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)

Plaintiff s 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 c ome s 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, d efendant Metalclad Insulation Corporatio n (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 S hipyard, where worke rs packed it around the submarine piping i t 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 part s II. C. and II. D.2

These specifications did not expressly call out for asbestos in the insulation . B ut according to the undisputed record evidence, th e 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 th e 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 requireme nts 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 s o 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 p p

. 512

– 513.) By way of contrast, t he c ourt explained the defense w ill not apply if the government procure s , for example, a ―stock‖ helicopte r 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

. T here would , thus, be no ―  ̳ significant conflict ‘ ‖ between federal interests and state law, rendering the defense unavailable. ( Ibid. )
Th e Supreme Court‘s limiting exemplar s led the Ninth Circuit Court of Appeal s 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.4 th 700, 710 ( Oxford ) ) , have taken a more expansive view and concluded the fact a product has some commer cial 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. (5 th Cir. 2001)
275 F.3 d 414, 419 ( Miller ) ) , and a n o ther 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
, di d not limit the defense to necessarily exclude the procurement of products also sold commercial ly. Rather, the point the high court was making in positing a purchase of a ―stock‖ helicopter identified by manufacturer‘s model
number was that
, whe re a purch ase does not involve ―reasonably precise specifications ‖ bearing on the challenged design feature, th e 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 s pecifications 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

. F ACT UAL AND P ROCEDURAL B ACKGROUND 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 suffi cient stability to meet naval needs

. Accordingly, the Navy conducted a s ix

- month, follow

- on study regarding stability. It
also conducted a further study establish ing Unibestos ‘ s performance at high temperatures. Thereafter, the Navy used Unibestos on its vessels, and the product was subsequently ordered in accordance with Na vy specifications , which specifically call ed
for asbestos in insulation.4

Early on, Unibestos was manufactured in the United States by Union Asbestos and Rubber Company (U nion). One early ad vertisement tout ed Unibestos as ―durable,‖ ―efficient,‖ and ―pr actical,‖ 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 ad vertisement emphasize d ease of installation, an ―interestingly low‖ price, and
availabilit y in numerous lengths and thicknesses. Pittsburgh Corning acquired Unibestos from U nion 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.
T here is no evidence in the record as to the percent of Unibestos s old commercially. During that timeframe, in August 1968, Metalclad brokered a delivery of
Uni bestos 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 tempe ratures. It specified the size an d 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. C ompliant insulat ion had to be ―co mposed of heat

- resisting compounds suitable for the temperature conditions and the purpose intended.‖ The Navy first issued s pecification MIL

- I

- 2781 in 1955 , and at that point, stopped expressly calling out for asbestos in insulation used to protect its equipment. However,
d uring the 1955

– 1973 timeframe
, the Navy viewed asbestos as a n expected material in insulation products provided pursuant to the specification , and a sbestos

- containing products were sometimes the only products pre approved for certa in grades of insulation

. In fact, t he list of pre qualified products for certain grades of insulation a ttached to the5

version of MIL

- I

- 2781 in effect in 1968 listed Unibestos as the only pre qualified product in grade II (insulation up to 750 degrees), clas s c (fibrous), and in grade III (insulation up to 1,200 degrees), class f (fibrous). The August 1968 purchase order issued to Metalcla d sought insulation of both ―subtype 1 B, fibrous

- temperatures up to 75 0 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 pre qualified product meeting the purchase order s pecifications.
I n 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 Me talclad purchase order
, MIL

- I

- 24244 , addressed ― m ineral

- 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 a n addit ional 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] add itional 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

Metalc lad‘s expert further stated the Navy ― had unique specifications for thermal insulation used aboard nuclear powered submarines. These specifications were
communicated to outside v e ndors, including Pittsburgh Coming [ sic ] , by the Navy in Requests for Proposals for certain equipment and materials.‖ 2
The Navy‘s contract with Metalc lad additionally called for various inspection s 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 t o Metalc lad ‘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 Metalc lad‘s person

- most

- knowledgeable call ed 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 manufactur ing 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 Metalc l ad and numerous other entities in
December , 2011 , asserting claim s based on his asbestos exposure

. After answering the complaint
, Metalc lad moved for summary judgment or summary adjudication on two grounds: the government con tractor 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., a n asbestos warning by Metalclad would have been impossible and
futile )

. 3

As to Kase‘s design defect c laims , t he trial court ruled: ― The United States government approve d precise specifications for the Metalclad

- supplied Unibestos used
aboard the USS Guitarro
, USS Pintado
, USS Drum , and USS Hawkb ill ; the Metalclad

supplied Unibestos conformed to the government ‘ s specification; and Metalclad had no duty to warn the governm ent 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 substan tial factor in causing
Mr. K ase‘ s alleged exposure to asbestos from Unibestos insulation. ‖

3 Because the loss of conso rtium 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

T he court , thus, granted Metalc lad ‘s motion and entered judgment in its favor.
II. D ISCUSSION 4
A. The Government Contractor Defense Set Forth i n 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 open ed outwards, instead of in wards , and thus against the weight of the water . ( Boyle
, supra , 487 U.S. at p p

. 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
int erest , ‖ 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.)
T he fact government procurement is a n area of unique ly 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 ide ntifiable  ̳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 whe n there would be no ―significant conflict‖

4 Our standard of review is well established. Summary judgment is appropriate only if the evidence discl oses 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 favor able 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. (1 990) 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 c omply 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 petition er claims was necessary) is precisely contr ary to the duty imposed by the G overnment contract (the duty to manufacture and deliver helicopters with the sort of escape

- hatch mechanism shown by the specifications).‖ ( Ibid. ) Th us, 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 var iation 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. ( Boy le
, supra , 487 U.S. at p. 509

. ) The court of appeals had concluded it was the Feres 5 doctrine, which excludes injuries to military personnel from the Federal Tort Claims Act (FTCA) . Military contractor liability would conflict with this doctrine, the cir cuit 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. (4 th C ir. 1986) 792 F.2d 403, 408.)
T he Supreme Court rejected t he Feres doctrine as the undergirding of the government contractor defense, however, on the ground it would produc e results both too broad and too narrow. Too broad, because the g overnment contractor defense would apply whenever the Feres doctrine preclude d 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 purch ased 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 cle arly of paramount federal concern. ( Boyle
, at pp. 510

– 511.)
The high court determined the F TCA , itself, p rovide d a better guide for determining what is a ―  ̳significant conflict‘ between federal interests and state law in the
context of G overnment procur ement.‖ ( 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 gr eater safety and greater combat effectiveness.‖ ( Ibid. ) ―[P]ermitting  ̳second

guessing‘ of t hese 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 in sure 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 Sta tes 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 consid ered by a Government officer, and not merely by the contractor itself.‖ ( Ibid. ; see Jowers v. Lincoln Elec. Co. (5 th 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) th e contractor timely warned the G overnment 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.‖ ( B oyle
, 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 poli cy 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 whet her 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 judgme nt on his design defect claims
, Kase
focus es primarily on the first requirement of the government contractor defense

— that the12

―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 th at while t he Navy studied and rigorous ly test ed Unibestos, it did not design or manufacturer the insulation

. A ccording 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 i s ―military equipme nt , ‖ 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 no t 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.) C onfining the d efense 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 suc h 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 product s 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. Asbestos13

Other courts, however, including t wo California c ourts , have con cluded 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 focus ed 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 decline d 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. C 10

- 0287 TEH) 2010 WL 1526099, at pp. *1

– * 2 [Metalclad did not establish ―colorable‖ defense because Unibestos was also sold commerc ially] ; 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 t hat 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 a sbestos in insulation for Navy ships‖].)14

purpose; however, plaintiff cites no case espousing t hat 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 no netheless 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.‖ ( I bi d. )
I n Oxford
, supra , 177 Cal.App.4 th at page 700 , our division reversed a judgment for the plaintiffs on inconsistent verdict grounds because the jury‘s special findings
establi shed 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 incorpo rated 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 sh owed the insulation was ―sold primarily to civilian petroleum companies‖ and there was no evidence the military ―had provided any design specifications.‖ ( Oxford
, at p p . 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 m ilitary‖ is ―unduly confining.‖ ( Oxford , at p. 710. ) In fact, observed
the Oxford c ourt , other courts ha d held the defense is not even limited to military contracts. ( Ibid. , citing Carley v. Wheeled Coach (3 d Cir. 1993) 991 F.2d 1 1 17, 1119 , f n. 1 [defen se applied to contract for ambulance procured by General Services Administration for Virgin Islands Department of Health]; see In re Katrina Canal Breaches Litigation (5 th 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 const ruction contracts with U.S. Army Corp s of Engineers; summary judgment reversed because of insufficiently detailed back

- fill and compaction specifications]; Bennett v. MIS Corp. (6 th Cir. 2010) 607 F.3 d 1076, 1089

– 1090 [joins
other circuit courts holding de fense can apply in ―the non

- military context‖].)
We continue to a gree with Jackson and Oxford that a product ‘s commercial availability does not necessarily forec lose 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 th at th e 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 C ourt 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 specifi ed only cooling capacity and ―not the precise manner o f construction.‖ ( Boyle
, supra , 487 U.S. at p. 509 .) Air conditioners , of course, are usually
commercial ly available products

— but that was not the reason given by the court for the inapplicability of the defense. Rather, the defense was inapplicable bec ause 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. Th e second example was
the ― stock ‖ helicopter ordered by the manufacturer‘s model number

. ( I bid. ) 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 o f 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 participate d 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 adde d.)
I n 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 dev eloped ―a similar engine control system‖ for Great Britain‘s air force. ( Id. at p. 863.) While the

go vernment contractor defense would not apply to the procurement ―  ̳by model number
, [of] a quantity of stock helicopters t hat happen to be equipped with‘ a particular design feature [citation omitted], this defense does not require the government to create the design or the specificat ions. As long as the United States makes a  ̳significant policy judgment‘ in approving the design, nothing precludes the gov ernment from procuring designs and products that were initially developed for other nations.‖ ( Ibid.
, quoting Boyle
, supra , 487 U.S. at p p. 509, 513 .) Accordingly, the circuit court focused in Getz on (a) the detailed specifications, created by the manuf acturer, 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 , wi th 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. (11 th Cir. 2009) 571 F.3d 1348, 1356

– 1357 [that manufacturer of training aircraft ―independently designed‖ and patented trim aid device17

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 p rotection under the military contractor defense,‖ and, in any event, fact contractor has provided ―an off

- the

shelf product would be relevant to the first element‖ of the defense] ; Kerstetter v. Pacific Scientific Company (5 th 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 dist rict 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

- the

shelf‘

—  ̳as

- is,‘ ‖ the government is ―merely an incidental purchaser‖ and the ―seller was not following the government‘s di scretionary 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 involv ing essentially t he 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 w hich the government contractor
defense c an be asserted. ( Brown , at p. * 1 ; see Delahay e 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.4 th 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 asbest os

- 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 se t of minimum standards for mitigating the risks of handling asbestos products; (4) a 1944 letter suggest ing amosite asbestos was an essential insulating material with no substitute and workers should use respirators to mitigate hazards; (5) a series of Nav y 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 ship yards 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 investigation s of asbestos hazards and its staying a breast 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.4 th 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 196 7 Naval ships t echn ical

m anual 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 L ist19

(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 speci fically 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 k nowledge of military specificati ons 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
risk s. Yet, it nevertheless made a decision to use , and to continue using, th is 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; ―r eordering the s ame 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. (4 th Cir. 1986) 792 F.2d 409, 410

– 412 [concluding pre

Boyle government contractor de fense 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
defect s ‖]. ) As Kase points o ut, t he 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 wit h these specifications an asbestos

- containing insulation was required. Indeed, the only then pre qualified product in the demanded insulation grades with the demanded fibrous composition was asbestos

- containing Unibestos. Thus, on this record, Metalcl ad could not comply with both its contractual obligation to the Navy and the state tort duty Kase claims should have controlled the20

design of the product. In other words, Metalclad has presented a record that the government ―made it ‖ deliver asbestos

- containing insulation. ( See I n re Joint E. and S.
Dist. New York Asbestos Lit. (2d Cir. 1990) 897 F.2d 626, 632, 634
, f n. 7 [―Stripped to its

essen tials, 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

. ( 7 th Cir. 2012) 701 F.3d 1176, 1184 ( Ruppel ) [manu facturer of asbestos

- containing turbin e for aircraft carrier established ―co lorable‖ government contractor defense where use of asbestos was required, ―making it impossible to comply with the Navy and state tort law simultaneously‖].)
Th e procurement of t he 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 ex e mpl ar purchases
involved a background remotely similar to the Navy‘s history with asbestos. T his 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‖
heli copter ordered by the manufacturer‘s model number. ( Boyle
, supra , 487 U.S. at

p. 509.) The Navy‘s continu ed requisition of asbestos containing products in the face of extensive study as to asbestos‘ s protective attributes, on the one hand, and its seriou s 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 perfor mance specifications un related 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. (7 th 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

I n sum, all the benchmarks of ―reasonably precise specifications‖ are present

— the Navy made a de liberative 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 Asb estos 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 b ut not to the United States.‖ ( Boyle
, supra , 487 U.S. at p. 512.) No warning must be made , however, when
the United States i s 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 di scove ry
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 i ts 1968

p rocurement 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 t he 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. 7 05

– 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 a sbestos
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 cit es 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
Nav y 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 t his case amply make s 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 manufac turer 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 requirement s 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.] Reas onableness 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 defe ctive 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.4 th at
p. 717.) ― Conversely, to prevail on a claim for negligent failure to warn, the pla in tiff 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.4 th 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, Metalcla d 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. T he purchase order required that every ―container‖ for the insulation b e marked in accordance with specification MIL

STD

- 129D. The ―only addition [s] ‖ to the specification markings required by t he purchase order, itself, w ere that the letter ―  ̳ N ‘ ‖ and the words ―  ̳ TARGET
MATERIAL ‘ ‖ appear i n three

- inch letters. The ― shipm ent ‖ was to be marked with its ―delivery destination, contract number and its DMN or  ̳ Document Management

9 Metalclad also u rges 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 spec ification 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.‖ A lthough the specification permit ted pre printed ―  ̳ 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

. . . coul d conceivably include a warning label printed on the boxes of Unibestos by its manufacturer

. ‖ He also acknowledged ― Pittsburgh Corning

. . . began print ing a warning on boxes of Unibestos in November 1968.‖ However, a Pittsburgh Corning employee could no t 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. T he order was shipped from the Pittsburgh Corning Texas fac ility 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 submarine s 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.
Kas e 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 Metalclad25

could give this direction as to each package (i.e., essentially requiring the packaging to comply with the n aval 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 th ese issue s . 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 warning s 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 th at time, or whether, even if it had th e capability to do so , it would have done so, given that the nav al 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 c ould 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 thi s 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 c laims on the merits. We need not, and do not, reach the issue of punitive damages for the same reason. In any

case, o n appeal, Kase barely mentions punitive damages . In his opening brief, he makes only cursory assertions , provides no citations to the re cord and cites no supporting

10 Given our conclusion on this point, we need not, and do not, address any of Metalcl ad‘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. Seac on 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) 2 10 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 claim s 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 claim s

. III

. D ISPOSITION Th e 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. Meta l clad Insulation Corp28

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.