DocketNumber： No. 3:15-cv-02123-DCN
Judges： Norton
Filed Date： 2/13/2017
Status： Precedential
Modified Date： 11/7/2024
ORDER
This matter is before the court on defendant Crane Co.’s (“Crane”) motion for summary judgment. For the reasons stated below, the court denies Crane’s motion.
I. BACKGROUND
Plaintiff James Wilson Chesher (“Chesher”), a former machinist mate and a commissioned officer in the U.S. Navy, together with his wife, plaintiff Cheryl Ann Chesher (together “plaintiffs”), allege that Chesher’s exposure to asbestos throughout his Naval career, caused him to develop mesothelioma. Compl. ¶¶ 31-34. Chesher served in the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted or oversaw maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks—large tanks which remove dissolved oxygen from the water before it is sent to the boiler. ECF No. 226-1, Chesher Video Dep. at 21:21-22:17, 26:10-22; ECF No. 226-2, Chesher First Dep. at 147:7-14. Chesher’s work on valves required him, or his subordinate, to remove and replace internal packing and bonnet gaskets, which were frequently made from asbestos-containing materials. Chesher Video Dep. at 26:10-22 (describing work on internal packing and bonnet gaskets); ECF No. 226-9, Pantaleoni Dep. at 24:5-26:24, 57:7-25, 63:3-64:22, 72:9-18 (discussing drawings of valves approved for use by the Navy that specified the use of asbestos-containing materials); ECF No. 226-10, Moore Aff. ¶ 17 (noting that Crane drawings specified use of asbestos containing internal packing and bonnet gaskets for certain valves installed on the USS Henderson and USS Fox). This work produced dust which Chesher breathed in. Pantaleoni Dep. at 27:20-28:25, 30:1-30:21. Chesher’s work on de-aerating feed tanks required him to access nozzles inside the tank by crawling through a manhole. Chesher First Dep. at 53:11-15. The record contains evidence that this manhole was sealed by an asbestos-containing gasket, Moore Aff. ¶ 19, which needed to be removed and replaced whenever the tank was inspected. ECF No. 226-3, Chesher Second Dep. at 456:13-18.
Crane supplied valves for use on board the ships where Chesher performed, or closely supervised, valve maintenance.
On April 15, 2015, plaintiffs brought the instant action in the Court of Common Pleas in Richland County, South Carolina, alleging claims for negligence, gross-negligence, negligence per se, conscious pain and suffering, punitive damages, and loss of consortium against a number of defendants. The action was removed to this court on May 22, 2015. On March 4, 2016, Crane filed the instant motion for summary judgment. ECF No. 187. Plaintiffs filed a response on April 4, 2016, ECF No. 226, and Crane filed a reply on April 14, 2016. ECF No. 230. The court held a hearing on June 2, 2016, and ordered the parties to conduct supplemental briefing. Plaintiffs filed their supplemental brief on June 3, 2016, ECF No. 248, and Crane filed a response on June 8, 2016. ECF No. 249. The motion is now ripe for the court’s review.
II. STANDARD
Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. 2505. “[Sjummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“[A]t the summaiy judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-movant must then “make a
IIL DISCUSSION
A. Jurisdiction and Choice of Law
At the outset, the court notes that there is no dispute that court has admiralty jurisdiction over this action. Def.’s Mot. 5-7; Pis.’ Resp. 9. Because the Court has admiralty jurisdiction, it must apply maritime law. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (“With admiralty jurisdiction comes the application of substantive admiralty law.”). “Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” Id. at 864-65, 106 S.Ct. 2295. “The role of state law in maritime cases is significant and complex.” Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999). A “fundamental feature of admiralty law” is that “federal admiralty courts sometimes do apply state law.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). State law may be used to supplement federal maritime law as long as state law is “compatible with substantive maritime policies” and is not “inconsonant with the substance of federal maritime law.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 202, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996); see also Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 341, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) (“Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.”); Princess Cruises, Inc. v. Gen. Elec. Co., 143 F.3d 828, 834 (4th Cir. 1998) (“When no federal statute or well-established rule of admiralty exists, admiralty law may look to the common law or to state law, either statutory or decisional, to supply the rule of decision.”); Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (“[A]dmiralty law, at times, looks to state law, either statutory or decisional, to supply the rule of decision where there is no admiralty rule on point.”). However, “state law may not be applied if it conflicts with, or seeks to materially change, federal maritime law.” E.g., State of Md. Dep’t of Natural Res. v. Kellum, 51 F.3d 1220, 1226 (4th Cir. 1995). Thus, the court must apply substantive maritime law supplemented by state law to the extent that it does not conflict with well-established maritime law.
B. Duty to Warn Under Maritime Law
Crane argues that it cannot be held liable for Chesher’s injuries because there is no evidence that he was ever exposed to any asbestos-containing products that were manufactured or distributed by Crane. Def.’s Mot. 8. This argument, commonly known as the “bare metal defense,” is premised on the assertion that a product manufacturer is not responsible for harms caused by a product it did not manufacture or supply. Products Liability, 3 The Law of Seamen § 31:6 (5th ed.). Plaintiffs contend that, in certain narrow circumstances, the bare metal defense is unavailable and an equipment manufacturer may be held liable for its failure to warn of risks arising from exposure to asbestos-containing components supplied by third parties. Pis.’ Resp. 9-11. The bare metal defense has garnered increased attention in recent years as courts have sought to determine whether it applies in cases where the de
The starting point for any analysis of the bare metal defense under maritime law is Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005). In Lindstrom, the Sixth Circuit addressed maritime law’s requirements for establishing causation in a products' liability action. The court held regardless of whether the action was brought under a theory of negligence or strict liability, “a plaintiff must show, for each defendant, that (1) he was exposed to the defendant’s product, and (2) the product was a substantial factor in causing the injury he suffered.” Id. at 492. Applying this principle to the plaintiffs’ claims against the manufacturers of certain pumps and valves that utilized asbestos-containing replacement parts, the Lindstrom court determined that the defendants were entitled to summary judgment because the plaintiffs had not shown that the defendants actually manufactured the asbestos-containing material that caused their injuries. Id. at 495-97 (holding that “Henry Vogt cannot be held responsible for material ‘attached or connected’ to its' product on a claim of a manufacturing defect,” “Coffin Turbo cannot be held responsible for the asbestos contained in another product,” and “Inger-soll Rand cannot be held responsible for asbestos containing material that it was incorporated into its product post-manufacture”).
In a ease addressing similar facts, the federal asbestos multidistrict litigation (“MDL”) court applied the same principle to the plaintiffs’ failure-to-warn claims. Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791 (E.D. Pa. 2012). In Conner, the plaintiffs alleged that the defendant-manufacturers were liable for their failure to warn of the risks associated with asbestos-containing replacement components used in their products. The MDL court acknowledged that there was evidence that:
[defendants knew Navy sailors would be exposed to asbestos while repairing and maintaining [defendants’ products; that the products “required”- asbestos insulation, gaskets, and packing; that [defendants sometimes shipped their products with asbestos components “already in place”; that [defendants supplied asbestos-containing replacement parts; and that their products required maintenance that would expose the sailors to asbestos-containing products. ■
Id. Despite this evidence, the MDL court relied on Lindstrom and certain state court decisions to hold that, “under'maritime law, a manufacturer is not liable for harm caused by, and owes no duty to’warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute.” See id. at 798-801 (discussing Lindstrom, and certain California and Washington state court decisions). The MDL court also highlighted' the public policy concerns underlying its decision, explaining that “public polity demands that the burden of accidental injuries caused by products intended . for consumption' be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained,” id. at 801 (quoting Restatement (Second) of Torts § 402A cmt. c (1965)), and concluding that these concerns “weigh against holding manufacturers liable - for harm caused by asbestos products they did not manufacture or distribute because those manufacturers cannot account for the costs of liability created by the third parties’ products.” Id.
The court in Quirin v. Lorillard Tobacco Co. took a different approach. 17 F.Supp.3d 760 (N.D. Ill. 2014). While the
Some courts have concluded that a defendant is Hable whenever the use of asbestos in connection with its product is foreseeable. [] Conversely, other courts have concluded that a defendant is never liable when the material containing asbestos was supplied by a third party. [ ] Finally, some courts have followed a middle road, finding a duty where the use of asbestos-containing materials was specified by a defendant, was essential to the proper functioning of the defendant’s product, or was for some other reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.
Id. The court then adopted the “middle path” and held that while a manufacturer generally could not be held liable for materials it did not supply,
a duty may attach where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant’s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.
Id. at 769-70. The court described the scope of this duty in a number of ways, contrasting cases where there was no evidence that the defendant “specified that its [product] had to be used with asbestos-containing [material] or that the [product] required such [material] to function properly.” Id. at 771. The court also explained that “[t]he duty attaches only when the manufacturer incorporated the asbestos-containing material into its product.” Id. at 770. Finally, the court concluded that “a manufacturer should [not] avoid liability ..., where it designed its products to be used with asbestos-containing materials and actually incorporated asbestos-containing materials into the products it sold,” reasoning that when such criteria were satisfied “a jury could conclude that it was not just foreseeable, but inevitable, that the product would subject those working with it to the possible hazards of asbestos exposure.” Id. at 771.
In recent years, a split has emerged between courts applying Quirin, or a similar, Quirin-like approach, and courts adhering to Conner’s more restrictive view of a manufacturer’s duty .to warn.
This rift has developed around a number of issues.
1. Scope of the Lindstrom Decision
As noted above, the Conner court relied heavily on the Lindstrom decision in concluding that a manufacturer owes no duty to warn with respect to “asbestos products that the manufacturer did not manufacture or distribute.” See Conner, 842 F.Supp.2d at 801 (construing this position as an “adoption” of Lindstrom). In contrast, the Quirin court distinguished Lindstrom on the grounds that the Lindstrom decision did not discuss failure-to-warn claims. Qui-rin, 17 F.Supp.3d at 768. More recently, the MDL court has identified this .issue as “the source of divergence between the Conner and Quirin decisions.” Devries, 188 F.Supp.3d at 463. Courts that have adopted a Quirin-like approach to the failure-to-warn issue have generally avoided a direct challenge to the holding in Lind-strom, either by explicitly distinguishing it or implicitly suggesting that it did not require an application of the bare metal defense to failure-to-warn claims. See Hedden, 2015 WL 5775570, at *11 (citing Lindstrom for the general principles of causation but nevertheless holding that a defendant may be liable under the circumstances outlined in Quirin); Kochera, 2015 WL 5584749, at *3 (same); Andrews, 2015 WL 12831315, at *6 (distinguishing Lind-strom as “a manufacturing defect case [that] did not consider or discuss a failure-to-warn claim”); but see Bell, 2016 WL 5780104, at *1 (reading Lindstrom to hold that a manufacturer can never be liable “unless the manufacturer made, sold, or otherwise controlled the precise aftermarket asbestos components that released the asbestos fibers that injured the plaintiff,” and refusing to adopt such a view). Thus, the interpretation of Lindstrom has served as something of a gateway issue into the Quirin-Conner debate.
In Devries, the MDL court explained its interpretation -of Lindstrom, making it clear that it read Lindstrom’s reference to “both negligence and strict liability theories” to encompass failure-to-warn claims. Devries, 188 F.Supp.3d at 459 n.7. Thus, in the MDL court’s view, Lindstrom requires a plaintiff show “evidence of exposure to asbestos from the defendant’s ‘product’” in any products liability action brought under maritime law. Id. at 460-61. “Implicit in this rule is the holding that a product manufacturer has no duty to warn about hazards arising from another manufacturer’s product (or component part).” Id. at 460 n.11.
The court also finds that applying Lind-strom in the failure-to-warn context is conceptually problematic. The Lindstrom court held that to prove causation, a plaintiff must prove that “he was exposed to the defendant’s product, and [] the product was a substantial factor in causing the injury he suffered.” 424 F.3d at 492. This rule is straightforward enough when a manufacturer breaches its duty by supplying a defective product because the product serves as a physical embodiment of the breach. Thus, causation can only be traced to the manufacturer through the manufacturer’s own product. The same is not true when a manufacturer breaches its duty to warn of a product’s unreasonably dangerous condition. In that situation, the breach does not arise out of the creation of the product itself but instead out of the manufacturer’s failure to warn of the danger the product creates. Restatement (Second) of Torts § 388 (1965). Conceptually then, the plaintiffs task is to establish a causal link between his injury and the manufacturer’s omission, not the product itself.
It might be argued that this is a distinction without a difference—if the manufacturer’s product did not cause the plaintiffs injury, there is no way causation could be traced to the manufacturer’s failure to warn. To be sure, these inquiries will frequently merge, but the fact remains that a manufacturer’s failure to warn is distinct from the act of creating the product. The court believes that, in certain narrow circumstances, a manufacturer’s failure to warn of risks associated with its own product can cause a plaintiff to suffer injury through another manufacturer’s product.
2, Majority Rule Under State Law
Courts on both sides of the issue have also drawn support from cases applying state law. See Bell, 2016 WL 5780104, at *5 (noting decisions under Pennsylvania, New York, Maryland, and California law that indicated—to varying degrees of certainty—that a manufacturer may have a duty to warn regarding a product the manufacturer does not produce); Conner, 842 F.Supp.2d at 798 (“[A] number of state courts ... that have considered this issue have similarly held that a defendant manufacturer is not hable for a third party’s asbestos products when the defendant is not part of the “chain of distribution” of the asbestos product.”); see also Cabasug, 989 F.Supp.2d at 1039 (noting that the Conner decision demonstrated how its position was “consistent with several state court decisions addressing replacement parts”); Quirin, 17 F.Supp.3d at 770 (“The California Supreme Court, which approved of the bare metal defense ..., also left room for an exception to the rule.”). Looking to state law is particularly significant in this case, given the split that has emerged in the federal courts addressing this issue under maritime law.
Courts that have endorsed a strict application of the bare metal defense often discuss three state court decisions: Simonetta v. Viad Corp., 165 Wash.2d 341, 197 P.3d 127 (2008), Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d 493 (2008), and O’Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987 (2012). See Conner, 842 F.Supp.2d at 798-800 (discussing Simonetta, Braaten, and O’Neil as decisions which “have [] held that a defendant manufacturer is not liable for a third party’s asbestos products when the defendant is not part of the ‘chain of distribution’ of the asbestos product”); see also Cabasug, 989 F.Supp.2d at 1039-41 (reviewing and endorsing the Conner court’s evaluation of Simonetta, Braaten, and O’Neil); Devries, 188 F.Supp.3d at 463 (describing Conner’s interpretation of Lindstrom as “consistent with [the rules set forth under] state law in O’Neil, Simo-netta, and Braaten—decisions which each considered and relied upon Lindstrom in determining its respective rule of law regarding negligent failure-to-warn”). However, there are problems with relying on Simonetta, Braaten, and O’Neil to hold that an equipment manufacturer can never be liable for injury caused by asbestos-containing replacement components. As an initial matter, each of these decisions stopped short of foreclosing the availability of a failure-to-warn claim in the circumstances outlined in Quirin—namely, where (1) the defendant actually incorporated asbestos-containing components into its original product, Quirin, 17 F.Supp.3d at 771, and (2) the defendant “specified” the use of asbestos-containing replacement components, or such components were “essential to the proper functioning” of the product. Id. at 769, 771.
In the companion cases of Simonetta and Braaten, the Supreme Court of Washington held that the equipment' manufacturer defendants did not have a duty to warn of the risks associated with asbestos-containing replacement components because they were not part of the “chain of distribution” of the hazardous products, even if those risks were foreseeable. Simonetta, 197 P.3d at 138 (“Because [defendant] was not in the chain of distribution of the dangerous product, we conclude not only that it had no duty to warn under negligence, but also that it cannot be
The Braaten decision came somewhat closer to addressing the circumstances outlined in Quirin. In that case, there was evidence that “some of the defendants’ products originally contained packing and gaskets with asbestos.” Braaten, 198 P.3d at 496. The court found these facts were not sufficient to support a failure-to-warn claim against the defendants for asbestos-containing products they did not supply, but explicitly stated that
we need not and do not reach the issue of whether a duty to warn might arise with respect to the danger of exposure to asbestos-containing products specified by the manufacturer to be applied to, in, or connected to their products, or required because of a peculiar, unusual, or unique design.
Id. Because Quirin requires those very conditions to be met, the court concludes that the decision in Braaten also falls short of foreclosing a failure-to-warn claim under Quirin.
Moreover, the Washington law has moved toward the Quirin • approach in the years since Simonetta and Braaten were decided. As the MDL court has acknowledged,
the Supreme Court of Washington appears to have since retreated soméwhat from its earlier adoption of the so-called ‘bare metal defense’ in Simonetta... and Braaten ... [by later] distinguishing] the facts in Macias v. Saberhagen Holdings, Inc., 175 Wash.2d 402, 282 P.3d 1069 (Wash. 2012), and holding that a product manufacturer can at least sometimes be liable for failure to warn of the hazards of asbestos exposure that necessarily occurs as a result of the intended use of the product for the purpose for which it was designed—even if the product itself did not contain asbestos when manufactured and supplied, and the asbestos was released from another manufactureris product.
Devries, 188 F.Supp.3d at 456 n.4 (alterations in original) (quoting Schwartz v. Abex Corp., 106 F.Supp.3d 626, 646 (E.D, Pa. 2015)). The critical distinction.offered by the Macias court was that, in Simonetta and Braaten, “the manufacturers’ products did not, in and of themselves, pose any inherent danger of exposure to asbestos,” whereas in Macias, when the ‘‘the products were used exactly as intended ... they inherently and invariably posed the danger of exposure to asbestos.” 282 P.3d at 1077 (emphasis in original). Such reasoning is quite analogous to the Quirin court’s focus on “inevitability.” Quirin, 17 F.Supp.3d at 771. Thus, the law of Washington actually appears more consistent with the Quirin approach than with Conner’s strict application of the bare metal defense.
As for the Supreme Court of California’s decision in O’Neil, the court need look no
A stronger argument for liability might be made in the case of a product that required the use of a defective part in order to operate. In such a case, the finished product would inevitably incorporate a defect. One could argue that replacement of the original defective part with an identically defective one supplied by another manufacturer would not break the chain of causation. Similarly, if the product manufacturer specified or required the use of a defective replacement part, a stronger case could be made that the manufacturer’s failure to warn was a proximate cause of resulting injury. In both contexts, however, the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain. [] These difficult questions are not presented in the case before us, and we express no opinion on their appropriate resolution.
Id., 135 Cal.Rptr.3d 288, 266 P.3d at 996 n.6 (emphasis in original). Again, the Qui-rin approach is explicitly restricted to the circumstances addressed in footnote 6 of the O’Neil decision.
While the Simonetta, Braaten, and O’Neil decisions provide little, if any, support for the Conner approach, the Southern District of Florida’s decision in Faddish was far less equivocal. 881 F.Supp.2d 1361. Though Faddish was a maritime law case, the court applied Florida law after determining that Florida law and maritime law were not inconsistent on the issue. Id. at 1369. Thus, the Faddish decision not only endorsed the Conner approach under maritime law, but also provided a thorough analysis of the issue under Florida law. Id. at 1370-72. The Faddish court adopted a strict application of the bare metal defense, concluding that manufacturers could not be held liable for a plaintiffs exposure to asbestos-containing replacement parts where there was “no evidence that any of these replacement parts [were] made by any defendant or that defendants had any involvement with their installation.” Id at 1373. Notably, the court reached this conclusion even though there was evidence
Unsurprisingly, this is not enough to conclude that Conner represents the majority approach. There are a number of state court decisions recognizing exceptions to the bare metal defense that are at least as permissive as Quirin. See, e.g., In re N.Y.C. Asbestos Litig., 27 N.Y.3d 765, 37 N.Y.S.3d 723, 59 N.E.3d 458, 471 (2016) (“[T]he manufacturer of a product has a duty to warn of the danger arising from the known and reasonably foreseeable.use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer’s product to function as intended.”); McKenzie v. A.W. Chesterson Co., 277 Or.App. 728, 373 P.3d 150, 160-62 (2016), review denied sub norm, 360 Or. 400, 381 P.3d 841 (2016) (rejecting bare metal defense where it was foreseeable that plaintiff would be exposed to asbestos-containing replacement components); May v. Air & Liquid Sys. Corp., 446 Md. 1, 129 A.3d 984, 1000 (2015) (“[A] manufacturer will have a duty to warn under negligence and strict liability when (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos.”); Schwartz, 106 F.Supp.3d at 655 (“[Under
3. Policy Considerations
Policy considerations have also played an important role in the courts’ treatment of this issue. E.g., Conner, 842 F.Supp.2d at 801. Indeed, courts have recognized that the scope of a legal duty is essentially a matter of policy. See In re N.Y.C. Asbestos Litig., 37 N.Y.S.3d 723, 59 N.E.3d at 469 (listing various, policy-based factors used to determine whether a duty exists in a particular situation, including “the most reasonable allocation of risks, [the] burdens and costs among the parties and within society, .., economic impact, ... the person [ ] best positioned to avoid the harm[,] ... the public policy served by the presence or absence of a duty and the logical basis of a duty.”); Devries, 188 F.Supp.3d at 463 (distinguishing state law cases rejecting the bare metal'defense on the ground that “[t]he rule of law set forth in each of these cases reflects a policy determination of that particular state—a policy determination which need not be consistent with the policy determination underlying maritime law”); May, 129 A.3d at 994 (“We have recognized that ‘[a]t its core, the determination of whether a duty exists represents a policy question of whether the specific plaintiff is entitled to protection from the acts of the defendant.’” (quoting Gourdine v. Crews, 405 Md. 722,955 A.2d 769, 783 (2008))). This does not mean that a court is free to impose its own policy preferences; the court must ask whether the law has already made this policy determination and account- for the doctrinal framework in which the question arises. However, in this case, since there is no cleariy established rule,
While courts haye almost universally recognized the role policy considerations play in analyzing this issue, they have disagreed on which approach these considerations favor. Compare Bell, 2016 WL 5780104, at *8 (finding that “the manufacturer of the finished product containing asbestos may well be better placed to warn when compared to the manufacturer of an aftermarket wear item”); In re N.Y.C. Asbestos Litig., 37 N.Y.S.3d 723, 59 N.E.3d at 473 (“The endorsement of a manufacturer’s duty to warn against cer
However, the assumptions underlying this rationale do not hold in the context of a Quirin claim, which requires a showing that (1) the defendant actually incorporated asbestos-containing components into its original product, and (2) the defendant “specified” the use of asbestos-containing replacement components, or such components were “essential to the proper functioning” of the defendant’s product, Quirin, 17 F.Supp.3d at 769, 771. In these narrow circumstances, the original equipment manufacturer is well-positioned to bear the costs of the risk associated with asbestos-containing replacement parts. When a manufacturer actually incorporates a particular component into its product, it cannot claim a lack of control over the risks associated with that component, as the manufacturer has every opportunity to test that component and become familiar with such risks. See Bell, 2016 WL 5780104, at *7 n,16 (recognizing that a manufacturer has a duty to “investigate and warn” about risks associated with components that the manufacturer puts into its product); Garvin, Case No. 2012-cp-40-6675, slip op. at 13 (recognizing that Crane “had every opportunity to test and evaluate the asbestos gaskets and packing used in its valves”). To the extent the manufacturer designs or markets its product in such a way that the product will always require the same risk-bearing component, it exercises control over the risk associated with replacement components. Cf. Dandridge, 2016 WL 319938, at *3 (“[A] product that ‘inevitably’ subjects its user to the possible hazards of asbestos exposure and a product that actually contains asbestos bear comparable causal relationships to their users’ injuries.”) (internal quotations omitted). In a sense, the Quirin requirements serve to limit a manufacturer’s liability to cases where the harm arises from risks that are effectively incorporated into the manufacturer’s product, though they may be borne by a replacement component. Cf. May, 129
The defendant-manufacturer also derives a benefit from the sale of such components, “as the manufacturer is able to sell its own product to customers precisely because the third party has sold to those customers another item that is essential to the product’s function.” In re N.Y.C. Asbestos Litig., 37 N.Y.S.3d 723, 59 N.E.3d at 472. This benefit should not be conferred without the costs that attend it. Allowing equipment manufacturers to reap profits conditioned on the proliferation of asbestos-containing replacement components, while immunizing them from liability relating to such components, creates an incentive structure that fails to account for the costs such manufacturers impose on society. This result is socially inefficient— not to mention, palpably unjust. Restatement (Second) of Torts § 402A comment c. (“[Pjublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained.”).
There is one policy argument specific to maritime law that does favor Conner’s strict application of the bare metal defense: the goal of uniformity. Devries, 188 F.Supp.3d at 463. Concerns with uniformity are at the heart of maritime law. As the Cabasug court recognized, the Constitution intended maritime law to be
a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.
Cabasug, 989 F.Supp.2d at 1036 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 451, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)).
The Conner approach provides a bright-line rule that calls for very little factual analysis; the court looks for evidence that the plaintiff was exposed to asbestos fibers that the defendant actually manufactured, and if there is no such evidence, the claim fails. Conner, 842 F.Supp.2d at 801 (“[Ujn-der maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute.”). The Quirin approach, in contrast, requires analysis of several additional factors: (1) whether the defendant actually incorporated asbestos-containing components in its original product, and (2) whether the defendant specified the use of such components or the defendant’s product required such components to function properly. Quirin, 17 F.Supp.3d at 769, 771. These factors present interpretive questions that could lead to divergent results. For instance, courts could disagree on what it means to “specify” the use of a component. Compare Bell, 2016 WL 5780104, at *3 n.11 (finding that a manufacturer should not be permitted to escape liability for “affirmatively recommending]” the use of asbestos components simply “because the manufacturer did not make, sell, or otherwise control the asbestos”);
However, uniformity is not the sole interest of maritime law. See Bell, 2016 WL 5780104, at *3 n.11 (“[O]ur interest in uniformity, though powerful, does not require us to adopt legal conclusions we believe to be in error.”) (quoting Excel Willowbrook, L.L.C. v. JP Morgan Chase Bank, Nat. Ass’n, 758 F.3d 592, 601 (5th Cir. 2014)). “[0]ne of the primary goals of maritime law [is] to protect maritime workers from the perils of working at sea.” Mack v. Gen. Elec. Co., 896 F.Supp.2d 333, 338 (E.D. Pa. 2012). For the reasons outlined above, the Quirin approach serves to protect maritime workers in the same way that traditional products liability doctrines protect consumers. It forces manufacturers to account for the risks they impose on others through the sale of their products, and provides an avenue of relief for those injured by such products. Restatement (Second) of Torts § 402A comment c. (“[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained.”). Ultimately, the court finds the law’s interest in protecting the maritime workers more significant than its interest in uniformity, and therefore, concludes that policy considerations weigh in favor of adopting the Quirin approach.
Having determined that the Quirin approach (1) is not foreclosed by Lind-strom, (2) is more consistent with the majority position under state law, and (3) is favored by the relevant policy considerations, the court holds that plaintiffs’ failure-to-warn claims are not foreclosed by the bare metal defense.
This leads to a secondary question: what evidence does Quirin require? Plaintiffs state that Quirin simply requires evidence that the defendant “designed its products to be used with asbestos-containing materials and actually incorporated asbestos-containing materials into the products it sold.” Pis.’ Resp. 11 (quoting Quirin, 17 F.Supp.3d at 771). Crane reads this court’s decision in Dandridge to establish a three-pronged test, requiring evidence that: “(i) the asbestos containing product was incorporated into the equipment when sold; (ii) the product needed asbestos containing components to function; and (iii) the manufacturer provided specifications for such use.” Def.’s Reply 4 (emphasis added).
There is no dispute that the court views “actual incorporation” of asbestos-containing components into the original product as an independent, strict requirement of the test. Indeed, this understanding of Quirin was essential to the court’s holding in Dandridge. See Dandridge, 2016 WL 319938, at *4 (granting summary judgment after finding “no evidence that Crane ‘actually incorporated asbestos-containing materials into the products it sold’ ” (quoting Quirin, 17 F.Supp.3d at 771)). However, the court does not regard the second and third prongs of Crane’s three-pronged test in the same way. A review of the Dandridge decision indicates that the language Crane relies on was merely used to describe the facts the Quirin court highlighted in recogriizing a duty-to-warn. Id. at *4. The court described the Quirin decision as follows:
In Quirin, the court found that a' manufacturer’s duty to warn of risks relating to asbestos-containing materials ’ arose where: (i) the manufacturer “designed its products to be used with asbéstos-containing materials and actually incorporated asbestos-containing materials into the products it sold;” (ii) the manufacturer’s product “needed asbestos-éon-taining components to function properly” when used in the manner intended by the purchaser; and (iii) the manufacturer “provided specifications” for such use.
Dandridge, 2016 WL 319938, at *4 (quoting Quirin, 17 F.Supp.3d at 770-71). Immediately following this language, the court offered a similar summary of the Andrews decision, which applied Quinn’s rationale where the manufacturer “incorporated asbestos-containing components into its product .. .• and specified the use of asbestos-containing replacement parts in its product.” Id. (quoting Andrews, 2015 WL 12831315, at *6). The court then compared Quirin and Andrews, stating that “[cjru^ cially, the circumstances presented in both Quirin and Andrews were sufficient to invoke Quirin’s underlying rationale—that a duty to warn arises when a defendant manufacturer’s conduct makes the plaintiffs asbestos exposure .“inevitable,” not simply foreseeable.” Id (emphasis added). This explanation indicates that the “crucial” aspect of the analysis is not whether the case was on all fours with every aspect of Quirin, but whether the rather demanding concept of inevitability applies,
The Quirin decision explicitly states that this concept may apply 'where “the use of asbestos-containing materials was specified by a defendant” or “was -essential to the proper functioning of the defen
C. Application of Quirin in this Case
Here, plaintiffs have certainly provided evidence that Crane incorporated asbestos-containing components into the valves it supplied for use on the ships Chesher served on. Crane admits that it “supplied valves and related parts” to certain of those ships and that its valves were approved for use on others. Pis.’ Resp. Ex. 8, Answers to Interrogs. 20-21. Crane separately admits that it enclosed “asbestos-containing gaskets, packing, or discs” inside of certain of its valves. Id. at 21. From these admissions, it is reasonable to infer that some of the Crane valves on the ships on which Chesher served actually incorporated asbestos-containing components at the time they were supplied. If Crane’s own admissions were not enough, Dr. Anthony Pantaleoni (“Pantaleoni”) testified that the Navy would have required Crane to include the exact components parts listed on the Navy-approved valve design drawings, and identified a number of design drawings that called for the use of asbestos-containing components in valves supplied to the ships where Chesher served. Pantaleoni Dep. at 24:1-26:24, 57:7-58:7, 63:3-64:22, 72:9-18.
There is also evidence that Crane “specified” the use of such components. Panta-leoni and plaintiffs expert, Capt. Arnold Moore (“Moore”), both discuss certain design drawings of Crane valves installed on the USS Henderson, USS Fox, and USS Kraus. Both experts agree that these drawings specify the use of asbestos-containing internal bonnet gaskets and stem packing. Moore Aff. ¶ 17; Pantaleoni Dep. at 24:1-26:24, 57:7-58:7, 63:3-64:22, 72:9-18. Crane argues that it was the Navy, not Crane, that required the use of such components, and cites paragraph 23 of Moore’s affidavit for support. Def.’s Reply 4-6. While that paragraph does acknowledges that the Navy provided specifications for the valves and de-aerating feed tanks it purchased, it also plainly states that the Navy’s specifications did not prevent manufacturers from designing their own products and permitted the use of both asbestos and non-asbestos components on products that were not exposed to superheated steam. Moore Aff. ¶23. Thus, to the extent Crane provided valves that were not exposed to superheated steam, the Moore affidavit indicates that Crane was ultimately responsible for specifying the use of asbestos-containing gaskets and packing.
Crane also highlights Pantaleoni’s testimony that “the Navy would specify what Crane [ ] had to provide. And in order for the Navy to accept it[,] Crane would have to adhere [to] the specification.”
D. Substantial Factor Causation
Crane last attempts to argue that, in the event the court finds that it is legally responsible for the asbestos-containing replacement components used with its valves and de-aerating feed tanks, summary judgment is still appropriate because plaintiffs have failed to produce evidence that their exposure to such components was a “substantial factor” in causing Chesher’s injury. Def.’s Reply 1-3. The court first notes that argument was not raised until Crane filed its reply. “The ordinary rule in federal courts is that an argument raised for the first time in a reply brief or memorandum will not be considered.” Clawson v. FedEx Ground Package Sys., Inc., 451 F.Supp.2d 731, 734 (D. Md. 2006); see also Bouchard v. Synchrony Bank, No. 2:16-cv-1713, 2016 WL 3753220, at *3 (D.S.C. July 14, 2016) (“An argument raised for the first time in a reply brief or memorandum will not be considered.”).
Additionally, this argument is woefully underdeveloped. Crane relies heavily on the Ninth Circuit’s decision in McIndoe v. Huntington Ingalls Inc., where the court determined that evidence of the decedent’s “frequent” exposure to asbestos-containing insulation was insufficient to satisfy the substantial factor standard because plaintiff “presented no evidence regarding the amount of exposure to dust from originally installed asbestos, or critically, the duration of such exposure during any of these incidents.” 817 F.3d 1170, 1176 (9th Cir. 2016) (emphasis in original). However, the Mclndoe decision was also premised on the court’s rejection of the plaintiffs expert
The court has scheduled a Daubert hearing to address Crane’s challenge to Bedrossian’s opinions. Once that challenge is resolved, the court will permit Crane to file a separate motion for summary judgment renewing its substantial factor argument. The court is aware that, in appropriate circumstances, it has discretion to consider arguments raised for the first time in a reply brief. However, in this instance, the court concludes that the better course of action is for all parties to fully brief the issue after Crane’s motion to exclude Bedrossian’s testimony has been decided.
IV. CONCLUSION
For the foregoing reasons, the court DENIES Crane’s motion for summary judgment.
AND IT IS SO ORDERED.
. Crane admits to supplying valves to the USS Cadmus, USS Fox, USS Mahan, and USS Pratt. ECF No. 226-8, Answers to Interrogs. 20. Crane cannot confirm whether it sold valves for use on the USS Henderson and USS Kraus, but has found documentation indicating that its valves were approved for use on those ships. Id. Additionally, plaintiffs’ expert contends that Crane's documents show that it supplied valves used on the USS Henderson, USS Fox, and USS Kraus. Moore Aff. ¶ 17. The court finds this evidence sufficient to raise a genuine issue of fact as to
. Not all courts that have applied a Quirin-like approach have formally adopted Quirin, and even those that have purported to adopt Quirin have not been entirely consistent in their interpretations of Quirin. Nor have all of the courts that have strictly applied the bare metal defense explicitly "adopted” or "followed” Conner. Nevertheless, the court views the Quirin and Conner decisions as representative of the two primary approaches to this issue.
. Though the Bell court distinguished its analysis from Quirin, finding that Quirin's analysis overlooked "the differing liabilities of manufacturers of final products and component parts, and [] the differences between strict products liability actions and negligence actions,” 2016 WL 5780104, at *5, this court reads the Bell decision to apply an approach that is much closer to Quirin than Conner. Not only did the Bell court flatly reject the defendants’ argument that “a company can ■ never have any liability for a product that it did not make, sell, or otherwise control,” it also recognized that liability for “aftermarket asbestos products” may exist in circumstances similar to those outlined in Quirin, stating that, when asbestos-containing components are incorporated into a finishéd product and the plaintiff's harm is caused by "materially identical” replacement components, "it is hard to see how the manufacturer's breach of its duty to provide a suitable warning with respect to the original product is not at least one of the proximate causes of a resulting injury.” Id. at *8 n.16.
. In addition to the decisions that have clearly adopted Quirin or some Quirin-like standard, the court is aware of two decisions—including one of its own—that have left the door open for Quirin, but have not adopted its analysis. In Dandridge v. Crane Co., this court recognized the Quirin approach as
a rational exception to the rule that a defendant "cannot be held responsible for the asbestos contained in another product,” [] because a product that "inevitably” subjects its user to "the possible hazards of asbestos exposure” and a product that actually contains asbestos bear comparable causal relationships to their users' injuries.
No. 2:12-cv-00484-DCN, 2016 WL 319938, at *3 (D.S.C. Jan. 27, 2016) (quoting Lindstrom, 424 F.3d at 496). However, the court.ultimately found that the plaintiff had failed to present sufficient evidence to survive summary judgment, even if Quirin applied. Id.
Similarly, in Holzworth v. Alfa Laval Inc., the court found that the defendant was entitled to summary judgment, regardless of whether maritime law or New York law applied, because there was no evidence that the defendant "placed the asbestos-containing components into the stream of commerce, played an active role in their use, or manufactured pumps that required such components.” 2016 WL 270450, at *4 (S.D.N.Y. Jan. 21, 2016). Though the Holzworth court cited to New York law on the matter, the court recognized that "the relevant maritime law and state law are congruous.” Id. at *3. The court further explained that the New York standard was equally, if not more permissive, than either the Quirin or Conner standards.
. ‘ The Stallings decision, much like the Lind-"’strom decision, never explicitly addressed failure-to-warn claims. 2015 WL 7258518, at *1 (noting that the-plaintiff sought relief "under theories of strict liability and negligence”). Nevertheless, the court finds that the Lind-strom decision can be read to support the Conner - approach,- and for the same reasons, the court places the Stallings decision on the ,. Conner side of the ledger.
.- Though the Faddish court, cited heavily to Florida law, the court only applied Florida law to the extent it was compatible with maritime law. 881 F.Supp.2d at 1368 ("[I]n the context of this case, Florida law is appropriately applied unless it conflicts with the substantive rule of federal admiralty law.”). The court viewed Florida law and maritime law as "parallel,” Id. at 1369.
.The court does not mean to suggest that these are the only issues that have emerged, but simply views them as the most prevalent, and meaningful issues- that have driven courts’ analyses.
. For the purposes of this discussion, the court assumes that the harm-causing "product” in question is the asbestos-containing component, not the piece of equipment itself. If the harmful "product” is considered to be the piece of equipment, then Lindstrom poses no obstacle to a finding of liability in this case because Chesher was clearly exposed to Crane valves and de-aerating feed-tanks.
. The court recognizes that, unlike some courts that have applied Quirin, the Bell decision speaks in terms of the manufacturers duty to warn with respect to its original product and not with respect to replacement components. Bell, 2016 WL 5780104, at *6. In fact, the Bell decision specifically rejects what it reads to be Quinn’s holding—that “a manufacturer can be liable for failing to warn regarding asbestos when a manufacturer makes a product in which the use of asbestos components is ‘essential to the proper function of the ... product.’ ” Id at *4 (quoting Quirin, 17 F.Supp.3d at 769-70). This court does not read Quirin so broadly. As discussed in greater detail below, the court finds that Quirin is constrained to cases where (1) the defendant actually incorporated asbestos-containing components into its original product, 17 F.Supp.3d at 771, and (2) the defendant "specified” the use of asbestos-containing replacement components, or such components were "essential to the proper functioning” of the product. Id at 769, 771. When these constraints are recognized, the court believes the practical effect is that Quirin imposes a duty to warn with respect to asbestos-containing replacement components under the same circumstances in which Bell indicates that a defendant’s failure to warn with respect to the original asbestos-containing components constitutes a proximate cause of the plaintiff’s injury.
. While the court believes that this issue is best characterized as "unsettled” under maritime law, it notes that the trend appears to be moving away from Conner's strict application of the bare metal defense. If one counts Qui-rin, then courts in six separate jurisdictions— the Northern District of New York, Eastern District of Louisiana, Southern District of Indiana, Southern District of Illinois, District of South Carolina, and Northern District of Illinois—have held, or at least suggested, that an equipment manufacturer may be held liable on a failure-to-warn theory for harm caused by asbestos-containing replacement components. Osterhout, 2016 WL 6310765, at *3; Bell, 2016 WL 5780104, at *6; Hedden, 2015 WL 5775570, at *14; Kochera, 2015 WL 5584749, at *4; Andrews, 2015 WL 12831315, at *6; Quirin, 17 F.Supp.3d at 769-71. Similarly, if one includes the MDL
. In fact, Quirin.’s application is even narrower, given its “actual incorporation” requirement. See Quirin, 17 F.Supp.3d at 771 (imposing liability where defendant designed products to be used with asbestos and "actually incorporated asbestos-containing materials into the products it sold”).
. These policy arguments are discussed in greater detail in part III.B.3. below.
. One might argue that Faddish can be distinguished because it rejected liability premised on "foreseeability” rather than "inevitability.” The court does think this distinction is important in the application of the Quirin approach, but finds that the thrust of the Faddish decision cannot be distinguished so easily, especially when one recognizes that the Faddish court viewed its decision as consistent with Conner. See Faddish, 881 F.Supp.2d at 1368 (S.D. Fla. 2012).
. The court is aware of several other decisions that applied the bare metal defense under state law, but stopped short of rejecting a Quirin-like claim. In Morgan v. Bill Vann Co., the court applied Alabama law to hold that the defendant-manufacturer "[was] not liable for harm caused by, and owed no duty to warn [the plaintiff] or anyone else concerning the hazards of, asbestos-containing packing and gaskets that users of [its] pumps might install, where [it] did not manufacture, sell or distribute such asbestos-containing components.” 969 F.Supp.2d 1358, 1369 (S.D. Ala. 2013). However, the Morgan court did not determine the legal merits of the plaintiff's argument that the defendant "specified particular gaskets and packing for use [] and is therefore culpable for any asbestos exposure [] arising from such specifications,” instead rejecting that argument on the- facts. Id. at 1371. Similarly, the court in In re Asbestos Litigation determined that, under Utah law, a “[defendant is not liable under a failure to warn claim for asbestos-containing products added to its products after sale,” but then noted that “[plaintiff] has not provided evidence in the record that [defendant specified, required, or recommended asbestos-containing products be added to its products on which [p]laintiff actually worked,” suggesting that a Quirin-like exception may exist. 2012 WL 1408982, at *3 (Del. Super. Ct. Apr. 2, 2012). Finally, in Thurmon v. Georgia Pacific, LLC, the court held that, under Georgia law, a plaintiff must show that his injury was caused by the defendant’s own product, but also appeared to recognize that a.valve that required the use of asbestos-containing gaskets would be considered a defective product. 650 Fed.Appx. 752, 758-59 (11th Cir. 2016) ("[I]n order to survive summary judgment, the plaintiffs had to offer some evidence that Thurmon’s injuries were caused by a Crane Co. valve that required the use of asbestos-containing gaskets to function properly.”). Perhaps these decisions provide some additional support for the Conner approach, but the court finds that even if they were counted, they would be insufficient to tip the scales in favor of Conner over Quirin.
. As the court noted above in footnote 10, ■ the Quirin approach does appear to at least have more support in recent decisions.
. Of course, the O'Neil court declined to address whether the bare metal defense would apply in circumstances similar to those outlined in Quirin, O'Neil, 135 Cal.Rptr.3d 288, 266 P.3d at 996 n.6. However, the court did indicate that the policy considerations underlying the bare metal defense would still apply. Id.
. The court is aware that § 402A is often cited as a basis for restricting a manufacturer’s liability to its own product. E.g., Conner, 842 F.Supp.2d at 801. Nevertheless, in the narrow circumstances outlined by Quirin, the court is convinced that the rationale of § 402A weighs against the bare metal defense. This position is perhaps best explained by focusing on what constitutes the harmful "product” at the center of the analysis. Courts that have strictly applied the bare metal defense have consistently regarded the asbestos-containing replacement component as the "product,” while courts that have cited § 402A in support of the Quirin-like approach have regarded the original piece of equipment as the "product.” See May, 129 A.3d at 999 ("Common sense tells us that the pumps were what [r]espondents sold to the Navy, and the gaskets and packing are included within that product.”); Garvin, Case No. 2012-cp-406675, slip op. at 17 ("When the asbestos gaskets and packing were replaced with the same materials that came with the valve, it was not a ‘substantial change’ in the condition of the product. The product remained the same as when sold—valves containing asbestos gaskets and packing.”). If the original equipment is considered to be the "product” in question, then the application of § 402A becomes clear.
While this court prefers to refer to the asbestos-containing replacement component as separate "products,” this is simply to avoid semantic confusion. The court reiterates its position that, where the requirements of Qui-rin are met, the risks associated with asbestos-containing replacement components are effectively incorporated into the equipment itself. Thus, the court accepts the logic of the May and Garvin decisions, even if it does not adopt the same phrasing. Were the court to phrase its analysis in the terms used by the May and Garvin courts, it would agree that installing asbestos-containing replacement components does not effect a "substantial change” to the equipment.
. As previously noted in footnote 3, the Bell decision analyzed the issue using a somewhat different framework than most other courts. The above-cited language was offered in connection with the Bell court's finding that
[ejven if defendants do not have a duty to warn arising out of merely manufacturing a particular product that might be used with asbestos, they can nonetheless have duties arising out of taking the additional action of negligently recommending that a plaintiff use asbestos in conjunction with the manufacturer’s products.
Bell, 2016 WL 5780104, at *3 (emphasis in original). Thus, the Bell court appears to have been discussing manufacturers’ "recommendations” as a basis for liability under a negligent misrepresentation theory, not a failure-to-warn theory. While this may distinguish the cited language from the instant discussion, the court highlights such language to show that there is room for disagreement
The court wishes to clarify that it has not endeavored to address the Bell courts negligent misrepresentation theory in this decision. Because the court ultimately finds that Crane incorporated asbestos-containing components in the equipment it supplied the Navy and specified the use of such components, the court concludes that plaintiffs have provided enough evidence to support a failure-to-warn claim under Quirin. The court takes no position on whether the negligent misrepresentation theory posited by the Bell court is viable or, what evidence would be required to support it.
.The Quirin court leaves open the possibility that there may be other circumstances where the use of asbestos-containing materials "was for some other reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.” Qiiirin, 17 F.Supp.3d at 769. This court also holds open this possibility, but takes no position on what such' circumstances would entail.
. The Moore affidavit provides similar evidence with respect to the de-aerating feed tanks. Moore Aff. ¶¶ 19, 21.
. The court assumes that the "drawings” discussed in the excerpts of Pantaleoni’s February 26, 2016 deposition are the same "drawings” referenced by Moore in paragraph 17 of his affidavit. See Pantaleoni Dep. at 35:22-36-25, 40:3-41:15, 44:17-20 (refer
. Of course, the fact that asbestos-containing components were specified at all might suggest that the valves could not function without such components. The court recognizes there is also evidence that there were suitable, non-asbestos substitutes. Pantaleoni Dep. at 48:18-49:2, 90:1-5 (referencing availability of non-asbestos components); Moore Aff. ¶ 23 (recognizing that most Navy specifications allowed a range of materials that included non-asbestos alternatives). Because the court finds there is sufficient evidence to find that Crane “specified the use of asbestos-containing components,” it declines to address whether there is a genuine issue of material fact as to whether asbestos-containing components were "essential to the proper functioning” of Crane’s valves.