1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) IN THE MATTER OF THE ) FORT TOTTEN METRORAIL CASES ) Arising Out of the Events of June 22, 2009 ) ) ) M iscellaneous Case No. 10

- 314 (RBW) LEAD CASE: Jenkins v. Washington ) Metropolitan Area Transit Authority, et al. ) ) THIS DOCUMENT RELATES TO: ) ALL CASES )

____________________________________ ) MEMORANDUM OPINION This action was instituted on behalf of individuals who were killed or injured in a collision between two Washington Metropolitan Area Tran sit Authority (“WMATA”) trains that occurred on June 22, 2009, near WMATA’s Fort Totten Metrorail s tation

. Currently before the Court are the f ollowing seven contested dispositive motions: (1) WM ATA’s motion to dismiss Alstom Signaling, Inc.’s (“Alstom”) statute of r epose affirmative defense , ECF No . 353; 1 (2) Ansaldo STS USA, Inc.’s (“Ansaldo”) motion for judgment on Counts 7, 11, and 15 of the
S econd Amended Master Complaint, ECF No. 3 67; (3) WMATA’s motion to dismiss the equitable indemnification cross

- claims against it , ECF No . 424 ; (4) Alstom, Ansaldo, and ARINC Incorporated’s (“ARINC”) ( collectively “corporate d efendants”) joint motion for

s ummary jud gment on all claims, ECF No. 425 ; (5) Ansaldo’s motion for s ummary j udgment, ECF No. 426; (6) Alstom’s m otion fo r summary j udgment, ECF No. 427; and (7) ARINC’s

1 In this Memorandum Opinion, the Court will cite to the parties’ filings by referencing the document number generate d by the Court’s electronic case filing system (“ECF No.”), followed by the page number assigned to the document by the filing party.2 m otion fo r summary j udgment, ECF No. 428. Upon careful consideration of the parties’ submissions, the Court concludes for the following reasons that (1) WMATA’s motion to dismiss Alstom’s statute of repose defense must be granted in part and denied in part; (2) Ansaldo’s motion for judgment on Counts 7, 11, and 15 of the Second Amended Ma ster Complaint must be granted; (3) WMATA’s motion to dismiss the equitable indemnification

cross - claims against it must be granted; (4) the corporate defendants’ motion for summary judgment must be denied; (5) Ansaldo’s motion for summary judgment must be denied ; (6) Alstom’s motion for summary judgment must be denied; and (7) ARINC’s motion for summary judgment must be granted in part and denied in part.
I. Standards of Review A. Motion to Dismiss under Rule 12(b)(1) When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), “the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self

- Gov’t Auth. , 310 F. Supp. 2d 172, 176 (D.D .C. 2004); see Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff t he benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the district court may consider materi als outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Sciences , 974 F.2d 192, 197 (D.C. Cir. 1992)).3 B. Motion for Judgment on the Pleadings under Rule 12(c) Federal Rule of Civil Procedure 12(c) permits “ a party [to] move for judgment on the pleadings ” so long as the motion is made “[a]fter the pleadings are closed

— but e arly enough not to delay trial.” “ The standard for a motion for judgment under Rule 12(c) is essentially the same standard as a motion to dismiss under Rule 12(b)(6). ” Rollins v. Wackenhut Servs. , 802 F. Supp. 2d 111, 116 (D.D.C. 2011) (citing, among others, Schuchart v. La Taberna Del Alabardero, Inc. , 365 F.3d 33, 35 (D.C. Cir. 2004) ). Accordingly, when considering a Rule 12(c) motion , “ the court must accept the nonmovant’ s allegations as true and should view the facts in the light m ost favorable to the nonmovant.” Bowman v. District of Columbia , 562 F. Supp. 2d 30, 32 (D.D.C. 2008). “T he court should grant a motion for judgment on the pleadings if the movant ‘ is entitled to judgment as a matter of law.’” Id. (quoting Burns Int’l Sec. Servs. v. Int’ l Union , 47 F.3d 14, 16 (2d Cir. 1 995)). C . Motion for Summary Judgment under Rule 56 A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56( a). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A material fact is one that “might affect the outcome of the suit under the governing law.” Id. “The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah , 638 F.3d 303, 308 (D.C. Cir.4 2011) (citing Anderson , 477 U.S. at 255). “Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate ‘if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that part y’s case, and on which that party will bear the burden of proof at trial.’” Id. (citations omitted). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that part y.” Anderson , 477 U.S. at 249. “The mere existence of a scintilla of evidence in support of t he [non

- moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non

- moving party] .” Id. at 252 (e mphasis added).
I I . WMATA’s motion to dismiss Alstom’s statute of repose affirmative defense 2
A. Introduction Alstom asserts, as an affirmative defense, that WMATA’s cross - claim s for contribution and contractual indemnity are time

- barred under the Dist rict of Columbia’s (“District”) statute of repose. WMATA moves to dismiss this affirmative defense, arguin g that its cross

- claim s fall under two exceptions to the District’s statute of repos e: (1) the exception for claims asserted by the Dist rict of Colum bia government , and (2) the exception for claims based on a contract. The Court concludes that WMATA’s cross

- claim for contractual indemnity falls under the statute of repose’s exception for claims ba sed on a contract, but that its cross

- claim for contri bution does not. The Court also conclude s that neither cross

- claim falls under the statute of

2 The Court considered the following filings and their supporting exhibits in resolving this motion: (1) the Memorandum in Support of WMATA’s Motion to Dismiss Alstom’s Statute of Repose Affirmative Defense [ECF No. 353

- 1]; (2) Alstom Signaling Inc’s Opposition to WMATA’s Motion to Dismiss Alstom’s Statute of Repose Affirmative Defense [ECF No. 382]; and (3) the Reply Memoran dum in Support of WMATA’s Motion to Dismiss Alstom’s Statute of Repose Affirmative Defense [ECF No. 396].5 repose’s exception for claims brought by the District. Accordingly, WMATA’s motion is granted in part and denied in part.
B . Background WMATA filed a cross - clai m against Alstom containing two counts: Count I is for contribution, and Count II is for contractual indemnity. See ECF No. 140 ¶¶ 84

- 90. The contribution claim asserts that if WMATA is found liable to the plaintiffs, WMATA is entitled to contribution fr om Alstom with respect to damages proximately cause d by Alstom’s negligently and defectively designed automatic train control system. Id. ¶¶ 85

- 86. The contractual indemnity claim asserts that if WMATA is found liable to the plaintiffs, it is entitled to indemnification from Alstom pursuant to several provisions of a contract between the parties

. Id. ¶ 88. In its Answer to WMATA’s cross

- claim , Alstom asserts that WMATA’s cross

- claim s for
cont ribution and indemnification are time

- barred under the Distric t’s statute of repose. EC F No. 178 ¶ 10. The District’s statute of repose bars “any action” for “personal injury” or “wrongful death

. . . resulting from the defective or unsafe condition of an improvement to real property” if the injury or death occurs more than ten years after the “improvement was substantially completed.” D.C. Code § 12

- 310(a)(1)(A) (2001)

. 3 The statute also bars any action “for contribution or indemnity which is brought as a result of such injury or death ” if the injury or death oc curs more than ten years after the “improveme nt was substantially completed.” Id. § 12

- 310(a)(1)(B). However, the statute’s ten

- year limitations period does not apply to , among other lawsuits , “ any

3 The parties do not dispute that WMATA’s cross

- claim against Alstom arises from an allegedly “ defective or unsafe condition of an improvement to real property .” Id.6 action based on a contract, express or implied,” id. § 1 2

- 310(b)(1), or “ any action brought by the District o f Columbia government,” id. § 12

- 310(b)(4). WMATA now moves for judgment on the pleadings under Rule 12(c), contending that Alstom’s statut e of repose defense fails as a matter of law because WMATA’s cr oss - claim fall s under both of the foregoing exceptions to the statute of repose. First, WMATA argues that the statute’s exception for “any action brought by the District of Columbia government,” id. § 12

- 310(b)(4), applies because WMATA is an agency of th e District under the terms of the interstate

c ompact that created it, and thus should be treated as “the District of Columbia government” for the pu rposes of the statute of repose, ECF No. 353

- 1 at 5. It further contends that even if § 12

- 310(b)(4) is con strued to apply only when the District is su ing to vindicate public rights, the exception still applies here because WMATA’s cross

- claim against Alstom seeks to protect the public from negligent design defects in Alstom ’s train control system, and to reple nish
WMATA’s treasury to enable it to perform a public functio n (i.e., rail transportation). See id. at 11

- 15. Second, WMATA maintains that the statute of repose’s exception for “any action based on a contract, express or implied,” D.C. Code § 12

- 310(b)( 1), also appl ies because its cross

claim again s t Alstom is primarily based on the contract between the parties, ECF No. 353

- 1 at 16

- 18.
T he majority of Alstom’s opposition brief focuses on the merits of WMATA’s cross

claim (i.e., WMATA’s entitlement to con tribution and indemnity fr om Alstom). These arguments, however, are irrelevant to the issues presented in WMATA’s motion, and will be considered by the Court only in the context of Alstom’s motion for summary judgment (which is discussed infra in this Mem orandum Opinion). Alstom makes only one argument responsive to WMATA’s motion : it contends that the statute of repose’s exception for “any action brought by7 the District of Columbia government,” id. § 12

- 310(b)(4), does not apply here because (1) WMATA is not “the District of Columbia government,” and (2) even if it were, th is statutory exception applies only when the District’s lawsuit vindicates a public right , and WMATA’s

cross - claim to recover the costs of its own negligence vindicates no such right. See ECF No. 382
at 7

- 12. C . Analysis Notwithstanding the order in which WMATA presents it arguments , the Court finds that its strongest position is based on the statute of repose’s exc eption for contract claims. The Court thus consider s the applicabili ty of that exception first, and then turn s to the exception for claims asserted by the District. 1. Does the statute of repose’s exception for “any action based on a contract , ” § 12
- 310(b)(1 ), apply to WMATA’s cross
- claim against Alstom? As noted, WMATA’s cross - claim asserts two counts: Count I fo r contribution, and Count
II for contractual indemnity. See ECF No. 140 ¶¶ 84

- 90. Despite WMATA’s misleading argument that its cross

- claim against Alstom is “primarily” based on a contract , its contribution

cros s - claim plainly sounds in tort , not contract. See id. ¶ 85 (seeking contribution from Alstom insofar as its negligence proximately caused WMATA’s liability , and not referencing any
contract ). And “[c] ontribution is one of several theories used to apporti on damages among tortfeasors to an injured party. ” D.C. v. Wash. Hosp. Cent. , 722 A.2d 332, 336 (D.C. 1998) (emphasis added). Thus, WMATA’s contribution cross

- claim is not exempt from the statute of repose under § 12

- 310(b)(1). WMATA’s contractual indemn ity cross - claim is another story. This claim asserts that Alstom is contractually bound to indemnify WMATA for any damages it pays to the plaintiffs.8 See ECF No. 140 ¶¶ 88

- 90. Because this claim is “based on a contract” between Alstom and WMATA, it is e xempt from the statute of repose under § 12

- 310(b)(1).
2 . Does the statute of repose’s exception for “any action brought by the District of Columbia government, ” § 12
- 310(b)(4), apply to WMATA’s cross
- claim against Alstom ? Determining the applicability of this exception entails three, interrelated questions: First, should WMATA be considered “the District of Columbia government” within the meaning of §
12

- 310(b)(4)? Second, if WMATA is the District government for purposes of § 12

- 310(b)(4), does this p rovision exempt from the statute of repose any action filed by WMATA, or only those actions brought to enforce public rights? And third, if § 12

- 310(b)(4) only exempts those actions brought to enforce public rights, does WMATA’s cross

- claim against Alstom se ek to enforce such a right? 4
i. Is WMATA “the District of Columbia government” within the meaning of § 12
- 310(b)(4) ?

“ WMATA was created by an interstate compact entered into by the District of Columbia and the states of Maryland and Virginia. ” Watt ers v. WMATA , 295 F.3d 36, 39 (D.C. Cir.
2002 ). The interstate c ompact establishes that WMATA is “ an instrumentality and agency of each of the signatory parties,” which includes the District. D.C. Code § 9

- 1107.01, art. III, § 4 (2001) ; see also id. , art . II, § 2 (“ The purpose of this Title is to create a regional instrumentality, as a common agency of each signatory party .”). Nevertheless, “[s]ince WMATA’ s conception in 1981, the unique nature of the compact has spawned a great deal of litigation rega rd ing the proper scope of WMATA’ s jur isdiction and liability,” with many cases turning upon “ whether

4 It bears noting that the applicability of this statute of repose exception is critical only to WMATA’s contribution claim (Count II) since, as explained above, WMATA’s contractual indemnity claim (Count I) plainly falls into the statute of repose’s exception for contract claims.9 WMATA can be considered an agency of the District of Columbia. ” Griggs v. WMATA , 66 F

. Supp. 2d 23, 27 (D.D.C. 1999) (surveying caselaw where WMATA is treat ed as a District agency for some purposes, but not others). The determination of whether WMATA is part of the District government, in other words, varies depending on the particular circumstances of each

case. See id. The issue here is whether WMATA shou ld be considered “the District of Columbia government” within the meaning of the statute of repose’s exception for “any action brought by the District of Columbia government.” D.C. Cod e § 12

- 310(b)(4). The Court concludes that it should for the following reasons. D.C. Code § 12

- 31 0(b)(4) was enacted as part of the District of Columbia Statute of Limitations Amendment Act of 1986

. D.C. Water & Sewer Auth. (“WASA”) v. Delon Hampton
Assocs. , 851 A.2d 410, 414 (D.C. 2004). The D.C. Court of Appeals has reco gnized that this legislation codified the common law doctrine of nullum tempus (“no time runs against the sovereign”). See id. (“[A]n underlying aim of the [D.C.] Council” in enacting the law “ was to ensure that the District received, at the least, the be nefit o f the common law principle of ‘ nullum tempus .’”). Under the doctrine of nullum tempus , “ sovereigns enjoy a common

- law immunity from the operation of statutes of limitations and repose

. . . when [they] s ue[] to vindicate public rights.” D.C. v. Ow ens - Corning Fiberglas Corp. , 572 A.2d 394, 401 , 406 (D.C. 1989). O f particular relevance here , nullum tempus immunity is generally considered a type of sovereign immunity. See Solid Rock Church, Disciples of Christ v. Friendship Pub. Charter Sch., Inc. , 925 A.2d 554, 559

- 60 (D.C. 2007) (“ [T]he District . . . enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus

. ” (emphasis added) ); Owens

- Corning , 572 A.2d at 405 (noting that “[s] ince Congress is sovereign in the10 District, it enjoys the usual sovereign immunities , including the benefit of nullum tempus ” (emphasis added) ); accord Shootman v. Dep’t of Trans. , 926 P.2d 1200, 1206 (Colo. 1996) (“ [N]ullum tempus is simply an aspect of sovere ign immunity.”); New Jersey Educ. Facilities Auth. v. Gruzen , 592 A.2d 559, 561 ( N.J. 1991) (same) ; Was h. Suburban Sanitary Comm’n v. Pride Homes , 435 A.2d 796, 801 ( Md. 1981) ( same)

. This point is significant because, in signing the interstate compact, M aryland, Virginia, and the District “ conferred each of their

r espective sovereign immunities” on WMATA. Watters , 295 F.3d at 39. The Fourth Circuit has consequently interpreted the interstate compact’s conferral of sovereign immunity on WMATA to include immunity from Virginia’s statute of limitations. See Delon Hampton v. WMATA , 94 3 F.2d 355, 359 (4th Cir. 1991) ( stating that, “[a] s a general proposition, an agency of the state shares the same privileges as that of the state, including sovereign immunity ,” and holding that WMATA, “ as an agency and instrumentality of the Co mm onwealth of Virginia,” was “ exempt from application of the statute of lim itations” pursuant to Virginia statute which codified nullum tempus ). Employ ing similar reasoning here, this C ourt concludes that WMATA derives nullum tempus immunity from the District because it is an agency of the District that shares its sovereign immunity, and that WMATA consequently qualifies as the “District of Columbia government” within the meaning of § 12

- 310(b)(4). 5
R esisting this conclusion, Alstom relies upon the D.C. Court of Appeals’ decision in
WASA , 851 A.2d at 414. There , the court held that the “ functions and activities of WASA [the D.C. Water and Sewer Authority] , a separate corporate body disti nct fr om the District of

5 Even if WMATA does not fall within the exception to the statute of repose codified at § 12

- 310(b)(4), it would still be entitled, as an agency of the District, to common law nullum tempus immunity, so long as it brought its lawsuit to vindicate a public right. See Owens

- Corning , 572 A.2d at 401.11 Columbia, are proprietary in nature and thus beyond the protection of nullum tempus ” and, in turn, outside the exception to the statute of limitations for “ actions brought by the District of Columbia government” codified at D.C. Co de § 12

- 301 (2001). Id. at 416. To be sure, WASA and WMATA have many similarities

— they are both public

- private hybrid entities, they can both sue and be sued in their own names , and they can enter int o contracts with the District. Compare D.C. Code §§ 4 3

- 1672, 43

- 1673 (2001) (WASA enabling legislation), with D.C. Code § 9

- 1107.1, Tit. III, Art. II, § 2; id. , Art. V, §§ 12(a), 12(f) (2001) (WMATA Compact). H owever , whereas WASA’s enabling legislation makes clear that it is “ an independent authority of th e District government ” and a “corporate body . . . that has a separate legal existence within the District government,” D.C. Code § 34

- 2202.02(a) (2001) (emphasis added) , the interstate compact declares that WMATA is “ an instrumentality and agency of each of the signatory parties,” including the District. D.C. Code § 9

- 1107.01, art. III, § 4 (2001). And WMATA derives sover eign immunity from the District, s ee Watters , 295 F.3d at 39, which includes nullum tempus immunity. WASA apparently does not. Becaus e of these key distinctions between WASA and WMATA, Alstom’s reliance on WASA is misplaced. ii. Does § 12
- 310(b)(4) exempt from the statute of repose any action filed by the District/ WMATA, or only those actions brought to enforce public rights? Even th ough WMATA may be treated as the District government for purposes of § 12

- 310(b)(4), that does not end the Court’s inquiry. According to Alstom, § 12

- 310(b)(4) merely codifies the doctrine of nullum tempus , and thus only exempts lawsuits from the statu te of repose when the District is seeking to enforce a public right. ECF No. 382 at 8

- 9. WMAT A, on the other hand, emphasizes that the plain language of § 12

- 310(b)(4) applies to “any action brought by the District of Columbia government,” regardless of whe ther the suit is brought to enforce a12 public right. ECF No. 396 at 11

- 12. In support of this position, WMATA highlights a passage from WASA where the court of appeals stated that § 12

- 310 was designed “to ensure that the District received, at the least , the benefit o f the common law principle of ‘ nullum tempus .’” 851 A.2d at 414 (emphasis added). The court’s inclusion of the phrase “at the least,” WMATA contends, suggests that § 12

- 310 extends beyond nullum tempus immunity. ECF No. 396 at 11. The Court disagree s . While WMATA’s position may find support in stray phrases from WASA , the actual reasoning of that decision indicates that § 12

- 310(b)(4) only codifies nullum tempus and extends no further. 6 Indeed, the WASA court did not simply analyze whether WASA was an agency of the District and therefore within the scope of § 12

- 301’s exemption to the statute of limitations. It instead surveyed legislative history which showed that “ a pu rpose of the draft bill was to

‘ make clear that the limitations provisi ons of § 12

- 301 and § 12

- 310 of the D.C. Code do not apply to the District government when it sues to enforce public rights .’” Id. at 414 (citation omitted). Accordingly , “ in deciding what juridical entities the [D.C.] Council intended to encompass withi n the phrase ‘ D istrict of Columbia government,’” the court deemed it “ useful to determine whether th [e] action brought by WASA was brought to enforce a public right

. ” Id. (emphasis added). After discussing District of Columbia case law concerning the app lication of nullum tempus immunity, t he court found that the “ functions and activities of WASA, a separate corporate body distinc t from the District of Columbia are proprietary in nature and thus beyond

6 Although WASA concerned D.C. Code § 12

- 301, which exempts “ actions brought by the District of Columbia government” from the statute of limitations, the court’s analysi s is equally applicable to the statute of repose exception for actions brought by the District codified at § 12

- 310(b)(4), insofar as § 12

- 301 and § 12

- 310(b)(4) use identical language and were both enacted as part of the District of Columbia Statute of Li mitations Amendment Act of 1986

. See id. at 414.13 the protection of nullum tempus ,” which, in turn, led the court to “hold that the phrase ‘District of Columbia government’ in § 12

- 301 does not encompass the separate juridical entity of which WASA consists. ” Id. at 4 16. This analysis indicates that the D. C. Court of Appeals construe s §§
12

- 301 and 12

- 310 as merely coextensive with, but no broader than, the principle of nullum tempus . Subsequent decis i ons confirm this view. See, e.g. , Solid Roc k Church , 925 A.2d at 559

- 60 (“ The law is settled that the District of Columbia, as a municipality, enjoys limite d sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus , and under D.C. Code § 12

- 301 (2001), while in the perf ormance of public functions

. ” (emphasis added) ); D.C. Housing Auth. v. D.C. Office of Hu man Rights , 881 A. 2d 600, 609 (D.C. 2005) (noting that § 12

- 301 was amended “in 1986 to ensure that the statute of limitations does not prevent the District government from bringin g suit to enforce public rights ” (emphasis added)). 7

7 It also makes good sense to exempt the District from the statutes of limitations and repose only when it sues to enforce public rights. As the D.C. Court of A ppeals explained in its discussion of the evo lution of the nullum tempus doctrine: Like immunity from suit, the sovereign exemption from the running of time originated as a royal privilege, and perhaps survived the Revolution more by force of habit or precedent than by reason.

. . . Ultimately, it seems, the lone explanation of historical prerogative was unsatisfactory, perhaps because, in arbitrary fashion, it seemed to give the government a right that was withheld from the people. . . . Therefore the Supreme Court explained in Guaranty Trust [Co. v. United States , 304 U.S. 126, 132 (1938)], that the rule expresses a legitimate public policy of preserving “public rights, revenues, and property from injury or loss, by the negligence of public officers. And although this is sometimes called a prerogat ive right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally applicable to all governments.” Thus, the policy of protecting the lawgiver was reunited with more democratic principles, for it was reco gnized that the people, as sovereign, are entitled to immunity from government functionaries’ lax prosecution of public rights. The inherent limitation of this doctrine, of course, is that the rights protected must be of a public nature, and not merely th e private or proprietary interests of particular institutions.
Owens

- Corning , 572 A.2d at 401 (internal citations and footnotes omitted).14 iii. Does WMATA’s cros s - clai m against Alstom seek to enforce a public right? Having found that WMATA qualifies as the District government for purp oses of § 12

- 310(b)(4), and that § 12

- 310(b)(4) only applies to claims brought to enforce a public right, the question now becom es whether WMATA’s cross

- claim against Alstom seeks to enforce a public right. The Court conclude s that it does not. The D.C. Court of Appeals discussed the “ public function requirement” of nullum tempus immunity at length in Owens

- Corning : The governmen t enjoys immunity from the running of time only when it sues to vindicate public rights. Thus, our task will not be complete until we have determined whether, with respect to the particular issue on appeal, the District is suing to vindicate a public or a proprietary right . This question is by no means an easy one. The line between r ights that accrue to the public’ s benefit and those that are ultimately proprietary to the government is a fine one, especially since any financial loss to the government is ultimately a loss to the public fisc.
* * *
In [D.C. v. Weiss , 263 A.2d 638 (D.C. 1970)], where we held that the District’s suit to recover fees [from a patient treated for tuberculosis at] a public hospital was not barred by the statute of limitations, we said: The District of Columbia is seeking to replenish its treasury of money expended by a public instrumentality in the exercise of a public function. Recovery of the funds, which will benefit the public as a whole when applied to the continued oper ation of Glenn Dale Hospital, should not be made contingent on the diligence of public servants. 263 A.2d at 640. This passage emphasizes the expenditure of the disputed monies by a public instrumentality, its application to a public function, and the po licy against allowing the laxity of public servants to erect a bar to suit. We stress, however, that while all monies the District sues upon affect the public fisc, it does not follow that every time the District sues for money it performs a public functi on. While the line is hard to draw, it can fairly be stated that something more is required than a naked f inancial interest; thus in Weiss we spoke of replenishing the treasury of funds earmarked for the performance of a particular public function. Where the District acquires a right of action directly related to its15 duty to perform a service to the public, or to vindicate an overwhelmingly public interest or right, a suit to recover money damages to enable the District to perform that service is public r ather than proprietary. Of course, there may be other considerations, unique to each case, which must guide future courts in determining whether the public function test is met. 572 A.2d at 40 6

- 407. Applying these principles, the court in Owens

- Corning held that the District’s lawsuit seeking to recover costs for the removal of asbestos from roughly 2 , 400 public buildings was brought “to vindicate a public right” because the public “[u]nquestionably” had “ a profound interest in the elimination of a dange r so extreme and widespread. ” Id. at 396 , 407. Drawing on Owens

- Corning , WMATA maintains that its cross

- claim against Alstom “seeks to protect the public at large from the negligent design defects in Alstom’s automatic train control system.” ECF No. 35 3

- 1 at 13. WMATA also contends that this case is analogous to Weiss because its cross

- claim “seeks to replenish the public treasures of money expended, and potential liabilities incurred, in the exercise of a public function, i.e., providing rail transport ation in the Washington, D.C. metropolitan area.” Id. at 15. Alstom responds by arguing that, in contrast to the District’s lawsuits in Owens

- Corning and Weiss , WMATA’s cross

- claim “does not seek to recover any costs incurred by the District of Columbia in eliminating a public hazard such as asbestos or tuberculosis. Rat h er, WMATA seeks to recover the costs which WMATA caused [the p]laintiffs to incur as a result of its own negligence

— assuming it is found liable to [the p]laintiffs at trial

— through equit able contribution as a joint tortfeasor and contractual indemnity of tort liability.” ECF No. 382 at 10 (emphasis in original ). Noting that WMATA’s recovery for contribution and indemnity necessarily depends on WMATA being found liable in the first insta nce, Alstom argues that “WMATA’s suit to recover the costs of its own wrongdoing is plainly not a public function.” Id. at 11 (emphasis in original).16 The Court finds that WMATA’s cross - claim against Alstom does not enforce a public right. 8 First, WMATA ’s cross

- claim bears no similarity to the claims asserted by the District in
Owens

- Corning and Weis s . In both of those cases, the District took actions to secure the public health first (i.e., removing asbestos in Owens

- Corning and paying for a hospital p atient’s tuberculosis treatment in Weiss ), and then filed suit to recover the costs of those actions from the responsible parties. WMATA took no similar actions her e. This is not a case , for instance, where WMATA first expended resources on fixing Alstom ’s allegedly faulty automatic train control system, and then brought suit to recover the costs of those remedial efforts. Rather, WMATA took no action in the first instance, the trai n collision occurred, and it now se eks reimbursement from Alstom in the e vent that WMATA is itself found liable at trial

. In other words, ra ther than seeking reimbursement from a wrongdoer for proact ive actions taken to prevent public harm, WMATA seeks reimbursement for Alstom’s alleged share of the fault if
WMATA itself is de emed a wrongdoer

. It is difficult to discern how the public’s rights are vindicated by such a claim. Second, the Court view s as tenuous WMATA’s argument that its

cross - claim is necessary to protect the public from the alleged defects in Alstom’s automati c train control system. WMATA could (and should) independently evaluate the adequacy of Alstom’s equipment, and if it is defective, take any necessary remedial steps. Its cross - claim against Alstom is not necessary to achieve that end . At most, WMATA’s cross - claim will mitigate its own tort liability in this case , and thus will further a proprietary rathe r than a public interest. W hile it is true that “ any financial loss to the government is ultim ately a loss to the

8 The Court notes that an exhaustive search of the case law revealed no decision, either state or federal, discussin g the applicability of nullum tempus to a state government’s claims for indemnification or contribution against a private contractor.17 public fisc,” WMATA’s cross

- claim vin dicates the type of “ naked f inancial interest” that is not protected by nullum tempus

. Owens

- Corning , 572 A.2d at 406

- 407. Thus, b ecause WMATA ’s

cross - claim against Alstom does not enforce a public right, it does not fit the statute of repose’s exception for claims brought by the District of Columbia government.
In sum , WMATA’s cross

- claim for contractual indemnity (Count I) falls under the statute of repose’ s exception for claims based on a contract, but its cross

- claim for contribution (Count II) does not. And neither count of WMATA’s cross

- claim fits the statute of repose’s exception for claims brought by the District. Accordingly, WMATA’s motion to dismiss Alstom’s statut e of repose affirmative defense is granted in part and denied in part.
II I . A n saldo’s motion for judgment on Counts 7, 1 1, and 15 of the plaintiffs’ Second Amended Master Complaint 9
This motion warrants only brief discussion. In their briefing s , the parties agree to the dismissal of Count 14 (Negligent Train Traffic Control) of t he plaintiffs’ Second Amended Master Complaint because it is duplicative of Count 7

. See ECF No. 390 at 1; ECF No. 394 at 1. The Court will therefore dismiss Count 14 of the Second Amended Master Complaint. Ansaldo also moves for judgment on Count 11 (Breach of the Implied Warranty of Merchantability), and Count 15 (Breach of Warranty & Implied Warranty of Fitness for a Particular Purpose) of the Second Amended Master Complaint . The Court previously dismissed these counts as to Alstom , holding that “ w here a plaintiff alleges claims for both strict products liability and breach of implied warranties based on allegedly defective products against a party

9 The Court considered the following filings and their supporting exhibits in resolving this motion: (1) Ansaldo STS USA Inc.’s Motion for Judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint [ECF No. 367]; (2) the Plaintiffs’ Joint Opposition to Defendant Ansaldo’s Motion for Judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint [ECF No . 390] ; and (3) Ansaldo STS USA Inc.’s Reply in Support of its Motion for Judgment on Counts 11, 14, and 15 [ECF No. 394].18 not in privity with the plaintiff, the implied warranty claims must be dismissed because the actions a re the same. ” In re Fort Totten Metrorail Cases , 793 F. Supp. 2d 133, 152 (D.D.C. 2011). In their opposition to Ansaldo’s motion, the plaintiffs merely reincorporate the arguments that the Court previously rejected. See ECF No. 390 at 2. Accordingly, c onsistent with its prior ruling, the Court will dismiss Counts 11 and 15 of the Second Amended Master Complaint as to Ansaldo.

IV . WMATA’s motion to dismiss the equitable indem nification cross
- claims against it 10
A. Introduction In this motion, WMATA as serts that the corporate defendants’ cross

- claims against it for equitable indemnification must be dismiss ed because the interstate compact does not waive
WMATA’s sovereign immunity for eq uitable indemnification claims. The Court agrees with WMATA and con cludes that its motion must therefore be granted.
B . Background The three corporate defendants, ARINC, Ansaldo, and Alstom, have all asserted cross

claims for equitable indemnification against WMATA. 11 WMATA now moves to dismiss these

10 The Court considered the following filings and their supporting exhibits in resolving this motion: (1) the Memorandum in Support o f Motion to Dismiss the Equitable Indemnification Cross

- Claims Brought Against WMATA [ECF No. 424

- 1]; (2) the Joint Opposition by Defendants and Cross

- Plaintiffs Alstom, Ansaldo and ARINC to WMATA’s Motion to Dismiss the Equitable Indemnification Cross

- Cla ims Brought Against WMATA [ECF No. 478]; and (3) the Reply Memorandum in Support of Motion to Dismiss Equitable Indemnification Cross

Claims Brought Against WMATA [ECF No. 548].

11 Count II of Defendant ARINC, INC.’s Cross

- Claim Against Defendant WMATA ass erts: “Should plaintiffs recover damages against ARINC, the equities would require a shifting of responsibility from ARINC, whose product and actions did not contribute to or cause the injuries alleged, to WMATA, whose actions and omissions were directly r esponsible for the injuries alleged. It is just and fair that, as between WMATA and ARINC, WMATA should bear the total responsibility of any losses recovered by Plaintiffs here.” ECF No. 139 ¶ 60. Count II of the Crossclaim by Defendant Ansaldo Against Co

- Defedants ARINC, Alstom, and WMATA asserts: “Ansaldo is entitled to equitable indemnification against WMATA for all costs, fees, and damages.” ECF No. 141 ¶ 28. (continued . . . )19 cross - claims fo r lack of subject matter jurisdiction under Rule 12(b)(1), arguing that the interstate compact’s waiver of sovereign immunity is limited to liability for contractual breaches or tortious conduct occurring as a result of the performance of its non

- governmen tal function s. WMATA asserts that because equitable indemnity is a distinct legal claim for which immunity was not waived, the corporate defendants’ equitable indemnification claims are barred by sovereign immunity and must be dismissed for lack of subjec t matter jurisdiction

. 12 The cross

plaintiffs, however, maintain that equitable indemnity sounds in tort under District law and the

cross - claims concern tortious conduct stemming from WMATA’s proprietary functions. WMATA replies that the cross

- plaintiffs’ argument that their indemnity claims sound in tort blurs the lines between the parties and their respective positions in this litigation. C . Analysis 1. What is the nature of the cross
- claims asserted against WMATA? In addressing whether the corporate defendants’ cross

- claims against WMATA are barred by sovereign immunity, it is first necessary to explore the nature of an equitable indemnification claim. “Although the right to indemnify may arise by contract, ‘[the District of Columbia Court of Appeals has] recognized that the obligation to indemnify may be implied in fact (on an implied contract theory) or implied in law in order to achieve an equitable result.’” District of Columbia v. Wash. Hosp. Ctr. , 722 A.2d 332, 340 (D.C. 1998) (quotin g R. & G. Orthopedic

( . . . continued) Count II of Defendant Alstom Signaling Inc.’s Cross

- Claims Against Co

- Defendants WMATA, Ansaldo and ARINC asserts: “[I]n the event [that] Alstom is held liable to Plaintiffs under any or all of the alleged claims in the Master Complaint, Alstom is entitled to equitable or common law indemnification from any and all cross

- claim defendants for such damages and costs awarded Plaintiffs under any or all of their claims, as available under applicable law.” ECF No. 143 ¶ 26.

12 “Sovereign immunity is a jurisdictional issue that may be raised at any time during the course of the litigation.” Watte rs , 295 F.3d at 39 n.2.20 Appliances v. Curtin , 596 A.2d 530, 544 (D.C. 1991)). In such situations, “[a]n obligation to indemnify exists where the equities of the case and the relationship of the parties support shifting responsibility from one party to anothe r.” Howard Univ. v. Good Food Servs. , 608 A.2d 116, 122 (D.C. 1992); Quandrangle Dev. Corp. v. Otis Elevator Co. , 748 A.2d 432, 434, n

. 2 (D.C. 2000) ( noting the parties’ concession that their contract “did not contain any express indemnification provision ,” and concluding that “[t]herefore, their claim is one of implied indemnification, based on equitable principles”). Stated differently, “[i]n the absence of an express contractual duty to indemnify, a right to indemnify exists where a duty to indemnify m ay be implied out of a relationship between the parties to prevent a result which is unjust.” Howard , 608 A.2d at 123; see also Johnson v. Mercedes

- Benz , USA, LLC , 182 F. Supp. 2d 58, 65 (D.D.C. 2002) (“When based on equitable principles, indemnity may be granted to an indemnitee if there is a ‘significant difference in the kind and quality’ between the indemnitee’s and the indemnitor’s wrongdoing.” (quoting Quandrangle Dev. Corp. , 748 A.2d at 435)). WMATA maintains that the “[c]ross

- claimaints’ caus es of action for indemnification against WMATA are expressly based on equity, and do not rely on a contract.” ECF No. 424

- 1 at 5. The corporate defendants disagree, claiming that “equitable indemnity sounds in tort under controlling D.C. law.” ECF No. 4 78 at 1. The corporate defendants are incorrect. Equitable indemnification is premised on “the equities of the case and the relationship of the parties.” Howard Univ. , 608 A.2d at 122. While the corporate defendants may be correct that determining the equities in a given case will often require an examination of the “kind and quality,” Quandrangle Dev. Corp. , 748 A.2d at 435, of the tortious conduct at issue, this does not mean that equitable indemnification sounds in tort. Rather, this examination of the tortious conduct provides the basis from which to assess the equities. Thus, although “the [c]ross

- plaintiffs’21 equitable indemnification cross

- claims concern WMATA’s [allegedly] tortious misconduct,” ECF No. 478 at 10 (emphasis added), they are not to rt claims. The cross

- plaintiffs’ equitable indemnification claims are based on equitable principles

— not tort or contract law. 2. Has WMATA waived its sovereign immunity as to equitable indemnification claims? WMATA asserts that “[t]he cross

- claima nts cannot show the existence or applicability of any waiver of sovereign immunity that would make WMATA amenable to suit for implied indemni fication.” ECF No. 4 24

- 1 at 7. The Court agrees. “In signing the WMATA Compact, Maryland, Virginia, and the Distr ict of Columbia conferred upon WMATA their respective sovereign immunities.” Beebe v. WMATA , 129 F.3d 1283, 1287 (D.C. Cir. 1997). “Although [section 12(a) of] the WMATA Compact provides that WMATA may ‘[s]ue and be sued,’ [the Circuit has] held that pro vision to extend only as far as the more specific (and partial) waiver of sovereign immunity contained in section 80 of the Compact.” Watters , 295 F.3d at 40. In re levant part, Section 80 of the interstate c ompact provides: The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent[s] committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall n ot be liable for any torts occurring in the performance of a governmental function. D.C. Code § 9

- 1107.01(80) (emphasis added). “Waivers [of sovereign immunity] must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” Kingston Constructors, Inc. v. WMATA , 860 F. Supp. 886, 888

- 89 (D.D.C. 1994) (citing Library of Congress v. Shaw , 478 U.S. 310, 317, 318 (1986)). “‘There can be no consent by implication or by use of ambiguous language . . . .22 The con sent necessary to waive [sovereign] immunity must be express, and it must be strictly construed.”’ Id. (quoting Shaw , 478 U.S. at 318); see also Watters , 295 F.3d at 40 (“We may find a waiver of sovereign immunity ‘only where stated by the most express la nguage or by such overwhelming implications from the text as will leave no room for any other reasonable construction.’” (quoting Morris v. WMATA , 781 F.2d 218, 221 (D.C. Cir 1986))). Although there appear to be no cases dealing specifically wit h whether the WMATA

c ompact waives sovereign immunity for e quitable indemnification claims, courts have concluded tha t the c ompact does not waive sovereign immunity for other equitable remedies. For example,
in Martin v. WMATA , 273 F. Supp. 2d 114 (D.D.C. 2003), another judge of this Court held that WMATA was immune from the plaintiff’s promissory estoppel claim. See id. at 119 (“Section 80’s waiver only denotes WMATA’s liability for its contracts and torts occurring in the performance of a non

- government al function; it does not mention promissory estoppel, which is a disti nct legal theory.”). And in Watters , the Circuit determined that an attorney’s lien was not a contract with, or tort of, WMATA. 295 F.3d at 40. The court explained that “such a lien i s an equitable device,” and is “merely a claim to equitable interference by the court to have [a] judgment or settlement held as security.” Id. at 41 (internal quotation marks and citation omitted). Most recently, the United States District Court for the District of Marylan d held that because “WMATA has not explicitly waived its im munity as to quasi

- contract claims [such as equitable estoppel], [it was] entitled to assert its sovereign immunity defense as to [the p]laintiff’s Statute of Frauds claim. ” Gr eenbelt Ventures, LLC v. WMATA , No. 10

- cv - 157, 2011 WL 2175209, at *6 (D. Md. June 2, 2011). In light of the need to strictly construe the WMATA c ompact’s waiver, which only expressly waives WMATA’s sovereign immunity for contracts and proprietary

- function torts,23 and considering the foregoing case law finding WMATA immune from other forms of equitable claims , the Court concludes that WMATA has not waived its sovereign immunity as to equitable indemnification claims . Accordingly, WMA TA’s motion to d ismiss is granted, and the corporate defendants’ claims for equitable indemnification are dismissed for lack of subject matter of jurisdiction. V . The c orporate defendants’ joint motion for summary judgment on all claims 13
A. Introduction The corpora te defendants jointly move for summary judgment on the ground that
WMATA’s alleged negligence constitutes a su perseding cause that severed the causal connection betw een the corporate defendants’ purported negligence and the June 22, 2009 train collision. Because this case does not present the type of “exceptional circumstances” necessary to remove issues of causation from the jury, the Court will deny the corporate defendants’ motion.
B. Background 14
1. Overview of WMATA’s Metrorail System A brief overvi ew of two components

— track circuits and the Advanced I nformation Management software

— that play a part in WMATA’s operation of the Metrorail system is necessary to resolve the corporate defenda n ts’ motion . First, to operate the Metrorail system ,

13 The Court considered the following filings and their supporting exhibits in resolving this motion: (1) Defendants Alstom, Ansaldo and ARINC’s Memorandum of Points and Authorities in Support of their Joint Motion for Summary Judg ment on All of the Plaintiffs’ Claims [ECF No. 425

- 1]; (2) Defendant WMATA’s Memorandum in Opposition to the Co

- Defendants’ Joint Motion for Summary Judgment [ECF No. 483]; (3) the Plaintiffs’ Opposition to Defendants Alstom, Ansaldo and ARINC’s Joint Moti on for Summary Judgment [ECF No. 487]; and (4) Defendants Alstom, Ansaldo, and ARINC’s Reply in Support of their Joint Motion for Summary Judgment on All of Plaintiffs’ Claims [ECF No. 549].

14 The following facts are undisputed unless otherwise noted.24 “WMATA use s an [Automatic Train Control] system that consists of a series of track circuits (or ‘blocks’), each with an electronic transmitter [module], receiver [module], vital relay, and impedance bonds.” ECF No. 425

- 1 at 2. Each circuit has two impedance bonds . ECF No. 483
at 3. As the corporate defendants explain (and WMATA does not dispute): The system works by the transmitter sending an audio frequency signal through a cable to the impedance bond at one end of the block. When no train is present, the sig nal runs along the rails to the impedance bond at the other end of the block where it travels through a cable to the receiver, thereby completing the electrical circuit. If the circuit is completed, the relay is energized and the block reports as unoccupie d. If a train is present, however, the train’s metal wheels and axles “short” or “shunt” the signal before it reaches the impedance bond at the receiver end of the block, causing an interruption of the circuit that de

- energizes the relay. De

- energizing of the relay indicates that a train occupies the particular block and allows the appropriate information to be conveyed to oncoming trains in the WMATA Metrorail system. ECF No. 425

- 1 at 2

- 3. A “bobbing” circuit is one in which the relay signal “fluctuates between an energized (indicating [a] vacant [circuit]) to a de

- energized state (indicating [an] occupied [circuit]) regardless of whether a train is actually present in the track circuit.” Id. at 4. A phenomenon know n as “parasitic oscillation” occurs wh en the transmitter module bypasses the impedance bonds and sends a signal directly to the receiver module. In other words , parasitic oscillation is when the modules ignore the other components of the circuit and therefore convey information that is not ba sed on the whole circuit. Second, WMATA’s Operations Central Control uses a software program called Advanced Information Management, which was developed by ARINC. ECF No . 483 at 15. The software generates alarms associated with bobbing circuits, false occupancies ( i.e., always reporting blocks), and false vacancies ( i.e., never reporting blocks). Id. ; see also ECF No. 425

- 1 at 9 (“A ‘track circuit failed vacant’ alarm means that the track circuit is reporting a vacancy when, in fact, the track circuit may actually be occupied.”). The software designates a false25 vacancy as “ minor, ” which means the alarm is self

- acknowle dging and self

- deleting (i.e., that they do not require operator attention or intervention) . ECF No . 483 at 15

. 2. Activity at Circ uit B2
- 304 from June 17, 2009, until June 22, 2009 The WMATA track circuit located at the site of the collision that resulted in this litigation is Circuit B2

- 304. At the time of the collision on June 22, 2009, Circuit B2

- 304 consisted of Alstom transmit ter/receiver modules and Ansaldo impedance bonds. Id. at 3. On June 17, 2009, WMATA replaced an Alstom impedance bond at Circuit B2

- 304 with an Ansaldo impedance bond. ECF No. 425

- 1 at 4. WMATA protocol calls for a “shunt verification test” after the installation of a n impedance bond. Id. The test is conducted by laying a shunt strap between the rails. ECF No. 483 at 4. If the relay detects the presence of the shunt strap and interprets it as a train, the circuit is considered to have passed the sh unt verification
test. Id. The leader of the WMATA work crew that installed the impedance bond at Circuit B2

- 304 on June 17, 2009, has testified that she did not observe bobbing when the shunt verification
test was being conducted , but stated that she ob served that the circuit was bobbing after she completed the shunt verification test. Id. at 10. After the WMATA work crew left the site, WMATA’s Maintenance Operations Center opened a work order for the bobbing at Circuit B2

- 304. ECF No. 425

- 1 at 7. De spite the work order, and visits by different work crews to Circuit B2

- 304 on June 18, 19, and 22, 2009, Circuit
B2

- 304 was still bobbing when the collision occurred on June 22, 2009. Id. at 7

- 8. And, n o one at WMATA had instituted an “absolute block”

— cl osing down specific locations of track into which no train would be permitted to enter

— while Circuit B2

- 304 was bobbing.26 3. The Advanced Information Management System Alarms Between June 17 and 22, 2009, the Advanced Information Management sys tem generated

“ hundreds and hundreds ” of “track circuit failed vacant” alarms on the Red Line in the area between the Takoma and the Fort Totten Metrorail stations. ECF No. 425

- 1 at 9. In the hour before the June 22, 2009 collision, the Advanced Informat ion Management system generated seventeen separate “track circuit failed vacant” alarms. Id. Indeed, two minutes before the collision, while the train that was struck was stopped between the Takoma and Fort Totten stations , the system generated a “track circuit failed vacant” alarm for that area of the track. Id.
at 9

- 10. WMATA did not have a protocol at its Operations Central Control for responding to a failed vacant alarm, and neither controller on duty at the time of the collision instituted an absol ute block in response to the failed vacant alarm. Id. at 10. C . The Parties’ Arguments In moving for summary judgment, t he corporate defendants maintain that “[t]he key undisputed fact is that WMATA placed a known, malfunctioning track circuit in service, contrary to its own policies.” ECF No.425

- 1 at 11. The corporate defendants further assert that “[e]ven if the Court found Alstom, Ansaldo, or ARINC’s equipment to be defective, or that there was a lack of safety testing, WMATA’s reckless actio ns were the superseding cause of the accident, thereby relieving Alstom, Ansaldo, and ARINC of all liability as a matter of law.” Id. at 12. WMATA and the plaintiffs disagree. Specifically, WMATA argues that it viewed bobbing track circuits as a mainten ance, rather than a safety, issue, ECF No. 483 at 2, and th at its work crews were consequently unaware of the actual hazard at Circuit B2

- 304. Accordingly, WMATA asserts that there are questions of fact “about whether WMATA responded in a manner that was reasonable and foreseeable under the circumstances.” Id. The plaintiffs assert that from27 each of the corporate defendants’ “particular positions,” “it was foreseeable that WMA TA might fail to remediate [the corporate defendants’] neg ligence.” ECF No. 48 7 at 7

- 8. As a result, the plaintiffs maintain, WMATA’s negligence does not absolve the corporate defendants of liability. Id.
D . Analysis 1. Can the Court conclude that, as a matter of law, WMATA’s negligence was a superseding or intervening cause that precludes the corporate defendants’ liability? “Proximate cause has been defined as that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occur red.” Convit v. Wilson , 980 A.2d 1104, 1125 (D.C. 2009). “Superseding cause is a subset of the inquiry into proximate cause,” id. at 11 25

- 26, and essentially it is “a concept that the action of a subsequent tortfeasor may be a superseding cause which bre aks the chain of causation and relieves the first tortfeasor of liability to the injured party,” id. at 1126. “The question of proximate causation . . . is at base one of foreseeability.” Rieser v. District of Columbia , 563 F.2d 462, 479 (D.C. Cir. 1977) . “If a negligent, intentional or even criminal intervening act or end result was reasonably foreseeable to the original actor, his liability will not ordinarily be superseded by that intervening act.” Id. As even the corporate defendants acknowle dge, proximate causation is ordinarily a question of fact for the jury. See ECF N o .425

- 1 at 22 . Indeed, the cases are legion holding that it is only the “ exceptional case” in which questions of proximate cause “pass from the realm of fact to one of law.” Majeska v. District of Columbia , 812 A.2d 948, 950 (D.C. 2002) (emphasis added); accord Rieser , 563 F.2d at 480 (“Proximate causation, including the question of28 superseding cause, . . . is ordinarily a question of fact for the jury.”); Smith v. Hope Vill age, Inc. , 481 F. Supp. 2d 172, 185 (D.D.C. 2007) (Walton, J) (citing cases). This case is not so exceptional as to warrant removing the determination of causation from the jury. Compare, for example, the facts of this case to that in In re Korean Air Lines Disaster , No. 83

- cv - 0345, 1985 WL 9447 (D.D.C. Aug. 2, 1985), which the corporate defendants cite in support of their motion. In Korean Air , a jet owned and operated by Korean Air Lines inadvertently veered into the airspace of the Soviet Union and was intentionally shot down by Soviet missile attack. Id. at *1. The parties had conceded defects in the plane’s navigational systems, and the sole question before the court was the foreseeability of the Soviet Union’s actions. Id. The Court ruled that the defendants, manufacturers of the plane’s navigational systems, could not “be held liable for the unexpected act of aggression by the Soviet Union.” Id.
at *7. Here, in contrast to the Soviet Union’s deliberate launching of missiles in In re Korean Air , WMATA’s alleged superseding acts were merely negligent, not intentional. Such negligent acts are not so unforeseeable that the corporate defendants can be absolved of liability as a matter of law. On the contrary, a reasonable jury could conclude th at the corporate defendants should have foreseen that WMATA would fail to take action on a work order for five days, despite WMATA’s own policies to respond to a work order, carry out the task it involves, and close the order within one business day of com pletion of the work. See ECF No. 425

- 1 at 7. A reasonable jury could also conclude that the corporate defendants

— specifically, ARINC

— should have foreseen that WMATA would ignore the “track circuit failed vacant alarms” in the days, hours, and minutes p re ceding the collision. Accordingly, because this is not a case where the proximate cause determination should “pass from the realm of fact to one of law,” Majeska , 812 A.2d at29 950, the corporate defendants’ motion for summary judgment on all claims and cro ss - claims against them is denied. V I . Ansaldo’s Motion for Summary Judgment 15
A. Introduction Ansaldo moves for summary jud gment as to all claims on the following grounds: (1) it is entitled to derivative sovereign im munity because all of the claims ag ainst it stem from
WMATA’s “ immune decision ” to sequence the installation of Ansaldo’s impedance bonds and modules; (2) there is no evidence that Ansaldo’s impedance bonds and Alstom’s modules were incompatible; (3) the failure to warn claims against Ansal do fail because (a) there is no duty to warn about another manufacturer’s ( i.e., Alstom) products, and (b) WMATA is a “sophisticated
user” to which Ansaldo owed no duty to warn ; and (4) the derivative counts of wrongful death and survival must be dismissed if the underlying counts are dismissed. The Court conclude s that (1) Ansaldo’s attempt to invoke derivative sovereign immunity fails as a matter of law because the claims against it do not relate to any “immune” decisions made by WMATA; instead, the claim s assert that Ansaldo breached its contractual obligations to WMATA and th at Ansaldo performed under the contract negligently; (2) Ansaldo’s argument that there is no evidence of incompatibility is essentially a causation issue that must be decided by a ju ry ; (3) Ansaldo did have a legal duty to warn WMATA; and (4) the derivative counts

15 Th e Court considered the following filings and their supporting exhibits in resolving this motion: (1) Ansaldo STS USA, Inc.’s Memorandum of Points and Authorities in Support of its Motion for Summary Judgment [ECF No. 426

- 1]; (2) Defendant WMATA’s Memorandu m in Opposition to Defendant Ansaldo STS USA, Inc.’s Motion for Summary Judgment [ECF No. 480]; (3) Defendant Alstom Signaling Inc.’s Opposition to Ansaldo STS USA, Inc.’s Motion for Summary Judgment [ECF No. 481]; (4) the Plaintiffs’ Opposition to Defenda nt Ansaldo STS USA, Inc.’s Motion for Summary Judgment [ECF No. 482]; and (5) Ansaldo STS USA, Inc.’s Reply to the Opposition Briefs Submitted by Plaintiffs, Washington Metropolitan Transit Authority, and Alstom Signaling, Inc. to Ansaldo’s Motion for Summ ary Judgment [ECF No. 550].30 should not be dismissed because the underlying counts remain. Accordingly, the Court denies Ansaldo’s motion in its entirety.
B. Background As explained above, WMATA emp loys a n “ automatic train control system” t o ensure safe train detection, separ ation, and speed restrictions. ECF No. 480 at 3. This system is comprised of “ track circuits ,” which are railroad segments of varying lengths

. Id

. Two im pedance bonds are loc ated on each track circuit. Id. The impedance bonds communicate via transmitters and receivers called “ modules, ” which are located at the nearest station in an unmanned train control room. Id. Communication between the impedance bonds and the modules is accomplished by transmitter and receiver modules that exchange audio

- frequency signals. Id. A train’s presence on the track is sensed when its wheels and axles cause a short between the rails. Id. This is known as a “shunt.” Id. A “shunt” causes a vital relay, which is connected to the mo dules, to de

- energize or “drop.” Id. Otherwise, the relay remains energized, or “picked,” when a track circuit is actually vacant. Id. Alstom designed WMATA’s original automatic train control system in the 197 0s, including its impedance bonds and modules. Id. at 3

- 4. Beginning in 2002, WMATA contr acted with Ansaldo to replace the Alstom impedance bonds and modules with Ansaldo products. Id. at 4. Two separate contracts were executed by the parties. ECF No. 426

- 1 at 15. Under the first
contract , Ansaldo was originally required to replace the impedance bonds and modules simultaneously

. Id. However, due to safety concerns about non

- WMATA personnel working on the tracks, WMATA altered the replacement process as follows : first, only WMATA employees would replace the impedance bonds ; second, WMATA employees would conduct a safet y test of31 the track circuit; and third, Ansaldo employees would replace the modules and conduct another safety test of the track circui t. Id. at 15; ECF No. 480 at 5. This change in the replacement project resulted in a temporarily “mixed track circuit” consisting of the old Alstom modules and the new Ansaldo impedance bonds. ECF No. 480 at 5. The second contract, which covered track circuit replacements at 22 locations througho ut WMATA’s system, reflected this “temporary mixed track circuit configuration.” Id. Specifically, the contract provided that “WMATA personnel will perform all wayside installation [of the Ansaldo] impedance b onds,” and that Ansaldo “will replace [the Alstom] . . . modules [with Ansaldo modules] after the associated wayside equipment has been installed.” ECF No.
480

- 9 (Contract No. F05143 ) § 1.01.C (emphasis added). Recognizing that , as a result of this revis ed replacement process , “[n]ew impedance bonds will temporarily be in service with existing [Alstom]

. . . modules,” the contract directed that the Ansaldo “impedance bonds being provided on this Contract must be compatible with the existing [Alstom] . . . modules.” Id. (emphasis added). The contract also required Ansaldo to provide a “Hazard Mode and Effect Analysis, which, as a minimum, identifies one example of each hazard that may be produced by

e ach possible failure in [An saldo’s] equipment and soft ware.” Id. § 1.06. Finally, the contract provided that “[t]he system shall be proven by [Ansaldo] to be fail safe and operational upon completion of the installation.” Id. § 1.01.A. In the context of a public transit railroad, the term “fail safe” mean s that “if a vital component fails, the system will automatically revert to a less permissive state which restricts the move ment of trains.” ECF No. 480

- 1 at 2. According to WMATA, despite Ansaldo’s “contractual requirement to provide compatible equipmen t,” Ansaldo “took no actions whatsoever to evaluate the safety of using its [impedance] bonds with Alstom’s modules.” ECF No. 480 at 7

- 8. WMATA further claims that32 prior to the June 22, 2009 Fort Totten train collision, Ansaldo became aware of specific

c ompatibility problems with the Ansaldo impedance bonds and Alstom modules, but did nothing to address them. See id. at 8

- 9. The track circuit at issue in this case, Circuit B2

- 304, contained a mixed configuration of Ansaldo imp edance bonds and Alstom mod ules when the accident occurred. Id. at 9. In seeking to explain the cause of the June 22, 2009 train collision, WMATA contends that a latent defect in the automatic train control system known as “parasitic oscillation” caused a signal to be transmitted which falsely indicated that Circuit B2

- 304 was vacant. Id. at 2

- 3. This, in turn, led Train No. 112 to crash into Train No. 214

. Id. WMATA argues that pow er increases required by the installation of the new Ansaldo impedance bonds “created the conditi ons necessary for the parasitic oscillation to pass through the rack structure, couple to the receiver, and mimic the track vacant signal.” Id. at 13. C . Analysis 1. Is Ansaldo entitled to derivative sovereign immunity under Yearsley v. W.A. Ross Constr uction Co. , 309 U.S. 18 (1940) ? Ansaldo asserts that all of the claims and cross

- claims against it “stem from WMATA’s decision to sequence the timing o f bond and module installation,” which led to track circuits temporarily consisting of Ansaldo impedan ce bonds and Alstom modules, and that this decision of WMATA is protected by sovereign immunity. ECF No. 426

- 1 at 14. Ansaldo further contends that because it “followed WMATA’s safety and scheduling directions, as required by its contract with WMATA,” it is entitled to “ derivative sovereign immunity ” under Yearsley v.
W .A. Ross Construction Co. , 309 U.S. 18 (1940), and its progeny. Id. at 14

- 15.33 In Yearsley , the Supreme Court considered whether a contractor that built dikes in the Missouri River pursuan t to a contract with the federal government could be held liable for damage caused by the construction of the dikes. See 309 U.S. at 19

- 20. The contract was part of a federal project “authorized by an Act of Congress.” Id. at 19. The Court concluded th at the contractor could not be held liable, reasoning that when the “authority to carry out [a] project [is] validly conferred, that is, [when] what [is] done was within the constitutional power of Congress, there is no liability on the part of the contrac tor for e xecuting [Congress’s] will.” Id. at 20

- 21. The Court observed, however, that “[w]here an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liabi lity has been found to be either that he exceeded his authority or that it was not validly conferred.” Id. at 21. Federal courts have construed Yearsley as creating the so

- called “ doctrine of derivative sovereign immunity.” McMahon v. Presidential Airwa ys, Inc. , 502 F. 3d 1331, 1343 (11th Cir. 2007). To claim such immunity, a private contractor generally must show that (1) it “was working pursuant to the authorization and directio n of the federal government,” and (2) “ the acts of which the plaintiff comp lained fell within the scope of those government directives. ” In re World Trade Center Disaster Site Litig. , 521 F.3d 169, 196 (2d. Cir. 2008) (citing Yearsley , 309
U.S. at 20

- 21)

. S everal initial hurdles impede Ansaldo’s efforts to invoke the Yearsley doctrine in this

case. First, no court in this Circuit has applied the doctrine. Second, the Circuits that have applied it are not in consensus regarding the doctrine’s requirements. 16 Third, because it is a

16 For example, the Circuits disagree as to whether the contractor must show a common law agency relationship with the government to avail itself of derivative sovereign immunity. Compare McMahon , 502 F.3d at 1343 (“[T] he (continued . . . )34 federal common law doctrine, Year s l e y has bee n almost exclusively applied in cases involving federal government contractors (as was the case in Yearsley itself) , and the question of whether WMATA can be deemed a federal agency is unresolved. S ee Elcon Enterp. v. WMATA , 977 F.2d 1472, 1480 (D.C. Cir. 1992) (declining to resolve the issue). O ne could plausibly argue, then, that the Yearsley doctrine does not apply to WMATA’s contractors because they do not contract directly with the federal government. Nevertheless, even assuming that all o f these
pr eliminary issues are resolved in Ansaldo’s favor , the Court find s that it is not entitled to derivative sovereign immunity under Yearsley for the following reasons. The Yearsley doctrine is subject to two important limitations. First, “a key premise of Yearsley , and one that has been reiterated by [various federal courts] is that the contrac tor was following the sovereign’ s directives. ” Chesney v. Tenn. Valley Auth. , 782 F. Supp. 2d 570, 582 (E.D. Tenn. 2011) (citing, among others, Yearsley , 3 09 U.S. at 20

- 21). “W hile Yearsley established that a private corporation performing governmental functions pursuant to contractually delegated authority will not be liable in tort to third parties, it also acknowledged that an agent or officer of the Government pu rporting to act on its behalf, but in actuality exceeding his authority, shall be liable for his conduct causing injury to another. ” In re KBR,
Inc. , 736 F. Supp. 2d 954, 967 (D. Md. 2010) (citing Yearsley , 309 U.S. at 21); accord Myers v.

( . . . continued) entity claiming the immunity must at a bare minimum have been a common law agent of the government at the time of the conduct underlying the lawsuit.”), and In re Hanford Nuclear Reservation Litig. , 534 F.3d 986, 1001 (9th Cir. 2008) (“ The [ Yearsley ] Court limit ed the applicability of the defense to principal

- agent relationships where the agent had no discretion in the design process and completely followed government specifications. ”), with Ackerson v. Bean Dredging LLC , 589 F.3d 196, 205

- 206 (5th Cir. 2009) (“T he Supreme Court’ s decision in Yearsley does not require a public

- works contractor defendant to establish a traditional agency relationship with the government. ”), and Butters v. Vance Intern., Inc. , 225 F.3d 462, 466 (4th Cir. 2000) (citing Yearsley for t he principle that

“ contractors and common law agents acting within the scope of their employment for the United States have derivative sovereign immunity” (emphasis added)).35 United States , 323 F.2d 580, 583 (9th Cir. 1963) ( “ To the extent that the wor k performed by [the federal contractor defendant] was done under its contract with the Bureau of Public Lands, and in conformity with the terms of said contract , no liability can be imposed upon it for any damages claimed to have been suffered by the appellants. ” (citing Yearsley , 309 U.S. at 18) (emphasis added) ). Second, d e rivative sovereign immunity is not available to contractors who act negligently in performing their obligations under the contract. See Ackerson , 589 F.3d at 207 (indicating that a contractor that commits a “separate act of negligence” is not entitled to derivative sovereign immunity under Yearsley ); City of Worc ester v. HCA Mgmt. Co. , 753 F. Supp. 31, 38 (D. Mass. 1990) ( Ye arsley does not apply “when a private corporation who performs governmental duties pursuant to contractual authority from the government is sued for negligence in the performance of these duties .”).
In ass essing whether Ansal do is entitled to derivative so vereign immunity under the foregoing principles , it is first nec essary to id entify the conduct of Ansaldo that is being challenged by the pl aintiffs and cross

- plaintiffs (WMATA and Alstom)

. The parties, not surprisingly, disa gree as to what that conduct i s. According to Ansaldo, all of the claims and

cross - claims against it arise from WMATA’s “safety and scheduling decision to sequence the
in stallation of bonds and modules, ” a decision which Ansaldo claims is protected by sovereign immunity . ECF No. 550 at 1. The plaintiffs and cross

- plaintiffs , on th e other hand, argue that the claims against Ansaldo are predicated not on WMATA’s decision to sequence the installation of the impedance bonds and modules, but rather on Ansaldo’s breach of its contractual

o bligations and its negligence in performing those obligations. See ECF No. 480 at 18; ECF No. 481 at 11; ECF No. 482 at 33

- 35 . The Court agrees with the plaintiffs and cross

- plaintiffs.36 Ansaldo’s derivative sovereign immunity argument mischaracterizes th e nature of the claims and cross

- claims being asserted against it. As previously noted, the operative contract between Ansaldo and WMATA required Ansaldo to ensure that its impedance bonds were “compatible” w ith the existing Alstom modules, in recognition of the fact that the “[n]ew impedance bonds will temporarily be in service with existing [Alstom] . . . modules.” EC F No. 480

- 9 (Contract No. F05143 ) § 1.01.C. The contract also required Ansaldo to perform a Hazard Modes and Ef fects Analysis and safety testing on the track circuit to ensure that it was “fail safe.” See id. §§ 1.06, 1.01.A. The plaintiffs assert that Ansaldo negligently f ailed to perform safety and compatibility testing in violation of its contractual obligations and applicable standard s of care, and that Ansaldo failed to warn WMATA about various issues related to the mixing of the Ansaldo and Alstom products. See ECF No. 482 at 1

- 2. Similarly , WMATA’s

cross - claim asserts that Ansaldo breached its contractual obligations to WMATA and acted negligently by failing to ensure the compatibility of the Ansaldo and Alstom products , and by failing to perform the requisite safety testing. See ECF No. 480 at 18. Thus, the very premise of these claims is that Ansaldo acted against the “will of the sovereign” by breaching its contractual duties to WMATA and by performing negligently under the contract. 17 Derivative sovereign immunity under Yearsley does not shield such claims. See Yearsley , 309 U.S. at 20

- 21; Ackerson , 589 F.3d at 207; Myers , 32 3 F.2d at 583 ; City of Worcester , 753 F. Supp. at 38

.

17 To be clear, although WMATA and the plaintiffs allege that Ansaldo breached its contractual obligations, they do not appear to assert breach of contract claims against Ansaldo. Instead, they rely upon Ansaldo’s purported breach of contract in support of their negligence claims. See, e .g. , ECF No. 140 ¶ 93 (“If WMATA is found liable to the [p]laintiffs, WMATA submits that Ansaldo’s . . . negligent . . . performance of the duties it assumed under Contract No. F05143/EAC . . . [was a] direct contributing and proximate cause[] of such liability.”).37 Indeed, the fact that WMATA, the purportedly sovereign entity, is seeking to impose liability upon Ansaldo undermines its attempt to invoke derivative immunity. Ansaldo nonetheless maintains that all o f its alleged liability in this case flows from WMATA’s “immune decision” to sequence the replacement of the impedance bonds and modules, noting that “[]Ansaldo would not be in this case if WMATA had not made the protected decision to use []Ansaldo bonds f or a short period of time with the defective []Alstom modules.” ECF No. 550 at 2

- 3. This argument confuses the issues. True, it was WMATA’s decision to temporarily use Ansaldo impedance bonds and Alstom mod ules on the same track circuit. But after WMAT A made that decision , the plaintiffs and WMATA contend that Ansaldo contractually guaranteed that those two products would be “ compatible ” and that it wou ld conduct certain tests to ensure their safe operation. The claims a gainst Ansaldo alleging that it acted negligently in performing its contractual obligations thus do not challenge WMATA’s purportedly “immune de cision,” but instead concern Ansaldo’s volunta ry conduct after that decision wa s made. Consequently , Ansaldo is not entitled to derivative sove reign immunity under Yearsley as to these claims. 2. Can Ansaldo be held liable for the alleged incompatibility between its impedance bonds and Alstom’s track circuit modules? i. Is there evidence from which a reasonable jury could infer that the alleg ed incompatibility played a role in causing the collision ? Ansaldo argues that summary judgment should be granted in its favor because “[n]on

defective [Alstom] track circuit modules are compatible with [Ansaldo] impedance bonds” and because “lack of ‘c ompatibility’ did not cause the crash.” ECF No. 426

- 1 at 23. Ansaldo continues: “Nothing . . . is compatible with a dangerous, oscillating track circuit module and no impedance bond can ever mitigate the dangers associated with track circuit modules that break38 into parasitic oscillations.” Id. Ansaldo thus strenuously maintains that “compatibility issues were not the cause of the accident.” Id. There is sufficient evidence, however, from which a reasonable jury could conclude that, even if the parasit ic oscillation was the sole cause of the June 22, 2009 collision, Ansaldo’s bonds contributed to the oscillation. For example, as noted above, WMATA argues that power increases required by the installation of the new Ansaldo impedance bonds “created the conditions necessary for the parasitic oscillation to pass through the rack structure, couple to the receiver, and mimic the track vacant signal.” ECF No. 480 at 13; see also id. at 36 (“The need to increase power levels when Ansaldo bonds were installe d is a significant factor in explaining how the incompatibility of the Ansaldo equipment contributed to the loss of train detection at [Circuit] B2

- 304.”). Indeed, one of Alstom’s expert witnesses, Dr. Duncan Glover, has provided testimony on the “many el ectrical differences between” the Alstom bonds that were replaced with the Ansaldo bonds, and has explained that one of these differences

— bondline impedance

— is “important because the lower impedance of the Ansaldo bond draws more current from the module, w hich in turn makes the transistors within the module more likely to oscillate.” ECF No . 481 at 4; see also ECF No.
481

- 1 ¶ 247 (“Q. Will a lower impedance make a transistor work harder? A. For the same power level setting? Q. Yes. A. If the power level . . . setting were the same and the impedance looking into the bond were lower, it would require more current to achieve the same voltage level. . . . [H]igher currents could make those parasitics have a higher magnitude.”). There is thus a dispute of fa ct as to whether Ansaldo’s impedance bonds played a role in the parasitic oscillation that Andsaldo vigorously claims was the sole cause of the collision. While Ansaldo may attempt to frame the issue in terms of questioning whether there is sufficient evi dence of compatibility, see ECF No. 426

- 1 at 22, 24, Ansaldo’s compatibility arguments are no thing more39 than claims that their bonds played no part in causing the collision. And, as has been set forth earlier in this Memorandum Opinion, it is only the “ ex ceptional case” in which questions of proximate cause “pass from the realm of fact to one of law.” Majeska , 812 A.2d at 950 (emphasis added). ii. I s there evidence from which a reasonable jury could conclude that Ansaldo’s conduct breached a d uty of care? Ansaldo maintains that even if there is evidence of incompatibility, the claims relating to that incompatibility must fail because Ansaldo’s expert is the only expert in the case to have cited “any industry recognized definition relating to the compatibility of track circuit equipment.” ECF No. 426

- 1 at 26. That expert, of course, testified that Ansaldo breached no duty of care regarding compatibility. See , e.g. , ECF No. 426

- 2 ¶¶ 156

- 57 (describing the testimony of Professor Mark Horenste in)

. “The p laintiff in a negligence action bears the burden of proof on three issues: ‘the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff’s injury.’” Toy v. District of Columbia , 549 A.2d 1, 6 (D.C. 1988) (quoting Meek v. Shepard , 484 A.2d 579, 581 (D.C. 1984)). “Thus, at the outset, to establish a prima facie negligence case, the plaintiff must prove that the defendant deviated from the applicable standard of care.” Toy , 549 A.2d at 6. From these legal requirements, Ansaldo asserts that “the definition of ‘compatible,’ and the appropriate standard for compatibility testing, are matters that must be established by expert testimony.” ECF No.
426

- 1 at 28. T his, however, puts too fine a point on the s tandard of care burden of proof. For example, in Caldwell v. Bechtel , 631 F.2d 989 (D.C. Cir. 1980), the court explained that “the analysis of both [the appellee] and the district court is overly reliant upon co ntract theory to the40 point of losing focus of the nature of the claim made here, which asserts negligence, rather than breach of contract.” Id. at 996

- 97. In Bechtel , the plaintiff was a worker who had contracted a lung condition while working in the con stru ction of a M etro rail tunnel. WMATA had contracted with Bechtel, a consultant, to ensure safe working conditions during the cour se of construction. The Circuit assessed “whether the contractual authority vested in Bechtel with respect to job site safe ty regulations created a special relationship between Bechtel and [the plaintiff/appellant] under with Bechtel owed a duty to take reasonable steps to protect him from foreseeable risk.” Id. at 993. Bechtel asserted it owed the duty only to WMATA, not to the actual workers, an argument rejected by the Circuit: The duties that Bechtel undertook in its contract with WMATA are relevant to this case, not because they illustrate Bechtel’s point that a contractual duty was owed only to WMATA, but because by as suming a contractual duty to WMATA, Bechtel placed itself in the position of assuming a duty to appellant in tort. The particular circumstances of this case, including the Bechtel

- WMATA contract, Becthel’s superior skills and position, and Bechtel’s resul tant ability to foresee the harm that might reasonably be expected to befall appellant, created a duty to take reasonable step s to prevent harm to appellant. Id. at 997; see also Long v. District of Columbia , 820 F.2d 409, 418 (D.C. Cir. 1988) (“Like Bech tel, PEPCO entered into a contract to perform services within its field of expertise; PEPCO thereby acquired a duty to foreseeable plaintiffs (in this case, members of the travelling public) to perform these services with reasonable care.”) As i n Bechtel , the Ansaldo

- WMATA contract supplies only the basis of the duty of care and does not determine the standard of care required by that duty

. In other words, while the compatibility of the circuit parts is relevant, the more pressing inquiry is how Ansaldo undertook and f ulfilled its contractual duties, including, but not limited to, its assessment of compatibility.
A lthough expert testimony may be required in a breach of contract action to ascertain the41 meaning of compatibility between track circu it parts, the expert testimony here concerns the standard of care resulting from the tort duty owed by Ansaldo to WMATA. And WMATA, Ansaldo, and the plaintiffs have all provided expert testimony as to the safety analyses that should have been employed by Ansaldo. See ECF No. 480 at 29; ECF No. 482 at 38. Accordingly, t he Court rejects Ansaldo’s argument that evidence regarding the applicable standard of care is lacking. 3. Does the failure to warn claim against Ansaldo fail as a matter of law? i. Did Ansaldo have a duty to warn ? “The threshold question in a failure

- to

- warn case is ‘whether a duty to warn exists.’” McNeal v. Hi

- Lo Powered Scaffolding, Inc. , 836 F.2d 637, 641 (D.C. Cir. 1988) (quoting Hull v. Eaton Corp. , 825 F.2d 448, 454 (D.C. Cir. 1987)). “In the District of Columbia that determination turns on whether the manufacturer knew or should have known of a danger sufficiently serious to require a warning.” McNeal , 836 F.2d at 641 (internal quotation marks and citation omitted). “A plain tiff need not show that there was a manufacturing defect in order to recover: a product can be perfectly made and still require directions or warnings on proper use in order to be safe.” Id. (internal quotation marks and citation omitted). “[P]revious de cisions [of the District of Columbia Court of Appeals] indicate that fact

- intensive issues concerning the existence of a duty to warn and whether the warning was sufficiently specific to discharge the duty are generally reserved for the jury and may be res olved as a matter of law only when the evidence would not permit differences of opinion by reasonable jurors.” East Penn. Mfg . v. Pineda , 578 A.2d 1113, 1115 (D.C. 1990). Ansaldo argues that it did not have a duty to warn because it was merely the seller of a component part. See ECF No. 426

- 1 at 39. Ansaldo asserts that “[i]t had no duty to warn42 WMATA of dangers arising from the use of a product from another manufacturer that had been in use in the WMATA system for 35 years [i.e., the Alstom modul es].” Id. Here, again, Ansaldo’s argument is premised on its assertion that the sole cause of the collision was the parasitic oscillati on between the Alstom modules. This misses the point. It is undisputed here that Ansaldo was aware that its impedance bonds would be paired with Alstom modules. And there is a factual dispute as to the type of safety analyses undertaken by Ansaldo in ensuring the compatibility of its bonds with Alstom’s modules and, similarly, disputes as to Ansaldo’s knowledge regardin g the possible hazards attendant to the mixed configuration track circuits.
See ECF No. 480 at 41 . Accordingly, in light of the factual disputes as to Ansaldo’s actions and knowledge regarding mixed track circuits , the question of Ansaldo’s duty to warn is proper for decision by a jury. See East Penn. Mfg

. , 578 A.2d at 1115. ii. Can the Court conclude as a matter of law that WMATA was a “sophisticated user” that should have known about the defect, thus absolving Ansaldo of any duty to warn?
In the alternative, Ansaldo argues that even if it did have a duty to warn, its duty was negated by the fact that WMATA was a sophisticated user. ECF No. 426

- 1 at 39, 41

- 44. “[T]he ‘experienced user’ exception to the duty to warn is properly viewed as a for m of the ‘knowledge of danger’ rule.” East Penn Mfg

. , 578 A.2d at 1120. And “[b]ecause it focuses on actual or constructive knowledge

— what the user knew or reasonably should have known

— the applicability of the ‘experience d user’ exception to the duty to warn is a question of fact for the jury when the extent of the [user’s] knowledge is in dispute.” Id. Here, as the plaintiffs point out, the WMATA

- Ansaldo contract, in which Ansaldo was expressly informed that the bonds would be used in mixed configurat ion circuits and tasked with ensuring compatibility, suggests that WMATA was relying on Ansaldo’s expertise

— not that43 Ansaldo could rely on WMATA’s expertise. See ECF No. 482 at 42. Indeed, “WMATA disputes Ansaldo’s arguments that [its knowledge was] supe rior to [Ansaldo,] the designer and manufacturer of track circuit signaling components.” ECF No. 4 8 0 at 41; see also ECF No. 480

- 1 ¶ 116 (collecting deposition testimony from various WMATA engineers and technicians as to their knowledge of parasitic oscil lation and the attendant safety concerns ). Accordingly, in light of the factual disputes regarding the knowledge and expertise of the user, the Court cannot decide as a matter of law that WMATA was a sophisticated user, thus obviating Ansaldo’s duty
to wa rn. 4. The derivative claims of wrongful death and survival Because the underlying counts are not being dismissed, Ansaldo is not entitled to summary judgment on the derivative claims of wrongful death and survival based up on the non

existence of the required substantive claims

. VII. Alstom’s Motion for Summary Judgment 18
A. Introduction In this motion for summary judgment, Alstom notes that the Court’s June 22, 2011 Memorandum Opinion dismissed all claims against Alstom in its capacity as a designer of the track equipment as time

- barred under the District’s statute of repose

. Relying on this ruling, Alstom asserts that al l of the claims and cross

- claims against it are, at root, design defect claims

18 The Court considered the following fi lings and their supporting exhibits in resolving this motion: (1) Defendant Alstom Signaling, Inc.’s Memorandum of Points and Authorities in Support of its Motion for Summary Judgment [ECF No. 427

- 1]; (2) Ansaldo STS USA, Inc.’s Opposition to Alstom Signal ing, Inc.’s Motion for Summary Judgment [ECF No. 479]; (3) the Plaintiffs’ Opposition to Defendant Alstom Signaling Inc.’s Motion for Summary Judgment [ECF No. 484]; (4) WMATA’s Memorandum in Opposition to Alstom Signaling, Inc.’s Motion for Summary Judgme nt [ECF No. 485]; and (5) Alstom’s Reply in Support of its Motion for Summary Judgment [ECF No. 551].44 and must fail. Alternati vely, Alstom ar gues that, even if the failure to warn claims are not barred on the basis of being design defect claims, it had no duty to warn. Next, Alstom asserts that because th ere is no basis for finding it liable for th e June 22, 2009 collision, it is entitled to

s ummary judgment on the plaintiffs’ derivative wrongful death and survival statute claims, the

co - defendants’ contribution cross

- claims, and WMATA’s contractual indemnification cross

claim. The Court concludes that because its June 22, 2011 Memorandum Op inion explicitly found that Alstom could be found liable in its role as a manufacturer and seller

— as opposed to designer

— the statute of repose does not bar the plaintiffs’ remaining claims. The Court further finds that there are disputed issues of fact as to (1) when Alstom became aware of the parasitic oscillation in its modules, and (2) whether a letter sent by Alstom can be construed as a warning. And because the claims asserting primary liability against Alstom remain, there is no basis for dismissing the derivative claims against it. Accordingly , Alstom’s motion for summary judgment is denied in its entirety.
B. Background In addition to information set forth above about the general hi story of WMATA (e.g., the
M etrorail system ’s construction in the 1970s), and the structure and components of the
Auto matic Train Control system, two other pieces of undisputed background are important to the resolution of this motion. First, in a September 7, 2004 letter sent marking the recent celebration by Alstom o f its 100th year of business, Alstom represented that “over the past two years, there has been an increasing trend of extraordinary events involving Alstom electromechanical products that we feel is critical now to discuss with our customers.” ECF No. 484 at 8. Second, in 2005, “in a tunnel near [WMATA’s] Rosslyn [Metrorail] station, three WMATA trains nearly45 [collided] because there was a loss of shunt that led to trains being given maximum speed commands.” Id. at 12. Then, about a week later, WMATA id entified a track circuit near its Silver Spring station that was similarly failing to detect trains. Id. WMATA requested the assistance of Alstom engineers in investigating these incidences, and Alstom twice sent the same engineer to assist WMATA in cond ucting its investigation. Id. at 12

- 13. C . Analysis 1. Does the Court’s June 22, 2011 Memorandum Opinion foreclose the plaintiffs’ claims against Alstom? In its June 22, 2011 Memorandum Opinion, the Court concluded that “ Alstom’s arguments that the pla intiffs’ negligence and strict products liability claims (Counts 7, 9, 10, and 14 of the Master Complaint and Counts 1, 2, 3, and 8 of the McMillan Estate Compl aint) [had to] be dismissed as barred by the statute of repose fail, except to the extent that t hese claims extend to Alstom in its capacity as a designer.” In re Fort Totten Metrorail Cases , 793 F. Supp. 2d 133, 156 (D.D.C. 2011); see also id. at 142 n.10 (“A product may have a defective design without being defectively manufactured, and vice versa . Therefore, dismissing the design defect claims against Alstom would limit its liability t o manufacturing defects only.”). Thus, the Cour t has already ruled that the claims against Alstom in its capacity as the manufac turer and seller of the modules are not barred by the statute of repose. 2. The Plaintiffs’ Manufacturing Defect Claims “In a manufacturing defect case, plaintiff may seek to prove either a ‘specific defect’

— that is, that a specific, identifiable part of the [product] was defective and w as the cause of the accident

— or a ‘general defect’

— which, more accurately, is an unspecified defect, which the plaintiffs ask the finder of fact to infer from the accident itself.” Pappas v. Ford Motor Co. , 7 F.46 Supp. 2d 22, 26 (D.D.C. 1998). “To prove a specific defect . . . , plaintiffs generally introduce expert testimony based on an exam ination of the accident. ” Id. “To prove an unspecified defect, plaintiffs generally introduce circumstantial evidence, and expert opinion based thereon, that some de fect attributable to the manufacturer must have been the cause of the accident.” Id. Although it is unclear whether the plaintiffs maintain that the parasitic oscillation constitutes a specific defect or a general defect, there is sufficient evidence o f parasitic oscillation within the Alstom modules at B2

- 304 from which a jury could either (1) conclude that the modules were defective and were a cause of the accident, or (2) infer, based on the evidence presented with regard to the structure of a track circuit and the nature of the collision, that the modules were defective

. See ECF No. 485

- 1 ¶¶ 38W, 39W (explaining parasitic oscillation, why it is dangerous, and opining what Alstom should have done to remedy the problem of oscillating modules). Alstom is therefore not entitled to summary judgment on the manufacturing defect claims. 3 . The Pla intiffs’ Failure to Warn Claims There are several instances from which a reasonable jury could conclude that Alstom had a duty to warn that it breached

. 19 F irst, in the 1970s, Alstom entered into a contractual relationship with WMATA and thereby acquired the duty to use reasonable care in performing its contractual obligations. See Bechtel , 631 F.2d at 1001. Next, a reasonable jury could conclude that Alsto m’s September 2004 letter evinced knowledge of the dangers of mixed track circuits. Finally , because “even if there is no duty to warn at the time of sale, facts may thereafter come to the attention of the manufacturer which make it imperative tha t a warn ing

19 The Court discussed the applicable legal standards for failure

- to

- warn claims supra at page 41 of this Memorandum Opinion.47 then be given,” Owens

- Illinois, Inc. v. Zenobia , 325 Md. 420, 446 (Md. 1992); see also Ferguson v. F.R. Winkler GMBH & Co. , 79 F.3d 1221, 1226 (D.C. Cir. 1996) (noting that “the Maryland courts . . . have often served as an aid in interpreting the prod ucts

- liability law of the District of Columbia”), it is arguable that Alstom’s participation in the 2005 investigation of the Rosslyn and Silver Spring incidents either gave or should have given Alstom knowledge that parasitic oscillation in its modules wa s causing issues in train detection. And, as noted above, “previous decisions [of the District of Columbia Court of Appeals] indicate that fact

- intensive issues concerning the existence of a duty to warn and whether the warning was sufficiently specific t o discharge the duty are generally reserved for the jury and may be resolved as a matter of law only when the evidence would not permit differences of opinion by reasonable jurors.” East Penn. Mfg

. , 578 A.2d at 1115. Thus, because there is evidence from which a reasonable jury could conclude that Alstom was aware of problems with its modules, Alstom is not entitled to summary judgment on the failure to warn claims. Moreover, t he question of whether Alstom’s September 2004 letter constituted a warning, mu ch less a sufficient warning, is a questi on for a jury.
4 . The Plaintiffs’ Derivative Survival and Wrongful Death Claims Because the underlying negligence and strict liability claims are not being dismissed, Alstom is not entitled to summary judgment o n the plaintiffs’ derivative survival and wrongful death claims based on the erroneous assumption that the underlying claims would not exist

. 5 . The Co
- defendants’ Cross
- Claims against Alstom i. The Co
- defendants’ Contribution Claims against Alstom In light of the foregoing conclusion that a reasonable jury could find Alstom liable to the plaintiffs, Alstom is not entitled to summary judgment on the co

- defendants’ contribution claim s .48 ii. WMATA’s Contractual Indemnity Claim against Alstom Alsto m asserts that it is entitled to summary judgment on WMATA’s contractual indemnity cross

- claim for two reasons: (1) that there is no basis for finding Alstom negligent, and (2) that the WMATA

- Alstom contract limits WMATA’s indemnity rights “to the period o f time before acceptance of the work, which has long since passed.” ECF No. 427

- 1 at 22. Both of these arguments must be rejected. First , in light of the foregoing conclusion that a reasonable jury could find Alstom liable to the plaintiffs, Alstom is not entitled to summary judgment on WMATA’s claim for contractual indemnity. And because the plaintiffs are not precluded as a matter of law from establishing Alstom’s liability, there is no need to evaluate WMATA’s argument that it is not barred from

es tablishing Alstom’s liability to the plaintiffs even if the plaintiffs cannot do so. See ECF No. 485 at 24 (asserting that two exceptions to the statute of repose permit WMATA to establish Alstom’s liability to the plaintiffs even if plaintiffs are preclu ded from doing so ). Second, it is not clear from the contract that the parties intended to limit WMATA’s contractual rights to indemnity to the time prior to acceptance of the work performed under the
contract. In fact, it is clear that they did not so i ntend. Article 47 of the WMATA

- Alstom contract provides: (a) The Contractor shall save and keep harmless and indemnify the Authority against any and all liability claims . . . for injury, including personal injury to or death of any person or persons, and for loss or damage to any property; occurring in connection with or in any way incident to or arising out of the occupancy, use, service, operations, or performance of work in connection with this contract, resulting in whole or in part from the negligent acts, errors or omissions of the Contractor.

. . .49 (b) The Contractor shall procure and maintain, at his own cost and expense, during the entire period of the performance under this contract , the following types of insurance: . . . . (c) Before the con tract will be executed by the Authority, the Contractor shall forward to the Authority for approval a certificate, or certificates, of the insurance required, under the foregoing provisions, including special endorsements. . . . In addition to any provisio ns hereinbefore required, a provision of such insurance policies shall be that . . . they will be automatically renewed upon expiration and continued in full force and effect until final acceptance by the Authority of all the work covered by the Contract , unless the Authority is given thirty (30) days written notice, before any change or a cancellation is made effective.

. . . . (g) Any contract of insurance or indemnification naming the Authority . . . shall be endorsed to provide that the insurer wi ll not contend in the event of any occurrence, accident or claim that the Authority or the United States of America . . . are not liable in tort by virtue of the fact of being governmental instrumentalities or public or quasi

- public bodies.
ECF No. 427

- 2 ¶ 65 (emphasis added); see also ECF No. 485

- 3 at 37. Subsections ( a ) and (c) pertain to different topics and each has its own limiting provision that cannot , and should not , be imputed to the other. Specifically, the indemnification section

— subsection (a)

— very clearly entitles WMATA to indemnification arising out of the “occupancy, use , service, operations, or performance of work in connection with [the] contract .” Subsecti on ( c ) , however, just as clearly limits the maintenance of insurance until accep tance of the work performed under the contract. And the text of subsection (c) makes clear that its requirements apply only to “such insurance policies.” Indeed, the word indemnification does not appear in subsection ( c ) . Accordingly, as it is undispute d that that the Alstom impedance bonds were in use on June 22, 2009 , should Alstom be found negligent, WMATA is entitled to contractual indemnification for that negligence

. Alstom’s claim that it is entitled to summary judgment on WMATA’s contractual inde mnification cross

- claim is therefore rejected.50 VI I I. ARINC’s Motion for Summary Judgment 20
A. Introduction ARINC moves for summary judgment in its favor as to all claims on the following grounds: (1) it is entitled to the government contractor d efense under Boyle v. United Technologies Corp. , 487 U.S. 500 (1988); (2) there is no evidence of a causal nexus between any alleged defect in ARINC’s alarm system and the train collision; (3) the plaintiffs cannot meet their burden of establishing a desig n defect because they have offered no evidence of an alternative design; (4) the breach of express warranty fails as a matter of law because the plaintiffs did not provide notice of the alleged breach to ARINC ; (5) WMATA’s contractual indemnity claim fails because the contract’s indemnity provision does not establish a “clear intention” that ARINC would indemnity WMATA for WMATA’s own negligence; and (6) because ARINC is not a joint tortfeasor, it is entitled to summary judgment on all contribution claims a gainst it. The Court conclude s that (1) ARINC does not qualify for the government contractor defense under Boyle because it has not shown that this case raises “uniquely federal interests” ; (2) there is sufficient evidence of causation to create a jury qu estion; (3) there is evidence of an alternative design sufficient to sustain the plaintiffs’ design defect claim; (4) the plaintiffs’ express warranty claim does not fa il for lack of notice; (5) the indemnity provision in the

20 The Court considered the fo llowing filings and their supporting exhibits in resolving this motion: (1) Defendant ARINC Incorporated’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment [ECF No. 428

- 51]; (2) Defendant Alstom Signaling, Inc.’s Memorandum of Points and Authorities in Opposition to ARINC’s Motion for Summary Judgment [ECF No. 486]; (3) Defendant WMATA’s Memorandum in Opposition to Defendant ARINC, Inc.’s Motion for Summary Judgment [ECF No. 488]; (4) the Plaintiff’s Opposition to Defendant ARI NC Inc.’s Motion for Summary Judgment [ECF No. 489]; and (5) Defendant ARINC Incorporated’s Reply to Oppositions to Motion for Summary Judgment Submitted by Plaintiffs, WMATA, and Alstom [ECF No. 552].51 contract between WMATA and ARI NC does not require ARINC to indemnify WMATA for
WMATA’s own negligence; and (6) because there is evidence that ARINC is a joint tortfeasor, the contribution claims against it cannot be dismissed. Accordingly, ARINC’s motion is granted in part and denied in part.
B. Background As explained above, WMATA relies on an Automatic Train Control system to control train movement and direct train operators. Since the mid

- 1990s, the Automatic Train Control system used a software package called the Rai l Operations Control Software. ECF No. 486 at 3. Then, in 2003, WMATA contracted with ARINC, “a provider of communications and engineering solutions to at least 15 to 20 major metrorail systems in the United States,” to update the system with ARINC’s Advanced Inform ation Management software. Id. The WMATA

ARINC contract made clear that the new software should exceed the functionality of the old software and emphasized that the new software should maintain the highest levels of safety and reliability. Id. at 4. The Advanced Information Management software coll ects data from over 50,000 data points

— including train circuits

— and was designed to alert WMATA to the existence of dangerous conditions. Id. at 3

- 4. The software issues two types of alarms for failed tr ack circuits: (1) a “track circuit failed vacant” alarm, which indicates that a train is in the circuit but the circuit is not reporting a train present, and is also known as a non

- reporting block; and (2) a “track circuit failed occupied,” alarm, which me ans that the circuit is indicating the presence of a train despite the fact that the circuit is empty. Id. at 4. The following facts regarding ARINC’s Advanced Information Management software are undisputed. First, the software designated the non

- report ing block alarm as a “minor alarm.” Id.52 at 4. This means that the alarm is deleted by the system if not acknowledged by a user within 60 seconds. Id. For all of its other mass transit customers, however, ARINC had classified non

reporting block alarms as major alarms. Id. at 8. Second, although ARINC designed the software for WMATA to issue a non

- reporting block alarm 35 seconds after the event occurred ( meaning that if the circuit malfunctioned for 34 seco nds and then self

- corrected, no alarm would

e ver b e issued), it designed software for other tra nsit systems that contains a much shorter delay before issuing a non - reporting block alarm

— only 5 to 10 seconds. Id. at 5. Third, ARINC’s Advanced Information Ma nagement software would remove trains from its system while the trains were in service, without explanation and without issuing alarms for the Operations Central Control operators. Id. WMATA noticed this problem before the new software was fully implemented and informed ARINC that it considered d isappea ring trains a major safety issue. Id. Finally, ARINC’s Advanced Information Management software was in operation when the train collision occurred on June 22, 2009. Id. at 2. C . Analysis 1. Is ARINC entitled to the government contractor defense established in Boyle v. United Technologies Corp. , 487 U.S. 500 (1988)? ARINC conten ds that all of the claims against it should be dismissed because it is entitled to the government contractor defense recognized in Boyle v. United Technologies Corp. , 487 U.S. 500 (1988). ECF No. 428

- 51 at 9. In Boyle , a “ Marine helicopter cop ilot, was killed when the . . . helicopter in w hich he was flying crashed off t he coast of Virginia Beach, Virgin ia, during a training exercise.” 487 U.S. at 502. “ Although Boyle survived the impact of the crash, he was unable to escape from the helicopter and drowned. ” Id. His estate filed suit under Virginia tort law against the helicopter manufacturer, alleging that the helicopter’s emergency53 escape hatch was defectively desig ned. Id. at 503. The helicopter manufacturer argued that the door was provided in accordance with Department of Defense specifications and that, consequently, the plaintiff’s state tort claims were federally preempted. See id. at 509. The Supreme Court agreed. Id. The Supreme Court began its analysis by explaining that “a few areas, involving

‘ uniquely federal interests ,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre

- empted and replaced, wh ere necessary, by

. . . ‘federal common law.’” Id. at 504 (emphasis added). It noted t hat the dispute in Boyle bordered upon two areas that the Court had previously identified as involving “uniquely federal interests” to which federal common law applied: (1) “ the obligations to and rights of the United Sta tes under its contracts, ” and (2) “ the civil liability of federal officials for actions taken in the course of their duty. ” Id. at 504

- 05 (citations omitted). The Court found that “ the reasons for cons idering these closely related areas to be of ‘uniquely federal’ interest apply as well to the civil liabilities arising out of the performance of federal procurement contracts. ” Id. at 505

- 06. The Court thus deemed “ the procurement of e quipment by the Un ited States . . . an area

o f uniquely federal interest.” Id. at 507. However, this “ merely establishe[d] a necessary, not a sufficient, condition for the displacement of state law .” Id. “ Disp lacement will occur only where . . . a ‘significant conflict’ exists between an identifiabl e ‘ federal policy or interest an d the [operation] of state law, or the application of state law would ‘ frustrate specific obj ectives’ of federal legislation.” Id. (citations omitted). The Boyle Court found such a “ significan t conflict ” between state law and federal interests under the facts of that case. See id. at 509. In determining the parameters of this conflict, the Court looked to the discretionary function exception of the Federal Tort Claims Act, which exempts the U nited States from liability for54 claims “‘ based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved b e abused. ’” Id. at 511 (quoting 28 U.S.C. § 2680(a)).
Because “ the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision ,” and because “permittin g ‘ secon d

- guessing’ of these judgments through state tort suits against contractors would produce the same effect sought to b e avoided by the FTCA exemptio n” insofar as contractors would pass through the financial burden of adverse judgments to the United States, the Court concluded that “ that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a ‘significant conflict’ with federal policy and must be displaced. ” Id. at 511

- 12 (cita tion omitted). The Court then established the following three

- part test to determine the “scope of displace ment” of state law: Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (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. Id. at 512.
ARINC jumps directly to this three

- part test in its opening brief, arguing that it is entitled to the government contractor defens e because it designed its Advanced Information Management system in conformance with specifications approved by WMATA and that WMATA was aware of any dangers associated with the system. See ECF No. 428

- 51 at 10

- 22. But ARINC overlooks the two prerequisites to invoking the Boyle defense: “first, the case must involve ‘ an

ar ea of uniquely federal interest’; and second, there must exist ‘a significant conflict . . . between an identifiable federal policy or interest an d the [operation] of state law.’” Kormendi/Gardner55 Partners v. Surplus Acquisition Venture, LLC , 606 F. Supp. 2d 114, 117 (D.D.C. 2009) (quoting Boyle , 487 U.S. at 507); accord Glassco v. Miller Equip. Co. , 966 F.2d 641, 642 (11th Cir. 1992) ( stating that government contractors seeking to invoke the Boyle defense must first satisfy both the “uniquely federal interest” and “significant conflict” prongs, and explain ing that the “three

part inquiry elaborates the ‘significant conflict’ prong of the test” ). Moreover , “[t] he party seeking to displace state law bears the burden of demonstrating that both conditions exist. ” Kormendi/Gardner Partners , 606 F. Supp. 2d at 1 17. The Court concludes for the following

reasons that ARINC has failed to carry its burden of showing that this case raises uniquely federal interests.
C ourts have found unique ly federal interests in a variety of cases involving federal government cont ractors. See, e.g. , Boyle , 487 U.S. at 507 ( liability arising from federal procurement contracts ); Saleh v. Titan Corp. , 580 F.3d 1, 5, 9 (D.C. Cir. 2009) ( liability arising from military contractors’ participation in combatant activities over which the m ilitary retains command authority ); In re World Trade Ctr. Disaster Site Litig. , 521 F. 3d 169, 197 (2d Cir. 2008) ( coordination of “ federal disaster assistance and streamlining the management of large

scale disaster recovery projects ”); Hudgens v. Bell Hel icopters v. Textron , 328 F.3d 1329, 1334 (11th Cir. 2003) ( maintenance of U.S. military aircraft according to procedures specified by the federal government ). The common thread of all these case s is that “the interests of the United
S tates [would] be dire ctly affected” by the imposition of state tort liability on the contractor. Boyle , 4 87 U.S. at 507. The biggest obstacle for ARINC in claiming the government contractor defense under Boyle is that it contracted with WMATA , not the federal government. Re cognizing this distinction, ARINC asserts that uniquely federal interests are nonetheless at stake here because56 (1) the interstate c ompact creating WMATA has been deemed an Act of Congress; (2) Congress has taken an active role in creating and funding WMAT A; (3) the federal government is dependent upon WMATA to transport federal employees in the Washington , D.C. metropolitan

area; 21 and (4) courts have applied federal common law to immunity issues involving WMATA.
See ECF No. 552 at 6

- 9. The Court finds A RINC’s arguments unpersuasive

. True, the federal government may have some general interest and involvement in W MATA ’s operations and its success , and courts have applied federal common law to certain immunity issues involving WMATA. But these truisms are beside the point. The relevant inquiry under Boyle is whether “the interests of the United S tates [would] be directly affected ” by imposing tort liability on ARINC for designing its Advanced Information Management system in conformance with specification s approved by
WMATA. Boyle , 487 U.S. at 5 07 (emphasis added). In Boyle , for instance, the Court found it “plain that the Federal Government’ s interest in the procurement of equipment is implicated b y suits such as the present one ” because “[t] he impositi on 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. ” Id. at 506

- 07. Here , ARINC has not shown that imposing liability upon it will have any e ffect on the United S tates ’s interests , much less a direct one. It simply lists all the connections that WMATA has to the federal government.
T hat is not enough to establish preemption of state tort claims under Boyle

.

21 Ironically, the federal government’s purported inte rest in transportation for its employees is actually advanced (rather than undermined) by state tort suits against WMATA’s contractors which seek to expose harmful defects in WMATA’s transit system. ARINC seemingly overlooks this reality.57 This case is more like Miree v. DeKalb County , 433 U.S. 25 (1977), than Boyle

. Miree concerned “whether certain private parties could sue as third

- party beneficia ries to an agreement between a municipality and the Fe deral Aviation Administration.” Boyle , 487 U.S. at 506 (citing Miree , 433 U.S. at 30 ). The Supreme C ourt held that federal common law did not govern the

case based on its conclusion that “the r esoluti on of petitioners’ breach

- of

- contract claim against respondent [would] have no direct effect upon the United States or its Tr easury.” Miree , 433 U.S. at 29 ; see id. at 32

- 33 (“‘[A] ny federal interest in the outcome of the [dispute] . . . is far too specul ative, far too remote a possibility to justify the application of federal law .’” (citation omitted)). As in Miree , the claims against ARINC will have no direct effect on the United States or its Treasury, nor does the United States have any other discerni ble interest in this case. The
Court therefore rejects ARINC’s attempt to invoke the Boyle government contractor defense, and will preclude ARINC from pursuing this affirmative defense at trial. 2. Can the Court conclude, as a matter of l aw, that the Adv anced Information Management System was not a proximate cause of the c ollision ? As noted above, “[p]roximate cause has been defined as that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Convit , 980 A.2d at 1125. It is only the

“ exceptional case” in which questions of proximate cause “pass from the realm of fact to one of law.” Majeska , 812 A.2d at 950 (emphasis added). ARINC arg ues that the plaintiffs ’ “causation argument with regard to ARINC is that if the [Advanced Information Management] system were free of the defects they identified, one of the [Operations Central Control] supervisors would have communicated with the operato r of Train 112 to warn her of the non

- reporting block at Fort Totten and the accident would have58 been avoided.” ECF No. 428

- 51 at 23

- 24. ARINC maintains that the plaintiffs’ claim must fail because WMATA had no procedure requiring the Operations Central Control supervisors to route trains around a non

- reporting block and thus a better alarm would not have prevented the accident. Id. WMATA responds, however, that it “had an absolute block procedure for routing trains around locations that were experienci ng actual loss of train detection.” ECF No. 488 at 26. Accordingly, there is a factual dispute as to how WMATA would have responded had the Advanced Information Management software accurately notified the Operations Central Control personnel of the probl em at C ircuit B2

- 304. See ECF No. 488

- 2 ¶¶ 117

- 19. Moreover, there is sufficient other evidence from which a reasonable jury could conclude that ARINC’s software

was a proximate cause of the accident: its tendency to delete trains, the delay on issuing a non reporting block alarm, its designation of a non

- reporting block alarm as minor, and the sheer number of alarms generated by the system. See, e.g. , id. ¶¶ 94, 1 18

- 19 3. Absence of Evidence of a Safer Alternative Design in Support of Design Defect C laim ARINC next asserts that it is entitled to summary judgment on the plaintiffs’ design defect claim because the plaintiffs “have failed to identify an expert to testify as to the existence of an alternative design ” to its Advanced Information Manageme nt system. ECF No. 428

- 51 at
32. The Court does not agree. Whether or not the claim of defective design is premised on negligence or strict liability, a plaintiff must show the risks, costs, and benefits of the product in question , as well as an alterna tive design

. See Hull v. Eaton Corp. , 825 F.2d 448, 453

- 54 (D.C. Cir. 1987). With respect to the safer alternative design of the allegedly defective product , “[a]ll that is required is59 that it be commercially feasible at the time of manufacture.” Artis v. Corona Corp. of Japan , 703 A.2d 1214, 1217 (D.C. 1997). Here, the plaintiffs and co

- defendants maintain that not only was an alternative design commercially feasible, but that ARINC was itself manufacturing alternatively designed software systems for operators of other mass transit systems. See , e.g. , ECF No. 486 at 8 (asserting that ARINC should have designed the Advanced Information Management software to designate

non - reporting bl ock alarms as major, and opining that this “is a commercially fea sible design, as is best evidenced by the fact that every other transit system ARINC works with makes” such alarms major alarms). Accordingly, as there are disputed issues of material fact with regard to the feasibility of an alternative design , ARINC is not entitled to summary judgment on the design defect claims asserted against it. 4. The Plaintiffs’ Express Warranty Claim “In order to succeed on a breach of warranty claim, a plaintiff must prove notice as well as that the defendant breached an exp ress promise made about the product sold.” Witherspoon v. Philip Morris, Inc. , 964 F. Supp

. 455, 464 (D.D.C. 1997). “[T]he purpose of the notice requirement is to open the doors to negotiation”; accordingly, a plaintiff need not “threaten litigation in o rder to provide notice.” Id. (citing Rock Creek Ginger Ale Co., Inc. v. Thermice Corp. , 352 F. Supp. 522, 528 (D.D.C. 1971). “Constructive notice, if established, will satisfy the requirement.” Id. Finally, “when a seller willfully fails to disclose a defect, failure to notify cannot be raised as a defense.” Id. at 465 (internal quotation marks and citation omitted). ARINC contends that the plaintiffs’ breach of express warranty claim fails because “no claim for breach of an express warranty m ay be made absent notice to ARINC of the alleged breach,” and because “neither WMATA nor Plaintiffs provided ARINC with the required notice60 at any time prior to the accident.” ECF No. 428

- 51 at 33. WMATA responds by arguing: (1) that ARINC cannot prove a s a matter of law that the warranty language cited in ARINC’s motion is controlling , ECF No. 488 at 35; (2) that ARINC cannot establish that the warranty language it cites is enforceable as a matter of law, id. at 36; (3) that ARINC was provided with const ructive notice of problems with the Advanced Information Management system, id. at 39; and (4) that ARINC was not entitled to notice, id. at 40. Because ARINC’s motion focuses only on the argument that no notice was provided and does not appear to assert that no warranty was made , the Court will address only the latter two of WMATA’s arguments. Here, WMATA argues that, drawing all reasonable inferences in its favor, there is a question of fact as to whether ARINC received constructive notice. Altern atively, WMATA maintains that ARINC was not entitled to notice because it willfully failed to disclose defects in its Advanced Information Management system. Either one of these arguments suffices to preclude the Court from granting summary judgment to AR INC on the breach of express warranty claims. First, WMATA raised the issue of th e disappearing train with ARINC and made clear that it considered this to be a major safety issue. See ECF No. 486 at 5

- 6. Second, WMATA maintains that ARINC failed to disc lose several aspects of the Advanced Information Management software that deviated from the software used by other operators of mass transit systems

. See id. at 5, 8

- 9. Accordingly , whether ARINC received constructive notice and whether ARINC willfully f ailed to disclose defects and was therefore not entitled to notice are questions that must be answered by a jury. 5. WMATA’s Contractual Indemnity Claim Against ARINC Although “[o]ne of the most common, and simple bases of indemnity is a contract that provides for it,” East Penn Mfg. , 578 A.2d at 1126, “[a]n indemnity provision . . . ‘should not be61 construed to permit an indemnitee to recover for his . . . own negligence unless the court is firmly convinced that such an interpretation reflects the inten tion of the parties,’” W.M. Schlosser Co., Inc. v. Maryland Drywall Co., Inc. , 673 A.2d 647 , 653 (D.C. 1996) (quoting United States v. Seckinger , 397 U.S. 203, 211 (1970)) (emphasis added)

. Indeed, “[i]f a party ‘expects to shift responsibility for its ne gligence . . . the mutual intention of the parties to this effect should appear with clarity from the face of the contract.’” Schlosser , 673 A.2d at 653 (quoting Seckinger , 397 U.S. at 211) (emphasis added).
In Count 6 of its cross

- claim, WMATA seeks c ontractual indemnification from ARINC in the event that WMATA is found liable to the plaintiffs. See ECF No. 428

- 51 at 36 (citing ECF No. 140 at 20). ARINC explains that “on its face, WMATA’s claim includes indemnification for [WMATA’s] own negligent act s , ” and maintains that it has “no obligation to indemnify WMATA for [WMATA’s] own negligence in the absence of clear contractual language to the contrary, which does not exist here.” Id. The Court agrees. The pertinent section of the ARINC

- WMATA contrac t reads: The Contractor will save and keep harmless and indemnify WMATA against any and all liability claims, and the cost of whatsoever kind and nature arising or alleged to have arisen for injury, including personal injury to or death of person or person s, and for loss or damage occurring in connection with this Contract and or any acts in connection with activities to be performed under this Contract resulting in whole or in part from the acts, errors or omissions of the contractor, or any employee, agen t or representative of the Contractor. Id

. (emphasis added). WMATA argues that “a plain reading of the provision [following the words ‘and or’] is that the language pertaining to ARINC’s own acts, errors, or omissions is part of an ‘in addition
to’ or ‘ alternative’ clause,” and contends that the words “and or” are “intended to broaden the indemnity, not limit it as ARINC argues.” ECF No. 488 at 41

- 42. The Court, however, has62 struggled to make heads or tails of this section of the contract, much less co nclude that a ny sort of “plain reading” may be made of it. On this poorly drafted contractual language, the Court is far from “firmly convinced,” Schlosser , 673 A.2d at 653, that ARINC intended to permit
WMATA to receive indemnification from ARINC for los ses resulting from WMATA’s own negligence. By way of brief example, the reading urged by WMATA makes no sense as it renders the “and or” clause entirely superfluous. Indeed, n egligent acts on the part of the
contractor are seemingly encompassed by the ph rase “any and all liability claims . . . occurring in connection with this Contract.” The Court is therefore unclear how the “and or” clause broadens the indemnity requirement as WMATA urges. See ECF No. 488 at 41. Next, the Court has trouble interpreti ng the differing meaning s

— if , in fact, any were intended

— by the language “occurring in connection with this Contract’’ and “to be performed under this Contract.” And as these two differing temporal phrases are central to the two clauses, it would appear t he parties meant to establish limitatio ns on the resulting indemnity obligation

. Accordingly, ARINC is entitled to summary judgment on WMATA’s cross

- claim for contractual indemnification to the extent that WMATA seeks indemnification from ARINC for WMATA’ s own negligence, should

a jury determine that WMATA was negligent. 6. The Co
- defendants’ Contribution Claims Against ARINC Because the Court is not granting summary judgment to ARINC on the plaintiffs’ claims against it, there is no basis to grant ARINC summary judgment on the co

- defendants’ contribution cross

- claims, as a reasonable jury could deem ARINC a joint tortfeasor responsible fo r the June 22, 2009 collision.63 IX. Conclusion For the foregoing reasons, (1) WMATA’s motion to dism iss Alstom’s statute of repose defense is granted in part and denied in part; (2) Ansaldo’s motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint is granted; (3) WMATA’s motion to dismiss the equitable indemnification cross

- cla ims against it is granted; (4) the corporate defendants’ motion for summary judgment is denied; (5) Ansaldo’s motion for summary judgment is denied; (6) Alstom’s motion for summary judgment is denied; and (7) ARINC’s motion for summary judgment is granted in part and denied in part. SO ORDERED this 16th day of August, 2012. 22
REGGIE B. WALTON United States District Judge

22 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.