a before the court is a negligence action involving a failure to warn about alleged hazards associated with aftermarket replacement materials that are made and sold by third parties you can take it as a given this is really that we've read the submissions and you know we've got some some questions for you ok and my first one is you make a lot of the case pitch and say that this record was wrong and in believing that analysis of what pennsylvania law would be with respect to the case you have what you are think our point procedure and i don't think we're saying anything differently from what you said is judgment rule binding on a later trial court decision when there are new facts in the case but here there was a just a straight up question a lot i was pennsylvania going to come out on this question with with law is just simply that we just quarrel with the notion that the summary judgment order was somehow binding on this that on appeal and that we still had an opportunity to challenge that but you certainly have an opportunity to challenge it before us on appeal that's  nothing else what is pennsylvania's supreme court going to say about the better mental defense in this context under not a question of whether they win or they don't win it's just a straight up question line as applied to these fa duties or the rule of duty is applied to the facts and that's where the court's needs is the gatekeeper that's the question of law it's not just the definition of the duty but whether the duty applies under a certain fact pattern that's your problem is that  short supply well and we didn't we didn't think that the summary judgment fact pattern was adenike also the fact pattern a trial and there were a lot of differences in terms of discussion of nonis vessels containing alternatives and required to send those sorts of things and we would just have asked that the sorts theater been applied to the facts as presented at trial be a disputed facts not a resolution of them to apply the duty as opposed to just saying the court looked at this in summary judgment and brain not looking at  was what was up to then in the jury instructions then at the end of it being you're really asking us to set aside a jury's verdict no we're asking to set aside the decision to at present the question to the jury because the the standard of duty was not met they did not meet the duty threshold of proving any evidence of subjective knowledge and if that shorts applies and if shorts is good more the shorts standard sa got if you've got acknowledgment from the company's own representatives that these pieces of equipment over time were going to have to be opened up and the packing was going and seals were going to have to be replaced and that there were limited substitutes for us as this and then you also have the testimony that in high temperature settings like the ones here it was highly likely that it was going to be asbestos well how can you stand and is circumstantial evidence that would have to concede that some circumstantial evidence rather it's no evidence of what was sold to this company or the particular valve to which this individual was exposed it's evidence that generally at some point in time packing would have to be replaced and things would have to be open isn't that an acknowledgement that it was forseeable to crane that somebody was going to be exposed to whatever the seals and packing were and that even if it weren't asbestos that they eighty eight which is what the broughton court in washington covered and the other of these lines of failure to protect cases right wing is one yani is the famous counsel vein a case on that where you have to have a special relationship none of those saying the supreme court pennsylvania opened the door for you know you have two responses to that the first one is that four other the highest courts of four other states have looked at this issue none of them has split the duty every one of them is found the same exact duty under strict liability and negligence and if you think about it that makes sense from the failure to warn cause of action which is kind of a con based i think anyway so there's not a lot of sunlight between strict liability any of the war in pennsylvania about negligent students and whether that's restatement section three eighty eight whether that's the failure to protect cases or whether this not all house factors are separate and then say i used the same offer to a but it just pennsylvania's supreme court would see it differently why do you oppose the idea of missed being certified the pennsylvania supreme court we didn't oppose it in the sense that you know and if you read going from barrier it's in shorts when the courts predicting the law of the state's highest court they look at that court's precedents and i guess any other thing that makes sense but the point is if you look at the precedents of pennsylvania in the pennsylvania supreme court on negligence duties it's totally different than the war here and the call you have to work with here are two little court cases from the state courts that rule for this case versus other future cases if the pennsylvania supreme court decides differently and to how long the case is an amount of money at stake why wouldn't it be appropriate to get a definitive ruling from the pennsylvania supreme court that question or leave to your honor's i mean our position was that a lot of pennsylvania sufficiently clear that tension didn't really deal with negligence duties and tensions a bit of a red herring here because all it did is just recognize that there's always been a negligence and strict liability cause of action and that's runs through pennsylvania law all the way you know as far back as i've looked at it so in our view in plain clothes view the law is sufficiently settled on negligence duties that it can be applied can virtually if you look at the four other highest courts that have looked at this issue these facts not me any of those legal standards there would be no legal liability under any of those test so the prediction that you're being asked to make is a very sweeping one and it does not it appears to be that that's further than the supreme court would go but i mean i don't want to get it put myself in your position to say how you should deal with that issue isn't the case any in contemplating the possibility of certification we're really dealing not with just a single question but a conception two different questions one is the existence of a cause of action a potential necessarily off the table even if we thought there was a basis to predict what the company supreme court would tell us to the existence of the cause of action what possible basis do you do we have as a federal a bit you know frightening to those of us who are defending these kinds of cases because it means we can't rely on precedent and so you know the precedents on t v in negligence are such that they seem to be sufficiently grounded that  court could achieve that task no i agree with you though you're on a bit it is really two issues right is there a duty if there is a duty what is the duty so i don't want to quarrel with you that your assertion of what the analytical steps are is certainly cracked i just i don't believe that based on the precedents that are day or in the statements of policy that the pennsylvania supreme court has made in cases like mentally that that's a task that would be extremely difficult it would be it it would be very difficult to fashion i'll come on these facts supposedly exposed them or the jury found he was exposed were in fact ones that were shipped with asbestos seals and packing for the crane co had any reason to know that they would be going to that return bands which were all steam powered says all that's true but i take mr varies argument to me we make this stuff we put it in the stream of commerce we don't know where it's going to sell it there's no evidence that this valve was ordered from quiting co with specifications and that they ship that with specs and therefore you could make then fragile step you want to make so the things you're saying are interesting and true but how did gaskets with as best as can can get gaskets in there valves they were asked for by their customers and appropriate to the application now given those facts one that the turbans were used to that the customer was sophisticated enough to know that they were going to be used in steam applications and that they needed something that was appropriate to that application to that they knew that the knew that asbestos parts were going to the used even aftermarket parts because it first shipped them with as best as containing gaskets and packing because that's what sophisticated customers were asking for significance as well one of the points that judge or bono made is the danger in the past that is when it's removed so requiring the warning to be placed by the replacement basket maker would never be an to provide a warning on its valve about the danger of a placement baskets that it really would be used in it some just discuss it is a traditional negligence versus strict liability kind of action some distinguished that as well time but what what really makes the label maritime something that on the theory given the very same policies that are identified and that are balanced in connor right why would the federal court in district court or as we consider the issue why recently some of the maritime cases had come out differently than conor dead but at the time connor was decided there was a trend among maritime cases in a different direction and maritime law is supposed to be  specifically at movement and pennsylvania law and the policies and what he believed would be the decision of the pennsylvania supreme court but there are three acknowledged that pennsylvania supreme court will do what what basis do we really have looking to pennsylvania law even if we accept eyes that the question they put your colleague i even if we accept and the premise that  pennsylvania would create right ability here what basis is there in any pennsylvania case for us to decide what that test would be how you articulate and what the duty is when shorts did that at all and i'm just wondering if you've got a response or a take on their assertion that section three eighty eight was something that wasn't considered b well i believe that he was looking specifically at pennsylvania law and i don't believe that and it's the focus and so then the law required him to address that supplying a chattel a piece of property that's going to be used by somebody else and that's what we're dealing with here right so i think their argument could be you can't trust the schwarz decision it doesn't even address the restated section that's most pertinent to the point section three a and that argument has thus far gone unanswered by i'm just wondering if you've got any answer to their assertion that that lack of engagement was section created under if we if we think we're creating a different body of law that tort law than we are getting off on the wrong path this is general tort law and he ought to be engaging with joe ice common law in this case a specific goes to that goes to issues of why critical you know this is dangerous or does it mean that there are some different set of duties and responsibilities and liability standards associated with asbestos just because there are a truth that's a pretty good basis on which to distinguish tof and you when you've done that you know different people might disagree with it but i guess i'm still trying to get you to  to answer whether or not to go to a brain knows not discussing a section of the restatement that seems specifically aimed at this kind of third party liability that you're talking about that is supply a challenge that ends up getting used by somebody but that that that's problematic for the validity or the quality of that prediction that he made about pennsylvania law because because leads directly to the injury that occurred to the plaintiff the connection is is so tied in this case that expecting that that that component would have to be replaced again and again only that the danger from that project was in that replacement and that it would be replaced with an right now given the standard we're dealing with here which is any rational jury why is it irrational for a jury hearing that from your own corporate represented to say no we believe it's more likely than not they they knew what they needed they asked for and they no evidence of that there's dr p and leoni saying the customers would ask for things and power plants would ask for things but see chose lead bought there's now from westinghouse there's no evidence is how westinghouse got it somehow we're not we're not communicating with her you knew it was going to st joe's or not is irrelevant their point is you made a valve you made it real with asbestos gaskets and packing and put it into the stream of commerce knowing it would go someplace where somebody needed that kind of valve and st joe's needed that kind of valve and they bought it from some bitter man giving specs for what they wanted so you put it in the stream of commerce with that stuff in it they went after it in the stream of commerce because they needed it and they met in a middleman market and got it that's what i understand their argument to be so why isn't that enough for a rational jury to say liability because that is just simply to go remote he said we sold stuff with asbestos gaskets and pat packing and we sent it into the stream of commerce and they're saying that's the kind we asked for theirs by his own mouth he said sophisticated people will ask for what they need for this was a sophisticated westinghouse that may or may not have had its best isn't it we don't know oh that and because crane co knew that some people were using its best dispels for some services and sold some valves in that way those two just to connect your argument you would have the you can sell one with the specialists in it and you can go somewhere where the replacement is in this festus where they use something else and you can sell one without a specialist in it that someone chooses to use with this best if there's different replacements in cases where they found a duty here and it's just it's too broad of a leap to say because crinkle sold some valves we don't know if they're this valve with this best as they crank or somehow knew after asking for sets of hands this led facility would use this pennsylvania and i just want to read one quote this is a policy quote from the supreme court pennsylvania when rick which is near knowledge of a dangerous situation even by one who has the ability to intervene is not sufficient to create a duty to act