not in the chain of distribution for the carburetor that were placed new original carburetor on their engine and therefore cannot be hauled liable for it and this argument has some forces the policy and last request ability has evolved however what's and i'm curious as to why you're starting their argument which i think is the strongest argument really only applies to one of our theories of liability theory that they are directly responsible for flaws in the replacement carburetor itself as the designer of that carburetor we have a primary whether there was a cause issue or all jury questions except in the most unusual circumstances here there is not a lot of evidence like um you could point to that would refute those the evidence that we presented at a parent most they have a jury question on some that there are several things like coming should have done differently and should have designed dissension differently but first instance should have changed the design subsequent to that we should have issued of warnings and should have given information to the federal aviation change we are saying that if so the decision to classify changes minor or major west in the first instance where the manufacture were allowed to make that determination completely unilaterally applying the framework of why what is your position so our necessary i mean under wyatt unless you can show that the f a a would not have approved the change there is no conflict reaction and here i was assuming you're talking about the difference between the wire they would have said well let's go back to the wire part there's nothing wrong with it we just decided to change i think it's completely correct and i think i do think that when you consider the impossible inquiry we shouldn't bind ourselves to probability treating the matter for our question as to why billy of lycoming it matter is solely because kelly m like homing stand in a fundamentally different position particularly for purposes of state law with regard to state law there's really no question that the manufacturer of the replacement parts at issue could be liable under the principles of strict law and and negligence but those principles i respectfully submit went in exactly the same direction with regard to an entity like like homing an entity that at most could be said to be responsible in the sense they weren't even the designer but the holder of the design approval for a competitor product and that's why we agree with my friend mr singh that you have the section for zero to a claim the only to kennedy's it can be held liable our energies that are either the manufacturer the seller or otherwise in the chain of distribution that is a principle that the pennsylvania supreme court reiterated in the teacher case really the most who's debating an issue with the got the plane under a particular type certificate have to follow that design and i'm a bachelor knows it needs all kinds of components and it's not making all of them but it knows all of the element of duty for purposes of negligence which is to say that the principle is you know what is often referred to as the obligation of product identification that is to say that you have a duty of care only to the consumers of your own product and you do not have a court that proposition and there are certainly other cases but articulate that proposition as well again this is a very familiar principle of tore off your honor may be aware of the fact that there is a considerable body of law on this issue with regard to pharmaceutical products because some effort has been made ironically enough in light of the supreme court's preemption jurisprudence to hold brand name drug manufacturer cybil for consumers of generic products and what's your best case in this back pattern duty it is not the designer but it is in the chain of distribution for those who use a product that ships with the original engine but that is i think a far cry from holding them liable on this design by dunk that they couldn't be and they issued s p three thirty three sixty six which dictated the way this was going to be done and that consumer means the end consumer are other aspects of it the citizen that might be but i would respectfully submit that there is no need to sort of hide because it's this court is stated as a court sitting in diversity it should not recognize expansive theories of tort by ability absent some indication in state law th after market component part manufactured by a competitor which again is an issue judgement aleko right in the context of car smartphones or any other sort of product the case he cited was the pigeon case a case that is plainly distinguishable because to the extent that the pennsylvania supreme court addressed state law at all on the primary issue the legal issue in the case was a federal issue involving the statute repugnant it discussed section four hundred viability that is a quite independent and conceded week in applicable bit applicable bases for liability in this case really you have an apparent manufacture and as mr singh rightly and candidly acknowledged in that case you had in much greater degree of involvement by lycoming such that he could be disagree with one aspect of the discussion of the negligence claim but of course the shorts cases primarily helpful for us in its discussion of the principle but the product is where we're not really focused we're on it on th this context this is sort of a critically different context for the simple reason that when you're dealing with aftermarket parts in this context and evasion context the aftermarket parts manufacturer is subject to an entirely separate regulatory regime and stands in the same place as the original manufacturer both by coming in kelly all holders of independent design approvals the aftermarket parts manufacturer onl companies in the pharmaceutical context even in which the law is generally favorable for us the manufacturer of the replacement part in this context is under no obligation of saying it's no obligation of identical how if you look at the and really ought to certify because it is a massive proposition and again played it cannot point to a single case affirmatively permitting this to say that for purposes of pennsylvania law the viet original manufacturer of a component part can be held liable negligence to a consumer of an aftermarket replacement part manufactured by a competitor and that has tremendous consequences not just in the aviation context but beyond i think with regard to preemption judge schwartz i think that it is critically important however you f preemption standard to focus on the fact that the after market fasher does have the ability to quote unquote deviate from the type design in the sense that the part does not have to be identical and so per instance that kelly had holders so if right coming sought to do so and sought to modify the existing approved type it's on they have to go through the major minor change mechanism but my point is your shouldn't that change would not have been able to be approved by impossibility because it had to be exactly the same as the brain yeah i don't disagree with any of that judgment bell but i think that to me except that you look at how you reconcile what happened by what and what happened in mensing with what happened and why  expressly authorized changes to d n a without f a a pre approval to the contrary they simply afford the f a a discretion to determine the acceptable method and i would respect lease about and this is a question for mr saying what is the best principle that there is no one possibility preemption where you can make a change yourself without peer approval so i would sort of stand primarily on the ground that we were doing with minor changes you know the regulations themselves you're not authorized minor changes to be made without the approval and again if there's any doubt about that this court can once again ask for the views of the f a a the f a a and it's really appreciate in no way suggested that by the changes could be made without pre approval and  i do think that this question about whether using the major or minor change framework is really a central question and there's no accident but judge perry unspent there was no i think the judge ban spent several pages on this issue in his opinion and he thought this was really critical the reason why this is critical is because i think my friend mr singh basically conceded that with major changes you have to have f a p approval and i think that was a prudent concession because this court said as much in its earlier opinion it eight defining what constitutes a major changes judge brown pointed out the oddity of this case is a plate of whole theory of the case is that the fastening mechanism at issue a fastening mechanism that the f a a still permits to this day somehow really don't know that there is any conflict is that correct because you could go to the f a a and and get approval for this state what you say is what should have happened under state  is that where the f a a has passed on the relevant design feature then yes in other words there is no liability for the simple reason that government approval is required to make a change and there's no dispute in this case that the f a a passed on this particular issue or indeed what is artificial about or unusual about this case is the fact that the f a a on my comings request approved it change with regard to similarly designed carburetors to the lock have brought are designed prior to the tight certification of this particular engine plane of concedes a page nine sixty nine that the type assigned here included bought have washers and case to move forward it have to be a major change that's why i'm a little bit perplexed by the obvious tension it was kissing his argument between his argument as a matter of state laws why we should be held liable and his argument on the  were incorporated together and that the manufacturer of the larger product containing the component parts made by another manufacturer was nevertheless eligible to be held strictly liable all of these cases stand for the black widow proposition of pennsylvania law which is that when components are come by i know into a larger product they don't absolve the manufacturer of the larger product of the ability unless the integration of those components is a substantial unforeseeable change and that's a jury question and they have no evidence on it every dangerous design feature what about their statement that it's a minor change where does that take well so here i actually do think that you could say this is a minor change even though we are arguing that it's relevant to safety because the question of whether state   best practices procedure for approving minor changes that proposed best practice procedure for the company in house purity and house to evaluate the changes minor to get all the data that says it needs there within its requirements and then to put that data on the shelf in case the f a a audits them document says some manufacturers do that and it would be acceptable to the f a a what the manufacturers have to do is they have to come up with a method that is acceptable to the f you to do what state law requires that's enough to trigger preemption if you want to have to consult somebody who's on your paper regardless of belt recently i was not to somebody on your payroll but that's true but let me give you a hypothetical that might make my conceitedly in this case right and so here is the situation we have the situation we have is that in order to implement a change maybe i don't even know if they need a d v r signature because if it's a minor she will not even use that but really not a jury absolutely but i'm just saying that i think that is the question for possibility as far as a go to these things you think the possibility inquiry turns on whether the manufacturer can take unilateral action i hope it would be live but there is a world of difference between this situation where there and we can start from the d d r and the situation in general in the general generic drug cases where the agents meant generic drug manufacture has to consult the f d a asked me f d a to consult with the name brand manufacture take the regulatory action to then trigger a label and then by operation of raw the generic drug manufacturer would be bound that was the sort of action that gave rise to a possibility preemption and part of it i think there's just a world of difference between this and that and i don't mean to oversell the point i'm not trying to say th are the property of the manufacturer can be directed by the manufacturer to do anything that's contrary to law that's not the promise of our argument the premise of our argument is simply that this is a lot easier then anything that was looked at in the generic