IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH SCHWARTZ, et al., : CONSOLIDATED UNDER

: MDL-875

Plaintiffs, :

:

v. :

:

ABEX CORP., et al., :

: E.D. PA CIVIL ACTION NO.

Defendants. : 2:05-CV-02511-ER1

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MAY 27, 2015

TABLE OF CONTENTS

I. BACKGROUND ............................................... 3

II. LEGAL STANDARD ........................................... 6

III. DISCUSSION ............................................... 7

A. Defendants’ Arguments................................ 8

B. Plaintiffs’ Arguments............................... 10

C. Manufacturer Liability Under Pennsylvania Law....... 12

1. Restatement (Second) of Torts § 402A............ 14

2. Pennsylvania Social Policy...................... 32

3. Doctrinal Trends................................ 38

4. Asbestos-Related Pennsylvania Authority......... 47

5. Prediction of Pennsylvania Law.................. 55

 a. Strict Liability Claims..................... 59

 b. Negligence Claims........................... 62

D. General Application of Strict Liability and Negligence 

Principles.......................................... 74

E. Resolution of the Present Case...................... 84

IV. CONCLUSION .............................................. 86

 

1 This memorandum applies to the motion for summary 

judgment by a product manufacturer defendant in Schwartz v. Abex 

Corp., No. 2:05-cv-2511 (ECF No. 61)(airplane engine 

manufacturer Pratt & Whitney). The issue has also been raised by 

three other product manufacturers in Rabovsky v. Air & Liquid 

Systems Corp., No. 2:10-cv-3202 (ECF No. 114)(valve manufacturer 

Crane Co.), and Mortimer v. A.O. Smith Corp., No. 2:13-cv-4169 

(ECF No. 318)(pump manufacturer Aurora Pump Co.) and (ECF No. 

287)(condulet and fitting manufacturer Crouse-Hinds). These 

cases will be addressed by separate orders.
2

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 aftermarket 

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

 

2 As explained by this Court in Conner v. Alfa Laval, 

Inc., which addressed the issue under maritime law, the socalled “bare metal defense” is more properly understood as a 

challenge to a plaintiff’s prima facie case to prove duty and/or 

causation. 842 F. Supp. 2d 791, 793 n.2 (E.D. Pa. Feb. 1, 2012) 

(Robreno, J.). 
3

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, 

 

3 Of course, a plaintiff must also present evidence 

sufficient to establish causation with respect to the asbestos 

component part at issue (i.e., that asbestos from that part was 

a substantial factor in the development of the illness). This is 

required in all asbestos cases governed by Pennsylvania law 

(regardless of whether the “bare metal” issue is presented). See

Gregg v. VJ Auto Parts, Co., 943 A.2d 216, 225-26 (Pa. 2007); 

Linster v. Allied Signal, Inc., 21 A.3d 220,223-24(Pa. Super. Ct.

2011); Howard v. A.W. Chesterton Co., 31 A.3d 974,979(Pa. Super.

Ct. 2011).

4 To be clear, under this rule, even if a plaintiff 

provides evidence that a manufacturer defendant knew its product 

would be used with an asbestos-containing component part, and 

knew that asbestos was hazardous, there still may remain a 

disputed issue of material fact for the jury as to whether any 

warning provided – or not provided – was adequate and reasonable 

under the circumstances. (For further discussion, see fn.78.)
4

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 socalled “bare metal defense.”
5

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 asbestoscontaining 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.

 

5 Other common product and component part combinations 

include: pumps used with gaskets and packing; valves used with 

gaskets and packing; boilers used with external insulation; and 

turbines used with external insulation. Sometimes the component 

parts at issue (i.e., those that Defendant neither manufactured 

nor supplied) were replacement parts – such as gaskets or 

packing – replacing other components that Defendant did 

initially supply with its product (which asbestos litigants 

typically refer to as “original” component parts). In other 

instances, the component part at issue – usually external 

insulation – was applied to a product (such as an engine or 

boiler) after the product was purchased by the purchaser.
6

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 (1986)). A 

fact is “material” if proof of its existence or nonexistence 

might affect the outcome of the litigation, and a dispute is 

 

6 The parties have agreed that Pennsylvania substantive 

law applies. Therefore, this Court will apply Pennsylvania 

substantive law in deciding Defendant’s motion. See Erie R.R. 

Co. v. Tompkins, 304 U.S. 64 (1938); see also Guaranty Trust Co. 

v. York, 326 U.S. 99, 108 (1945).

7 By way of Order dated December 3, 2014, this Court 

solicited briefing from the parties regarding whether and how 

the Supreme Court of Pennsylvania’s opinion in Tincher v. Omega 

Flex, Inc., 104 A.3d 328 (Pa. 2014), impacts Pennsylvania law 

(and, thus, this Court’s ruling) on the issue.
7

“genuine” if “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 

248.

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.

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 

 

8 These products are often referred to in asbestos 

litigation as “aftermarket products” or “aftermarket 

components.”
8

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. 

 

9 In an effort to place these issues in the general 

context of asbestos litigation, the Court will also discuss the 

issues and authorities raised by the parties in Rabovsky v. Air 

& Liquid Systems Corp., No. 2:10-cv-3202, and Mortimer v. A.O. 

Smith Corp., No. 2:13-cv-4169.

10 Defendant Pratt & Whitney cites also to three 

decisions of the Philadelphia Court of Common Pleas: Scarduzio 

v. DaimlerChrysler Corp., 2005 Phila. Ct. Com. Pl. LEXIS 540 

(Dec. 6, 2005), and Mastrobuono v. General Motors Corp., 2005 

Phila Ct. Com. Pl. LEXIS 353 (July 7, 2005), aff’d 2006 Pa. 

Super. LEXIS 801 (Apr. 24, 2006). Defendant Pratt & Whitney also 

cites Kolar v. Buffalo Pumps, Inc., 2010 WL 5312168, *45-49 (Pa. 

Com. Pl. Aug. 2, 2010). However, in predicting law of a given 

state (which frequently involves matters of policy), courts 

generally look to decisions of appellate courts in that state, 

rather than trial courts, unless there is an absence of 

appellate authority or some unique reason to consider a 

particular trial court decision. 

11 Eckenrod was an asbestos case decided by the 

Pennsylvania Superior Court. In that decision, the Superior 

Court set forth the general statement of law that, “[i]n order 

for liability to attach in a products liability action, 
9

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. 

 

plaintiff must establish that the injuries were caused by a 

product of the particular manufacturer or supplier.” 375 Pa. 

Super. at 190-91. Importantly, however, the decision did not 

address the “bare metal” issue and does not appear to have 

involved products for which the issue is relevant. For this 

reason, it is not directly relevant to the issue now before the 

Court and will, therefore, not be considered by the Court at any 

length in its survey of authorities pertinent to the issue.

Moreover, the Court notes that Eckenrod was decided 

almost twenty years ago – before the issue had been fully 

developed and briefed by the parties or considered by courts in 

Pennsylvania or elsewhere.

12 Toth involved an allegedly defective wooden plank used 

in a scaffolding system. In that case, the plaintiff sued the 

manufacturer of a scaffolding system after her husband fell to 

his death when the wooden plank, which had not been manufactured 

or supplied by the defendant but was used in its system, broke 

away. The Superior Court declined to hold the scaffolding system 

manufacturer strictly liable for the death because it had not 

supplied the plank used with its scaffolding system. 391 Pa. 

Super. at 388-89. The Court also noted that the defendant’s 

failure to supply the wooden plank to be used with the 

scaffolding system was not a design defect. Id.

Defendant Crane Co. contends in Rabovsky, that Toth

stands for the proposition that, under Pennsylvania law, “a 

manufacturer of a product is not liable for injuries caused by a 

dangerous product that is manufactured, designed, and supplied 

by others, even if the dangerous product is affixed to the 

manufacturer’s product.” (No. 2:10-cv-03202, ECF No. 114, Mot. 

at 7.) In Mortimer, Defendant Aurora Pumps summarizes this case 

as standing for the proposition that “product manufacturers 

cannot be held liable for defective component parts manufactured 

by a third party.” (No. 2:13-cv-04169, ECF No. 318, Mot. at 10.)

Importantly, though, Toth was not an asbestos case. 

Moreover, the analysis therein pertained to strict liability 

claims only. (The plaintiffs in Toth attempted to set forth a 

negligence cause of action. However, the Court discounted 

plaintiff’s particular theory of negligence (which had to do 
10

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 asbestosrelated 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 

 

with an alleged obligation of the product manufacturer to 

provide field services pertaining to the scaffolding) and did 

not squarely address whether or how a negligence cause of action 

could lie against a product manufacturer. 391 Pa. Super. at 

389.) As such, the case does not squarely address either the 

“bare metal defense” as applied to an asbestos-containing 

product or, more generally, the viability of a negligence cause 

of action against a product manufacturer. For this reason, it is 

not directly relevant to the issues now before the Court and 

will, therefore, not be considered by the Court at any length in 

its survey of authorities pertinent to the issue.

13 See footnote 9 herein.

14 In their initial briefs, none of the Defendants relied 

upon Section 402A of the Restatement (Second) of Torts (or any 

provision of the Restatement) in support of their position. 

However, in reply to Plaintiff’s submission addressing the 

Pennsylvania Supreme Court’s decision in Tincher, Defendant 

Crane Co. asserts in Rabovsky, that Section 402A does not 

support Plaintiff’s position and, instead, “explicitly limits 

the scope of strict liability claims to those entities ‘engaged 

in the business of selling’ the alleged harm-causing product.” 

No. 2:10-cv-03202-ER, ECF No. 217 at 5.

 
11

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 

 

15 Berkebile involved strict liability design defect 

claims (including defective warning claims) brought against a 

helicopter manufacturer after the plaintiff’s husband was killed 

in a crash while piloting the helicopter. Importantly, however, 

Berkebile was not an asbestos case and did not involve component 

parts that the defendant had not manufactured or supplied. 

Moreover, in Berkebile, the Pennsylvania Supreme Court made 

clear that the claims did not include negligence claims and were 

instead strict liability claims, as permitted by Pennsylvania 

law (at that time) and its adoption of Section 402A of the 

Restatement (Second) of Torts. See id. at 897-902. As such, it 

does not address the “bare metal defense” or the parameters of a 

negligence cause of action against a product manufacturer. For 

this reason, it is not directly relevant to the issues now 

before the Court and will, therefore, not be considered at any 

length in the survey of pertinent authorities herein.

16 Plaintiff Schwartz also cited Berkowitz v. A.C. & S., 

Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148, 149 (N.Y. App. (1st 

Dept.) 2001), which was decided under New York law, and Braaten 

v. Saberhagen Holdings, 137 Wn. App. 32, 46 (Wash. Ct. App. 

2007), which was decided under Washington law and, at the time 

of briefing, supported Plaintiff’s position. The intermediate 

appellate court’s decision in Braaten was later reversed by the 

Supreme Court of Washington. Although they were not decided 

under Pennsylvania law, these cases address the “bare metal 

defense” in the context of asbestos litigation and are, 

therefore, considered in the Court’s nationwide survey of the 

law on this issue, set forth later herein.
12

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 

 

17 Plaintiffs contend that Toth, upon which Defendants 

heavily rely, is distinguishable on this basis because the 

plaintiff in Toth could not present evidence that the 

manufacturer of the finished product (scaffolding) knew about 

the defect in the component part at issue (a wooden plank that 

the defendant neither manufactured nor supplied but which was 

used with its scaffolding).

18 Plaintiff Schwartz argues that Pratt & Whitney is 

liable for injuries arising from insulation used in connection 

with its aircraft engines because (1) its engines (and/or 

accompanying fuel lines and controls) required thermal 

insulation to operate safely; (2) it knew that its engines

(and/or accompanying fuel lines and controls) would be insulated 

with asbestos-containing insulation; and (3) it knew that 

asbestos-containing products posed significant health risks, 

including the possibility of mesothelioma.
13

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.”

 

19 Frequently, where a given state’s law has not squarely 

addressed the issue of the “bare metal defense” – an issue of 

policy – this MDL court has declined to predict that state’s law 

on the issue, reasoning that the transferor court (which is 

generally a district court sitting in the state whose law is to 

be applied) is better situated to make that prediction, as it is 

more familiar with that state’s law and policy.
14

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:

(1) One who sells any product in a defective 

condition unreasonably dangerous to the user or 

consumer or to his property is subject to liability 

for physical harm thereby caused to the ultimate user 

or consumer, or to his property, if (a) the seller is 

engaged in the business of selling such a product, and 

(b) it is expected to and does reach the user or 

consumer without substantial change in the condition 

in which it is sold.

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 socalled “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 
15

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

 

20 As discussed in greater detail later herein, these 

courts include the United States Court of Appeals for the Sixth 

Circuit and the Pennsylvania Superior Court. See Lindstrom v. AC Product Liability Trust, 424 F.3d 488 (6th Cir. 2005); 

Schaffner v. Aesys Technologies, LLC, 2010 WL 605275 (Pa. Super.

Ct. Jan. 21, 2010). Importantly, however, Schaffner was decided 

before the Pennsylvania Supreme Court’s decision in Tincher v. 

Omega Flex, Inc., 104 A.3d 328 (Pa. 2014)).

21 As discussed in greater detail later herein, these 

courts include the Supreme Court of Washington and the Supreme 

Court of California. See Simonetta v. Viad Corporation, 165 

Wash.2d 341, 197 P.3d 127 (Wash. 2008); Braaten v. Saberhagen 

Holdings, 165 Wash.2d 373, 198 P.3d 493 (Wash. 2008); O’Neil v. 

Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d, 266 P.3d 987 (Cal. 

2012). While both courts concluded that there was no common law 

duty to warn of hazards of components parts used with their 

products but which they did not manufacture or supply, each 

court acknowledged that it was necessary to reach this 

determination under an analysis separate from that under Section 

402A.

22 As discussed in greater detail later herein, these 

courts include intermediate appellate courts in New York and the 

asbestos trial court in Pennsylvania. See Berkowitz v. A.C.&S., 

Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 (N.Y. App. (1st Dept.) 

2001), and In re New York City Asbestos Litigation, – N.Y.S.2d –

, 2014 WL 2972304, at *13 (N.Y. App. (1st Dept.) July 3, 2014); 
16

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 

 

Kolar v. Buffalo Pumps, Inc., 2010 WL 5312168 (Pa. Com. Pl. Aug. 

2, 2010). These courts have considered Section 402A and, without 

specifically discussing common law negligence, have acknowledged 

circumstances in which a product manufacturer can be liable for 

injury from component parts they did not manufacture or supply, 

but which were used with their product. Kolar specifies that 

liability can arise where use of such a component part 

constitutes a “substantial change” to the manufacturer’s product 

– a concept seemingly captured in Section 402A. Id. at *47. The 

New York cases discuss duty, knowledge, and foreseeability and, 

thus, seem to imply that liability is in common law negligence.

23 As explained further herein, in predicting 

Pennsylvania law on the issue, the Court (1) construes Section

402A to govern only strict liability claims (not negligence 

claims), (2) defines the “product” at issue to be the product 

with original component parts contained in the product at the 

time of supply (not replacement component parts or later-added 

external insulation), and (3) considers replacement of original 

asbestos-containing component parts with other asbestoscontaining component parts to be a “substantial change” to a 

product, as a matter of law. 
17

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

 

In light of these determinations, and in the context 

of asbestos litigation, the fourth factor (regarding 

construction of the provision with respect to “knowledge” or 

“foreseeability”) need not be reached. Moreover, because the 

Court deems it applicable only to strict liability claims, it 

need not consider analyses of these aspects as would pertain to 

negligence law. 

For these reasons, an in-depth analysis of all 

possible constructions of the provision is not necessary for 

purposes of considering and deciding the issue now before the 

Court.

24 There are three types of strict product liability 

claims: defective design, defective manufacture, and defective 

warning. See, e.g., Phillips v. A-Best Prods. Co., 542 Pa. 124, 

665 A.2d 1167, 1170 (Pa. 1995); Simonetta v. Viad Corporation, 

165 Wash.2d 341, 355, 197 P.3d 127, 134 (Wash. 2008) (citing 

Prof. James A. Henderson, Jr. & Prof. Aaron D. Twerski, 

DOCTRINAL COLLAPSE IN PRODUCTS LIABILITY: THE EMPTY SHELL OF 

FAILURE TO WARN, 65 N.Y.U. L. Rev. 265, 271 (1990) (relying on 

comments h, i, j, and k to § 402A); O’Neil v. Crane Co., 53 

Cal.4th 335, 347, 266 P.3d 987, 994 (Cal. 2012); Conner v. Alfa 

Laval, Inc., 842 F. Supp. 2d 791, 796 (E.D. Pa. Feb. 1, 2012)

(Robreno, J.). Generally, to the extent that asbestos litigation 

involves strict liability claims, they are of the last type: 
18

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

 

defective warning. Frequently, plaintiffs also assert separate 

common law claims for negligent failure to warn.

25 Section 402A addresses strict liability. However, the 

first comment to it (comment “a”) specifically states that 

nothing in the provision precludes negligence claims/theories of 

liability.

26 It appears that this was the case in the Sixth 

Circuit’s decision in Lindstrom v. A-C Product Liability Trust, 

424 F.3d 488 (6th Cir. 2005), when adopting and applying to 

maritime products liability claims its earlier holdings in Stark 

v. Armstrong World Indus., 21 F. App’x 371 (6th Cir. Oct. 3, 

2001). While the Stark court’s analysis focused on that 

plaintiff’s strict liability claims in the context of, inter

alia, Section 402A (and mentioned his negligence claims only in 

passing), the Lindstrom court appears to have (implicitly) 

adopted the rationale of Stark for both negligence and strict 

liability claims. See Lindstrom, 424 F.3d at 492-99.

27 See footnotes 25 and 49.

28 The California Supreme Court and Washington Supreme 

Court have taken this approach. See O’Neil v. Crane Co., 53 

Cal.4th 335, 135 Cal.Rptr.3d, 266 P.3d 987 (Cal. 2012); 

Simonetta v. Viad Corporation, 165 Wash.2d 341, 197 P.3d 127 

(Wash. 2008); Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 

198 P.3d 493 (Wash. 2008). 
19

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” 

 

It appears that New York state courts have taken this 

approach without explicitly stating so. In Berkowitz v. A.C.&S., 

Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 (N.Y. App. (1st Dept.) 

2001), and In re New York City Asbestos Litigation, – N.Y.S.2d –

, 2014 WL 2972304, at *13 (N.Y. App. (1st Dept.) July 3, 2014), 

the Appellate Division permitted plaintiffs to proceed on claims 

pertaining to alleged failures to warn. In doing so, it 

discussed concepts of duty, knowledge, and foreseeability 

without ever citing or mentioning Section 402A of the 

Restatement (Second) of Torts. In fact, the Appellate Division 

distinguished several other cases which did rely upon Section 

402A (including the federal district court’s asbestos decision 

in Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797 (S.D.N.Y. 

2011)). See 733 N.Y.S.2d at 412 (distinguishing Rastelli v. 

Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 591 

N.E.2d 222 (1992)); 733 N.Y.S.2d at 190-91 (distinguishing, 

inter alia, Surre and Rastelli).

29 Pennsylvania law on this point was not clear prior to 

Tincher, which overruled Azaarello v. Black Brothers Co., 480 

Pa. 547, 391 A.2d 1020 (1978), a long-standing decision that the 

Court noted had led subsequent courts to conclude that 

Pennsylvania did not even recognize a negligence cause of action 

against product manufacturers. See Tincher, 104 A.3d at 376.
20

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 

 

30 As such (or perhaps in the alternative), a pump or 

valve manufacturer is also a “supplier” of the original 

component part, and therefore faces potential liability under 

Section 402A (e.g., for “defective warning” claims) as a 

supplier of the gaskets or packing it supplied with its pump or 

valve. (Kolar v. Buffalo Pumps, Inc. indicates that, under 

Pennsylvania law, such liability is as a “supplier.” 2010 WL 

5312168, at *46-47.) What is clear is that courts have 

consistently held product manufacturers liable for injury 

arising from the original asbestos-containing component parts 

contained in their products when they were placed into the 

stream of commerce.
21

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

 

31 This is the approach taken by the California Supreme 

Court in O’Neil v. Crane Co., where it explained:

Strict liability encompasses all injuries caused by a 

defective product, even those traceable to a defective 

component part that was supplied by another. [Citation 

omitted.] However, the reach of strict liability is 

not limitless. We have never held that strict 

liability extends to harm from entirely distinct 

products that the consumer can be expected to use 

with, or in, the defendant's nondefective product.

53 Cal.4th at 348 (internal cites omitted). In considering 

potential liability for aftermarket component parts under a 

common law negligence theory, it held that, “[t]he same policy

considerations that militate against imposing strict liability 

in this situation apply with equal force in the context of 

negligence.” Id. at 366.

This approach was also taken by the United States 

Court of Appeals for the Sixth Circuit in Lindstrom v. A-C 

Product Liability Trust, 424 F.3d at 495-97. 

Although a cursory reading of the Pennsylvania 

Superior Court’s decision in Schaffner v. Aesys Technologies, 

LLC, suggests that it may have adopted this approach, the facts 

of the case do not warrant reaching this conclusion, as there is 

no evidence in the record that the products at issue (boilers) 

contained (or were supplied with) any original asbestos 

component parts. 2010 WL 605275 (Pa. Super. Ct. Jan. 21, 2010).

In predicting Pennsylvania law regarding strict 

liability claims, the MDL Court adopts this approach herein.
22

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 

 

32 Of course, a duty to warn about these may still exist 

as a matter of common law, such that a court may conclude by way 

of separate analysis and separate cause of action (i.e., common 

law negligence) that a defendant can be liable in certain 

circumstances for failing to provide adequate warnings of the 

hazards associated with asbestos-containing aftermarket 

component parts used with its product, but which it neither 

manufactured nor supplied. This is the approach the MDL Court 

now predicts would be applied under Pennsylvania law.

33 This is the approach taken by Judge O’Neill in Chicano 

v. General Electric Co., 2004 WL 2250990 (E.D. Pa. Oct. 5, 

2004). The outcome and analysis of the New York Appellate Court 

in Berkowitz v. A.C.&S., Inc., 733 N.Y.S.2d 410, 288 A.D.2d 148 

(N.Y. App. (1st Dept.) 2001), and In re New York City Asbestos 

Litigation, – N.Y.S.2d – , 2014 WL 2972304, at *13 (N.Y. App. 

(1st Dept.) July 3, 2014), suggest that it has also taken this 

approach; however, this is not clear, as neither decision 

references any provision or version of the Restatement of Torts 

and it is unclear whether the claims discussed sound in strict 

liability and/or negligence.
23

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 Wash.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 

 

34 This assumes that replacing the gaskets and/or packing 

with other gaskets and/or packing does not constitute a 

“substantial change” to the “valve with gasket and/or packing” 

that was placed into the stream of commerce by the valve 

manufacturer. In this scenario, the Court has presumably 

determined (although it has not necessarily explicitly stated) 

that, as a matter of law, replacement of asbestos-containing 

gaskets and/or packing with other asbestos-containing gaskets 

and/or packing does not constitute a “substantial change” within 

the meaning of Section 402A.
24

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

 

35 Importantly, Judge O’Neill’s decision in Chicano was 

issued ten years prior to Tincher, at a time when it was 

generally considered that Pennsylvania law recognized a sole 

cause of action against product manufacturers that was somewhat 

of a hybrid of strict liability and negligence.

36 Specifically, Section 402A imposes liability upon a 

manufacturer where its product “is expected to and does reach 

the user or consumer without substantial change in the condition 

in which it is sold.” Restatement (Second) of Torts § 402A 

(1965) (emphasis added).
25

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 aftersale 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 

 

37 This separate requirement is discussed separately 

herein in the next section.

38 In this scenario, if the jury determined that use of 

the aftermarket component part was a “substantial change,” then 

the product manufacturer would not be liable under Section 402A. 

By contrast, if the jury determined that such use was not a 

“substantial” change, it would then need to determine whether 

such use was “expected” or “foreseeable.” See fns. 36 and 43. 

39 As explained in Kolar v. Buffalo Pumps, Inc., 

“[w]hether the manufacturer could have foreseen alteration of 
26

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 

 

its product may be resolved by the fact-finder unless inferences 

are so clear a court can say as a matter of law a reasonable 

manufacturer could not have foreseen the change.” 2010 WL 

5312168, at *47 (Pa. Com. Pl. Aug. 2, 2010). In Kolar, Judge 

Mazer Moss discussed the “substantial change doctrine” and held 

that, despite insufficient product identification evidence, a 

plaintiff exposed to asbestos from aftermarket component parts 

still could have proceeded to trial on a theory that the 

defendant product manufacturer could have foreseen alteration to 

its product (i.e., use with asbestos-containing aftermarket 

component parts) such that it would still be liable for injury 

from the aftermarket part. Id. Summary judgment was granted in 

favor of defendants, however, because the court found that, 

based on that particular evidentiary record, “plaintiff could 

not possibly prove by a preponderance of the evidence [that] 

defendants should have foreseen asbestos gaskets would be added 

to their pumps and traps.” Id. 

40 It is worth noting that a court would likely perform a 

separate analysis regarding aftermarket external insulation 

applied to a product, given that, in asbestos litigation, 

products are generally not supplied with original external 

insulation.

41 In this scenario, if the jury (or court) then deems it 

“expected” or “foreseeable” that asbestos-containing gaskets 

and/or packing would be replaced with other asbestos-containing 

gaskets and/or packing, then the valve manufacturer would be 

liable under Section 402A for the replacement gaskets and/or 

packing – even though it neither manufactured nor supplied them 

– a result contrary to the “bare metal defense” as recognized by 

Washington, California, and maritime law. See fns. 36 and 43.
27

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

 

This is the approach taken by Judge O’Neill in 

Chicano, where he determined that addition of aftermarket 

asbestos insulation to a turbine was not a substantial change, 

2004 WL 2250990, at *10, and whether or not the defendant 

product manufacturer had a duty to warn turned in large part on 

“whether [the turbine manufacturer] could reasonably foresee 

that its turbines would be combined with asbestos-containing 

insulation.” Id. at *6.

42 See footnote 39 (regarding decision on this issue as a 

matter of law). 

This is the approach adopted herein by the MDL Court 

in predicting Pennsylvania law on the issue.

43 Specifically, Section 402A imposes liability upon a 

manufacturer where its product “is expected to and does reach 

the user or consumer without substantial change in the condition 

in which it is sold.” Restatement (Second) of Torts § 402A 

(1965) (emphasis added).
28

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 

 

44 See footnotes 36 and 43 herein.
29

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 

 

45 It is worth noting that a court could make separate 

and different determinations regarding external insulation than 

it does for internal component parts such as gaskets and packing 

– and that, for policy reasons, it may make sense to do so. For 

example, as a practical matter, a pump manufacturer may be wellsituated to provide a warning regarding asbestos-containing 

gaskets and packing because warnings on the pump will be visible 

to a worker replacing those already-installed component parts 

prior to completion of the work that leads to the asbestos 

exposure. In contrast, a worker exposed to asbestos as a result 

of removing external insulation from the outside of a pump would 

not see a warning on the pump pertaining to the insulation until 

after the asbestos exposure had already occurred (i.e., after 

the insulation had already been disturbed and removed). As such, 

a pump manufacture may not be particularly well-situated to 

provide an insulation-related warning – and the insulation 

manufacturer may be best-situated to provide that warning. 

In contrast, the pump manufacturer is likely bettersituated than a gasket manufacturer to provide gasket-related 

warnings, as it is difficult (if not impossible) for a gasket to 

containing a warning that will be visible to its remover – and 

still intact – prior to removal of that gasket. In light of the 

fact that asbestos exposure from gaskets (and packing) generally 

occurs during removal of those components – rather than during 

installation – law requiring warning about those components only 

by the component manufacturers may, as a practical matter, have 

the unintended effect of yielding only ineffective warnings 

while failing to require those warnings that would be effective.
30

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 

 

46 See footnote 39.

It is based upon this same rationale that the MDL 

Court predicts herein that, under Pennsylvania law, a product 

manufacturer is liable in common law negligence (though not 

strict liability) for injury arising from asbestos-containing 

aftermarket component parts if it supplied its product with 

original asbestos-containing component parts of the type at 

issue.

47 In light of this Court’s construction regarding the 

term “product” and the “substantial change” provision, as set 

forth in Section 402A, it is not necessary to reach the issue of 

foreseeability in connection with a strict product liability 

claim. It appears that the Sixth Circuit Court of Appeals, the 

Washington Supreme Court, and the Pennsylvania Superior Court 

(prior to Tincher) have taken this same approach, although none 

has explicitly considered the “substantial change” provision of 

Section 402A. See Lindstrom, Stark, Simonetta, Braaten, and 

Schaffner.
31

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 asbestoscontaining 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.:

Plaintiffs here seek to expand these exceptions 

to make manufacturers strictly liable when it is 

foreseeable that their products will be used in 

conjunction with defective products or replacement 

parts made or sold by someone else. However, the 

foreseeability of harm, standing alone, is not a 

sufficient basis for imposing strict liability on the 

manufacturer of a nondefective product, or one whose 

arguably defective product does not actually cause 

harm. . . . Generally, foreseeability is relevant in a 

strict liability analysis to determine whether injury 

is likely to result from a potential use or misuse of 

a product. [Citation omitted.] That the defendant 

manufactured, sold, or supplied the injury-causing 

product is a separate and threshold requirement that 

 

48 Once again, the outcome and analysis of the New York 

Appellate Court in Berkowitz v. A.C.&S., Inc., 733 N.Y.S.2d 410, 

288 A.D.2d 148 (N.Y. App. (1st Dept.) 2001), and In re New York 

City Asbestos Litigation, – N.Y.S.2d – , 2014 WL 2972304, at *13 

(N.Y. App. (1st Dept.) July 3, 2014), suggest that it has also 

taken this approach; however, this is not clear because, as 

noted earlier herein, neither decision references any provision 

or version of the Restatement of Torts and it is unclear whether 

the claims discussed within them sound in strict liability 

and/or negligence.
32

must be independently established. Moreover, in strict 

liability as in negligence, “foreseeability alone is 

not sufficient to create an independent tort duty.” 

[Citations omitted.]

. . .

The question whether to apply strict liability in 

a new setting is largely determined by the policies 

underlying the doctrine. [Citation omitted.] “[T]he 

strict liability doctrine derives from judicially 

perceived public policy considerations and therefore 

should not be expanded beyond the purview of these 

policies.” [Citation omitted.] The conclusion we reach 

here is most consistent with the policies the strict 

liability doctrine serves. Although “an important goal 

of strict liability is to spread the risks and costs 

of injury to those most able to bear them” [citation 

omitted], “it was never the intention of the drafters 

of the doctrine to make the manufacturer or 

distributor the insurer of the safety of their 

products. It was never their intention to impose 

absolute liability.” [Citation omitted.]

53 Cal.4th 335, 362-63, 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: 

Section 402A [of the Restatement (Second) of 

Torts] reflects the social policy that a seller or 

manufacturer is best able to shoulder the costs and to 
33

administer the risks involved when a product is released 

into the stream of commerce. Having derived a benefit from 

engaging in business, manufacturers and sellers are 

particularly able to allocate the losses incurred through 

costs increases and insurance. Walton v. Avco Corporation, 

530 Pa. 568, 575, 610 A.2d 454, 458 (1992).

Nevertheless, it is not the purpose of § 402 to 

impose absolute liability. A manufacturer is a guarantor of 

its product, not an insurer. See Azzarello v. Black 

Brothers Co., Inc., 480 Pa. 547, 553, 391 A.2d 1020, 1023-

24 (1978). To recover under § 402A, a plaintiff must 

establish that the product was defective, that the defect 

was a proximate cause of the plaintiff’s injuries, and that 

the defect causing the injury existed at the time the 

product left the seller’s hands. Berkebile v. Brantly 

Helicopter Corporation, 462 Pa. 83, 93-94, 337 A.2d 893, 

899 (1975). The seller is not liable if a safe product is 

made unsafe by subsequent changes. Id. Where the product 

has reached the user or consumer with substantial change, 

the question becomes whether the manufacturer could have 

reasonably expected or foreseen such an alteration of its 

product. Eck v. Powermatic Houdaille, 364 Pa. Super. 178, 

527 A.2d 1012 (1987).

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) 

 

49 Within the outline structure of the Restatement 

(Second) of Torts, the provision appears under the following 

headers:

Division Two. Negligence 

 Chapter 14. Liability of Persons Supplying 

 Chattels for the Use of Others

 Topic 5. Strict Liability

Restatement (Second) of Torts (1965) (emphasis added).
34

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:

In past products liability cases, the Supreme 

Court of Pennsylvania has looked to section 402A of the 

Restatement (Second) of Torts. E.g., Webb v. Zern, 422 Pa. 

424, 220 A.2d 853, 854 (1966) (“We hereby adopt the 

foregoing language [of § 402A] as the law of 

Pennsylvania.”). Section 402A makes sellers liable for harm 

caused to consumers by unreasonably dangerous products, 

even if the seller exercised reasonable care[.]

. . .

Section 402A thus creates a strict liability regime by 

insulating products liability cases from negligence 

concepts. See id. § 402A(2)(a); Azzarello v. Black Bros. 

Co., 480 Pa. 547, 391 A.2d 1020, 1025–1026 (1978) (charging 

courts to avoid negligence concepts when instructing a jury 

pursuant to § 402A).

 

50 Although Section 402A addresses strict liability, the 

first comment to it (comment “a”) specifically states that 

nothing in the provision precludes negligence claims/theories of 

liability. However, as explained further herein, until very 

recently, it was accepted by many in the bar and judiciary that 

Pennsylvania law did not recognize a negligence cause of action 

against a product manufacturer.
35

During the past 40 years, however, the Supreme 

Court of Pennsylvania has repeatedly addressed confusion 

arising from a core conflict in the structure of section 

402A itself: Section 402A instructs courts to ignore 

evidence that the seller “exercised all possible care in 

the preparation and sale of his product,” § 402A(2)(a), yet 

imposes liability only for products that are “unreasonably 

dangerous,” § 402A(1). In many cases it is difficult or 

impossible to determine whether a product is “unreasonably 

dangerous” to consumers without reference to evidence that 

the seller did or did not exercise “care in the 

preparation” of the product. See Schmidt v. Boardman Co., 

11 A.3d 924, 940 (Pa. 2011) (“This no-negligence-in-strictliability rubric has resulted in material ambiguities and 

inconsistency in Pennsylvania's procedure.”); see also

Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 

1015–1016 (2003) (Saylor, J., dissenting).

Nonetheless, the Supreme Court of Pennsylvania 

has endeavored to segregate strict liability's “productoriented” analysis from the “conduct-oriented” analysis of 

negligence. Phillips, 841 A.2d at 1006 (“[W]e have remained 

steadfast in our proclamations that negligence concepts 

should not be imported into strict liability law ...”). In 

so doing, Pennsylvania's high court has stated repeatedly 

that negligence concepts have no place in products 

liability. E.g., id.; Azzarello, 391 A.2d at 1025–1026.

That endeavor has not always been successful, see Davis v. 

Berwind Corp., 547 Pa. 260, 690 A.2d 186, 190 (1997)

(holding that if a “product has reached the user or 

consumer with substantial change,” liability depends upon 

“whether the manufacturer could have reasonably expected or 

foreseen such an alteration of its product.”) (emphasis 

added), nor has it been uniformly embraced by the Justices 

of that Court, see Schmidt, 11 A.3d at 940 (disapproving of 

Pennsylvania's “almost unfathomable approach to products 

litigation”) (quotation omitted).

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 
36

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 

 

51 In Tincher, the Pennsylvania Supreme Court explicitly 

declined to adopt the Restatement (Third) of Torts on this issue 

and decided instead to continue applying the Restatement 

(Second) of Torts. 104 A.3d at 395-99.

52 Specifically, the Pennsylvania Supreme Court overruled 

Azaarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 

(1978), a long-standing decision that the Court noted had led 

subsequent courts to conclude that Pennsylvania does not 

recognize a negligence cause of action against product 

manufacturers. See Tincher, 104 A.3d at 376. The Pennsylvania 

Supreme Court made clear in Tincher that there are two distinct 

causes of action that may be brought against product 

manufacturers: (1) strict product liability and (2) negligence. 

See id. at 383-84.

53 As a source of authority for this policy 

consideration, the Pennsylvania Supreme Court cited Excavation 

Tech., Inc. v. Columbia Gas Co. of Pa., 604 Pa. 50, 985 A.2d 

840, 844 (2009). 104 A.3d at 404.
37

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 

 

54 For this consideration, the Pennsylvania Supreme Court 

cited Browning–Ferris Indus. of Vermont, Inc. v. Kelco Disposal, 

Inc., 492 U.S. 257, 275 n.20, 109 S. Ct. 2909, 106 L.Ed.2d 219 

(1989), and Gary T. Schwartz, MIXED THEORIES OF TORT LAW: 

AFFIRMING BOTH DETERRENCE AND CORRECTIVE JUSTICE, 75 Tex. L.

Rev. 1801 (1997). 104 A.3d at 404.

55 104 A.3d at 364, 369, 381 n.18, 382-84, 387-91, and 

404. Specific authorities cited for this proposition include: 

Ash v. Continental Ins. Co., 593 Pa. 523, 932 A.2d 877, 882

(2007); Scampone v. Highland Park Care Center, LLC, 618 Pa. 363, 

57 A.3d 582, 604–05 (2012); Excavation Tech., 604 Pa. 50, 985 

A.2d at 844; Trosky v. Civil Serv. Comm'n, 539 Pa. 356, 652 A.2d 

813, 817 (1995)(quoting RESTATEMENT (SECOND) OF TORTS § 901, 

cmt. a (1979)); Browning–Ferris Indus. of Vermont, Inc., 492 

U.S. at 275 n.20, 109 S. Ct. 2909; and Schwartz, MIXED THEORIES 

OF TORT LAW: AFFIRMING BOTH DETERRENCE AND CORRECTIVE JUSTICE, 

75 Tex. L. Rev. 1801. 104 A.3d at 404. 

56 104 A.3d at 401-02.
38

considers more broadly the doctrinal trends surrounding the socalled “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. Feb. 1, 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 
39

maritime law); Simonetta v. Viad Corporation, 165 Wash.2d 341,

197 P.3d 127 (Wash. 2008); Braaten v. Saberhagen Holdings, 165 

Wash.2d 373, 198 P.3d 493 (Wash. 2008); O’Neil v. Crane Co., 53 

Cal.4th 335, 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

 

57 The issue is also currently on appeal in Maryland. See

May v. Air & Liquid Systems Corp., 219 Md. App. 424, 100 A.3d 

1284 (Md. App. Oct. 3, 2014), cert. granted, 441 Md. 217, 107 

A.3d 1141 (Md. Jan. 23, 2015). At present, there are two 

decisions from appellate courts in Maryland that were decided in 

the context of asbestos litigation and which rule on the issue 

in favor of product manufacturer defendants. May, 219 Md. App. 

424, 100 A.3d 1284 (involving asbestos-containing replacement 

gaskets and packing used with pumps and valves aboard ships). 

Ford Motor Co. v. Wood, 119 Md. App. 1, 703 A.2d 1315 (Md. App. 

1998), cert. denied, 349 Md. 494, 709 A.2d 139 (Md. 1998) 

(involving asbestos-containing replacement brakes used with 

motor vehicles manufactured by Ford Motor Company). Because the 

issue is on appeal, the Court has not considered Maryland state 

law as falling on one side of the issue or the other. 

(Although it is not clear from the decision how the 

choice of law was determined, the Court notes that May appears 

to apply Maryland state law (rather than maritime law) to claims 

arising from exposure that occurred aboard ships. It remains to 

be seen whether this issue is considered upon appeal. If May is 

ultimately decided under maritime law, then it would appear that 

Wood will continue to be the governing law in asbestos cases 

decided under Maryland law.)

58 It is worth noting, however, that, perhaps adding to 

the confusion and/or lack of consensus surrounding the issue of 

the so-called “bare metal defense,” even O’Neil – which is 

generally considered to be a clear recognition of the defense -

contains indications of potential exceptions to the general 
40

 

rule. Although O’Neil held that pump and valve manufacturers 

cannot be liable for – and have no duty to warn about – external 

insulation or replacement gaskets and packing that they did not 

manufacture or supply but which were used with their valves and 

pumps, it also (1) stated: 

A stronger argument for liability might be made 

in the case of a product that required the use of a 

defective part in order to operate. In such a case, 

the finished product would inevitably incorporate a 

defect. One could argue that replacement of the 

original defective part with an identically defective 

one supplied by another manufacturer would not break 

the chain of causation. Similarly, if the product 

manufacturer specified or required the use of a 

defective replacement part, a stronger case could be 

made that the manufacturer's failure to warn was a 

proximate cause of resulting injury. In both contexts, 

however, the policy rationales against imposing 

liability on a manufacturer for a defective part it 

did not produce or supply would remain. (See post, 135 

Cal. Rptr. 3d at pp. 310–312, 266 P.3d at pp. 1006–

1007.) These difficult questions are not presented in 

the case before us, and we express no opinion on their 

appropriate resolution.

53 Cal.4th at 350 n.6; (2) acknowledged that, under California 

law, there are, “limited circumstances under which liability for 

failure to warn could extend to injuries caused by a 

‘generically identical’ product with the same risks as the 

manufacturer's product,” 53 Cal. 4th at 352 n.7; and (3) even 

explicitly held (without explanation or discussion as to the 

exceptions) that “a product manufacturer may not be held liable 

in strict liability or negligence for harm caused by another 

manufacturer's product unless the defendant’s own product 

contributed substantially to the harm, or the defendant 

participated substantially in creating a harmful combined use of 

the products.” (emphasis added). 53 Cal.4th at 342. See also id.

at 309.

The O’Neil court based its decision at least in part 

on the factual determinations it made that (1): 

[T]he normal operation of defendants’ pumps and 

valves did not inevitably cause the release of 

asbestos dust. This is true even if ‘normal operation’
41

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

 

is defined broadly to include the dusty activities of 

routine repair and maintenance, because the evidence 

did not establish that defendants’ products needed 

asbestos-containing components or insulation to 

function properly. It was the Navy that decided to 

apply asbestos-containing thermal insulation to 

defendants’ products and to replace worn gaskets and 

packing with asbestos-containing components.

Id. at 361, and (2) “Defendants’ pumps and valves were not 

‘necessarily’ used with asbestos components, and danger did not 

result from the use of these products ‘together.’ Id. Because 

reasonable courts (or jurists) could disagree as to this 

determination, and because differing evidentiary records could 

also yield different determinations, it is not crystal clear 

that California recognizes the so-called “bare metal defense” in 

all scenarios.

59 Several recent trial court decisions from federal 

courts in New York have also held that a product manufacturer 

can be held liable for injury from a third-party-produced 

asbestos-containing component part used with its product if the 

defendant intended or knew that such asbestos components would 

be used with its products. Curry v. American Standard, No. 7:08-
42

The issue was again considered more recently by a New 

York Appellate Division court in In re New York City Asbestos 

Litigation, – N.Y.S.2d – , 2014 WL 2972304, at *13 (N.Y. App. 

(1st Dept.) July 3, 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 

 

10228 (S.D.N.Y. Dec. 6, 2010); Gitto v. American Standard, No. 

7:07-04771, 2010 WL 8752912 (S.D.N.Y. Dec. 7, 2010); Surre v. 

Foster Wheeler LLC, 831 F. Supp. 2d 797 (S.D.N.Y. 2011). Each of 

these cases involved the same valve manufacturer defendant and 

determined that, if “[the defendant] meant its products to be 

used with asbestos-containing components or knew that its 

products would be used with such components, the company remains 

potentially liable for injuries resulting from those third-party 

manufactured and installed components.” Curry, slip op. at 3; 

Gitto, slip op. at 3. The district court explained in Gitto, 

“[t]he Court thus finds that a manufacturer's liability for 

third-party produced component parts must be determined by the 

degree to which injury from the component parts is foreseeable 

to the manufacturer.” 2010 WL 8752912, at *2. Relying in part on 

comment “h” to the Restatement (Second) of Torts, Surre

clarified further that a “manufacturer has a duty to warn 

against latent dangers resulting from foreseeable uses of its 

product of which it knew or should have known.” 831 F. Supp. 2d 

at 800. The Surre court clarified that this could include 

warning about hazards of third-party-produced component parts 

used with its products if, for example, the product manufacturer 

knew its product would be used with hazardous component parts, 

such as where use of such hazardous component part is necessary 

for the product to function. Id. at 801.
43

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 socalled “bare metal defense” in Simonetta and Braaten. Without 

reversing those decisions, it distinguished the facts in Macias 

v. Saberhagen Holdings, Inc., 175 Wash.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 

 

60 Although the terminology is not always used 

consistently, the “component parts doctrine” asserts the same 

(or, in large part, the same) theory of non-liability as does 

the “bare metal defense.”

61 The Supreme Court of Washington explained that all 

claims arising from asbestos exposure after a certain date (July 

26, 1981) were governed by the state’s product liability statute 

(which subsumed any common law negligence claims), but clarified 

that it had determined that the statute was intended to carry 

forth the principles of product liability (strict liability and 
44

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:

In Simonetta and Braaten, the defendants were 

manufacturers of an evaporator, pumps, and valves that 

were installed on Navy ships. Simonetta, 165 Wash.2d 

at 346, 197 P.3d 127; Braaten, 165 Wash.2d at 381, 198 

P.3d 493. After these products were installed they 

were encased in asbestos insulating materials that the 

Navy applied to the equipment on its ships. Simonetta, 

165 Wash.2d at 346, 197 P.3d 127; Braaten, 165 Wash.2d 

at 381, 198 P.3d 493. When the defendants’ products 

were subjected to routine maintenance or replacement 

parts were installed, workers broke through the 

insulation in order to service the equipment or 

replace parts. Simonetta, 165 Wash.2d at 346, 197 P.3d 

127; Braaten, 165 Wash.2d at 381, 198 P.3d 493. The 

plaintiffs were exposed to asbestos during such 

maintenance and developed lung cancer and 

mesothelioma. They sued the manufacturers, arguing 

that the manufacturers had a duty to warn of the 

danger of exposure to asbestos that occurred during 

maintenance of their products.

Applying the common law, we held that the 

manufacturers were not in the chain of distribution of 

the asbestos insulating products and therefore had no 

duty to warn of the danger of exposure to asbestos 

during servicing, and it makes no difference whether 

the manufacturers knew that their products would be 

used in conjunction with asbestos insulation. 

Simonetta, 165 Wash.2d at 352–55 (negligence), 355, 

357–58 (strict liability), 197 P.3d 127; Braaten, 165 

Wash.2d at 385, 389–90 (strict liability), 390–91 

(negligence), 198 P.3d 493.

Critically, for present purposes, the products 

involved in the Simonetta and Braaten cases did not 

require that asbestos be used in conjunction with 

 

negligence) that existed prior to enactment of the statute. 175 

Wash.2d at 408-10.
45

their products, nor were they specifically designed to 

be used with asbestos. Nor were those products 

designed as equipment that by its very nature would 

necessarily involve exposure to asbestos.

Unlike the valves, pumps, and evaporator in 

Simonetta and Braaten, which only happened to be 

insulated by asbestos products because the Navy chose 

to insulate the equipment on its ships with asbestos 

products, the respirators at issue here were 

specifically designed to and intended to filter 

contaminants from the air breathed by the wearer, 

including asbestos, welding fumes, paint fumes, and 

dust. Indeed, filtering out such contaminants, 

including asbestos, is the exact reason that the 

respirators were used; removing asbestos and other 

contaminants was the very function for which the 

respirators were intended. They were also designed to 

be reused in contaminated environments, and thus the 

contaminants removed from the air and present in 

concentrated amounts in the respirators had to be 

removed so the respirator could be reused. Integral to 

reuse, the respirators had to be safely cleaned of the 

contaminants from the last use, and prior to this 

cleaning, they had to be safely handled.

In short, the very purpose of the respirators 

would, of necessity, lead to high concentrations of 

asbestos (and/or other contaminants) in them, and in 

order to reuse them as they were intended to be 

reused, this asbestos had to be removed.

Viewing the facts and the reasonable inferences 

from the facts in the plaintiffs' favor, as we must, 

the respirator manufacturers manufactured the very 

products that posed the risk to Mr. Macias of asbestos 

exposure. They were clearly in the chain of 

distribution of these products — respirators that 

necessarily and purposefully accumulated asbestos in 

them when they functioned exactly as they were planned 

to function. It does not matter that the respirator 

manufacturers were not in the chain of distribution of 

products containing asbestos when manufactured.

By comparison, if, as a result of a failure to 

instruct on how to properly use a respirator, a wearer 

of the device was exposed to the very contaminants 
46

that the respirator would have filtered out had the 

wearer been properly advised on use, there would be no 

doubt that the respirator manufacturer would be found 

to be in the chain of distribution of the allegedly 

unsafe product. There is no meaningful difference in 

this case. Cleaning the respirators was required for

their reuse. Whether during actual use or preparation 

for reuse, the inherent danger arises because of the 

nature and use of the respirator itself.

175 Wash.2d at 414-16 (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

 

62 The issue was also considered recently in the context 

of asbestos litigation by an appellate court in New Jersey. See

Hughes v. A.W. Chesterton, 435 N.J. Super. 326, 38 A.3d 179 

(N.J. Super. (App. Div.) Apr. 23, 2014). In Hughes, the Court 

held that a defendant pump manufacturer had a duty to warn about 

hazards of asbestos in replacement gaskets and packing used with 

its pumps but not manufactured or supplied by it. 435 N.J. 
47

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 

 

Super. at 341-43. However, the Court then went on to conclude 

that the defendant pump manufacturer was not liable in strict 

liability for asbestos exposure arising from such replacement 

gaskets and packing – and was not liable in negligence because 

New Jersey law has made clear that failure to warn claims are 

best governed by strict liability (rather than negligence) 

theories of liability (a result seemingly contrary to the 

court’s holding earlier in the decision). Id. at 346-47. As 

such, it is not clear to this MDL Court how the law in New 

Jersey is applied on this issue. For this reason, the Court has 

not considered this case as falling on one side of the issue or 

the other.
48

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)).
49

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 

 

63 Schaffner was designated as a non-precedential 

decision. While the Pennsylvania rules prohibit the Pennsylvania

state courts from citing unpublished (or non-precedential) 

opinions, such prohibition does not apply to federal courts. 

While an unpublished opinion of a Pennsylvania state court 

cannot be taken as stating Pennsylvania law, and therefore has 

no precedential value, the Court is nonetheless at liberty to 

rely upon it as persuasive authority regarding the thoughts and 

opinions of learned Pennsylvania jurists.
50

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: 

[A] manufacturer cannot be held liable under theories 

of strict liability or failure to warn for a product 

it neither manufactured nor supplied. Appellant's 

evidence unequivocally shows that [defendant] neither 

manufactured nor supplied the asbestos components used 

with its boilers; the evidence further shows that nonasbestos containing components could also be used65 for 

 

64 Specifically, the Superior Court cited to Lindstrom, 

Simonetta, Braaten, and the intermediate appellate court 

decision in Taylor v. Elliott Turbomachinery Co., 171 Cal. App. 

4th 564, 90 Cal. Rptr. 3d 414 (2009) (one of a pair of companion 

cases leading to the California Supreme Court’s decision in 

O’Neil). It explained that it found these cases “instructive as 

they, in the context of asbestos litigation, support the holding 

in Toth, that a manufacturer cannot be held liable under 

theories of strict liability or failure to warn for a product it 

neither manufactured nor supplied.” 2010 WL 605275, at *6.

65 Presumably relying upon this particular notation in 

the Schaffner decision, Crane Co. asserts (in Rabovsky, No. 

2:10-cv-3202, also separately before the Court) that its valves 

were “asbestos-neutral” and did not require any asbestoscontaining component part to function. Therefore, according to 

Crane Co., even if Pennsylvania law imposes liability on a 

manufacturer for injuries caused by replacement parts that were 

required in order for its product to operate, its valves do not 

subject it to liability (even if the replacement parts used in 

connection with the valves contained asbestos). 

Under this Court’s prediction of Pennsylvania law, the 

argument is unavailing, insofar as potential liability for an 

aftermarket component part turns on the product manufacturer’s 

knowledge of the asbestos hazards that it knows will be 

presented by its product as used after sale – and does not turn 

directly on whether the product required an asbestos-containing

component to function. (It is worth noting, however, that, to 

the extent a product manufacturer’s product does require 

asbestos-containing components to function, such fact may be 
51

each of the complained-of components and the choice of 

which components were used was the boiler supplier's, 

not [defendant]'s. Given this, there is no basis for 

holding [defendant] liable under a theory of strict 

liability or failure to warn. 

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 

 

evidence of the manufacturer’s knowledge that its product would 

be used with asbestos-containing aftermarket parts.)

66 While trial court decisions are generally not relied 

upon by an MDL court in predicting a state’s law, in light of 

her experience presiding over a large number of asbestos cases 

applying Pennsylvania law, the Court finds Judge Mazer Moss’s 

decision particularly informed and instructive.
52

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 
53

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

 

67 Judge Mazer Moss later summarized her decision in 

Kolar as follows: “[M]anufacturers cannot be liable for 

asbestos component parts installed where they did not make, 

supply, sell, or require same for proper use.” Dimmick v. P&H 

Mining Equipment, No. 1093 EDA 2012 (June 4, 2012) at 4.

68 Judge Mazer Moss explained: “Here, plaintiffs 

presented insufficient evidence to determine whether defendants' 

products contained original asbestos parts to which Kolar was 

exposed. . . . Therefore, a jury could not conclude defendants 

supplied the asbestos to which Kolar was exposed.” 2010 WL 

5312168, at *46-47.
54

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 
55

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
56

“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.

 

69 Specifically, the Pennsylvania Supreme Court states, 

“To recover under § 402A, a plaintiff must establish that the 

product was defective, that the defect was a proximate cause of 

the plaintiff’s injuries, and that the defect causing the injury 

existed at the time the product left the seller’s hands. 

[Citation omitted.] The seller is not liable if a safe product 

is made unsafe by subsequent changes.” 547 Pa. at 266-67, 690 

A.2d at 189-90 (internal citations omitted). This excerpt seems 

to imply that the seller is (or at least may be) liable for 

hazardous aftermarket components used with its product if it 

supplied its product with hazardous original components.

70 This result seems to follow from the Court’s notation 

that, “[w]here the product has reached the user or consumer with 

substantial change, the question becomes whether the 

manufacturer could have reasonably expected or foreseen such an 

alteration of its product.” 547 Pa. at 266-67, 690 A.2d at 189-

90.
57

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 

 

71 The Pennsylvania Supreme Court wrote:

Section 402A [of the Restatement (Second) of 

Torts] reflects the social policy that a seller 

or manufacturer is best able to shoulder the 

costs and to administer the risks involved when a 

product is released into the stream of commerce. 

. . . Nevertheless, it is not the purpose of § 

402 to impose absolute liability. A manufacturer 

is a guarantor of its product, not an insurer. 

See Azzarello v. Black Brothers Co., Inc., 480 

Pa. 547, 553, 391 A.2d 1020, 1023-24 (1978). 

547 Pa. at 266-67, 690 A.2d at 189-90.
58

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 
59

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 

aftermarket 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 
60

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

 

72 Black’s Law Dictionary defines “strict products 

liability” as follows:

Products liability arising when the buyer proves that 

the goods were unreasonably dangerous and that (1) the 

seller was in the business of selling goods, (2) the 

goods were defective when they were in the seller’s 

hands, (3) the defect caused the plaintiff’s injury, 

and (4) the product was expected to and did reach the 

consumer without substantial change in condition.

7th ed. (1999) (emphasis added).

73 This holding is also consistent with Toth, which 

considered strict liability claims. 391 Pa. Super. 383. Assuming

that it was authored during the era in which it was commonly 

accepted that Pennsylvania did not recognize a negligence cause 

of action against a product manufacturer (as noted in Tincher) –

such that it can be assumed the court was discussing a strict 

product liability claim, this construction is also consistent 

with the holding of Eckenrod (a 1988 asbestos decision), in 

which the Pennsylvania Superior Court wrote: “In order for 

liability to attach in a products liability action, [a] 

plaintiff must establish that the injuries were caused by a 

product of the particular manufacturer or supplier.” 375 Pa. 

Super. at 190-91.
61

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. 

 

74 To be clear, the Court deems Section 402A applicable 

only to strict liability claims (not negligence claims).

75 Any other holding would create the potential for a 

manufacturer to face strict liability for an unlimited number of 

other products that could theoretically be used in connection 

with its product after sale. As a matter of policy, the Court 

finds that this would exceed the bounds of reasonable 

application of principles of strict liability.
62

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: 

Derived from its negligence-warranty dichotomy, the 

strict liability cause of action theoretically permits 

compensation where harm results from risks that are 

known or foreseeable (although proof of either may be 

unavailable) — a circumstance similar to cases in 

which traditional negligence theory is implicated —

and also where harm results from risks unknowable at 

the time of manufacture or sale—a circumstance similar 
63

to cases in which traditional implied warranty theory 

is implicated.

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 

 

76 To be clear, as an example, if a plaintiff is suing a 

pump manufacturer for injury arising from asbestos-containing 

external insulation used with its pump (which it did not 

manufacture or supply), it is not enough for the plaintiff to 

show that the pump manufacturer knew its pump would be used with 

asbestos-containing gaskets or packing (or any component other 

than insulation). Rather, the plaintiff must show that the pump 

manufacturer knew its pump would be used with asbestoscontaining external insulation. 

77 To be clear, the plaintiff must have evidence that the 

manufacturer knew that asbestos was hazardous. It is not enough 
64

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

 

for a plaintiff to argue or demonstrate that a manufacturer 

should have known.

78 Of course, under Pennsylvania law, a warning must be 

adequate and reasonable under the circumstances. See Berkebile 

v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 898 (Pa. 

1975) (later abrogated as to certain other points of law)

(citing Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 

(1971)) and Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 

850 (1945) for strict liability defective warning claims, and 

Thomas v. Avron Products Co., 424 Pa. 365, 227 A.2d 897 (1967)

for negligent failure to warn claims). 

The Court notes that this element is generally not at 

issue in asbestos cases, as it is usually undisputed that the 

product manufacturer defendant did not provide asbestos-related 

warnings (whether related to asbestos supplied with its own 

product or that in aftermarket component parts). However, it is 

worth noting that if a plaintiff challenges the adequacy of any 

warning provided by a defendant, there could, in theory, remain 

liability for the defendant despite its provision of an 

(inadequate) warning.

79 This clearly differs from Washington law, which 

explicitly states that, “[i]t makes no difference whether the 

manufacturer knew its products would be used in conjunction with 

asbestos insulation.” Braaten, 165 Wash.2d at 385.
65

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 

 

80 This approach imposes liability consistent with this 

Court’s holding in Hoffeditz v. AM General, LLC, 2011 WL 

5881008. Now, in light of the recent clarification of 

Pennsylvania law in Tincher, it is clear that this liability 

sounds in negligence (not strict liability). 

In turn, and as explained earlier herein, the Court 

deems Chicano to be consistent with Hoffeditz in this regard, 

insofar as the defendant in Chicano faced potential liability 

for failure to warn because it “knew that its turbines would be 

insulated with asbestos-containing materials and knew that they 

were, in fact, insulated with asbestos-containing materials.”

2011 WL 5881008, at *1 (quoting Chicano, 2004 WL 2250990, at 

*2). In this way, the approach is consistent with Chicano.

This approach is also consistent with the holding of 

Kolar insofar as Judge Mazer Moss decided, based upon 

Pennsylvania social policy, 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. In essence, this holding renders product manufacturers 

liable for injury arising from aftermarket component parts where 

there is evidence that they knew their product would be used 

with an asbestos-containing aftermarket component part.

81 The Pennsylvania Supreme Court wrote:
66

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 

 

But, the point that we have stressed repeatedly 

in this Opinion, is that courts do not try the “typical” 

products case exclusively and a principle of the common 

law must permit just application to myriad factual 

circumstances that are beyond our power to conceive. 

Circumstances like product diversity, general 

uncertainties inherent in the creative process, 

difficulties in recreating the design process, 

difficulties in the discovery process, to name just a 

few, may contribute to whether cases other than the 

typical case will generate a dispute and resulting 

decisional precedent.

. . .

[W]e note that the area of [product] liability law 

remains complex and our decision here does not purport to 

foresee and account for the myriad implications or 

potential pitfalls as yet unarticulated or unappreciated.

104 A.3d at 405-06.

82 Of course, it is for this very reason that this MDL 

Court has just held that the Defendant product manufacturers are 

not strictly liable for injury arising from aftermarket 

component parts. In addition, Tincher was distinguishable in 
67

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 

 

that the strict liability claims presented were design defect 

claims (rather than defective warning claims, as presented in 

the asbestos cases).
68

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 

 

83 Of course, liability also requires proof that the 

product manufacturer knew of the hazards of asbestos at the time 

it placed its product into the stream of commerce.
69

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 

 

84 This is particularly true in light of the fact that an 

injured plaintiff may also seek recovery from the manufacturer 

(and any supplier) of the component part at issue (to the extent 

those component part manufacturers and suppliers can be 

identified).
70

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, 

 

85 The Court notes that, in general, in practice, a 

product manufacturer has some ability to shift part of the cost 

of warning (and accompanying liability for failures or 

deficiencies in doing so) to the manufacturers of aftermarket 

component parts insofar as the universe of a particular 

interconnecting product and the accompanying component parts is 

generally comprised of a small network of producers who depend 

on each other for continuation of their businesses, and who 

routinely enter into contractual relations with each other. 

For example, plaintiffs in asbestos cases have 

frequently testified that there were generally two or three main 

manufacturers of pumps and valves in a given time period, and 

two or three main manufacturers of gaskets and packing – and 
71

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 

 

that the pumps and valves were generally supplied by their 

manufacturers with gaskets and packing already installed (which 

were purchased by the product manufacturers from those component 

part producers) – and sometimes accompanied by extra replacement 

component parts provided for later use with the product (by same 

way of purchase).

86 For example, when considering the issue under maritime 

law, the Sixth Circuit Court of Appeals held that there was 

neither negligence nor strict liability for the manufacturers of 

products (pumps and valves) or the manufacturers of component 

parts (gaskets and packing) when a mesothelioma plaintiff who 

worked in engine rooms aboard merchant vessels for 32 years sued 

all types of manufacturers. See Lindstrom, 424 F.3d 488. When 

considering the issue under Washington law, the Washington 

Supreme Court acknowledged that an evaporator manufacturer knew 

its product would be used with insulation, and that the 

plaintiff did not know the identity of the company who 

manufactured the insulation, but found no liability (in 

negligence or strict liability) against the evaporator 

manufacturer, thus leaving the lung cancer plaintiff with 

(apparently) no compensation for his asbestos-related illness. 

See Simonetta, 165 Wash.2d 341. Similarly, when considering the 

issue under California law, the California Supreme Court held 

that pump and valve manufacturers were not liable (in strict 

liability or negligence) for failing to warn about asbestoscontaining replacement gaskets or packing (or external 

insulation) used with its products even if those pumps and 

valves had been supplied by defendants with original asbestoscontaining gaskets and packing about which they failed to 

provide any warning. See O’Neil, 53 Cal.4th 335.
72

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.

 

This Court notes, however, that it is also aware that 

other courts considering the “bare metal” issue have likely not 

had the benefit of handling a large number of asbestos cases 

and, thus, learning in detail about the circumstances and 

specifics surrounding the numerous different products, component 

parts, and accompanying issues implicated in the litigation.
73

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.

 

87 Because of the large combination of products (such as 

pumps, valves, turbines, boilers, and engines) and aftermarket 

component parts with which they are used (such as gaskets, 

packing, and external insulation) – as well as the large number 

of variations that occur within a line of products or 

aftermarket component parts – it would be somewhat infeasible 

for a court to address liability solely in terms of which entity 

in each scenario was best situated as a practical matter to 

provide the plaintiff a warning that would be effective. It is, 

in part, for this reason that policy encouraging warnings by all 

involved entities (or coordination between those entities as to 

who and how a warning is best issued) is desirable.
74

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 asbestoscontaining 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 

 

88 Unless specified otherwise, each scenario assumes that 

(1) the manufacturers and suppliers have not provided any 

asbestos-related warnings with the products or component parts 

at issue, and (2) for purposes of considering the negligence 

claims, the plaintiff has evidence that the manufacturers and 

suppliers knew of the hazards of asbestos at the time they 

placed the product into the stream of commerce (a factor 

irrelevant to claims sounding in strict liability).
75

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 asbestoscontaining 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 

 

89 Of course, liability requires that the other two 

elements of a negligent failure to warn claim be satisfied as 

well (as is assumed for these scenarios). See footnote 88 

herein.
76

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 
77

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 aftermarket 

gaskets (e.g., a letter from the customer setting forth its 
78

purchase order, which states that the customer needs a boiler 

that will function with its existent vast supply of asbestoscontaining 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 
79

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 asbestoscontaining insulation (as opposed to asbestos-free insulation).
80

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 asbestoscontaining 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 
81

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 

 

90 But see footnote 78 herein.
82

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 “aftermarket” 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 

 

91 The Court notes that this has long been true under 

Pennsylvania law. See Eckenrod v. GAF Corp., 375 Pa. Super. 187, 

544 A.2d 50, 52-53 (Pa. Super. Ct. 1988); Gregg v. VJ Auto 

Parts, Co., 596 Pa. 274, 943 A.2d 216, 225-26 (Pa. 2007); Howard 

v. A.W. Chesterton Co., 31 A.3d 974, 979 (Pa. Super. Ct. 2011).

92 This, too, has long been true under Pennsylvania law. 

See Eckenrod, 544 A.2d at 52-53; Gregg, 943 A.2d at 225-26; 

Howard, 31 A.3d at 979.
83

true regardless of whether the component part is utilized as an 

“original” part or as an “aftermarket” 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 

 

93 Again, this has long been the case under Pennsylvania 

law. See Eckenrod, 544 A.2d at 52-53; Gregg, 943 A.2d at 225-26; 

Howard, 31 A.3d at 979.

94 This does not establish anything new under 

Pennsylvania law. See Eckenrod, 544 A.2d at 52-53; Gregg, 943 

A.2d at 225-26; Howard, 31 A.3d at 979.
84

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. 

 

95 This, too, merely restates longstanding Pennsylvania 

law. See Eckenrod, 544 A.2d at 52-53; Gregg, 943 A.2d at 225-26; 

Howard, 31 A.3d at 979.

96 The Court reviewed the record and determined that 

Plaintiff has presented evidence (specifically, testimony from 

Mr. Schwartz’s deposition) sufficient to support a finding of 

causation with respect to the asbestos insulation used with the 

engines at issue – as is required to establish liability in all 

asbestos cases in Pennsylvania (regardless of whether or not 

they present the “bare metal” issue). See Gregg, 943 A.2d at 

225-26; Linster, 21 A.3d at 223-24; Howard, 31 A.3d at 979.
85

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. 

Scwartz’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).

 

97 Defendant’s corporate representative, John Sumner, 

provided testimony that, when construed in the light most 

favorable to Plaintiff, arguably indicates that all possible 

asbestos use in connection with Defendant’s engines was 

anticipated by Defendant. Specifically, the testimony was as 

follows:

Q: Can you think of any reason why asbestos – any 

asbestos-containing material would be used 

anywhere on the [aircraft] that was not 

anticipated by Pratt & Whitney when they built 

and supplied the engines?

A: No.

(ECF No. 61, at 91.) In light of the fact that Plaintiff’s 

negligence claim fails for other reasons, the Court need not 

make a determination as to whether this testimony is sufficient 

to support a finding that Defendant knew the engines at issue 

would be insulated with asbestos-containing aftermarket 

insulation.
86

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 

 

98 For this reason, the Court need not consider whether 

there is evidence in the record that Defendant failed to provide 

an asbestos-related warning that was adequate and reasonable 

under the circumstances (i.e., that there is evidence to support 

the final element of a negligent failure to warn claim).
87

(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 
88

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.