Court Grants Summary Judgment to Turbine Defendants Finding Manufactures Entitled to Bare-Metal Defense

United States District Court for the Eastern District of Pennsylvania, April 1, 2022

The decedent’s widow brought this suit on behalf of the decedent alleging that the decedent’s occupational exposure to asbestos during his time in the Navy is attributable to turbines manufactured by the Westinghosue Corporation. The plaintiff also brought suit against the defendant CBS Corporation alleging CBS is a successor by merger of Westinghouse. The plaintiff also contends decedent’s injuries were caused in part by turbines manufactured by General Electric Company.

The defendant General Electric Company moved for summary judgment on several grounds, including that, because its products were delivered to the United States Navy “bare metal,” it cannot be held liable under the Supreme Court’s test outlined in the DeVries test. The defendant General Electric argued that under the test it had no duty to warn decedent and that the plaintiff cannot show that General Electric’s products required the incorporation of asbestos. The defendant CBS also argued that it is entitled to summary judgment because it is not liable for asbestos allegedly provided by a third-party under the test announced by the Supreme Court in DeVries. The defendant CBS argues that even if the plaintiff could demonstrate decedent was exposed to asbestos associated with a Westinghouse turbine, CBS would be entitled to the bare metal defense under the DeVries test.

In DeVries, the Supreme Court announced a new test for manufacturers’ liability in duty to warn cases under maritime law. The court held that a manufacturer has a duty to warn where (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 that danger.

With respect to assessing manufacturer liability for dangerous parts added to products by a third-party, the DeVries test holds that a manufacturer has a duty to warn where (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 that danger.

To provide further clarity on the first prong of its tests, the court provided that a product requires incorporation of a part where: (i) a manufacturer directs that the part be incorporated, (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, or (iii) a product would be useless without the part.

With respect to General Electric’s motion, the court found that the plaintiff failed to show GE directed the incorporation of asbestos. GE offered evidence that the Military Specifications governing turbines, relevant to decedent’s work history, directed suppliers of equipment to deliver the machinery without insulation—so that it could be properly installed—and provided that the shipbuilder who installed the equipment must provide insulation in conformance with its own specifications. The plaintiff’s evidence that GE specific insulation on its non-Navy use products was not enough to rebut GE’s argument. GE was also able to prove that GE did not manufacture the products with asbestos insulation as the contract between GE and the Navy provided that insulation shall be furnished by the shipyard and shall conform” to the relevant Navy specification. The plaintiff offered no evidence to rebut this contention.

The court found GE met the third prong of the DeVries test finding that the parties agreed there were alternatives to asbestos available that would have allowed the turbines to function. As such, the plaintiff could not show that GE’s turbines could not function without asbestos insulation. Based on the above, the court granted summary judgment in favor of General Electric Corporation. 

As to CBS’ motion, the court found that plaintiff failed to show that Westinghouse directed the incorporation of asbestos. CBS pointed to evidence that Westinghouse products procured by the Navy where required to adhere to strict Military Specifications. These specifications relevant to decedent’s work history required that Naval turbines be delivered bare metal, without any insulation applied. As such, the insulation would have been supplied by the shipbuilder, not Westinghouse. Plaintiff attempted to rebut CBS’ showing by arguing to an internal Westinghouse newspaper that The newspaper described production of asbestos “topcoats” for turbines in Westinghouse’s South Philadelphia Works in Lester, Pennsylvania. The court rejected this argument recognizing that evidence related to a manufacturer’s use of asbestos on land-based turbines built for civilian uses sheds little light on equipment developed in conformance with the Navy’s detailed Military Specifications. The court also found this evidence showed that plaintiff failed to show that Westinghouse made the product with asbestos insulation attached. 

To establish that a product would have been useless without a part—here, asbestos insulation—a plaintiff must show that the product would have been unable to function without the part’s incorporation. Here, the court noted that the parties agreed that there were suitable alternative to asbestos that would have enabled the turbines to function. As such, the court found the plaintiff failed to establish this prong of the DeVries test and granted summary judgment in favor of Defendant CBS Corporation.

United States District Court for the Eastern District of Pennsylvania

The decedent’s widow brought this suit on behalf of decedent alleging that decedent’s occupational exposure to asbestos during his time in the Navy is attributable to turbines manufactured by the Westinghosue Corporation.  The plaintiff also brought suit against Defendant CBS Corporation alleging CBS is a successor by merger of Westinghouse.  The plaintiff also contends decedent’s injuries were caused in part by turbines manufactured by General Electric Company.

The defendant General Electric Company moved for summary judgment on several grounds, including that, because its products were delivered to the United States Navy “bare metal,” it cannot be held liable under the Supreme Court’s test outlined in the DeVries test.  The defendant General Electric argued that under the test it had no duty to warn decedent and that the plaintiff cannot show that General Electric’s products required the incorporation of asbestos.  The defendant CBS also argued that it is entitled to summary judgment because it is not liable for asbestos allegedly provided by a third-party under the test announced by the Supreme Court in DeVries.  The defendant CBS argues that even if the plaintiff could demonstrate decedent was exposed to asbestos associated with a Westinghouse turbine, CBS would be entitled to the bare metal defense under the DeVries test.   

In DeVries, the Supreme Court announced a new test for manufacturers’ liability in duty to warn cases under maritime law. The court held that a manufacturer has a duty to warn where (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 that danger.

With respect to assessing manufacturer liability for dangerous parts added to products by a third-party, the DeVries test holds that a manufacturer has a duty to warn where (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 that danger.

To provide further clarity on the first prong of its tests, the court provided that a product requires incorporation of a part where: (i) a manufacturer directs that the part be incorporated, (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, or (iii) a product would be useless without the part.

With respect to General Electric’s motion, the court found that the plaintiff failed to show GE directed the incorporation of asbestos.  GE offered evidence that the Military Specifications governing turbines, relevant to decedent’s work history, directed suppliers of equipment to deliver the machinery without insulation—so that it could be properly installed—and provided that the shipbuilder who installed the equipment must provide insulation in conformance with its own specifications.  The plaintiff’s evidence that GE specific insulation on its non-Navy use products was not enough to rebut GE’s argument.  GE was also able to prove that GE did not manufacture the products with asbestos insulation as the contract between GE and the Navy provided that insulation shall be furnished by the shipyard and shall conform” to the relevant Navy specification.  The plaintiff offered no evidence to rebut this contention.

The court found GE met the third prong of the DeVries test finding that the parties agreed there were alternatives to asbestos available that would have allowed the turbines to function.  As such, the plaintiff could not show that GE’s turbines could not function without asbestos insulation. Based on the above, the court granted summary judgment in favor of General Electric Corporation. 

As to CBS’ motion, the court found that plaintiff failed to show that Westinghouse directed the incorporation of asbestos.  CBS pointed to evidence that Westinghouse products procured by the Navy where required to adhere to strict Military Specifications.  These specifications relevant to decedent’s work history required that Naval turbines be delivered bare metal, without any insulation applied.  As such, the insulation would have been supplied by the shipbuilder, not Westinghouse.  Plaintiff attempted to rebut CBS’ showing by arguing to an internal Westinghouse newspaper that The newspaper described production of asbestos “topcoats” for turbines in Westinghouse’s South Philadelphia Works in Lester, Pennsylvania.  The court rejected this argument recognizing that evidence related to a manufacturer’s use of asbestos on land-based turbines built for civilian uses sheds little light on equipment developed in conformance with the Navy’s detailed Military Specifications.  The court also found this evidence showed that plaintiff failed to show that Westinghouse made the product with asbestos insulation attached. 

To establish that a product would have been useless without a part—here, asbestos insulation—a plaintiff must show that the product would have been unable to function without the part’s incorporation.  Here, the court noted that the parties agreed that there were suitable alternative to asbestos that would have enabled the turbines to function.  As such, the court found the plaintiff failed to establish this prong of the DeVries test and granted summary judgment in favor of Defendant CBS Corporation.   

Read the full decision here for General Electric Company

Read the full decision here for CBS Corporation