products were useless without as best as today those same products are used without us bestest navy ships why is there not to discover something new that's better than as best as they did in fact the technology advanced and there were different forms of insulation in the navy eventually transition to those forms in our equipment today is used with non as best as forms of insulation but it did the time of the down in question the manufacturers have a product it's whole it doesn't release molecules what causes it to degrade is your ship is your product your product speaks up to such an extreme degree that it generates the specificity so it's somewhat in congress for me to think that you're first our product does not cause the a specialist to degrade in any unique way this is just what happens to us best is when it's used just as gasoline is used in a car and eventually needs to be replaced but our product is not contributing to the harm in tank and the gasoline which is what explodes the car explodes the consumer's not going to sue the gasoline company it's going to sue you because you the car manufacture produced a defective product that cause an injury that the gasoline would otherwise not cause why are you any different than the bare metal car seller because in that situation the consumer might well suit both the car manufacturer and the gasoline manufacturer because both products contributed together to the heart where where i'd sell that's why he wouldn't sue the gasoline manufacturer i mean nor you normally run a car with gasoline in it's normally perfectly safe here you normally run your product with it's best and that's not perfectly safe what  you run our product and our product is safe it's the best it's that it's causing the harm and the especially this naturally degrades with use and then replacing it can be dangerous that's true but unlike the defective car which is creating a spark that a properly operating car should not create and thereby causing the injury with the gasoline our equipment is not making the best is any more dangerous than it would be if i'm sorry but are you arguing that this is a course may be liable for injuries that their products cause so the defective car that causes a spark is causing an injury but they're not liable for the injuries that are caused by third party products foreseeable used with their own consider for example a tire manufacturer th designs a tire to be used specifically with a multi piece wheel and the multi piece we'll make splode when the tire is installed on it the wheel manufacturer in that situation can be sued but the tire manufacturer even knowing that it's tire is going to be used with the dangerous wheel is not liable likewise a jet manufacturer isn't liable when the seats that are later installed in the plane can cause blood clots even though you might think of the jet with the maritime which is different and that you claim there's a uniform tort principle but not every state has the absolute rule that you tout there's a split  authorities among states as to the extent of liability if any for bare metal providers so what do i do if i'm in a special area with a soli there are a few questions and bedded in there let me try to tease them out first in the tire case in the jet case you say it's not foreseeable quite the contrary the jet manufacture makes a passenger jet of course knowing that seats are going to be used and it's common knowledge that you can that can cause blood clots that the tire manufacturer in the reynolds case that i'm referring to specifically manufactured the tire to be used with this particular kind of wheel that was dangerous so there is foreseeability but the point is that as a matter of ordinary tort law foreseeability alone is not enough to create a duty when you're talking about the foreseeable use of your product with somebody else's product second question or just by what the second question just sort of i or that i think you asked is about the state of tort law if you look only at us best to specific cases then there's a split of authority but there's no reason that you would look only at a specified specific cases you want to look at the body of tort law as a whole and when you do respond it's have a single case not even one outside of the especially this context holding that a defendant is liable for injuries caused by a third party product to use with its own if that were the law drywall manufacturers would be responsible for warning about the dangers of paint the airplane in the seats the tire in the wheel toyman your factories would be responsible for warning about leaking batteries different from those in that no one would buy you a plot but for the be installed in it later by a third party nobody would buy dry wall without the availability of paint or wallpaper in order to cover it and so i don't think that our situation is any different from the ordinary torkel it's somewhat i mean  haven't been convinced so if you look at as the negligence case and then you look at the restatement and then you look at what the court ordered below i do have trouble with one of the things but do you really have a problem if the manufacturer specifically directed that the product be used with an asbestos containing material where he knew that it was dangerous that's one of the things they want to show i don't see what your problem is with that or that the product was originally equipped with an asbestos containing part that you could reasonably expect will be replaced because simply when people do replace things they do tend to use the kind of equipment that was there before what's wrong with that one now containing an i might the third one i don't know because there's conflict sort of within the restatements so i thought maybe you should praise it in your favor somewhat and say well he could be liable to where the manufacturer functionally requires if he puts out a product that to work that to work you have to use the dangerous thing i'm pretty sure it should be laudable there but but i can see that in the court of appeals maybe read to go beyond that or right it's a long question but really it comes down to what's wrong with a b and what's wrong with see if we interpret it as i suggested so let's take a d and c i think a was required b was directed and it was replacement parts the problem with required is that required just really means foreseeable job doesn't required means you tell the person that he better use this product which is very dangerous by the way and you know where it won't work it's like telling people if you have one of those hammers you know that shoots nails and you know the nails are absolutely defective and you say you've got to use this product says the manufacturer w ith nails which he knows work backwards ok i mean that's what it seems to me that says the manufacturer specifically directed that the product be used with an asbestos containing part first we did not specifically direct the navy to do all that you don't think i want the other side may say the opposite and there we look through the record briefly i'm not an expert there but i think we only have to did seem to maybe there's some evidence on their side there and  and i don't think that's it i can't read the whole record and know if there's evidence or not this isn't a summary judgment case here you don't need to read the whole record but if you look for example at joint appendix twenty seven it tells you that the navy was the one that specified ok fine then you'll then the jury will decide in favor of you and if they come up with some evidence that says it is the civically directed they will win if the jury believes them all right and of case for us anything wrong with  even if it's a manufacturer quote unquote direct somebody else to do something the manufacturer doesn't control the navy it's ultimately the navy's choice what to do and it's best as manufacturers choice whether to supply the a specialist that is dangerous or weather events or get the navy let's assume the navy was not involved any five it any any thirty any third party even if you're talking about a private user of of ship components the manufacturers don't have the power to direct them to do you are not liable are you making a fairness argument are you making an efficiency argument what kind of argument is that it's both a doc try an argument and a policy argument as a doctrinal argument tort law dr draws the line of liability at the chain came in we could read the statement and contest that so i guess what i'm asking is like what what sense would that rule make if if you think that that's what the doctrine says tell me why the doctrine says that because because i can't think of a reason and that makes me think that the doctrine doesn't say it so here is this is your opportunity to tell me what sense would it make to say even though you direct the use  be liable for its harms because tort law places the duty to warn and also places liability on the party that is in the best position to control or avoid the harm and it is the man the subsequent manufacture of  or of the chief justice is alternative to a specif that is in the best position to control the harm in this situation that party is also in the but why is that once we put our product out there we don't control what some third party develops scientists haven't discovered yet that it's going to kill you but you have and it's the same case you still don't have a duty to warn i don't think you have a duty to warn in that situation but that's also far from this case there's no i know i don't want this case but your position is even if you the manufacturer is telling people to use it as best as with your product they don't know that it's harmful but you do you have no duty to warn perhaps you might in that situation on a different theory have some sort of a so the policy rationale here is to place the burden on the party that has the ability to control the harm and moreover the especially component manufacturers are the ones that are in the best position to warrant if we had put some sort of a plate on our qui first who knows if it would have been seen down the road as opposed to the package of new insulation that has to be opened and applied and second as technology changes our warning from one thousand nine hundred five might well have become outdated and inconsistent with  state of the art warning provided later and so that's why tort law puts the liability on the party that actually has the ability to control the harm citing that besides the costs of having an additional warning do you see any other downsides to what downsides are there associated with expanding the duty toward at least in so far as we're talking about things that are directed or necessary or negatively used forget about forsee ability for moment what we normally do you're right put the duty to war with the lowest cost avoider but sometimes when it's expanded and in some cases it has been expanded in this area looks like and i'm just wondering what one of the negatives associated with it why is that bad to get outside the us best is context i don't think it has been but to answer your your policy question it's bad first because if you believe that the incentive ought to be placed on the party they can avoid the harm you dilute that and that incentive by spreading the liability around them to remain so i mean that still we're expanding the duty to war we're not contracting it ok so that doesn't work you lead to over warning which will lead people just to be deluged with warnings and to ignore them you create a situation where there really isn't any clarity from manufacturers about what they do or don't have to warn about because we're talking about tests like directed in required but what do those really mean if we talk about required really what that means is it's really foreseeable but at some point there can be another alternative that maybe is ten percent less effective and ten percent more expensive at that point is it's best this or whatever product we're talking about still required or can we say well the equipment will run with this alternative it just won't run quite as well is when you put your product into the market and say it requires its best this that doesn't even hold as technology changes so required unspecified are indeterminate terms and one of the costs to answer your question justice course which is you're leaving manufacturers that see whether we're talking about maritime law or only i'm sorry what about what warnings they need to provide i'm sorry i don't understand your point about the future of the change if you warn that a space to sprockets are dangerous should exercise care in removing them then the people down the line who choose to continue doing it you're off the hook because you gave them a warning this is a failure to warn clean if you did what you were supposed to do that doesn't take away their insensitive to change to a list dangerous product if it's cheaper or if it's easier to deal with i'm not sure what that why that increases cost in some meaningful way well i had it increases cost if you're looking after the fact at a party that didn't think that the law required  provide a warning and imposing liability it dilutes the effectiveness of warnings to have too many of them if you just have warnings about everything people ignore them and again moreover you may end up with inconsistent warnings if the company is a company provides a warning about how to handle installation based on what's known in one thousand nine hundred five that may be inconsistent it may be the wrong way to handle insulation in whatever form it takes twenty years later so i don't understand your technology argument i mean we're talking about people who were injured at a time where this was what you use as best as right and you're saying well warning would be bad because twenty years later maybe there's something better is that the argument well no we're saying  warning at that point the warning is best provided by the inspectors manufacturer we're not saying that there shouldn't be a warning by somebody and that there shouldn't be somebody to sue you can sue the a specialist manufacturer if it didn't provide the warning and setting aside any government contractor right but the problem is if you have multiple warnings it dilutes the value of them and it can also lead to contradictory warnings once we put a plate on our equipment that provides instructions about what to if twenty years from now the product is not used with us best as everybody knows to ignore the warning but the warning is good for all the time in which the product is used with us best us that not necessarily what what if five years down the road there is different thinking about how best to handle what's best us itself they're not negligent i mean the tell me if i were i'm wrong on this i found it easier to think about this case once i forgot about warnings and i said the case is not that complicated a case of the case in the restatement judy loans her car for the evening to grant who she know who is a very dangerous driver the least cost of boarder of course is grant but nonetheless judy is negligent and the negligence that they're claiming here is taking a thing a physical thing which the manufacturer knows is dangerous and reasonably putting it out into interstate if you use asbestos in it on a part that will wear out easily because people do use the past to judge the president he'll be replace it with asbestos magick and that's not reasonable and the third thing is if you functionally that's what i thought this there was better for you you know you functionally require the use of asbestos in one way or another then you have performed an unreasonable act whether you could cure the problem with warning or not cure the problem with a warning is a question of what makes it on reasonable and what should a remedy be or i was thinking of it in now i listen to you and i'm not sure i'm thinking correctly so i would like to know what you think well i think the problem with all of those standards is that they don't give manufacturers clear guidance about what they need to warn about does a manufacturer of a device that takes bad and batteries can leak does manufacturer in that situation have to include a warning just in case the battery manufacturer doesn't tell you that its battery can leak i'm going to tell you this battery can leak because i'm telling you to use batteries in my product the manufacturer need to do that has it directed the use of batteries though there's no tort case in which in that situation people have gone beyond suing the banner battery manufacturer and actually sued the electronic products manufacturer because again tort law places the burden on the battery manufacturer it's their product that's actually causing the harm the duty doesn't extend beyond your own product and the harm is caused by somebody else's products whether it's viewed as a question of duty or causation tort law puts the liability on th distributor seller of the product that actually causes the harm not just any product downstream that is used with it and in a but four way can be said to contribute to the harm with why are too many warnings  it leads people not to pay any attention to the warnings that they actually should pay attention let most you have two warnings here you have the equipment warning and the pestis warning it's not really i would think that that's kind of good you know it's two warnings you take it pretty seriously well but if you follow this rule to its logical conclusion you would have multiple warnings essentially on every part that's connected to every other part within the ship the propeller manufacturer knows that in order for that propeller to operate it needs to be connected to a steam generating propulsion system that uses its best us down the line each manufacturer at each step of that process need to slap on a warning not only about its best this but about every solvent that is used down the line and in the ship about weapons that are on the ship all of these things are interconnected and in a sense the propeller requires them otherwise the propeller is not going to operate but if you have warnings all the way down the line it dilutes the value of the warnings it can also lead to inconsistent warnings because the party that's in the best position to provide an accurate warning is the party that actually provides the injury producing good not the propeller manufacturer down the line if i could reserve the rest of my time thank you counsel thank you mr chief justice and may it please the court this is a failure to warn cases under section three eighty eight of the second were statement that's where the principle is embodied in that says that it's something that ought to be controversial and that is if you make a product and the ordinary use or maintenance of that product is going to cause harm that you know about then you need to warn about that and the court of appeals here quite explicitly limited its holding to situations in which you have a product that has a part and that part is required for it to operate and so if i could just point us to the first operative sentence of the court of appeals opinion it's a two a of the joint appendix it's not that long the defenses basic idea this is bare metal is that a manufacturer who delivers a product bare metal that is without the insulation or other material that must be added for the products proper operation and so it is concerned only there with the case in which you just these machines will not work if they don't have a specialist in them but it's worse for that for the defendants in terms of their liability because there's been as has been suggested it is the operation and maintenance of the machine that makes the danger worse so just as fired and just sort of mine or discuss the situation of how it is that a specialist can be on a shelf and it's not at all dangerous but if you put it in the machine and you subjected to the temperature of one hundred eight hundred fifty degrees and you compress it and you leave it there over time it will degrade to the point that when you have ordinary maintenance which is specified in the manual for the machine and you are digging it out and chopping it up that creates s festus dust as best as dust is a distinct danger that causes a distinct harm from a specialist as a part and that is the concern here and that is when you are maintaining the machine as you're supposed to as you are directed to by the manual created by the defendants here you have an injury to which you are there's a pretty good illustration of that and that's their own concession that when they ship the machine with the original gasket in it or when they provide the nine hundred ninety two replacement gaskets that foster wheeler did who's one of the defendants they're liable they recognize it's part of their machine maintaining their machine is creating the risk their responsibility for that for warning us telling us where a mask in the manual doesn't change when we get to the nine hundred ninety third gasket now i take the kind of law and economics take on this to be who's the most efficient party to warn and i want to explain why it is that they are but just to pause for a second that i think is probably the function of maritime law here and that is even if you disagreed with us and believe that there was a division in how the common law was applied in these circumstances there is a special solicitude for sailors that you would say requires the warning by the manufacturers here and if the navy believes there was over warning and the navy would prohibit giving this warning now why are they the most efficient party to give the warning first if their machine there are much more familiar with how the parts work then the part manufacturer because the parts can be used for lots of different machines what happens with a gasket for example is will get shipped set of asbestos board and it will be cut out to fit inside whatever flange or whatever pipe connection is inside the machine the people who know how that's going to operate how much pressure is going to be on it is the maker of the machine the a specialist packing it comes off the shelf it gets put in the machine now who knows how the machine will affect it is best if the maker of the machine the real manufacturer that's going to point to the cases that he's citing are the makers  manufacturers of these component parts knew this was a custom made part to work the equipment that the that these manufacturers were going to supply would they be liable as well likely not because that and this is a question in the common law that is dealt with by the integrated product doctrine and that is if the component manufacturer advises the manufacturer of the product and it's being used as intended then the duty to warn is taken on by the manufacturer of the integrated product here which is what makes this case quite different from a lot of the hypotheticals that we can get to i did want to just if we could just the reason for drawing the line there was the policy reason for drawing the line at that point along the lines of what i've just described and that is the manufacturer of the integrate product knows how its product is operating knows what effect will happen on the parts and centralizes the warnings there and it's so i could probably put it in very precise terms for you and that is if we could stop talking about putting  things for just a moment and talk about how this actually operates they provide a manual on how to maintain their machine ok it has pages in it in it will say disconnect the flange and take out the a specialist and the like that is where the warning should be because that's what we're going to look at you know when we were talking about the harm that comes from a specificity that you are taking out of it and so when my friend was talking about put the warning on the guy actually thought about it and wrote it down and says warning now what will this look like in asking yes my friends that's what the warning on the gas in my point is this looks great today but when i'm going to tear it out of the machine and it's going to get ripped up and torn up and turned into dust which is what our case is about this turns into  difficult to read in that circumstance so that the natural party who would provide this warning to us is at live very least a manufacturer knows i'm going to operate the machine and i'm going to maintain the machine by digging this out of its machine is going to tell me now you can have other cases that are much more marginal cases but i don't think it's an excuse to say well we're hundred percent certain that this machine is going to require as festus but if it only was we were ten percent certain you wouldn't hold us having a what you wish you can answer you can choose not to answer we've seen plenty of people choose to answer another question entirely up to you but of course the ability analysis might be ten more thirty percent we can qui but some chance then there is in the case law a suggestion of inevitability ok certitude we know it's going to be just and then there is the third possible rule which seems to be the traditional products liability rule which is you through your own thing that not for someone else those are the three choices between us and i think we've been alighting the first two a little bit here in this discussion and i'm just curious which is it that you are asking this court to adopt is that why ok second because that's the actual rule of the third circuit that's actually why i started with the opinion so what the court of appeals did is it's had the common law recognizes reasonable foreseeability and my friend likes reasonable foreseeability despite all the complaints about it so take the original gasket in the machine he wants all to be held liable only of course for reasonably foreseeable disease from the original gasket with the third circuit said is we're going to adopt the common law rule that you have a duty to warn about your own machine and that's good t include parts and replacement parts that must be there that are required in the machine will not operate without them then you are responsible for the risk reasonably foreseeable harm comes from that it did not say that you are responsible for replacement parts that are reasonably foreseeable to be used with your machine and so i'm not talk about the replacement parts portion of the opinion right yeah i'm just about the bare metal of the opinion for put aside the replacement parts i think were op we had three possibilities before us and you're still you're saying the second one is the one you'd have a say in that is it is inevitable so i do want to say that i do disagree respectfully with your understanding that the ordinary rules that you're responsible only for the thing that you if you know you make a loan without regard to replacement parts and my friend i think is just confused he says we haven't cited any cases we've cited the hoarding case for example and that's a situation in which you have an  and you have a wheel on it and the wheel runs out and you replace it within adenike a wheel and there is a risk that the wheel will explode of course your duty to warn that hey my machine you know it tends to blow up the wheel is remains your duty even if you replace the wheel we also have the mysterious case so the first one is from the california court of appeal the mysterious cases from the washington supreme court that's a respirators case so you make a respirator and exposes people to the thing that benzene or a specimen whatever it is that you're  to protect against you have a duty to warn that you know that that machine that device is only going to operate when it is that's exposed to the hazardous chemical that duty exists just as in the gasoline in the car so that it can i go back for a second because now i did reasonably foreseeable result of the failure to provide a warning then it gives three example yes well i don't have any product probably don't have a problem with the three example yes but it doesn't say they're exclusive and so i think that the perhaps one of the things that the other side is worried about is if you read that sentence without limiting it to the three examples it would create the horribles that they show that i understand and i think you can take some comfort from my reading from the first operative sentence of the court of appeals opinion that it's talking about only parts that have to be there for the machine to operate when the court of appeals in this is going to be at sixteen of the fission appendix as we've given you three we're not saying these are you know all of the possible examples i just think it was being sensible a very common law way but it was excluded if i could just be precise about one thing it was excluding and it didn't and so you would know what the actual consequences of this are there is a leading district court opinion that gets cited here by the court of appeals and it had a fourth and that is knowledge if you know that the part the a specialist part will be in it but you didn't require it and it wasn't absolutely necessary for the machine to work and the court of appeals i think was avoiding passing on that question which is in the case and i think you fairly can to one of the horribles that mr diverts k through out at the end of his argument was like a flashlight with batteries that come out if the flashlight is designed in a way that punctures the battery ok in the same way that maintaining this machine causes this best to turn and now you just let the batteries and the normal flashlight but it doesn't work in turn it on it doesn't work unless the batteries are in there now i think that that in that situation the mere fact that batteries are ash tray now when evidently knows it's going to be used with some sort of tobacco product hopefully and expects extending the duty to warn in those cases some of the concerns that your colleague has raised about over warnings contradictory warnings and the costs associated with that that might deter innovation and raise consumer cost needlessly seemed to have some purchase to me so help me out i'm stuck with it ok going is ok i think there are better example is flashlights rather than ashtrays because you can use ashtrays for other things i don't want to avoid the hard hypothetical and then just if you have an at a flashlight and you know is the manufacturer that the batteries in them are going to leak out and put acid on your hands i actually do think on reflection that that manufacturer needs to warn about that right so it is technically the case that the battery inside is leaking but you're operating a flashlight and you're going to be exposed to that risk i would think that you would want the manufacturer of the light to warn people while you're holding this flashlight you could be exposed to acid now you have just changed the answer i did ok so absolutely now i will say that another part of my answer is that this is the easier case because the product can actually contribute to the injury you may have lots of defenses there including that there were other warnings that were already given you have a sophisticated user that already knows about it that sort of thing but i actually think that in that precise hypothetical it ought to come out that way i was  the two i think that are are quite on point are the one case in the mysterious case that i gave so the california court of appeals and the washington supreme court and i do think i should you know to be fair to my friend address the other examples and so he gives the airplane ok so you mean manufacture an airplane it is a few things about that first airplanes actually do work without seeds you know some if not somebody better tell fedex which is shipping things all over the country but at the very least they work with lots of different kinds of seats that's why some people fly emirates not spirit because the sum of the seats will be much much closer in and have a much greater risk of injury for them and that's why we don't say as the court of appeals did here that the airplane will only work in a situation in which you're going to be exposed to it but i'll give you another airplane hypothetical that i would hope come out this way and that is the airplane manufacturer attaches rolls royce engines you know that working on the engine can expose you to a terrible shock and being killed or gasoline or poor out of a will will pull out poor out of it i hope that the we want the airline airplane manufacturer to warn about that because then that plane will not operate without those engines and you are going to be exposed to that risk in the course of maintaining that machine that's the much more analogous hypothetical about the ashtray you didn't answer  had said that the ashtray could be used for a lot of different things going that you're answer is well you know the manufacturer of the ashtrays off the hook because it's possible somebody might use it for some purpose other than tha just tried to give among the distinctions is certainly that and so it wouldn't fit within the thirty one to find only if that's much of a distinct there are others not the ashtray does not give you cancer ok the ashtray does not actually contribute to your injury what you have is you have a toxic product that you're making a choice to use that you are putting down it would be like saying this and i think it's a great example for us because it highlights why we are not saying they are responsible for every harm from a specialist including this is best as it would be like us saying you machine only works with us best us you're liable because i got sick because the storage room had d s bestest in it we're not just saying kind of but for causation that there was a relationship between them you can put your cancer causing cigarette down in the ashtray and not be liable for it but if it is the case i'll give you an example one of the ashtray is made of paper ok if the ashtray is made of paper so if you put something lit in it they will call it will cause combustion it will burn that's different because then your product actual product that you're manufacturing strangers well you're honored none of this is about that in and of itself and i don't i don't i mean kids make paper ashtrays and we all the world goes on i don't think they are intrinsically danes i'm probably kids shouldn't be making ashes but i just a not be as good as my at my desk just so i can follow the difference between a flashlight in the national example the difference between the flash and the ashtray example is that in the core in the necessary course of using it if you are going to be exposed to harm and so i suppose on that axis it is the case that the ashtray can be used for other things but we did think that it was quite important that we aren't saying that there are do they have a duty to warn that kind of encompasses everything that the a specialist manufacturer would because these specify any factor may have other warnings and other harm that it causes our harm is one that comes distinctly from the fact that this machine is just it's not bare metal it's dead metal it is just sitting there that there is not a duty i think that the important distinctions are that here the actual machine creates the special and distinct risk and in addition there is in the common law this understanding about whether you would be an efficient party or there's a much better party to warn and there we have obviously the situation i think the hypothetical resonates because there is so much knowledge in the community about the harms from cigarettes that come from warning about cigarettes but you know to take the battery example from the flashlights there are other sensible instances in which we say look if the using the machine is going to expose you to a distinct risk or at the very least when using the machine is going to create the risk what is it that we think the actually you know the asbestos manufacturer not knowing that it's going to be used in this dream machine not knowing that it's going to be eight hundred fifty degrees that this certain pressure will be out not knowing that g e will instruct to how to maintain the machine so to give it you know again the question is with who was the best party to warn in this case why isn't that the navy now i know the navy is liable because of the supper doctrine but why isn't the navy why wasn't the navy the sailors so what the navy did and so i it is a very specific question about the navy what the navy did is it required the manufacturers to provide manuals on how the machines are maintained it said to the manufacturer you know how to maintain your machine the navy isn't the party that's most expert about that it's not the one that tested the machine and the like yes there were specifications that it had to meet but the party that would produce the manual the party that would know that this was going to degrade the party that  could just give you another precise example cause i'm not sure the briefs you know elucidate this enough what happens here is you have two pieces of metal that's why it's called the bare metal defense and in between them is a gasket just like a washer in something in your house ok this thing cannot operate unless it's something that has a little bit more flexibility to it and that's why you have a gasket and that's why the reason for this best this is the only thing in the relevant period of time that would work and so in that situation when you the manufacturer are designing your machine and knowing what kind of gasket will i be able to use it's going to have to be in a specialist one but not just that i know that when you break the machine open right to do maintenance on the machine we have to get inside it i know you're going to have to  that off and make it perfectly clean in order to reseal it given the tolerances of my machine council i been thinking about your plane in the rolls royce engine i want to make sure i understand it the engine can cause all sorts of dangers when it's running  and your theory was that the plane manufacturer is liable to that when those dangers injure someone your honor what i was the example i was giving is if you are doing maintenance on the engine ok under the integrated product  the responsibility there is of the airline manufacturer it may provide another manual from the rolls royce company but if the airline is providing a man on how to maintain the machine and it includes the engines we want to warn about the dangers of i would have thought in that case it's a point your friend on the other side made it does seem to me that it would make a lot more sense for the engine manufacturer to be the one giving warnings about how its product works and i'm not quite sure why that's different than the case of course but it does strike me as as a different situation well i do think that the way the integrated product doctrine has worked and i think we can also cut through the ambiguity is and what the marginal cases are because they concede liability as to the gaskets that ship with it originally so we know we're dealing with an integrated product there the integrated product doctrine works as saying if you build something into your machine and is going to operate as intended it is the manufacturer of the integrated product the turban the pump in our integrated product with with it was that the i just want make sure the stinks and so i understand that is among the distinctions that's right and part of it would be probably whether it is the case that these things ordinarily ship with batteries ok if it's the case that these products come with batteries you know they are perceived as being one integrated thing if they are instead understood to be two separate things it would be a different matter the easy case i would say that we are having a struggle that the common law has had to ship with not inevitably used with no i think that it is shipped with because it's inevitably used it's no accident it just it wasn't like we love us best us i mean nobody here and elsewhere they didn't ship the as best as with that other than your gasket part i mean the just rub up against it there is the question of the non replacement external insulation and so this could be looked at differently we do think the result is the same because the machine we'll not operate as intended without the external installation for two reasons the most important one is the machine is built to keep in the system if you don't have a specialist insulation all the heat goes out of it everybody knows the machine will be covered in insulation the reason it doesn't ship with it is because it is just very very difficult to pre install blanket insulation rather than hanging it on once it gets to the ship itself i will say there is also a marginal case that my friend sometimes points to and that is you ship the parts of the machine and there where you put in the gasket in the packing that's because some of these machines can be so big that the navy can require that they be assembled shipboard but that doesn't make them any less part of the original machine that  actors relating to forms that are immediately due to the improper conduct of third parties even when that improper conduct can be regarded as somewhat foreseeable says oh well we have to figure it out and  see but i thought well maybe that should be interpreted as to require in your third situation not the first two that the manufacturer functionally requires the dangerous to be put to work duty to war unless the navy tells them not to warn that's the oil defense so i do want to be clear that i think that there are a couple of defenses government contractor and superseding cause that essentially the other side's argument is you know we got halfway there you know we didn't actually have the navy forbidding us from giving warnings and we didn't actually have an uncertain sort forseeable superseding cause but kind of the mix of those is a policy matter is enough to put the liability off on someone else there should be a real consequence of the fact that they can't meet the standards of the court's decision and exxon vs so effect on super due seating cause or the government contractor defense when the those requirements aren't met that's because we want the liability on the original party here and that this party it is creating the danger thank you thank you council four minutes mr forth shows that those terms when you actually try to apply them are very difficult to apply and will not lead to predictable rules that will tell manufacturers what they need to do and that will promote the interest of maritime commerce when you talk about the machine not operating without it in our case the machines would operate without a specialist they just would not operate as efficiently and join appendix one o four and one twenty eight discuss a couple of alternatives that maybe did not meet the navy specs but that would have allowed the machines to operate and again they operate without a specialist today if we're talking about directed and it's helpful to look at what an example of a manual in this case actually is and it's in the third circuit joint appendix at three seventy two to four o four all it is is a series of sketches that show where the a specialist would go in other words this shows the foreseeable use of his best is by the navy but it's not providing specifics step by step directions saying you must use this best and here's how to use it so when we talk about directed what does that mean and it's important in maritime law in particular to have predictable rules in order to promote maritime commerce second point my friend talks about how our machines created the risk this is not a combined use sort of case where a flashlight might puncture a battery and in that situation of course the flashlight manufacturer would be liable for contributing to the harm it was not argued below there's no evidence in the record that our that  something to do if if the theory if it were argued in this case that there was a genuine issue of fact about whether our equipment contributed to the harm in the way that a flashlight punctures a battery that might well be a fact question but that's not been pled or argued and there is no genuine issue of fact on the this record because that's simply not what's been argued below moreover if you look at our system while the system as a whole generates heat not all equipment in the system even does that the turbine for example spins around but isn't generating any appreciable amount of heat and so the idea that every manufacturer in this integrated system is liable for a warning would just again lead to over warning and excessive liability with respect to the cases mr goldstein cited the horn case is one in which the grinder caused the wheel to explode because the particular wheel was incompatible with the grinder and so in that situation there  course might well be a duty on the part of the grinder manufacturer to say don't use this wheel the messias case did not involve later added components and the same state supreme court there reaffirmed its earlier decisions in the bratton and  which did involve later added components and it's also worth emphasizing that both of those cases both of those cases are specified related cases and mr goldstein has cited a single case from outside the us best this man contacts involving say a flashlight manufacturer that needs to warn about the batteries the fact that flashlight manufacturers might do that as a matter of being overly cautious doesn't mean that the law requires it and doesn't mean that tort law policy is well served by it thank you counseled the cases