presented by — component parts used with its products, despite the fact that it neither manufactured nor supplied those component parts. Some of these courts specify that such potential liability would be premised on common law negligence (rather than strict liability),21 while other courts have not been as clear.22

While courts have not always clearly set forth the reasoning behind this determination, it appears that the difference turns in part on how the court construes four key aspects of Section 402A: (1) whether the court construes the provision to apply to negligence claims (in addition to strict liability claims), (2) how the court defines the "product" at issue, (3) how the court construes the "substantial change" provision of 402A, and/or (4) whether and how the court construes 402A to include the concept of "knowledge" or "foreseeability." In light of the prediction of Pennsylvania law made by this MDL Court herein,23 it is not required to address each of these aspects at length. However, for the purpose of providing context and setting forth illustration of the principles surrounding the "bare metal" issue and application of 402A by different courts considering the issue, the Court briefly addresses each of these factors in turn.

a. Strict Liability vs. Negligence Under § 402A

Of great significance to a court's determination of the "bare metal" issue is whether that court deems Section 402A to govern negligence claims (in addition to strict liability24 claims).25 To the extent that a court deems 402A to govern both types of claims, it follows that the outcome on both causes of action would be the same.26 To the extent that a court deems the provision applicable only to strict liability claims (as seems to have been anticipated by the drafters of the provision27), a court will have to perform a separate analysis as to the viability of a plaintiff's negligence cause of action, applying principles of common law under that jurisdiction's law.28

Of significance for the issue now before the Court, the Pennsylvania Supreme Court just recently clarified in Tincher v. Omega Flex, Inc. that, under Pennsylvania law, Section 402A governs only strict liability claims, and that common law negligence claims are subject to a different standard and analysis.29 104 A.3d 328, 336, 345, 358, 381-83, 384 (Pa.2014).

b. Defining the "Product" at Issue

Whether Section 402A supports some version of the "bare metal defense" turns, in part, on how the term "product" is defined. For example if a valve or pump is considered to be one product and the component part (e.g., gasket or packing) is a separate product, then, under one possible construction of Section 402A, a valve or pump manufacturer need only warn of hazards associated with the valve or pump as placed into the stream of commerce (i.e., does not require warning about even the original gaskets and packing contained in the pumps or valves at the time the manufacturer placed it into the stream of commerce). The court has not located any decision in which a court has adopted this somewhat extreme approach. Instead, courts appear to consider that the original component parts are a part of the integrated product the pump or valve manufacturer places into the stream of commerce.30

Under another possible construction of Section 402A, a valve or pump manufacturer need only warn of hazards associated with (1) the valve as placed into the stream of commerce, which includes any (2) original gaskets and packing (or, as occurs occasionally, external insulation) supplied by the manufacturer therewith — and it need not warn of the hazards of replacement gaskets or packing (or external insulation supplied by another entity) later used with the valves (because it neither manufactured nor supplied those replacement gaskets or packing, or the external insulation).31 Rather, only the manufacturer and supplier of the replacement gasket or packing (or external insulation) can be strictly liable for failing to provide warnings about those aftermarket component parts.32

By contrast, if the product at issue is defined to be a "valve with gasket and/or packing" or "boiler with external insulation,"33 then Section 402A can be construed to indicate that the valve or boiler manufacturer has a duty to warn not only of hazards associated with the valve and its original gasket and/or packing (or boiler with any external insulation supplied with it), but also any replacement gasket or packing or external insulation supplied by another entity and used with the boiler after sale.34

In short, whether or not a given state's law recognizes the so-called "bare metal defense" for which defendants argue is a matter determined largely by how that state defines the "product" at issue. As such, the determination is largely a matter of policy. For example, and to provide illustration, in applying Section 402A in Simonetta v. Viad Corporation, the Supreme Court of Washington determined that, "the completed product was the evaporator as delivered by Viad to the navy, sans [i.e., without] asbestos insulation." 165 Wn.2d 341, 362, 197 P.3d 127 (Wash. 2008). As such, it found that the evaporator manufacturer could face no strict liability for injury arising from the insulation. In contrast, in deciding Chicano v. General Electric Co., Judge O'Neill determined that "because the turbines cannot function properly or safely without thermal insulation[, t]he products from which Chicano inhaled asbestos fibers are properly understood to be the turbines covered with asbestos-containing insulation, as fully functional units." 2004 WL 2250990, at *3. Based on this definition of the "product" at issue, Judge O'Neill explained that, under Pennsylvania law35 regarding strict product liability, "there is at least a genuine issue of material fact as to whether GE had a duty to warn of the dangers of the asbestos-containing material that was used to insulate its turbines" even though "GE's marine steam turbines by themselves were not dangerous products" and "were shipped to the Navy without thermal insulation." Id. at *7.

c. "Substantial Change Doctrine" Under § 402A

Whether or not Section 402A supports the "bare metal defense" also turns, in part, on how the court construes the "substantial change" provision of 402A(1)(b).36 For example, even if a court construes the product at issue to be a "valve" or "boiler" (rather than, for example, a "valve with gasket and/or packing" or "boiler with external insulation"), Section 402A(1)(b) can be construed to impose liability on the valve or boiler manufacturer for aftermarket replacement gaskets and/or packing used in connection with its product, or aftermarket external insulation applied to its product, because the after-sale use of those component parts with its product did not constitute a "substantial change" to the valve or boiler as compared to the condition in which it was sold (and was an "expected" or "foreseeable" use of its product37). How a court determines whether there has been a "substantial change," as used in Section 402A(1)(b) is, in the first instance, a matter of policy.

For example, a court could decide that it is always up to the jury to decide whether use of a given aftermarket component part with a manufacturer's product constitutes a "substantial change" to the product the manufacturer placed into the stream of commerce.38 By contrast, a court could decide that, as a matter of law,39 replacing asbestos-containing gaskets and/or packing provided by the valve or pump manufacturer with the valve or pump at the time it was placed into the stream of commerce (i.e., "original" asbestos-containing gaskets and/or packing) with other asbestos-containing gaskets and/or packing40 (which it neither manufactured nor supplied) does not constitute a "substantial change" to the valve as placed into the stream of commerce.41 Or, in the alternative, a court could decide that, as a matter of law, such replacement of original component parts (and/or addition of a component part such as external insulation) always constitutes a "substantial change" to the manufacturer's product.42

d. Knowledge and Foreseeability Under § 402A

Whether or not Section 402A supports some version of the "bare metal defense" also turns, in some scenarios, on whether and how the court construes the provision to include the concept of "knowledge" and/or "foreseeability." Because 402A(1)(b) employs the term "expected to," it can be construed to include liability for certain known or foreseeable circumstances surrounding the use of a manufacturer's product.43 By way of illustration, even if a court construes the product at issue to be a "valve" (rather than a "valve with gasket and/or packing"), 402A(1)(b) can be construed to impose liability on the valve manufacturer for replacement gaskets and/or packing used in connection with its product because the use of those replacement products with its product was "expected" (i.e., "known" and/or "foreseeable") — so long as the use of the replacement gaskets and/or packing was not a "substantial change" to the valve as compared to the condition in which it was sold.44

If a court takes this approach, it must decide whether the determination of what is "expected" (i.e., "known" and/or "foreseeable") is a question of fact and/or an issue of law. For example, a court could decide that it is always up to the jury to decide whether a valve manufacturer "expected" (i.e., "knew" and/or could "foresee") at the time it was placed into the stream of commerce that asbestos-containing replacement gaskets and/or packing would be used to replace the gaskets and/or packing it supplied with the valve (or that asbestos-containing external insulation would be used in conjunction with its valve45). By contrast, a court could decide that, as a matter of law, replacement of asbestos-containing gaskets and/or packing with other asbestos-containing gaskets and/or packing was necessarily "expected" by the defendant product manufacturer (i.e., was "known" by and/or "foreseeable" to the product manufacturer) such that the valve manufacturer would always face liability for injury arising from the replacement gaskets and/or packing (or external insulation) that it "expected" to be used with its valve, but which it neither manufactured nor supplied.46

Courts considering the issue in connection with a strict liability analysis surrounding Section 402A have taken different approaches.47 In Kolar v. Buffalo Pumps, Inc., Judge Mazer Moss made clear that a defendant may be held liable under the "substantial change doctrine" if the manufacturer could have foreseen alteration of its product. 2010 WL 5312168, at *4 (Pa.Com.Pl. Aug. 2, 2010). Similarly, in Chicano, Judge O'Neill determined, based upon then-existent Pennsylvania law regarding strict product liability that, "there is at least a genuine issue of material fact as to ... whether [a turbine manufacturer] could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos" — and, thus, whether the defendant could be liable for injury arising from aftermarket asbestos-containing external insulation. 2004 WL 2250990, at *7.48

In contrast, the California Supreme Court has cited policy reasons for declining to read into Section 402A any assignment of liability for injury arising from "expected" use of asbestos-containing aftermarket component parts. It explained in O'Neil v. Crane Co.:

53 Cal.4th 335, 362-63, 135 Cal.Rptr.3d 288, 266 P.3d 987 (Cal.2012) (citations omitted).

Having examined the provisions of Section 402A of the Restatement (Second) of Torts, whose continuing applicability was confirmed by Tincher, the Court next considers the broader issue of social policy in Pennsylvania.

2. Pennsylvania Social Policy

In Davis v. Berwind Corporation, 547 Pa. 260, 690 A.2d 186 (Pa.1997), the Pennsylvania Supreme Court wrote:

547 Pa. at 266-67, 690 A.2d at 189-90.

Significantly, however, Section 402A of the Restatement (Second) of Torts, which was discussed in Davis, is a provision that deals specifically with strict liability.49 It does not address the parameters for a negligence claim (if any) against product manufacturers.50 The United States Court of Appeals for the Third Circuit recently noted the uncertainty about this issue under Pennsylvania law, when it addressed apparent inconsistencies in the decisions of the Pennsylvania Supreme Court regarding its policies on strict liability and negligence claims against product manufacturers. In its opinion in Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir.2011), the Third Circuit summarized relevant precedent of the Pennsylvania Supreme Court, as follows:

651 F.3d at 360-62 (emphasis added).

Shortly after this decision from the Third Circuit Court of Appeals, the Pennsylvania Supreme Court again addressed the issue of product manufacturer liability under Pennsylvania law. In Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.2014), it confirmed that Pennsylvania will continue to follow the Restatement (Second) of Torts on this issue,51 but clarified that Pennsylvania law recognizes both strict liability and negligence claims against product manufacturers.52 In doing so, however, it focused primarily on the parameters of strict product liability claims.

In addressing policy considerations in Tincher, the Pennsylvania Supreme Court noted goals of (1) imposing financial liability on those entities best situated to prevent harm from products,53 and (2) providing punishment and deterrence of future misconduct for those entities "guilty" of creating those harms.54 Perhaps indicating the relative significance of a third factor, the Court reiterated repeatedly the goal of (3) consumer protection and compensation.55 The Court indicated in its explanations that the policy reasons behind the strict liability and negligence concepts overlap.56 In doing so, however, the Court noted that the standard for establishing a strict liability claim was specifically designed to be more easily satisfied than that for a negligence claim. See 104 A.3d at 364, 401.

After looking at courts' construction of Section 402A and Pennsylvania's statements on social policy, the Court next considers more broadly the doctrinal trends surrounding the so-called "bare metal defense" nationwide.

3. Doctrinal Trends

Appellate courts to have considered the issue of the "bare metal defense" in the context of asbestos litigation have reached different results. Some courts have determined that a manufacturer has no liability for — and no duty to warn about — hazards associated with products or component parts that it did not manufacture or supply. Recently, after a review of caselaw on the issue nationwide, this Court confirmed in Conner v. Alfa Laval, Inc., that maritime law recognizes the "bare metal defense," such that a manufacturer has no liability for — and no duty to warn about — component parts or insulation used in connection with its product(s), but which it did not manufacture or supply. 842 F.Supp.2d 791, 793 n. 2 (E.D.Pa.2012) (Robreno, J.). In doing so, it considered and applied the holding of the United States Court of Appeals for the Sixth Circuit, which had already addressed the issue under maritime law, and which was consistent with the holdings of the Washington Supreme Court, and the California Supreme Court, each of which considered and ruled in favor of recognition of the "bare metal defense" in an asbestos action. See Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir.2005) (applying maritime law); Simonetta v. Viad Corporation, 165 Wn.2d 341, 197 P.3d 127 (Wash.2008); Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (Wash.2008); O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987 (Cal.2012).57 The holdings of the courts in these cases generally foreclose all potential product liability for asbestos-containing component parts not manufactured or supplied by a product manufacturer — whether sounding in strict liability or negligence.58

In contrast, appellate courts in New York have held that, under at least some circumstances, a product manufacturer can be liable for asbestos-containing component parts used with its product(s), but which it did not manufacture or supply. In Berkowitz v. A.C. & S., Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 (N.Y.App. (1st Dept.) 2001), a New York Appellate Division court held that a pump manufacturer could be held liable for injury arising from asbestos-containing insulation manufactured and installed by third parties, where there was evidence that the manufacturer knew that insulation, were it to be used on the pump, would be made of asbestos.59

The issue was again considered more recently by a New York Appellate Division court in In re New York City Asbestos Litigation, 121 A.D.3d 230, 990 N.Y.S.2d 174, 191-92 (N.Y.App. (1st Dept.) 2014). In this decision, the court considered numerous issues on appeal after a jury verdict in favor of numerous defendants, including a valve manufacturer, which challenged the trial court's use of the word "foreseeability" in its instructions to the jury. The Appellate Division upheld the verdict and found that, while "mere foreseeability is not sufficient," it remains that "[t]here is a place for the notion of foreseeability in failure to warn cases where, as here, the manufacturer of an otherwise safe product purposely promotes the use of that product with components manufactured by others that it knows not to be safe." Id. In doing so, it explicitly rejected the valve manufacturer's assertion of the "component parts doctrine."60 Id.

In addition, the Supreme Court of Washington appears to have retreated somewhat from its earlier adoption of the so-called "bare metal defense" in Simonetta and Braaten. Without reversing those decisions, it distinguished the facts in Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 282 P.3d 1069 (Wash.2012), holding that a product manufacturer can at least sometimes be liable for failure to warn of the hazards of asbestos exposure that necessarily occurs as a result of the intended use of the product for the purpose for which it was designed — even if the product itself did not contain asbestos when manufactured and supplied, and the asbestos was released from another manufacturer's product.61 Macias involved asbestos exposure arising from the plaintiff's cleaning of a respirator, which had accumulated asbestos dust released from other asbestos-containing products at a shipyard. In its decision, the Washington Supreme Court explained:

175 Wash.2d at 414-16, 282 P.3d 1069 (emphasis added). Because, as noted by the Supreme Court of Washington in Macias, the facts considered in Simonetta and Braaten involved external insulation (rather than an internal component part), it is not entirely clear from the rationale set forth in Macias whether and how a product manufacturer (such as a valve or pump manufacturer) would be liable under Washington law for internal component parts (such as replacement gaskets and packing) that it did not manufacture or supply that are used in connection with its product.

In short, having reviewed the appellate authority nationwide on this issue, it appears there is no clear majority rule — and that courts permitting some liability on the part of product manufacturers for injury from other entities' component parts utilize different rules and rationales for doing so.62

4. Asbestos-Related Pennsylvania Authority

There are four cases directly addressing the issue of the "bare metal defense" under Pennsylvania law and in the context of asbestos litigation, which the Court now considers (in chronological order):

a. Chicano v. General Electric Co.

Judge O'Neill first considered the issue under Pennsylvania law in 2004 in Chicano v. General Electric Co., 2004 WL 2250990 (E.D.Pa. Oct. 5, 2004). Chicano involved strict liability claims (for an alleged defective warning) brought against a turbine manufacturer when the plaintiff was injured by asbestos-containing insulation used with its turbines. It was undisputed that the defendant did not manufacture or supply the insulation at issue, which was applied externally to its turbines after sale. By way of motion for summary judgment, the turbine manufacturer asserted the so-called "bare metal defense."

Judge O'Neill denied summary judgment. He explained that there was "a genuine issue of material fact as to whether [the defendant turbine manufacturer] had a duty to warn of the dangers of the asbestos-containing material that was used to insulate its turbines," and noted that this was, in part, because there was a fact question for the jury as to "whether [the defendant] could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos." 2004 WL 2250990 at *6.

In reasoning through his decision, Judge O'Neill considered numerous cases from the state and federal courts of Pennsylvania, recognized that Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts, and ultimately noted that, under then-existent Pennsylvania law pertaining to strict liability claims, "[p]articular emphasis has been placed on the foreseeability inquiry." Id. His decision was based, in large part, on Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (Pa.1978) (recently overruled by Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.2014)).

b. Schaffner v. Aesys Technologies, LLC

Several years later, in 2010, the Pennsylvania Superior Court addressed the issue in Schaffner v. Aesys Technologies, LLC, 2010 WL 605275 (Pa.Super.Ct. Jan. 21, 2010).63 Schaffner was an asbestos case in which a boiler manufacturer asserted the so-called "bare metal defense" when facing strict liability defective warning claims for injuries arising from aftermarket asbestos-containing external insulation used in connection with its boilers. Noting that the plaintiff had failed to cite a Pennsylvania asbestos case rejecting the "bare metal defense," the Schaffner court reviewed Section 402A of the Restatement (Second) of Torts (which it noted had been adopted by the Pennsylvania Supreme Court) and then looked outside of Pennsylvania, whereupon it adopted the holdings of courts deciding the issue under maritime, Washington, and California law, which it determined to be the nationwide "majority rule" at the time, and which it deemed consistent with the holding of Toth (a case which did not involve asbestos component parts).64 In deciding that, under the rationales set forth under maritime, Washington, and California law, the boiler manufacturer defendant could not be liable for injury caused by the aftermarket insulation used with its boilers, it explained:

2010 WL 605275, at *6.

While the Schaffner court deemed the holdings of these other jurisdictions to be consistent with the Pennsylvania Superior Court's decision in Toth, it did not specifically consider Pennsylvania policy on the matter — or how Pennsylvania policy may differ from that of California, Washington, or maritime law. Moreover, and perhaps significantly, Toth was factually dissimilar insofar as it was not an asbestos case and did not involve component parts of the type at issue.

c. Kolar v. Buffalo Pumps, Inc.

The "bare metal" issue was also considered in 2010 by Judge Sandra Mazer Moss of the Philadelphia Court of Common Pleas, who has presided over asbestos cases for many years, in Kolar v. Buffalo Pumps, Inc., 2010 WL 5312168 (Pa.Com. Pl. Aug. 2, 2010).66 Kolar was an asbestos case in which the court considered the potential liability of manufacturers of pumps and traps for asbestos-containing gaskets used in connection with the pumps and traps, but not manufactured or supplied by those manufacturers. In Kolar, Judge Mazer Moss made clear that a defendant may be held liable under the "substantial change doctrine" if the manufacturer could have foreseen the alteration of its product that led to injury. 2010 WL 5312168, at *47. However, based on the evidence in that record, she found that the defendants were entitled to summary judgment because "plaintiff could not possibly prove by a preponderance of the evidence defendants should have foreseen asbestos gaskets would be added to their pumps and traps." Id. In doing so, the court distinguished Chicano, noting that "[h]ere, plaintiffs provided not a scintilla of evidence asbestos gaskets would inevitably be added to defendants' pumps and traps. In addition, they presented no evidence the pumps or traps even required asbestos parts." Id.

In summarizing the decision, Judge Mazer Moss stated that "a manufacturer cannot be liable for injury caused by an asbestos part installed onto its product, where it does not make, supply or sell said part, where product does not require the asbestos part to function properly, and where manufacturer does not call for use of said part." Id. at 45-46.67 She explained that her decision "reflects the social policy underlying Pennsylvania's products liability law: personal injury losses should be allocated to those who can best mitigate and avoid such losses.... Pennsylvania courts have generally found manufacturers and sellers able to allocate such losses most effectively through cost increases and insurance. Therefore, liability should be borne by those who control the price and benefit from the profits." Id. at 49 (citations omitted).

Worth noting, although the evidence in that record confirmed only asbestos exposure arising from aftermarket component parts, the Kolar decision indicates that a product manufacturer can be liable under Pennsylvania law for original asbestos-containing component parts — and that such liability is premised on the product manufacturer also being a "supplier" of the original component part.68

d. Hoffeditz v. AM General, LLC

In 2011, this MDL Court broached the "bare metal" issue in a somewhat atypical asbestos case. Hoffeditz v. AM General, LLC involved claims brought against an automobile manufacturer for injury arising from asbestos in replacement brakes used with an automobile after purchase, but neither manufactured nor supplied by the automobile manufacturer. 2011 WL 5881008 (E.D.Pa. July 29, 2011) (Robreno, J.). In its decision in Hoffeditz, this Court considered whether the automobile manufacturer had a duty to warn of the asbestos hazards associated with the asbestos-containing replacement brakes installed on its automobiles. Id.

In holding that the automobile manufacturer had a duty to warn only of the dangers (or defects) of the replacement brakes that it knew of at the time it placed the automobile into the stream of commerce, the Court acknowledged Pennsylvania's adoption of Section 402A of the Restatement (Second) of Torts, and factored in the Berkebile, Toth, Chicano, and Schaffner decisions. Id. at *1 n. 1. The Court deemed Chicano analogous, noting that the defendant therein "knew that its turbines would be insulated with asbestos-containing materials and knew that they were, in fact, insulated with asbestos-containing materials." Id. (quoting Chicano, 2004 WL 2250990 at *2). It found Schaffner distinguishable because that case did not present a fact pattern in which the defendant "knew and/or required asbestos-containing replacement parts to be used in its products." Id.

The outcome in Hoffeditz (which denied the defendant's motion seeking summary judgment on grounds of the "bare metal defense") turned on the facts that the automobiles at issue were initially supplied by the defendant with asbestos-containing brakes already installed, were specifically designed to use asbestos brakes, and could not be used with non-asbestos brakes unless the automobiles were redesigned. Id. The Court deemed this evidence that the defendant knew that its automobiles would be used with asbestos-containing replacement brakes.

In short, this MDL Court held that the defendant had a duty to warn of the hazards of asbestos in the replacement brakes because the plaintiff therein presented evidence that the defendant knew that its automobile would be used with asbestos brakes, and knew that the asbestos in those brakes was hazardous. 2011 WL 5881008, at *1. In keeping with Pennsylvania law existent at that time (prior to Tincher), Hoffeditz was construed to involve only strict liability claims.

5. Prediction of Pennsylvania Law

In predicting whether — and to what extent — the Supreme Court of Pennsylvania would recognize the so-called "bare metal defense" in the context of asbestos litigation, the Court has grappled with the tensions created by and within the various authorities considered above. Of course, of particular difficulty are those inconsistencies in law and policy that appear throughout and within authorities decided under Pennsylvania law. For instance, the Court notes that there are apparent inconsistencies even within the rationale of the Supreme Court of Pennsylvania in a single case: Davis v. Berwind Corporation suggests that a product manufacturer would be liable for asbestos-containing replacement component parts if the original component parts were also asbestos-containing,69 and that a product manufacturer would be liable for external insulation used with its product if the use of that insulation was foreseeable to it.70 547 Pa. at 266-67, 690 A.2d at 189-90. However, Davis appears to simultaneously — and seemingly contrarily — state that a component part seller or manufacturer is best able to shoulder the costs and to administer the risks of a product released into the stream of commerce, and that it is not the purpose of Section 402 to impose absolute liability on product manufacturers — principles that suggest a product manufacturer should not be liable for replacement component parts or external insulation that it did not manufacture or supply.71 Id. The Court is mindful, however, that Davis did not consider a factual scenario involving component parts such as aftermarket replacement parts or external insulation.

Still, there are also inconsistencies in the case law as to whether, when, and how Pennsylvania law imposes liability on a product manufacturer for asbestos-containing aftermarket component parts. The Court notes, however, that these decisions were issued prior to the recent Pennsylvania Supreme Court decision in Tincher, which pronounces the availability of negligence causes of action (in addition to strict liability causes of action) against product manufacturers. As such, the Court perceives that the previous confusion and lack of clarity in Pennsylvania law regarding product liability claims may account for some of these apparent inconsistencies.

For this reason, the Court concludes that the new guidance in Tincher warrants some adjustments to the rules of Pennsylvania law set forth in those cases (and therefore deviation from prior caselaw) to the extent necessary to conform to the policies and legal principles set forth at length in Tincher. At the same time, the Court seeks to reconcile this new guidance with the existent caselaw to the extent possible in order to maximize consistency and continuity in the law while establishing clear guidance for future litigants that is based on sound principles and reasoning. With the benefit of hindsight pertaining to developments in Pennsylvania law — and after having developed some expertise in asbestos-related issues, as a result of having handled thousands of asbestos cases from around the country — the MDL Court is well-situated to address now this important issue of product liability law.

Having weighed the various policy considerations, and paying due deference to doctrinal trends and Pennsylvania's legal guidance, the Court now predicts when and how the Supreme Court of Pennsylvania would impose liability on the manufacturer (or supplier) of a product for injury arising from aftermarket component parts (generally replacement component parts and/or external insulation) used in connection with its product, but which it did not manufacture or supply.

a. Strict Liability Claims

The MDL Court now predicts that, under Pennsylvania law, a manufacturer or supplier of a product is not liable in strict liability for injury arising from replacement component parts and/or aftermarket insulation used in connection with its product, but which it did not manufacture or supply. This result is the product of the construction of two key aspects of Section 402A of the Restatement (Second) of Torts.

First, the 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." Under this construction of the term — where the after-market component part (such as external insulation, replacement gaskets, or replacement packing) is a separate "product" from the manufacturer's "product" (such as a pump, valve, turbine, boiler, or engine) — the 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. See Black's Law Dictionary (7th ed.1999) (requiring for "strict products liability" that the product at issue was, at some point, in the "hands" of the defendant).72 This construction is consistent with the Pennsylvania Superior Court's decision in Schaffner (an asbestos case), which held that "a manufacturer cannot be held liable under a theor[y] of strict liability ... for a product it neither manufactured nor supplied." 2010 WL 605275, at *6.73

Second, the 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.74 The court finds that this result is warranted by, and comports with, the first determination — that a component part is a separate "product" for purposes of application of Section 402A. In short, because the aftermarket component part was never in the "control" of the product manufacturer, the court considers its addition to the manufacturer's product to be a "substantial change" to the product for which principles of strict liability permit the manufacturer to be responsible.75

Importantly, however, the same result need not arise from principles of negligence liability. Therefore, the Court next considers that issue separately.

b. Negligence Claims

It is now clear that Pennsylvania law imposes negligence liability (in addition to strict liability) upon product manufacturers. Tincher, 104 A.3d at 376, 383-84. However, because of the prior confusion in the state on this issue, and the conclusion by many courts that no such negligence cause of action existed, there is a dearth of guidance from the Pennsylvania appellate courts on the requirements for prevailing on such a cause of action.

In Tincher, the Pennsylvania Supreme Court noted that the standard for establishing a strict liability claim in Pennsylvania is designed to be more easily satisfied than that for a negligence claim. See 104 A.3d at 364, 401. With this limited new guidance regarding the parameters of a negligence claim against a product manufacturer, the MDL Court now considers the potential for liability of an asbestos product manufacturer in the context of larger policy concerns.

In discussing the standard for strict liability claims, the Tincher court explained:

104 A.3d at 404-05 (emphasis added). Pursuant to the guidance of the Pennsylvania Supreme Court, the standard for establishing liability of a product manufacturer under a negligence theory would be more stringent and, thus, more difficult to satisfy. See 104 A.3d at 364, 401.

As such, and for the reasons set forth further herein, the Court now predicts that Pennsylvania law would hold a product manufacturer liable in negligence for failing to warn about asbestos hazards of component parts used with its product which it neither manufactured nor supplied (generally aftermarket replacement parts or external insulation) only if the product manufacturer (1) knew its product would be used with an asbestos-containing component part of the type at issue,76 (2) knew (at the time that it placed its product into the stream of commerce) that asbestos was hazardous,77 and (3) failed to provide a warning that was adequate and reasonable under the circumstances.78 In other words, under Pennsylvania law, a product manufacturer has a common law duty to warn about the asbestos hazards of a component part later used with its product, which it neither manufactured nor supplied (i.e., an aftermarket component), if the manufacturer knew its product would be used with that type of asbestos-containing component79 and knew when it placed the product into the stream of commerce that asbestos was hazardous.80

While the Pennsylvania Supreme Court noted in the above-quoted excerpt from Tincher that "traditional negligence theory" typically imposes liability for harms which were "known or foreseeable," it also went to lengths to emphasize that trial courts are to use discretion in applying the principles set forth in Tincher to products different from those addressed in Tincher.81 Specifically, it cautioned that, "in many circumstances, courts may be called upon to examine whether the rule has outrun the reason," and exhorted that "judicial modesty counsels that we be content to permit the common law to develop incrementally, as we provide reasoned explications of principles pertinent to factual circumstances of the cases that come before the Court." 104 A.3d at 405-06.

Of particular significance, the cases now before the Court (and all cases presenting the "bare metal" issue) are distinguishable from Tincher in that the issue presented pertains to liability of a product manufacturer for a product that it did not manufacture or supply.82 Therefore, the principles set forth by the Pennsylvania Supreme Court in Tincher must be carefully considered and applied in accordance with common sense and principles of fairness in applying them to this unusual factual scenario presented by the asbestos cases. It is after having factored in the specifics of the asbestos product liability cases — and having weighed the various competing considerations of protecting and compensating consumers, imposing liability on those best situated to prevent harm, and providing punishment and deterrence for those "guilty" of causing harm — that the MDL Court now predicts that a product manufacturer has a duty under Pennsylvania law to warn about the asbestos-related hazards of component parts it neither manufactured nor supplied only where the manufacturer knew that its product would be used in connection with a particular hazardous asbestos-containing component — and is not required to warn about all foreseeable hazards that could arise in connection with its product.

The Court holds further that, as a matter of law, the first requirement for negligence liability is always satisfied when a plaintiff can demonstrate that, at the time the product was placed into the stream of commerce by the defendant, it contained an asbestos-containing component part of the type at issue (i.e., it was supplied with original asbestos-containing gaskets, packing and/or external insulation) without an adequate asbestos-related warning.83 In other words, a product manufacturer who knows of the hazards of asbestos (thus satisfying the second requirement for negligence liability) and supplies its product with an original asbestos-containing component part already installed — always has a duty, under Pennsylvania law, to warn about asbestos hazards associated with that type of aftermarket component part. This is because, under these circumstances, there can be no genuine dispute as to whether the product manufacturer knew its product would be used with asbestos-containing component parts of that type. This approach is consistent with the holdings of Hoffeditz, Kolar, and Chicano.

To be clear, a product manufacturer is not liable in negligence for injury arising from all foreseeable use of asbestos-containing component parts (or all foreseeable injury associated with aftermarket component parts). To require a product manufacturer to warn of all foreseeable hazards that could arise in connection with its product (regardless of whether the manufacturer actually knew that such hazards would be present) would create an undue burden on those product manufacturers — in terms of both efforts required for investigation of potentially foreseeable hazards and financial penalties imposed for hazards not discovered — which would deter the development and production of goods in our society.84 Moreover, such a policy could result in an increase in consumer prices so large as to be prohibitive for an unreasonably large portion of the consumer population.

In drawing this line, though, the Court recognizes the practical difficulties for injured plaintiffs of identifying the manufacturers (and, sometimes, the suppliers) of aftermarket component parts — and, in particular, the gaskets and packing so frequently at issue in asbestos cases. The Court is aware that limiting a plaintiff's recovery to that from the manufacturers (and suppliers) of the gaskets and packing used with, for example, a pump, would have the practical effect of precluding recovery in most instances. This is because the asbestos exposure arising from an aftermarket component part is generally experienced as a result of removal (rather than installation) of the component — long after its packaging has been discarded by the individual who installed it — and after normal use of the component part (in high heat temperatures, with constant exposure to water) has frequently deteriorated any identifying labeling or warning that may have initially appeared on the component prior to its use (to the extent any such on-product labeling of a component part like gaskets or packing is even possible). In this very common scenario, a plaintiff is unable to identify the manufacturer or supplier of the gasket or packing that released the asbestos, although the pump manufacturer is generally easy to identify.

To create a rule of law that ignores the interconnection of product and component part manufacturers — and their abilities to use the market to distribute loss and liability amongst themselves — would be to ignore the realities of the economic world in which products are created.85 Moreover, imposing a duty to warn (and accompanying liability for failure to warn) only on the entity(ies) most difficult and unlikely for an injured plaintiff to identify would have the practical effect of reducing significantly the potential liability of product and component part manufacturers for the hazards their interconnected products may create. While other jurisdictions have adopted a rule that, in effect, yields this result,86 it is now clear from Tincher that this result conflicts with Pennsylvania law's primary policy goal of consumer protection and compensation and its deliberate creation of two separate and different claims against product manufacturers (sounding in both negligence and strict liability) designed to further that policy objective.

In taking this approach, however, the Court balances this policy goal with considerations of fairness to product manufacturers (such as the pump manufacturers), who are not the only entity involved in the creation and supply of the hazard from which the plaintiff was injured. It is, in part, for this reason that the Court has determined that a product manufacturer is not liable for all foreseeable hazards associated with aftermarket component parts — or even that it has a duty to undertake reasonable investigation to identify all potential hazards associated with those parts — despite the fact that the Pennsylvania Supreme Court has acknowledged in Tincher that this is generally the standard (or duty) associated with common law negligence liability. 104 A.3d at 404-05.

In short, the Court has drawn a line of liability that seeks to further all three stated policy considerations of the Pennsylvania Supreme Court while factoring in practical considerations, common sense, and fairness to all potential defendants so that the rule has not "outrun the reason." The rule set forth herein encourages both product and component part manufacturers to provide warnings of hazards like asbestos, such that injuries to plaintiffs can be avoided — and, where a failure to provide such warnings has occurred, allocates to each type of entity some amount of financial liability to plaintiffs who are injured as a result of that failure.87

Utilizing this prediction of Pennsylvania law, the Court will next consider whether and when a plaintiff has carried his or her burden of proof.

D. General Application of Strict Liability and Negligence Principles

For purposes of illustrating the application of the principles set forth herein, the Court now considers a number of scenarios that may be presented in an asbestos action brought against product and component part manufacturers and suppliers, and explains how the cases now before the Court fit into these scenarios.88 The evidence and factual scenarios presented in asbestos cases will almost always fall into one of the following scenarios:

1. Product Manufacturer Scenario No. 1

A pump manufacturer is sued for injury from asbestos-containing aftermarket packing that it did not manufacture or supply but which was used with the pump after it was placed into the stream of commerce (e.g., replacement packing installed into the pump a year after the customer began using the pump). In this scenario, when the pump was placed by the manufacturer into the stream of commerce, it contained asbestos packing that the pump manufacturer had purchased from a packing manufacturer and installed into its pump (i.e., the pump contained "original" asbestos packing). Under this Court's prediction of Pennsylvania law, the pump manufacturer: (a) is not liable in strict liability, but (b) is potentially89 liable in negligence because it cannot be genuinely disputed that the pump manufacturer knew its pump would be used with asbestos packing (as evidenced by the fact that it initially placed the pump into the stream of commerce with asbestos packing already installed).

2. Product Manufacturer Scenario No. 2

A valve manufacturer is sued for injury from asbestos-containing aftermarket gaskets that it did not manufacture or supply but which were used with the valve after it was placed into the stream of commerce (e.g., gaskets installed into the valve at some time after the customer began using the valve). In this scenario, when the valve was placed by the manufacturer into the stream of commerce, it contained an asbestos gasket that the valve manufacturer had purchased from a gasket manufacturer and installed into its valve (i.e., the valve contained "original" asbestos gaskets). However, in this scenario, the plaintiff does not have any evidence of the fact that the valve was placed into the stream of commerce with "original" asbestos gaskets (or other evidence that the Defendant knew that the valve would be used by the customer with asbestos gaskets). Under this Court's prediction of Pennsylvania law, the valve manufacturer: (a) is not liable in strict liability because the injury arose from the aftermarket replacement gasket (not the original gasket supplied by the valve manufacturer), and (b) is not liable in negligence because there is no evidence that the valve manufacturer knew its valve would be used with asbestos gaskets.

3. Product Manufacturer Scenario No. 3

A turbine manufacturer is sued for injury from asbestos-containing aftermarket gaskets that it did not manufacture or supply but which were used with the turbine after it was placed into the stream of commerce (e.g., gaskets installed into the turbine at some time after the customer began using the turbine). In this scenario, when the turbine was placed by the manufacturer into the stream of commerce, it contained a neoprene (i.e., asbestos-free) gasket that the turbine manufacturer had purchased from a gasket manufacturer and installed into its turbine (i.e., the turbine did not contain "original" asbestos gaskets). In this scenario, the plaintiff does not have any evidence that the turbine manufacturer knew its turbine would be used with asbestos aftermarket gaskets. Under this Court's prediction of Pennsylvania law, the turbine manufacturer: (a) is not liable in strict liability because the injury arose from the aftermarket replacement gasket (not the original gasket supplied by the turbine manufacturer), and (b) is not liable in negligence because there is no evidence that the turbine manufacturer knew its turbine would be used with asbestos gaskets.

4. Product Manufacturer Scenario No. 4

A boiler manufacturer is sued for injury from asbestos-containing aftermarket gaskets that it did not manufacture or supply but which were used with the boiler after it was placed into the stream of commerce (e.g., gaskets installed into the boiler at some time after the customer began using the boiler). In this scenario, when the boiler was placed by the manufacturer into the stream of commerce, it contained a neoprene (i.e., asbestos-free) gasket that the boiler manufacturer had purchased from a gasket manufacturer and installed into its boiler (i.e., the boiler did not contain "original" asbestos gaskets). In this unusual scenario, however, the plaintiff has evidence that the boiler manufacturer knew its boiler would be used by the customer with asbestos after-market gaskets (e.g., a letter from the customer setting forth its purchase order, which states that the customer needs a boiler that will function with its existent vast supply of asbestos-containing gaskets of a certain size). Under this Court's prediction of Pennsylvania law, the boiler manufacturer: (a) is not liable in strict liability because the injury arose from the aftermarket replacement gasket (not the original gasket supplied by the boiler manufacturer), but (b) is potentially liable in negligence because there is evidence that the boiler manufacturer knew its boiler would be used with asbestos gaskets.

5. Product Manufacturer Scenario No. 5

An engine manufacturer is sued for injury from asbestos-containing aftermarket insulation that it did not manufacture or supply but which was used with the engine after it was placed into the stream of commerce (e.g., insulation installed around the engine at some time after the customer began using the engine). In this scenario, when the engine was placed by the manufacturer into the stream of commerce, it did not have any external asbestos insulation installed on it and was not supplied by the engine manufacturer with accompanying asbestos insulation (i.e., the engine was not supplied with "original" asbestos insulation). In this scenario, the plaintiff does not have any evidence that the engine would be used with aftermarket asbestos insulation. Under this Court's prediction of Pennsylvania law, the engine manufacturer: (a) is not liable in strict liability because the injury arose from aftermarket insulation, and (b) is not liable in negligence because there is no evidence that the engine manufacturer knew its engine would be used with asbestos insulation.

6. Product Manufacturer Scenario No. 6

An engine manufacturer is sued for injury from asbestos-containing aftermarket insulation that it did not manufacture or supply but which was used with the engine after it was placed into the stream of commerce (e.g., insulation installed around the engine at some time after the customer began using the engine). In this scenario, when the engine was placed by the manufacturer into the stream of commerce, it did not have any external asbestos insulation installed on it and was not supplied by the engine manufacturer with accompanying insulation (i.e., the engine was not supplied with "original" insulation — whether asbestos-containing or asbestos-free). In this scenario, the plaintiff has evidence that the Defendant knew the engine would be used with aftermarket insulation. However, the plaintiff does not have evidence that the engine manufacturer knew the engine would be used with asbestos-containing insulation (as opposed to asbestos-free insulation). Under this Court's prediction of Pennsylvania law, the engine manufacturer: (a) is not liable in strict liability because the injury arose from aftermarket insulation, and (b) is not liable in negligence because there is no evidence that the engine manufacturer knew its engine would be used with asbestos insulation (as opposed to asbestos-free insulation).

7. Product Manufacturer Scenario No. 7

A pump manufacturer is sued for injury from asbestos-containing aftermarket gaskets and packing that it did not manufacture or supply but which were used with the pump after it was placed into the stream of commerce (e.g., replacement gaskets and replacement packing installed into the pump approximately a year after the customer began using the pump). In this scenario, when the pump was placed by the manufacturer into the stream of commerce, it contained asbestos gaskets and asbestos packing that the pump manufacturer had purchased from gasket and packing manufacturers and installed into its pump (i.e., the pump contained "original" asbestos gaskets and "original" asbestos packing). In this scenario, the pump manufacturer had included a warning on the pump about the asbestos hazards associated with asbestos gaskets (but did not include a warning on the pump regarding the asbestos hazards associated with asbestos packing). Under this Court's prediction of Pennsylvania law, the pump manufacturer: (a) is not liable in strict liability because the injury arose from aftermarket gaskets or packing, (b) is potentially liable in negligence for injury arising from the aftermarket asbestos packing — even though it provided a warning regarding asbestos gaskets — because it cannot be genuinely disputed that the pump manufacturer knew its pump would be used with asbestos packing (as evidenced by the fact that it initially placed the pump into the stream of commerce with asbestos packing already installed) — and it did not provide a warning regarding the hazards of asbestos packing, and (c) is, generally,90 not liable in negligence for injury arising from the aftermarket asbestos gaskets because it provided a warning on the pump pertaining to the hazards of asbestos gaskets.

8. Product Supplier (All Scenarios)

Under this Court's prediction of Pennsylvania law, a supplier of a product (such as a pump, valve, turbine, boiler, or engine) is liable for injury from an asbestos-containing aftermarket component (e.g., replacement gaskets, replacement packing, or external insulation installed or applied to the product after it passed through the supplier's hands) to the same extent as the product manufacturer. Therefore, in short, a product supplier can merely be substituted for the product manufacturer in the above scenarios.91

9. Insulation Manufacturer (All Scenarios)

Under this Court's prediction of Pennsylvania law, an insulation manufacturer is always subject to liability in both strict liability and negligence for injury arising from its insulation if it did not provide an adequate warning about any asbestos hazards associated with its insulation. This is true regardless of whether the insulation is utilized as "original" insulation or "after-market" insulation.92

10. Component Part Manufacturer (All Scenarios)

Under this Court's prediction of Pennsylvania law, a manufacturer of a component part (such as gaskets or packing) is always subject to liability in both strict liability and negligence for injury arising from the component part it manufactured if it did not provide an adequate warning about any asbestos hazards associated with its component part. This is true regardless of whether the component part is utilized as an "original" part or as an "after-market" or "replacement" part.93

11. Insulation Supplier (All Scenarios)

Under this Court's prediction of Pennsylvania law, an insulation supplier is always subject to liability in both strict liability and negligence for injury arising from insulation it supplied if it did not provide (or pass along) an adequate warning about any asbestos hazards associated with that insulation. This is true regardless of whether the insulation is utilized as "original" insulation or "aftermarket" insulation.94

12. Component Part Supplier (All Scenarios)

Under this Court's prediction of Pennsylvania law, a supplier of a component part (such as gaskets or packing) is always subject to liability in both strict liability and negligence for injury arising from the component part it supplied if it did not provide (or pass along) an adequate warning about any asbestos hazards associated with that component part. This is true regardless of whether the component part is utilized as an "original" part or as an "aftermarket" or "replacement" part.95

E. Resolution of the Present Case

The Court now applies its prediction of Pennsylvania law to the evidence and factual scenario presented in the case now before the Court:

Plaintiff alleges that Mr. Schwartz was exposed to asbestos from insulation that covered propeller controls, fuel lines, and engine controls on engines manufactured by Defendant Pratt & Whitney for C-118 aircraft — and that this exposure was a cause of Mr. Schwartz's illness.96 The parties do not dispute that Defendant neither manufactured nor supplied the insulation at issue. There is evidence in the record that (arguably) supports a conclusion that Defendant knew its engines would be insulated with asbestos-containing insulation. (Ex. E to Def. Mem. of Law in Support of Mot. for Summary Judgment, at 23, ECF No. 61.97)

This scenario is like Product Manufacturer Scenario No. 4 in the examples above, which leads to two conclusions: (1) because there is no evidence that Defendant manufactured or supplied the insulation used with its engine, which caused Mr. Schwartz's illness, Defendant is entitled to summary judgment on Plaintiff's strict liability claims against it; and (2) because there is evidence in the record that (arguably) supports a conclusion that Defendant knew its engines would be insulated with asbestos-containing insulation, Defendant is potentially liable in negligence (if all elements of the negligent failure to warn cause of action are satisfied).

In this case, however, the Court has ultimately determined that Defendant is also entitled to summary judgment on Plaintiff's negligent failure to warn claim because there is no evidence in the record that Pratt & Whitney knew of the hazards of asbestos at the time it placed the engines at issue into the stream of commerce (or any other time).98 In other words, Plaintiff's evidence satisfied some, but not all, of the requirements of a negligent failure to warn claim.

In short, when applying the Court's prediction of Pennsylvania law on the issue of the so-called "bare metal defense," the evidentiary record in this case requires that summary judgment be granted in its entirety in favor of Defendant Pratt & Whitney.

IV. CONCLUSION

The Court concludes that, under Pennsylvania law, a manufacturer (or supplier) of a product (1) is not strictly liable for aftermarket asbestos-containing component parts (such as gaskets, packing, or insulation) that it neither manufactured nor supplied — even though used in connection with that manufacturer's (or supplier's) product, but (2) has a duty (premised on common law and creating a cause of action in negligence) to warn of the asbestos hazards of such aftermarket component parts if it (a) knew that an asbestos-containing component part of that type would be used with its product, and (b) knew (at the time it placed its product into the stream of commerce) that there were hazards associated with asbestos.

The Court further concludes and clarifies that, as a matter of law, a manufacturer (or supplier) of a product who knows of the hazards of asbestos and places its product into the stream of commerce with an asbestos-containing component part already installed (or accompanying the product) always has a duty to warn of asbestos-related hazards associated with aftermarket replacement component parts of that type.

Summary judgment in favor of Defendant Pratt & Whitney is granted with respect to Plaintiff's strict liability claims arising from aftermarket external insulation because, under Pennsylvania law, a manufacturer is never strictly liable for injury caused by aftermarket insulation (or aftermarket component parts). Summary judgment in favor of Defendant is granted with respect to Plaintiff's negligent failure to warn claims arising from aftermarket external insulation because, although Plaintiff has identified evidence that Pratt & Whitney (a) knew its engines would be used with asbestos-containing aftermarket external insulation, there is no evidence in the record that it (b) knew (at the time it placed the engines at issue into the stream of commerce) that asbestos was hazardous. In light of this insufficiency in the evidence, summary judgment on Plaintiff's negligent failure to warn claim is warranted regardless of whether there is evidence that Defendant (c) failed to provide an asbestos-related warning that was adequate and reasonable under the circumstances — because, under Pennsylvania law, a product manufacturer (or supplier) has a duty to warn only of asbestos hazards it knows are present in the aftermarket component parts it knows will be used in connection with its product.

An appropriate order follows.

ORDER

AND NOW, this 27th day of May, 2015, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that the Second Motion for Summary Judgment of Defendant Pratt & Whitney (ECF No. 61) is GRANTED.

AND IT IS SO ORDERED.