1

Filed 11/22/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GARY KASE et al.,

Plaintiffs and Appellants,

v.

METALCLAD INSULATION 

CORPORATION,

Defendant and Respondent.

 A143590

 (San Francisco City & County

 Super. Ct. No. CGC-11-275958)

Plaintiffs appeal from a defense summary judgment in this asbestos case arising 

from Gary Kase‘s exposure to asbestos insulation used on nuclear submarines during the

early 1970‘s. The principal issue we must decide is whether the Navy‘s procurement of 

asbestos insulation for its nuclear submarines comes within the ambit of the government 

contractor defense set forth in Boyle v. United Technologies Corp. (1988) 487 U.S. 500 

(Boyle). This defense has long been available, even if not always successfully proved up, 

in asbestos lawsuits brought against the manufacturers and suppliers of military hardware 

and equipment. However, defendant Metalclad Insulation Corporation (Metalclad) did 

not design or produce a piece of hardware or equipment that included asbestos-containing 

materials. Rather, as a broker, it arranged for asbestos-containing insulation to be 

shipped directly to the Mare Island Naval Shipyard, where workers packed it around the 

submarine piping it protected. 

Metalclad provided the asbestos-containing insulation, called Unibestos, pursuant 

to and in compliance with relatively detailed performance and testing specifications. 

 

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II. C. and II. D. 
2

These specifications did not expressly call out for asbestos in the insulation. But

according to the undisputed record evidence, the specifications could only be met by 

asbestos-containing insulation, and the only product on the Navy‘s approved list of 

suitable products was Unibestos. It is also undisputed that for decades the Navy studied 

the health hazards associated with the use of asbestos products and, despite the concerns 

raised by these studies, continued to require use of these products and continued to 

expressly approve the use of Unibestos. The Navy did not, however, participate in the 

development or manufacture of Unibestos and, in addition to military sales, the insulation 

has long been sold commercially. 

In Boyle, the Supreme Court set forth the requirements of the government 

contractor defense. It held, among other things, that the government, itself, need not 

design the allegedly defective product for the defense to apply. The government may 

select a design, and so long as the government thoroughly reviews and makes a 

considered judgment call about the design, the defense can apply. (Boyle, supra, 

487 U.S. at pp. 512–513.) By way of contrast, the court explained the defense will not 

apply if the government procures, for example, a ―stock‖ helicopter designated solely by 

the manufacturer‘s model number and which ―happen[s]‖ to have the complained of

defect. (Id. at p. 509.) In such a case, said the court, the manufacturer could meet both 

its contractual obligation to the government and its alleged design duty under state law. 

There would, thus, be no ―  ̳significant conflict‘ ‖ between federal interests and state law, 

rendering the defense unavailable. (Ibid.) 

The Supreme Court‘s limiting exemplars led the Ninth Circuit Court of Appeals to 

pronounce the defense inapplicable to goods ―readily available, in substantially similar 

form, to commercial users‖ and, in turn, to conclude the defense was not available to the 

insulation manufacturers in that case. (In re Hawaii Federal Asbestos Cases (9th Cir. 

1992) 960 F.2d 806, 811 (Hawaii).) Since then, however, a number of courts including 

this Court (Oxford v. Foster Wheeler (2009) 177 Cal.App.4th 700, 710 (Oxford)), have 

taken a more expansive view and concluded the fact a product has some commercial 

market does not preclude the defense. One federal court has stated there is no ―off-the-
3

shelf‖ limitation to its application (Miller v. Diamond Shamrock Co. (5th Cir. 2001) 

275 F.3d 414, 419 (Miller)), and another has granted summary judgment on claims 

against Metalclad like those made by plaintiffs here (Brown v. Asbestos Defendants (E.D. 

Pa. Oct. 19, 2012, No. 2:10-60090-ER) 2012 WL 7761205 (Brown)). We remain of the 

view that the Supreme Court, in Boyle, did not limit the defense to necessarily exclude 

the procurement of products also sold commercially. Rather, the point the high court was 

making in positing a purchase of a ―stock‖ helicopter identified by manufacturer‘s model 

number was that, where a purchase does not involve ―reasonably precise specifications‖

bearing on the challenged design feature, the government necessarily has not made a 

considered evaluation of and affirmative judgment call about the design. That cannot be 

said, however, about the Navy‘s procurement of the asbestos insulation at issue here—

made after years of evaluating and weighing the utility of and the health hazards 

associated with asbestos products and pursuant to specifications that, according to the 

record evidence, required an asbestos product. We therefore affirm the summary 

judgment as to the plaintiffs‘ defective design claims.

We also affirm the summary judgment on plaintiffs‘ failure to warn claims on the 

ground the evidence was insufficient to raise a triable issue as to causation. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Unibestos is asbestos-containing insulation that has been available for decades. 

In January, 1936, the United States Navy commissioned a 30-day study to 

determine Unibestos‘s suitability for military use. The study determined Unibestos had 

satisfactory heat insulating properties and was light weight (which was desirable), but 

questions remained as to whether it had sufficient stability to meet naval needs. 

Accordingly, the Navy conducted a six-month, follow-on study regarding stability. It 

also conducted a further study establishing Unibestos‘s performance at high 

temperatures. Thereafter, the Navy used Unibestos on its vessels, and the product was 

subsequently ordered in accordance with Navy specifications, which specifically called

for asbestos in insulation. 
4

Early on, Unibestos was manufactured in the United States by Union Asbestos and 

Rubber Company (Union). One early advertisement touted Unibestos as ―durable,‖ 

―efficient,‖ and ―practical,‖ and so ―increasingly popular with shipbuilders‖ it was ―being 

used almost exclusively in some of the finest marine construction work‖ of the day. A 

1943 advertisement emphasized ease of installation, an ―interestingly low‖ price, and 

availability in numerous lengths and thicknesses. 

Pittsburgh Corning acquired Unibestos from Union in 1962. One undated 

Pittsburgh Corning advertisement proclaimed Unibestos was ―available everywhere.‖ An

undated Pittsburgh Corning flyer stated Unibestos was ideal for ―high-temperature 

insulation in the marine, refining, chemical, power, and petrochemical fields.‖ 

Pittsburgh Corning made no changes to the product between 1962 and 1972. 

There is no evidence in the record as to the percent of Unibestos sold commercially. 

During that timeframe, in August 1968, Metalclad brokered a delivery of 

Unibestos from Pittsburgh Corning to the Navy. The purchase order called for 

―insulation material, pipe, thermal, tubular, molded in accordance with military 

specifications MIL-I-24244(SHIPS) DTD 66 AUG 22, type I, and amendment 1 DTD 68 

FEB 15, and MIL-I-2781.‖ 

Specification MIL-I-2781 defined grades of insulation, each grade capable of 

shielding different temperatures. It specified the size and shape of compliant insulation 

and defined various physical requirements to be confirmed by testing: maximum density, 

thermal conductivity, weight loss after tumbling, modulus of rupture, and changes after 

soaking heat. Compliant insulation had to be ―composed of heat-resisting compounds 

suitable for the temperature conditions and the purpose intended.‖ 

The Navy first issued specification MIL-I-2781 in 1955, and at that point, stopped 

expressly calling out for asbestos in insulation used to protect its equipment. However, 

during the 1955–1973 timeframe, the Navy viewed asbestos as an expected material in 

insulation products provided pursuant to the specification, and asbestos-containing 

products were sometimes the only products preapproved for certain grades of insulation. 

In fact, the list of prequalified products for certain grades of insulation attached to the 
5

version of MIL-I-2781 in effect in 1968 listed Unibestos as the only prequalified product 

in grade II (insulation up to 750 degrees), class c (fibrous), and in grade III (insulation up 

to 1,200 degrees), class f (fibrous). The August 1968 purchase order issued to Metalclad 

sought insulation of both ―subtype 1B, fibrous-temperatures up to 750 oF‖ and ―subtype 

1F, fibrous-temperature up to 1200oF.‖ The evidence is uncontradicted that subtypes 1B 

and 1F are the equivalents of grade II, class c and grade III, class f. Thus, Unibestos was 

the only prequalified product meeting the purchase order specifications. 

In 1971, the Navy amended specification MIL-I-2781 to prohibit high-asbestos 

materials, such as Unibestos, and in 1973, amended the specification again to prohibit 

asbestos in any insulation. 

The other specification set forth in the Metalclad purchase order, MIL-I-24244,

addressed ―mineral-based thermal insulation‖ (including piping insulation compliant with 

MIL-I-2781) with ―special corrosion and chloride requirements.‖ To pass muster under 

MIL-I-24244, insulation had to pass an additional battery of quality conformance tests.1 

Metalclad‘s expert in Navy ship design and construction, Dan Heflin, Jr., declared 

that based on his ―personal knowledge of military specifications and review of documents 

. . . that in order to meet the needs expressed in MIL-l-24244, a product that contained 

asbestos was required.‖ (Italics added.) There is no evidence in the record to the 

contrary.

 

1

 Specification MIL-I-24244 was issued as part of the Navy‘s SUBSAFE 

program, which the Navy established in the wake of a nuclear submarine accident in 

1963, during which the USS Thresher sank with all crew members aboard. The Navy‘s

investigation concluded that ―deficient specifications, deficient shipbuilding practices, 

deficient maintenance procedures, and deficient operational procedures‖ led to the loss of 

the craft. Metalclad‘s expert stated the SUBSAFE program, ―provide[d] additional 

emphasis and mandatory procedures to assure the adequacy of every item that in any way 

affects the submarine pressure hull watertight boundary and/or the ability of the 

submerged ship to recover from flooding.‖ Propulsion was a particular focus of the 

SUBSAFE program, leading to strict controls over every aspect of the propulsion system 

inside the reactor compartment, including piping. 
6

Metalclad‘s expert further stated the Navy ―had unique specifications for thermal 

insulation used aboard nuclear powered submarines. These specifications were

communicated to outside vendors, including Pittsburgh Coming [sic], by the Navy in 

Requests for Proposals for certain equipment and materials.‖2 

The Navy‘s contract with Metalclad additionally called for various inspections and 

tests of the insulation, including inspections and tests at the Pittsburgh Corning 

manufacturing plant in Tyler, Texas by the Defense Contract Administration Services 

(DCAS). DCAS, according to Metalclad‘s expert, was the military‘s ―  ̳eyes and the 

ears.‘ ‖ Each lot of the supplied Unibestos had to measure up to the relevant 

specifications. The record contains evidence of communications from Pittsburgh 

Corning providing test results to assure the military the Unibestos—called out by brand 

name—met specifications. 

While Metalclad‘s person-most-knowledgeable called the Naval inspections 

―exceptional,‖ he could not ―say there were any changes in the formulation‖ of the 

insulation compared to Unibestos sold commercially. Nor did the military contribute to 

the design of Unibestos. Rather, the role of the military in the manufacturing process was 

―[n]othing beyond the testing.‖ 

The Unibestos that Metalclad brokered in 1968 never went to or through a 

Metalclad facility. Rather, it was sent from the Pittsburgh Corning facility by rail to the 

Mare Island Naval Shipyard in November of that year. It was received at the shipyard in 

early December, ―test[ed]‖ again for compliance with the applicable specifications, and 

―released for use‖ in March 1969 to insulate reactor components aboard four nuclear 

submarines, the USS Drum, USS Pintado, USS Guitarro, and USS Hawkbill. Metalclad 

received $235 on the brokering deal; Pittsburgh Corning and the rail transport company 

received the bulk of the Navy‘s $10,905.68 payment. 

 

2

 All of plaintiffs‘ objections to the declarations Metalclad submitted in support of 

its motion, including Heflin‘s declaration, were overruled, and plaintiffs have not 

challenged any of these evidentiary rulings on appeal. 
7

During the 1970‘s, Kase worked shoulder to shoulder on the USS Drum, USS 

Pintado, USS Guitarro, and USS Hawkbill with those who were cutting, installing, 

removing and disturbing Unibestos. He also personally assisted in loading boxes of 

Unibestos onto those vessels. 

Kase and his wife filed suit against Metalclad and numerous other entities in 

December, 2011, asserting claims based on his asbestos exposure. After answering the 

complaint, Metalclad moved for summary judgment or summary adjudication on two 

grounds: the government contractor defense precluded the design defect claims (Boyle,

supra, 487 U.S. at p. 500), and there was no triable issue as to causation as to the failure 

to warn claims (i.e., an asbestos warning by Metalclad would have been impossible and

futile).

3

 

As to Kase‘s design defect claims, the trial court ruled: ―The United States 

government approved precise specifications for the Metalclad-supplied Unibestos used 

aboard the USS Guitarro, USS Pintado, USS Drum, and USS Hawkbill; the Metalcladsupplied Unibestos conformed to the government‘s specification; 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 on the packaging of the Unibestos.‖ (Italics 

omitted.) 

As to his failure to warn claims, the trial court ruled: ―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 Plaintiff Gary Kase 

from exposure . . . . [¶] . . . [¶] A warning given by Metalclad would not have affected 

how the Unibestos was used by the Navy, or prevented Mr. Kase‘s alleged exposure. As 

a matter of law, any failure to warn by Metalclad was not a substantial factor in causing 

Mr. Kase‘s alleged exposure to asbestos from Unibestos insulation.‖ 

 

3 Because the loss of consortium claims are dependent on the viability of Kase‘s 

negligent design and failure to warn claims, we hereafter refer only to Kase in the 

singular. 
8

The court, thus, granted Metalclad‘s motion and entered judgment in its favor. 

II. DISCUSSION4

A. The Government Contractor Defense Set Forth in Boyle

Boyle arose from a helicopter crash in which a Marine copilot drowned because he 

could not escape from the aircraft, allegedly because of a poorly designed escape hatch 

mechanism by which the hatch opened outwards, instead of inwards, and thus against the 

weight of the water. (Boyle, supra, 487 U.S. at pp. 502–503.) The aircraft manufacturer 

invoked what had become known as the government contractor defense, arguing it had 

followed military specifications in constructing the hatch. (Boyle, supra, at p. 503.) 

The Supreme Court both endorsed and outlined the requirements of the defense. It 

first described federal procurement from third parties as involving a ―uniquely federal 

interest,‖ observing ―[t]he imposition of liability on Government contractors will directly 

affect the terms of Government contracts: either the contractor will decline to 

manufacture the design specified by the Government, or it will raise its price. Either 

way, the interests of the United States will be directly affected.‖ (Boyle, supra, at 

p. 507.) 

The fact government procurement is an area of uniquely federal interest will not, 

alone, however, support a defense for the contractor. State law, ruled the high court, will 

be displaced only when ―a  ̳significant conflict‘ exists between an identifiable  ̳federal 

policy or interest and the [operation] of state law.‘ ‖ (Boyle, supra, 487 U.S. at p. 507,

quoting Wallis v. Pan American Petroleum Corporation (1966) 384 U.S. 63, 68.) The 

court provided the following illustration of when there would be no ―significant conflict‖

 

4

 Our standard of review is well established. Summary judgment is appropriate 

only if the evidence discloses no triable issue of material fact and the moving party is 

entitled to prevail as a matter of law. We therefore review a grant of summary judgment 

de novo, independently reviewing the trial court record and viewing the evidence in the 

light most favorable to the losing party. (B.H. v. County of San Bernardino (2015) 

62 Cal.4th 168, 178.) ―Whether the facts establish the conditions for the military 

contractor defense,‖ however, ―is generally a question of fact for the jury.‖ (Jackson v. 

Deft, Inc. (1990) 223 Cal.App.3d 1305, 1313 (Jackson), citing Boyle, supra, 487 U.S. at 

p. 514.)
9

between federal interests and the application of state tort law: ―If, for example, the 

United States contracts for the purchase and installation of an air conditioning-unit, 

specifying the cooling capacity but not the precise manner of construction, a state law 

imposing upon the manufacturer of such units a duty of care to include a certain safety 

feature would not be a duty identical to anything promised the Government, but neither 

would it be contrary. The contractor could comply with both its contractual obligations 

and the state-prescribed duty of care.‖ (Boyle, at p. 509.) 

The case before it, said the Supreme Court, was entirely different. (Boyle, supra, 

487 U.S. at p. 509.) ―[T]he asserted basis of the contractor‘s liability (specifically, the 

duty to equip helicopters with the sort of escape-hatch mechanism petitioner claims was 

necessary) is precisely contrary to the duty imposed by the Government contract (the 

duty to manufacture and deliver helicopters with the sort of escape-hatch mechanism 

shown by the specifications).‖ (Ibid.) Thus, there was a significant conflict between the 

federal government‘s design requirements and the asserted state law design requirement. 

The Supreme Court went on to posit a variation of the helicopter scenario that 

would not support the defense. ―If, for example, a federal procurement officer orders, by 

model number, a quantity of stock helicopters that happen to be equipped with escape 

hatches opening outward, it is impossible to say that the Government has a significant 

interest in that particular feature. That would be scarcely more reasonable than saying 

that a private individual who orders such a craft by model number cannot sue for the 

manufacturer‘s negligence because he got precisely what he ordered.‖ (Boyle, supra, 

487 U.S. at p. 509.) 

The court then turned to identifying the appropriate ―limiting principle to identify 

those situations in which a  ̳significant conflict‘ with federal policy or interests‖ arises. 

(Boyle, supra, 487 U.S. at p. 509.) The court of appeals had concluded it was the Feres5

doctrine, which excludes injuries to military personnel from the Federal Tort Claims Act

(FTCA). Military contractor liability would conflict with this doctrine, the circuit court 

 

5

Feres v. United States (1950) 340 U.S. 135 (Feres).
10

reasoned, since a pass-through of state tort liability costs in federal contracting would 

―  ̳defeat the purpose of the immunity for military accidents conferred upon the 

government itself.‘ ‖ (Boyle, at p. 510, quoting Tozer v. LTV Corp. (4th Cir. 1986) 792 

F.2d 403, 408.) 

The Supreme Court rejected the Feres doctrine as the undergirding of the 

government contractor defense, however, on the ground it would produce results both too 

broad and too narrow. Too broad, because the government contractor defense would 

apply whenever the Feres doctrine precluded suit against the government, and ―then even 

injuries caused to military personnel by a helicopter purchased from stock (in our 

example above), or by any standard equipment purchased by the Government, would be 

covered.‖ (Boyle, supra, 487 U.S. at p. 510.) Too narrow, because the Feres doctrine 

applies only to military personnel and therefore government contractors would be liable 

to a civilian even when the agent of harm is clearly of paramount federal concern. 

(Boyle, at pp. 510–511.)

The high court determined the FTCA, itself, provided a better guide for 

determining what is a ―  ̳significant conflict‘ between federal interests and state law in the 

context of Government procurement.‖ (Boyle, supra, 487 U.S. at p. 511.) The key is the 

statute‘s exemption for ―  ̳discretionary function[s].‘ ‖ (Ibid.) ―[T]he selection of the 

appropriate design for military equipment to be used by our Armed Forces,‖ said the 

court, ―is assuredly a discretionary function within the meaning of this provision. It often 

involves not merely engineering analysis but judgment as to the balancing of many 

technical, military, and even social considerations, including specifically the trade-off 

between greater safety and greater combat effectiveness.‖ (Ibid.) ―[P]ermitting  ̳secondguessing‘ of these judgments [citation] through state tort suits against contractors would 

produce the same effect sought to be avoided by the FTCA exemption‖ for discretionary

functions. (Ibid.) ―The financial burden of judgments against the contractors would 

ultimately be passed through, substantially if not totally, to the United States itself, since 

defense contractors will predictably raise their prices to cover, or to insure against, 

contingent liability for the Government-ordered designs.‖ (Id. at pp. 511–512.) 
11

The court then adopted the three-prong test several circuit courts had used to 

determine when the defense applied, the requirements being: ―(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.‖ (Boyle,

supra, 487 U.S. at p. 512.) The first two requirements, said the court, insure ―the suit is 

within the area where the policy of the  ̳discretionary function‘ would be frustrated‖—

that is, they insure ―that the design feature in question was considered by a Government 

officer, and not merely by the contractor itself.‖ (Ibid.; see Jowers v. Lincoln Elec. Co. 

(5th Cir. 2010) 617 F.3d 346, 352–354 [defense does not include a fourth, ―significant 

conflict,‖ requirement, as that is determined through the first two requirements].) 

The court expressly rejected a formulation that would have allowed the defense 

―only if (1) the contractor did not participate, or participated only minimally, in the 

design of the defective equipment; or (2) the contractor timely warned the Government of 

the risks of the design and notified it of alternative designs reasonably known by it, and 

the Government, although forewarned, clearly authorized the contractor to proceed with 

the dangerous design.‖ (Boyle, supra, 487 U.S. at p. 513.) This was not a formulation, 

explained the court, ―designed to protect the federal interest embodied in the 

 ̳discretionary function‘ exemption.‖ (Ibid.) ―The design ultimately selected may well 

reflect a significant policy judgment by Government officials whether or not the 

contractor rather than those officials developed the design.‖ (Ibid.) 

Having established the parameters of the defense, the Supreme Court reversed and 

remanded for the circuit court to clarify whether it had determined that no reasonable 

juror could find other than that government contractor defense applied. (Boyle, supra, 

487 U.S. at p. 514.)

B. Design Defect Claims

1. Reasonably Precise Specifications

In urging reversal of the summary judgment on his design defect claims, Kase 

focuses primarily on the first requirement of the government contractor defense—that the 
12

―United States approved reasonably precise specifications‖ pertaining to the alleged 

design defect (i.e., asbestos in the insulation Metalclad supplied to the naval shipyard). 

(Boyle, supra, 487 U.S. at p. 512.) 

Kase repeatedly points out that while the Navy studied and rigorously tested 

Unibestos, it did not design or manufacturer the insulation. According to Kase, 

Unibestos is a common commercial product, no different from the air conditioner or 

―stock‖ helicopter to which the United States Supreme Court referred in Boyle. He thus 

contends there is a triable issue as to whether the insulation is ―military equipment,‖ the 

procurement of which was a discretionary function within the meaning of Boyle. 

Kase relies on Hawaii, supra, 960 F.2d 806, in which the Ninth Circuit affirmed 

the district court‘s refusal to allow defendants who had supplied asbestos insulation 

products to the Navy to assert the government contractor defense against state strict 

liability claims. In light of the Supreme Court‘s repeated use of the phrase ―military 

equipment‖ and examples of procurements that would not involve a discretionary 

function, the circuit court concluded ―[w]here the goods ordered by the military are those 

readily available, in substantially similar form, to commercial users, the military 

contractor defense does not apply.‖ (Id. at p. 811.) Confining the defense to contractors 

―only in respect to the military equipment they produce for the United States,‖ said the 

circuit court, is also consistent with its purposes—that, unless protected, contractors 

might either refuse to build or supply such equipment, or increase the costs to do so. 

(Ibid.) It was the court‘s view that ―[t]hese same concerns do not exist with respect to 

products readily available on the commercial market.‖ (Ibid.) Thus, the ―fact that the 

military may order such products does not make them  ̳military equipment.‘ ‖ (Ibid.) 

Such products ―have not been developed on the basis of involved judgments made by the 

military,‖ and they already carry prices in their sale to commercial users that reflect the 

cost ―of ordinary tort liability.‖ (Ibid.)

6

 

 

6

 Federal district courts within the Ninth Circuit have, of course, followed Hawaii 

and ruled the defense unavailable to defendants, including Metalclad, in other cases 

involving asbestos-containing insulation procured for the Navy. (E.g., Moore v. Asbestos 
13

Other courts, however, including two California courts, have concluded the 

government contractor defense can apply when the federal government procures a 

commercially available product. 

In Jackson, supra, 223 Cal.App.3d at page 1305, another division of this court

reversed a defense summary judgment on the ground there were triable issues 

―concerning the existence of a substantial conflict between a federal interest and a state 

law.‖ (Id. at p. 1317.) The court focused on evidence that the naval specifications for 

weather resistant, polyurethane paint products did not appear to preclude additional 

warnings. (Id. at pp. 1316–1317.) The court expressly declined to rule, however, that 

because approximately 20 percent of the paint products were sold commercially, the 

products were not ―military equipment.‖ ―Plaintiff seems to argue that military 

equipment means a product made exclusively for military use with no commercial 

 

Defendants (B*P) (N.D.Cal., July 1, 2010, No. CV 10-01638 RS) 2010 WL 2650487, at 

p. *4 [granting motion to remand to state court because Metalclad did not establish 

―colorable‖ government contractor defense; while Unibestos was produced according to 

military specifications and possessed specific qualities that served a military purpose, no 

evidence that the ―brokered Unibestos was created to fulfill a unique military need‖];

Fong v. Asbestos Defendants (B*P) (N.D.Cal., Apr. 15, 2010, No. C10-0287 TEH) 

2010 WL 1526099, at pp. *1–*2 [Metalclad did not establish ―colorable‖ defense because 

Unibestos was also sold commercially]; Delahaye v. Asbestos Defendants (N.D.Cal., Jan. 

25, 2010, No. C 09-05504 JSW) 2010 WL 366611, at p. *4 [same; no evidence 

―indicating that the military had direct and detailed control over the design and 

manufacturing of Unibestos‖]; see Redman v. A.W. Chesterton Company (N.D.Cal., 

Nov. 25, 2008, No. 08-03013 JSW) 2008 WL 5048205, at pp. *2–*3 [denying motion to 

remand because manufacturer of marine distilling units established colorable defense 

where Navy controlled asbestos warnings on the units, making them different from those 

sold commercially; ―rationale‖ behind defense ―is to eliminate liability for contractors 

that are merely following the U.S. Navy‘s directions, not to eliminate liability for 

contractors that sell products to the U.S. Navy that are substantially similar to their 

commercial counterparts‖]; compare Leite v. Crane Co. (D.Hawaii 2012) 868 F.Supp.2d. 

1023, 1027–1034, 1038 [denying motion to remand because manufacturer of ―asbestos 

products‖ established ―colorable‖ defense; some specifications ―required‖ use of asbestos 

and declaration ―describing the reasoning for using asbestos in insulation for Navy 

ships‖].) 
14

purpose; however, plaintiff cites no case espousing that extreme position.[7] In our view, 

if a product is produced according to military specifications and used by the military 

because of particular qualities which serve a military purpose, and is incidentally sold 

commercially as well, that product may nonetheless still qualify as military equipment 

under the military contractor defense.‖ (Id. at p. 1319.) Accordingly, the fact the 

polyurethane paint ―was also sold commercially‖ did not ―absolutely foreclose 

application of the military contractor defense.‖ (Ibid.)

In Oxford, supra, 177 Cal.App.4th at page 700, our division reversed a judgment 

for the plaintiffs on inconsistent verdict grounds because the jury‘s special findings 

established the government contractor defense as to design defect but not as to failure to 

warn, and it could not be determined whether the jury based its general verdict on strict 

liability or negligent failure to warn. In so concluding, the court rejected the plaintiffs‘ 

assertion that the boilers at issue, which incorporated asbestos products and were sold to 

the Navy for use on warships, did not qualify as ―military equipment‖ because similar 

boilers were sold commercially. (Id. at pp. 709–711.) The court distinguished Hawaii on 

the ground the evidence in that case showed the insulation was ―sold primarily to civilian 

petroleum companies‖ and there was no evidence the military ―had provided any design 

specifications.‖ (Oxford, at pp. 709–710.) ―[I]n contrast, the boilers made by defendant 

were designed pursuant to exceedingly detailed and precise military specifications that 

required the use of asbestos in many instances.‖ (Id. at p. 710.) The court also cited to 

Jackson and agreed Hawaii‘s limitation of the defense ―to products that are made 

exclusively for the military‖ is ―unduly confining.‖ (Oxford, at p. 710.) In fact, observed 

the Oxford court, other courts had held the defense is not even limited to military 

contracts. (Ibid., citing Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119,

fn. 1 [defense applied to contract for ambulance procured by General Services 

Administration for Virgin Islands Department of Health]; see In re Katrina Canal 

Breaches Litigation (5th Cir. 2010) 620 F.3d 455, 459–465 [considering defense in 

 

7

 We note that Jackson, decided in 1990, predates Hawaii, decided in 1992. 
15

connection with levee construction contracts with U.S. Army Corps of Engineers; 

summary judgment reversed because of insufficiently detailed back-fill and compaction 

specifications]; Bennett v. MIS Corp. (6th Cir. 2010) 607 F.3d 1076, 1089–1090 [joins 

other circuit courts holding defense can apply in ―the non-military context‖].) 

We continue to agree with Jackson and Oxford that a product‘s commercial 

availability does not necessarily foreclose the government contractor defense. As the 

United States Supreme Court took care to point out in Boyle, 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.‖ (Boyle, supra,

487 U.S. at p. 513.) The court further explained that the first requirement of the 

defense—reasonably precise specifications—insures ―that the design feature in question 

was considered by a Government officer, and not merely by the contractor itself.‖ (Id. at 

p. 512, italics added.) 

The examples the Supreme Court provided as to when the defense would not 

apply also illuminate the point. The first was a contract for the purchase and installation 

of an air conditioner that specified only cooling capacity and ―not the precise manner of 

construction.‖ (Boyle, supra, 487 U.S. at p. 509.) Air conditioners, of course, are usually 

commercially available products—but that was not the reason given by the court for the 

inapplicability of the defense. Rather, the defense was inapplicable because the

procurement was not governed by any design specifications, either issued or reviewed by 

the government, let alone, reasonably precise specifications reflecting the exercise of a 

discretionary function in connection with the design of the unit. The second example was 

the ―stock‖ helicopter ordered by the manufacturer‘s model number. (Ibid.) A stock 

helicopter is also, by definition, a commercially available product. But again, that was 

not the reason stated by the court for the inapplicability of the defense. Rather, the 

posited acquisition involved no specifications at all, a scenario in which it was 

―impossible to say that the Government has a significant interest‖ in any aspect of the 

design of the aircraft. (Ibid.)
16

In short, Hawaii failed to acknowledge that the Supreme Court in Boyle

(a) expressly rejected a formulation of the defense that would have excluded any 

contractor that participated in the design of the procured item and (b) made clear that a 

―design ultimately selected‖ by the government, including one conceived by the 

contractor, ―may well reflect a significant policy judgment by Government officials 

whether or not the contractor rather than those officials developed the design.‖ (Boyle,

supra, 487 U.S. at p. 513, italics added.) 

In a more recent decision, moreover, Getz v. Boeing Co. (9th Cir. 2011) 654 F.3d 

852, the Ninth Circuit stated ―it ma[de] no difference‖ to its analysis that the contractor 

supplying computer controls for an Army helicopter engine had previously developed ―a 

similar engine control system‖ for Great Britain‘s air force. (Id. at p. 863.) While the 

government contractor defense would not apply to the procurement ―  ̳by model number,

[of] a quantity of stock helicopters that happen to be equipped with‘ a particular design 

feature [citation omitted], this defense does not require the government to create the 

design or the specifications. As long as the United States makes a  ̳significant policy 

judgment‘ in approving the design, nothing precludes the government from procuring 

designs and products that were initially developed for other nations.‖ (Ibid., quoting 

Boyle, supra, 487 U.S. at pp. 509, 513.) Accordingly, the circuit court focused in Getz on 

(a) the detailed specifications, created by the manufacturer, which included specific 

reference to the allegedly defective ignition control and (b) the Army‘s review of the 

manufacturer‘s ―design analyses, reports, and test plans‖ and participation in design 

meetings. (Getz, at pp. 861–862.) It was ―clear‖ that the Army‘s approval of the

manufacturer‘s design ―resulted from careful deliberation‖ and was not a ―  ̳rubber 

stamp.‘ ‖ (Id. at p. 861.)

Other federal courts have also concluded that, under Boyle, it is proper to focus on 

whether the government, with due deliberation, selected the design feature at issue, not 

on whether the government or the contractor developed that feature in the first instance. 

(E.g., Brinson v. Raytheon Co. (11th Cir. 2009) 571 F.3d 1348, 1356–1357 [that 

manufacturer of training aircraft ―independently designed‖ and patented trim aid device 
17

and that allegedly defective ―rod[s]‖ in the device were ―  ̳off the shelf‘ ‖ items, did not 

change the fact the design involved a ―  ̳back and forth‘ process‖ and the government 

―approved the inclusion of the pushrod into a unique and critical component‖]; Miller,

supra, 275 F.3d at p. 419 & fn. 2 [observing in Agent Orange case, that ―no court has 

held that the supplier of an off-the-shelf item is ineligible for protection under the 

military contractor defense,‖ and, in any event, fact contractor has provided ―an off-theshelf product would be relevant to the first element‖ of the defense]; Kerstetter v. Pacific 

Scientific Company (5th Cir. 2000) 210 F.3d 431, 435 [―government need not prepare the 

specifications to be considered to have approved them‖]; In re Brooklyn Navy Yard 

Asbestos Litigation (2d Cir. 1992) 971 F.2d 831, 839 [affirming district court‘s partial 

summary judgment on design defect claims where district court found the ―asbestos 

products‖ were ―  ̳furnished according to specifications and were essentially off the shelf 

items‘ ‖]; cf. In re Agent Orange Product Liability Litigation (2d Cir. 2008) 517 F.3d 76, 

90 (Agent Orange) [defense does not apply where government ―  ̳merely rubber stamps‘ ‖ 

or ―  ̳merely orders a product from stock‘ ‖; ―[i]f the government buys a product  ̳off-theshelf‘— ̳as-is,‘ ‖ the government is ―merely an incidental purchaser‖ and the ―seller was 

not following the government‘s discretionary procurement decisions‖].)

Indeed, the Pennsylvanian-based federal district court in Brown, supra, 2012 WL 

7761205, granted summary judgment to Metalclad in a case transferred from the 

Northern District of California and involving essentially the same failure to warn claims 

and arguments based on Hawaii Kase advances here, including that the asbestos supplied 

by Metalclad was not ―military equipment‖ as to which the government contractor

defense can be asserted. (Brown, at p. *1; see Delahaye v. Asbestos Defendants, supra,

2010 WL 366611, at p. *4 [referring to California trial court ruling in favor of Metalclad 

on the defense and stating ―California courts have rejected the holding of In re Hawaii,‖ 

citing Oxford, supra, 117 Cal.App.4th 700].) 

We therefore turn to the evidentiary showing made in this case as to the Navy‘s 

involvement with the procured product, Unibestos.
18

Metalclad submitted evidence of (1) 1922 and 1939 medical manuals in which the 

Navy acknowledged working with asbestos-containing materials was hazardous and 

recommended measures to prevent airborne exposure; (2) a 1941 article authored by a 

Navy captain that discussed asbestos, and the condition known as asbestosis, as a hazard 

at shipyards; (3) a 1943 Navy-approved set of minimum standards for mitigating the risks 

of handling asbestos products; (4) a 1944 letter suggesting amosite asbestos was an 

essential insulating material with no substitute and workers should use respirators to 

mitigate hazards; (5) a series of Navy reports, starting in 1955, showing awareness of 

asbestos exposure risks and proposing thresholds for exposure; (6) a 1964 Navy study 

showing awareness of the harm being done to insulation workers from a variety of

asbestos types at Navy shipyards and an awareness of the medical literature about 

asbestos; (7) a 1968 report on asbestos exposure at Puget Sound Naval Shipyard; and (8) 

Navy reports during the 1969 timeframe documenting the Navy‘s own ongoing 

investigations of asbestos hazards and its staying abreast of civilian research on the 

subject. All of these studies lead to measures in the 1970‘s to reduce or eliminate 

asbestos exposure, such as the 1971 and 1973 changes to specification MIL-I-2781. (See 

Oxford, supra, 177 Cal.App.4th at pp. 705–706 [recounting evidence of Navy‘s study and 

awareness of health hazards associated with asbestos products].) 

Metalclad additionally presented evidence that before 1955, Navy specifications 

for insulation expressly called out for asbestos. In 1955, the Navy issued specification 

MIL-I-2781, defining grades of insulation (each grade reflecting different shield 

temperatures), specifying the size and shape of compliant insulation, and defining various 

physical requirements to be confirmed by testing (maximum density, thermal 

conductivity, weight loss after tumbling, modulus of rupture, and changes after soaking 

heat). Compliant insulation had to be ―composed of heat resisting compounds suitable 

for the temperature conditions and the purpose intended.‖ A 1967 Naval ships technical 

manual described qualifying ―[t]hermal insulation pipe covering, Military Specification 

MIL-I-2781, grade II, class c‖ (i.e., Unibestos) as ―a uniform mixture of amosite asbestos 

fibers . . . held together with a sodium silicate . . . binder. Every Qualified Products List 
19

(QPL) in the record for MIL-I-2781, from 1951 through 1969, listed only Unibestos for 

grade II-class c, and grade III-class f pipe insulation. Specification MIL-I-24244, also in 

effect in 1968 and applicable specifically to ―mineral-based thermal insulation,‖ imposed 

―special corrosion and chloride requirements‖ and additional quality conformance tests. 

Metalclad‘s expert in Navy ship design and construction, Dan Heflin, Jr., declared, 

based on his ―personal knowledge of military specifications and review of documents 

. . . , it is my opinion that in order to meet the needs expressed in MIL-l-24244, a product 

that contained asbestos was required.‖ (Italics added.) 

Thus, this case deals with the procurement of a product that was known to and 

studied by the Navy for decades and which the Navy knew carried with it serious health 

risks. Yet, it nevertheless made a decision to use, and to continue using, this asbestos 

product in its naval vessels until the 1970‘s. (See Agent Orange, supra, 517 F.3d at 

pp. 94–96 [government exercised the necessary discretion, and created a significant 

conflict with state law, when it ordered and reordered product with knowledge of the 

alleged design defect; ―reordering the same product with knowledge of its relevant 

defects plays the identical role in the defense as listing specific ingredients, processes, or 

the like‖]; Dowd v. Textron, Inc. (4th Cir. 1986) 792 F.2d 409, 410–412 [concluding preBoyle government contractor defense available where Army investigated problem with 

rotor system, manufacturer suggested modifications, but Army continued to use same 

system; continued use ―amply establish[ed] government approval of the alleged design 

defects‖].) 

As Kase points out, the Navy‘s purchase order issued to Metalclad did not 

expressly call out for asbestos in the requisitioned insulation, but rather, referenced 

specifications MIL-I-2781 and MIL-I-24244. The record evidence is uncontroverted, 

however, that to comply with these specifications an asbestos-containing insulation was 

required. Indeed, the only then prequalified product in the demanded insulation grades 

with the demanded fibrous composition was asbestos-containing Unibestos. 

Thus, on this record, Metalclad could not comply with both its contractual 

obligation to the Navy and the state tort duty Kase claims should have controlled the 
20

design of the product. In other words, Metalclad has presented a record that the 

government ―made it‖ deliver asbestos-containing insulation. (See In re Joint E. and S. 

Dist. New York Asbestos Lit. (2d Cir. 1990) 897 F.2d 626, 632, 634, fn. 7 [―Stripped to its 

essentials, the military contractor defense under Boyle is to claim,  ̳The government made 

me do it.‘ ‖; whether asbestos-containing cement was ―[a]  ̳stock‘ item, analogous to the 

hypothetical stock helicopter‖ in Boyle could not be decided on record before the circuit 

court]; see Ruppel v. CBS Corp. (7th Cir. 2012) 701 F.3d 1176, 1184 (Ruppel) 

[manufacturer of asbestos-containing turbine for aircraft carrier established ―colorable‖ 

government contractor defense where use of asbestos was required, ―making it 

impossible to comply with the Navy and state tort law simultaneously‖].)

The procurement of the asbestos-containing insulation at issue here is not, contrary 

to Kase‘s assertion, akin to the purchase of the specific-capacity air conditioner or the 

―stock‖ helicopter posited in Boyle. Neither of the Supreme Court‘s exemplar purchases

involved a background remotely similar to the Navy‘s history with asbestos. This is not a 

case where the procured insulation merely ―happen[ed]‖ to include asbestos, in contrast 

to the hypothetical defective latch that merely ―happen[ed]‖ to be on the ―stock‖ 

helicopter ordered by the manufacturer‘s model number. (Boyle, supra, 487 U.S. at 

p. 509.) The Navy‘s continued requisition of asbestos containing products in the face of 

extensive study as to asbestos‘s protective attributes, on the one hand, and its serious 

health risks, on the other hand, cannot be described as anything other than a deliberative 

judgment call—a quintessential discretionary function. 

Nor can we view the operative specifications, MIL-I-2781 and MIL-I-24244, as 

Kase urges, as merely performance specifications unrelated to the alleged design flaw. 

Performance requirements can mandate a design choice, and the uncontroverted evidence 

is that it did so in this case. (See Oliver v. Oshkash Truck Corp. (7th Cir. 1996) 96 F.3d 

992, 998–999 (Oliver) [through ―performance and dimension specifications‖ Army 

exercised ―considerable amount of substantive input into the design‖ of overland 

vehicle].) 
21

In sum, all the benchmarks of ―reasonably precise specifications‖ are present—the 

Navy made a deliberative design choice in issuing specifications that, in 1968, could only 

be met with, and thus required, asbestos-containing insulation for the protection of piping 

in the reactor compartments of its nuclear submarines.8 

2. Navy’s Knowledge of Asbestos Health Hazards

Kase maintains there is also a triable issue as 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.‖ (Boyle, supra, 487 U.S. at p. 512.) No warning must be made, however, when 

the United States is already aware of the danger at issue. (Ibid.)

We have already summarized the evidence regarding the Navy‘s extensive 

knowledge of the health risks of asbestos products. Metalclad‘s expert, Robert Strode, 

declared ―the Navy‘s resources and knowledge regarding asbestos hazards and controls 

during the late 1960‘s and early 1970‘s would have represented the state of the art, and 

there is no basis to conclude that an insulation contractor such as Metalclad Insulation 

Corporation would have had any information or knowledge concerning asbestos 

insulation hazards that was not already known to the U.S. Navy.‖ Metalclad‘s discovery 

responses, in turn, show it only first became aware of any connection between asbestos 

exposure and disease in the late 1960‘s. This evidence, which was uncontroverted,

reflects that the Navy was well aware of the health risks of asbestos well before its 1968 

procurement from Metalclad and Metalclad‘s knowledge lagged behind the Navy‘s. 

 

8

 We recognize this is not a case involving substantial ―back and forth‖ between a 

government agency and a contractor designing a unique piece of equipment, such as an 

aircraft or transport vehicle. (Compare, e.g., Oliver, supra, 96 F.3d at pp. 998–1000; 

Harduvel v. General Dynamics Corp. (11th Cir. 1989) 878 F.2d 1311, 1320–1321.) No 

case involving that scenario, however, has involved the decades of naval studies and 

investigations, and the history of naval specifications, unique to the universe of asbestos 

cases. (See, e.g., In re Brooklyn Navy Yard Asbestos Litigation, supra, 971 F.2d at 

p. 839; Oxford, supra, 177 Cal.App.4th at pp. 705–706.)
22

Kase nevertheless maintains Metalclad was required to show (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. Only by 

making that two-fold showing, says Kase, can Metalclad demonstrate it had no duty to 

advise the federal government about asbestos health risks. 

Kase cites no authority requiring such a detailed showing. Rather, the cases 

recognize that 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.‖ (Agent Orange, supra, 517 F.3d 76, 99, italics added; see, e.g., Stout v. 

Borg-Warner Corp. (5th Cir. 1991) 933 F.2d 331, 336 [contractor ―only had the duty to

warn the government of dangers of which the government had no knowledge‖ and failure 

to warn of obvious or known risks did not defeat defense]; Ramey v. Martin-Baker 

Aircraft Co. Ltd. (4th Cir. 1989) 874 F.2d 946, 951, fn. 10 [―Because we conclude the 

Navy was already aware of the risk at issue, we need not consider whether Martin-Baker 

would otherwise have been required to warn the Navy directly of the risk in order to 

assert successfully the military contractor defense.‖].) 

The evidentiary record in this case amply makes a prima facie case that the Navy 

was well aware of the health risks of asbestos and Metalclad was not aware of any risk of 

which the Navy was not already aware. (See Ruppel, supra, 701 F.3d at p.1185 

[―colorable‖ defense where manufacturer of asbestos-containing turbines provided 

evidence ―Navy knew of all of the hazards associated with asbestos‖]; Brown, supra,

2012 WL 7761205, at p. *1, fn. 1 [summary judgment granted where Metalclad‘s 

evidence that Navy ―knew about asbestos and its hazards‖ was uncontradicted].) Kase, in 

turn, presented no contrary evidence raising a triable issue. (See Borrayo v. Avery (2016) 

2 Cal.App.5th 304, 308 [once prima facie showing is made, burden shifts to party 

opposing summary judgment to present evidence raising a triable issue].)

We therefore conclude Kase has not raised a triable issue as to the requirements of 

the government contractor defense as to his design defect claims. 
23

C. Failure to Warn Claims

California recognizes ―failure to warn claims under both strict liability and 

negligence theories. In general, a product seller will be strictly liable for failure to warn 

if a warning was feasible and the absence of a warning caused the plaintiff‘s injury. 

[Citations.] Reasonableness of the seller‘s failure to warn is immaterial in the strict 

liability context.‖ (Webb v. Special Elec. Co., Inc. (2016) 63 Cal.4th 167, 181, fn. 

omitted.) ―Under the  ̳warning defect‘ theory of strict liability, a perfectly made product 

is defective if it is unreasonably dangerous to place the product in the hands of a user 

without a suitable warning or if no warning is given.‖ (Oxford, supra, 177 Cal.App.4th at 

p. 717.) ―Conversely, to prevail on a claim for negligent failure to warn, the plaintiff 

must prove that the seller‘s conduct fell below the standard of care. [Citation.] If a 

prudent seller would have acted reasonably in not giving a warning, the seller will not 

have been negligent.‖ (Webb, at p. 181.) ―In general, the adequacy of the warning is a 

question of fact for the jury.‖ (Oxford, supra, 177 Cal.App.4th at p. 717.) 

While the government contractor defense can apply to failure to warn claims (see, 

e.g., Getz, supra, 654 F.3d at pp. 866–867; Kerstetter v. Pacific Scientific Co. (5th Cir. 

2000) 210 F.3d 431, 438–439; Oliver, supra, 96 F.3d at pp. 1003–1004), Metalclad did 

not invoke it in the trial court as to Kase‘s failure to warn claims, nor did the trial court 

consider it. Rather, Metalclad essentially made a causation argument and continues to 

defend the summary judgment as to Kase‘s failure to warn claims on that basis.9

The evidence on causation was uncontroverted. The purchase order required that 

every ―container‖ for the insulation be marked in accordance with specification MILSTD-129D. The ―only addition[s]‖ to the specification markings required by the 

purchase order, itself, were that the letter ―  ̳N‘ ‖ and the words ―  ̳TARGET 

MATERIAL‘ ‖ appear in three-inch letters. The ―shipment‖ was to be marked with its 

―delivery destination, contract number and its DMN or  ̳Document Management 

 

9

 Metalclad also urges the government contractor defense as an alternative ground 

to affirm the summary judgment. We need not, and do not, reach that issue. 
24

Number.‘ ‖ In addition, the specification required ―each package‖ to contain the 

following: ―Federal Stock Number, Item Description or Nomenclature, Contract Number, 

Name and Address of Prime Contractor, Quantity and Unit; Level of Protection, Packing 

Date, Gross Weight, Volume, and Delivery Address.‖ Although the specification 

permitted preprinted ―  ̳case markings‘ ‖ on the commercial packaging, it did not permit 

additional markings to be placed on ―shipping containers,‖ as such markings could have 

been ―mistaken for any of the required markings and were thus not permitted.‖

Metalclad‘s expert, Thomas F. McCaffery, agreed ―case markings . . . could conceivably 

include a warning label printed on the boxes of Unibestos by its manufacturer.‖ He also 

acknowledged ―Pittsburgh Corning . . . began printing a warning on boxes of Unibestos 

in November 1968.‖ However, a Pittsburgh Corning employee could not confirm the 

November 1968 timeframe, and said the package warnings could have commenced the 

month before or the month after. In any case, Metalclad never had physical custody of 

the Unibestos. The order was shipped from the Pittsburgh Corning Texas facility by rail,

directly to the naval shipyard. 

Kase, for his part, never claimed to have seen any of the shipping containers for 

Unibestos. Rather, he recalled seeing stored ―cardboard boxes‖ of Unibestos that were

subsequently carried to the submarines on which he was working. He did not see any 

warnings on the individual boxes of insulation. 

Since the evidence is uncontroverted that Metalclad never had possession of the 

Unibestos and there is no evidence Kase 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 points to the deposition testimony of the Pittsburgh Corning employee

referenced above, who confirmed the order from Metalclad included the following 

directive: ―  ̳Mark cartons as follows in addition to normal marking,‘ ‖ specifically, 

―DMI, space, 5640[-]199[-]5660 contract number N00445[-]70[-]C[-]0260, Metalclad 

Insulation Corporation, Torrance, comma, California.‖ Kase asserts that if Metalclad 
25

could give this direction as to each package (i.e., essentially requiring the packaging to 

comply with the naval specification), it also could have told Pittsburgh Corning to 

include a warning. However, whether Metalclad could have done so, and equally 

importantly, whether Pittsburgh Corning could have, or would have, done so is sheer 

speculation. There is no evidence from anyone from Metalclad on these issues. And the 

Pittsburgh Corning employee, when asked whether anything prevented Metalclad from 

making such a request, said he did not know. It is certainly true Pittsburgh Corning 

commenced placing warnings on its packaging by at least December 1968. There is 

absolutely no evidence, however, as to whether it had the production capability to do so 

before that time, or whether, even if it had the capability to do so, it would have done so, 

given that the naval specifications did not require a warning. 

We, thus, conclude that the fact Metalclad‘s order directed Pittsburgh Corning to 

supply the information required by the naval shipping specification, by itself, is not 

sufficient to raise a triable issue as to causation. 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.10 (See Burgueno v. Regents of the University 

of California (2015) 243 Cal.App.4th 1052, 1057 [―[A] party  ̳ ―cannot avoid summary 

judgment by asserting facts based on mere speculation and conjecture . . . .‖ ‘ ‖].)

D. Punitive Damages and Loss of Consortium Claims 

The trial court granted summary judgment on Kase‘s punitive damages claims 

mainly because it rejected his defective design and failure to warn claims on the merits. 

We need not, and do not, reach the issue of punitive damages for the same reason. In any 

case, on appeal, Kase barely mentions punitive damages. In his opening brief, he makes 

only cursory assertions, provides no citations to the record and cites no supporting 

 

10 Given our conclusion on this point, we need not, and do not, address any of 

Metalclad‘s other arguments related to causation. 
26

authority. In his closing brief, he makes no mention at all of punitive damages. Under 

these circumstances, he has forfeited review of the issue, regardless of our disposition on 

the merits of his claims. (See Garcia v. Seacon Logix, Inc. (2015) 238 Cal.App.4th 1476, 

1489 [appellate arguments must be supported by citations to record and to legal authority 

whenever possible, and failure to do so may forfeit argument]; People ex rel. Strathmann 

v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 502–503 [failure to cite to record 

forfeits issue; court does not search record in search of evidence supporting appellant].)

The trial court, likewise, granted summary judgment on Kase‘s wife‘s loss of 

consortium claims because they depend on the viability of Kase‘s defective design and 

failure to warn claims. Given our disposition upholding the trial court‘s summary 

judgment on Kase‘s claims, we also uphold the summary judgment on the loss of 

consortium claims.

III. DISPOSITION

The summary judgment is affirmed. Respondent to recover costs on appeal.

_________________________

Banke, J.
27

We concur:

_________________________

Margulies, P.J.

_________________________

Dondero, J.

A143590, Kase et al. v. Metalclad Insulation Corp
28

Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Teri L. Jackson

Counsel: 

Brayton Purcell, LLP, Gary L. Brayton and Richard M. Grant for Plaintiff and Appellant.

Dentons US LLP, Lisa Lurline Oberg, Felicia Y. Feng and Andrea J. Casalett; Morgan, 

Lewis & Bockius LLP, Thomas M. Peterson and Deborah E. Quick for Defendant and 

Respondent.