Opinion
A140577
04-19-2018
PAULA TARJANI et al., Plaintiffs and Appellants, v. METALCLAD INSULATION CORPORATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-11-275775)
In the trial court, plaintiffs Paula Tarjani, Phyllis Newman and Patsy Rojo, the daughters of decedent John Ball, brought claims against numerous defendants based on John Ball's alleged exposure to asbestos. Defendant Metalclad Insulation Corporation (Metalclad) moved for summary judgment, which the trial court granted. Plaintiffs appeal from the judgment. We affirm.
John Ball filed this action in February 2011. In October 2011, following John Ball's death, his wife, Dorothy Ball, filed a first amended complaint. Plaintiff Paula Tarjani was substituted as successor-in-interest after Dorothy Ball died in 2013. Plaintiffs Phyllis Newman and Patsy Rojo are heirs of John Ball.
I. BACKGROUND
This is how Metalclad's motion below framed the background of the lawsuit and of its motion:
"In 1968, Metalclad . . . contracted with the United States Navy to supply insulation for stainless steel piping in the reactor area of four nuclear submarines built at Mare Island Naval Shipyard . . . in Vallejo, California. Plaintiffs allege John Ball ('decedent') was exposed to asbestos containing insulation while working as a joiner and shipwright from 1965 to 1972 at [Mare Island] aboard the USS Guitarro, USS Hawkbill, USS Pintado and USS Drum, the submarines for which Metalclad brokered the Unibestos at issue. Plaintiffs' claims are precluded under the government contractor defense, which shields military contractors from state tort law liability for defects in military equipment supplied to the United States. Boyle v. United Techs. Corp. (1988) 487 U.S. 500, 512; Oxford v. Foster-Wheeler (2009) 177 Cal.App.4th 700. Specifically, Metalclad meets the three elements of the government contractor defense: 1) the United States approved reasonably precise specifications; 2) the equipment conformed to those specifications; and 3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States. [Citation.] Since each of these elements is met, summary adjudication should be granted as to Plaintiffs' general negligence and strict liability manufacturing and design defect claims.
"In addition, Metalclad is entitled to summary adjudication of Plaintiffs' claims for negligent and strict liability failure to warn, because it would have been impossible for Metalclad to warn the decedent of the hazards of Unibestos, and even if Metalclad had placed its own warning on the Unibestos, that warning would not have prevented decedent's exposure and therefore the lack of warning by Metalclad was not the legal cause of any injury. Further, Plaintiffs have failed to establish that there is a triable issue of fact with respect to their cause of action for false representation and claim of punitive damages."
In its order granting Metalclad's motion for summary judgment, the trial court ruled: "Defendant has shown by admissible evidence and reasonable inference therefrom that Metalclad is not liable as a government contractor. The United States government approved precise specifications for the Metalclad-supplied Unibestos used aboard the USS Hawkbill (the nuclear submarine at issue in this case); the Metalclad-supplied Unibestos conformed to the government's specifications; and Metalclad had no duty to warn the government because the government was well aware of the potential hazards of asbestos. Further, Pittsburgh Corning, the manufacturer of the Unibestos supplied by Metalclad, provided warnings. Plaintiffs' general negligence (excluding negligent failure to warn) and strict liability manufacturing and design defect claims are barred by the government contractor defense.
"With respect to plaintiffs' negligent failure to warn and strict liability failure to warn claims, . . . Metalclad has demonstrated that the Navy exercised full control over the specifications and uses for materials on board nuclear submarines at Mare Island Naval Shipyard, and that a warning was not required in the specifications by the Navy. Evidence [was] presented that Metalclad never took possession of the subject Unibestos. Metalclad presented uncontroverted evidence that a warning was provided on the boxes of Unibestos by the manufacturer Pittsburgh Corning, but that warning did not prevent decedent from exposure. Metalclad therefore has met its burden to show that a warning given by Metalclad would not have affected how the Unibestos was used by the Navy, or prevented decedent's alleged exposure. Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1588."
Plaintiffs appealed the ensuing judgment.
II. DISCUSSION
The arguments plaintiffs now advance concerning application of the government contractor defense enunciated in Boyle v. United Technologies Corp., supra, 487 U.S. 500, 512, were rejected by Division One of this court in its thorough and well-reasoned decision in Kase v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623, 635-644 (Kase), which was filed following the completion of briefing in this appeal. Kase, like the present action, involved design defect and failure-to-warn claims arising from the 1968 shipment of Unibestos brokered by Metalclad, which were resolved in Metalclad's favor at the summary judgment stage. (See Kase, supra, 6 Cal.App.5th at pp. 629, 631-632.) We agree with the analysis in Kase and adopt it as our own.
"Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States."
The law firm representing plaintiffs in this case also represented the plaintiff in Kase; several of the attorneys representing Metalclad in the present case also represented it in Kase. (See Kase, supra, 6 Cal.App.5th at p. 626.)
Specifically, as to the design defect claims, we agree with the Kase court's legal analysis of the scope of the government contractor defense. (See Kase, supra, 6 Cal.App.5th at pp. 635-640, 642-643.) We agree the first requirement of the defense—"that the 'United States approved reasonably precise specifications' pertaining to the alleged design defect (i.e., asbestos in the insulation Metalclad supplied to the naval shipyard)" (Kase, supra, 6 Cal.App.5th at p. 635)—"can apply when the federal government procures a commercially available product" (id. at p. 636). The product need not be designed or manufactured by the federal government (id. at pp. 635-636); instead, "the selection of a particular design may reflect a 'significant policy judgment' by government officials, 'whether or not the contractor rather than those officials developed the design' " (id. at pp. 637-638). We also agree that, with respect to the third requirement of the government contractor defense ("that the defendant 'warned the United States about the dangers in the use of the [product] that were known to the supplier but not to the United States' ") (id. at pp. 642-643), "a contractor 'can demonstrate a fully informed government decision by showing either that they conveyed the relevant known and "substantial enough" dangers . . . or that the government did not need the warnings because it already possessed that information' " (id. at p. 643). It is not necessary for Metalclad to make the more detailed showing "(a) that at the time of contracting it independently ascertained the extent of the Navy's knowledge of asbestos health risks and (b) exactly what it knew at that time about asbestos health risks." (Id. at p. 643.) For the reasons stated in Kase, we reject the contrary arguments presented by plaintiffs here, as to both the first and third requirements of the defense.
Applying the government contractor defense here, we note the summary judgment record includes much of the same expert and other evidence discussed in Kase, including evidence pertaining to the Navy's testing and use of Unibestos, the Navy's specifications for insulation products, the Navy's knowledge of the health hazards of asbestos, and the 1968 shipment of Unibestos brokered by Metalclad. (See Kase, supra, 6 Cal.App.5th at pp. 628-631, 640-641.) We conclude (as did the Kase court addressing the same 1968 shipment of Unibestos) that no triable issue exists as to the applicability of the government contractor defense to plaintiffs' design defect claims. (See Kase, supra, 6 Cal.App.5th at p. 644.)
The appellate court in Kase stated the trial court there overruled all the plaintiffs' objections to the evidence Metalclad submitted in support of its summary judgment motion. (Kase, supra, 6 Cal.App.5th at p. 630, fn. 2.) Here, the trial court overruled most of plaintiffs' objections to Metalclad's evidence, but stated, as to a few items of evidence (portions of, or exhibits to, some of the expert declarations) that it "did not consider" them or that they were "irrelevant." We are not persuaded these minor differences in the record affect the proper analysis of the legal issues involved. Most of the items of evidence at issue concerned the history of the Navy's awareness of the health hazards of asbestos, but the court admitted significant portions of the submitted evidence establishing that awareness.
Plaintiffs suggest the expert declarations submitted by Metalclad could not support summary judgment. As noted, the court admitted these declarations in large part, and plaintiffs do not directly challenge the court's evidentiary rulings on appeal, so we will not disturb them. (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1309.) And we reject plaintiffs' conclusory suggestion the declarations were based on speculation. Each declaration describes the facts and materials on which the expert's opinions are based. Finally, we note plaintiffs did not submit an expert declaration of their own. We find no basis for reversal. (See Chavez v. Glock, Inc., supra, at p. 1322, fn. 19 ["on summary judgment, if the moving party's expert testimony is properly admitted and not controverted by an opposing expert, the court cannot deny the motion because a jury could arguably reject the expert's view"].)
As to the failure-to-warn claims, we conclude, again consistent with Kase, that no triable issue exists as to causation. (Kase, supra, 6 Cal.App.5th at pp. 644-646.) Metalclad never had possession of the Unibestos (which was shipped by rail directly from the manufacturer, Pittsburgh Corning, to the naval shipyard). (See id. at p. 645.) In addition, plaintiffs here, like the plaintiff in Kase, have pointed to no evidence that John Ball saw the shipping containers for Unibestos. Instead, they cite a declaration from Gordon Flinders, a coworker of John Ball's, stating that Flinders saw stored "cardboard boxes" of Unibestos and did not recall having seen any warnings on the individual boxes of insulation. (See ibid.)
"Since the evidence is uncontroverted that Metalclad never had possession of the Unibestos and there is no evidence [John Ball] ever saw a shipping container, the question as we see it is whether there is any substantial evidence raising a triable issue that Metalclad could have required Pittsburgh Corning to place a warning label on each box of the product before Pittsburgh Corning commenced doing so itself." (Kase, supra, 6 Cal.App.5th at p. 645.) We agree with the Kase court that the evidence identified by plaintiffs on this point (i.e., deposition testimony that Metalclad's purchase order directed Pittsburgh Corning to mark the cartons of Unibestos to include information required by the applicable naval shipping specification) "is not sufficient to raise a triable issue as to causation." (See id. at pp. 645-646.) "There simply is no evidence as to whether Metalclad could have directed Pittsburgh Corning to place an asbestos warning on the boxes of Unibestos, or whether Pittsburgh Corning could have, or would have, complied with such a request. On this record, these are matters of speculation, which does not, and cannot, raise a triable issue." (Id. at p. 646.)
III. DISPOSITION
The judgment is affirmed. Metalclad shall recover its costs on appeal.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.