IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :-cv-0-srb Document Filed 0// Page of 0 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sandra Brown Coulbourn, et al., No. CV--0-PCT-SRB Plaintiffs, ORDER v. Air & Liquid Systems Corporation, et al., Defendants. The Court considers Defendants summary judgment and partial summary judgment motions. (Docs.,,,,,,,,.) The Court heard oral argument on January 0,. (Doc., Minute Entry.) I. BACKGROUND This wrongful death action arises from tort claims decedent George Coulbourn s surviving wife and statutory beneficiaries (collectively, Plaintiffs ) have brought against various products manufacturers and suppliers for the U.S. Navy following Mr. Coulbourn s occupational exposure to asbestos and contraction of pleural mesothelioma, a type of lung cancer associated with asbestos exposure. (See Doc., Pls. Second Am. Compl.) Mr. Coulbourn worked as a civilian U.S. Navy employee from until his retirement. (Doc. -, Dep. of George Coulbourn, July,, at :-, :-.) From to, Mr. Coulbourn worked at the naval repair facility in the Norfolk, Virginia Naval Shipyard. (Id. at :-, :-.) As an apprentice machinist (four years) and journeyman mechanic (three years) at Norfolk, Mr. Coulbourn worked in the shipyard machine shop ( Shop ) and aboard naval ships ( Shop ) where he

2 Case :-cv-0-srb Document Filed 0// Page of 0 repaired and overhauled ship machinery and equipment, such as gaskets, pumps, valves, compressors, and turbines. (See id. at 0:-:.) Starting in, Mr. Coulbourn changed jobs several times at Norfolk. He worked as a nuclear inspector () and planner and estimator (), as well as a supervisory planner and estimator for the U.S. Navy Public Works Department (). (See id. at :-:.) From until his retirement, Mr. Coulbourn worked at the Naval Sea Systems Command in Washington, D.C., the headquarters for the eight naval shipyards. (Id. at :-.) (The parties agree that the work Mr. Coulbourn performed at the Naval Sea Systems Command did not contribute to his mesothelioma.) In September, Mr. Coulbourn was diagnosed with mesothelioma located primarily in the right lung. (Id. at :-.) Mr. Coulbourn and his wife filed this tort action in state court based on allegations that he contracted mesothelioma from working with asbestos-containing parts and equipment in Norfolk that Defendants manufactured and supplied to the U.S. Navy. Defendants removed the case to federal court. (Doc., Notice of Removal.) After Mr. Coulbourn died in August (age ), Plaintiffs amended the first amended complaint to bring wrongful death claims based on negligence and strict liability theories. (See Pls. Second Am. Compl.) These theories are based on allegations that the manufactured and supplied products were designed defectively because the parts and equipment contained asbestos (design-defect claims) and did not have warnings of asbestos-related health hazards (failure-to-warn claims). Defendants now move for summary judgment and partial summary judgment on liability and The scope of this lawsuit has narrowed in certain important ways since that amendment. The Court has dismissed several of the named defendants from the case based on agreements between the parties. Plaintiffs stipulated to dismiss their causes of action for conspiracy, enterprise liability, market-share liability, concert of action, alternative liability, aiding and abetting, negligence per se, and loss of consortium, but not claims for consortium-type damages available under Arizona s wrongful death law. (Doc., Stipulation to Dismiss Certain Claims Without Prejudice.) At oral argument, Plaintiffs acknowledged that their cause of action for gross negligence was redundant to their negligence and strict liability theories with respect to the damages award requested, and they agreed to dismiss that cause of action, thereby mooting arguments certain defendants made in their motions that the evidence was insufficient to support a gross negligence cause of action. - -

3 Case :-cv-0-srb Document Filed 0// Page of 0 damages issues. II. LEGAL STANDARD AND ANALYSIS Under Federal Rule of Civil Procedure, summary judgment is properly granted when: () there is no genuine dispute as to any material fact; and () after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. (a); Celotex Corp. v. Catrett, U.S., - (); Eisenberg v. Ins. Co. of N. Am., F.d, - (th Cir. ). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., U.S., (). A genuine dispute of material fact arises if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. The Court will first address the liability issues the summary judgment motions raise, including whether there is insufficient evidence that certain manufacturers products contributed to Mr. Coulbourn s contraction of mesothelioma and whether other manufacturer defendants are entitled summary judgment under the learned intermediary doctrine and government contractor defense. The Court will then address whether the evidence in the record is insufficient to support punitive damages awards. A. Causation Like their claims against other defendant manufacturers, Plaintiffs contend that Mr. Coulbourn s exposure to Copes Vulcan and Edward Valve, Inc., predecessor-ininterest to Defendant Flowserve US Inc., asbestos-containing products at Norfolk caused him to contract mesothelioma. Defendants Copes Vulcan and Flowserve move for summary judgment based on several overlapping causation arguments. (See Doc., Def. Copes Vulcan, Inc. s Mot. for Summ. J., or in the Alternative, Partial Summ. J. ( Def. Copes Vulcan s MSJ ) at -; Doc., Def. Flowserve US Inc. s, Solely as Successor to Edward Valve, Inc., Mot. for Summ. J., or in the Alternative, Partial Summ. J. ( Def. Flowserve s MSJ ) at -.) Defendants Copes Vulcan and Flowserve argue initially that under a bare-metal defense recognized under federal maritime law and - -

4 Case :-cv-0-srb Document Filed 0// Page of 0 Arizona law, the evidence in the record is insufficient to meet a threshold showing that Mr. Coulbourn was exposed to asbestos from their products. (Def. Copes Vulcan s MSJ at -; Def. Flowserve s MSJ at -.) They also argue that even if Plaintiffs can prove that Mr. Coulbourn was exposed to asbestos from one of their manufactured products, there is insufficient evidence supporting a causal connection that the exposure increased Mr. Coulbourn s risk for contracting mesothelioma. (Id.) There are no reported Arizona cases directly addressing causation issues arising out of physical injury resulting from asbestos exposure. In other personal injury contexts, [t]he proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred. McDowell v. Davis, P.d, (Ariz. ). This definition includes the element of causation in fact. Salica v. Tucson Heart Hosp.- Carondelet, L.L.C., P.d, 0 (Ariz. Ct. App. 0). The Arizona courts have adopted the substantial factor test from the Restatement (Second) of Torts,, and when multiple tortfeasors are alleged to have created an indivisible injury and each defendant s causal role is potentially indeterminable. Id. This rule is intended to prevent the inequity of denying a plaintiff recovery when such causal uncertainty exists. Id.; see also Rossell v. Volkswagen of Am., 0 P.d, (Ariz. ) ( Given the complexity of life, there is little that can be attributed to any single act, and the law does not relieve a defendant from liability simply because of the intervening act of a third person. ). A plaintiff therefore will be allowed to recover if he or she shows multiple defendants contributed to the final result, in which case the burden of proof on apportionment is on them. Salica, P.d at (quoting Piner v. Superior Court In & For Cnty. of Maricopa, P.d 0, (Ariz. )). Causation is generally a Federal maritime law is not controlling here. The involvement of ships in this case is at most tangential to the nature of Plaintiffs asbestos-exposure tort claims. Myhran v. Johns-Manville Corp., F.d, (th Cir. ). [E]xposure to asbestos does not bear any inherent relationship to maritime activity, nor is it unique to maritime service. Id. Arizona law controls the substantive issues of the case. - -

5 Case :-cv-0-srb Document Filed 0// Page of 0 question of fact for the jury unless reasonable persons could not conclude that a plaintiff had proved this element. Barrett v. Harris, P.d, (Ariz. Ct. App. 0); accord Robertson v. Sixpence Inns of Am., Inc., P.d 00, 0 (Ariz. 0). Only when [a] plaintiff s evidence does not establish a causal connection, leaving causation to the jury s speculation, or where reasonable persons could not differ on the inference derived from the evidence, may the court properly enter [summary judgment]. Robertson, P.d at 0.. Threshold Exposure / Bare-Metal Defense Contrary to Defendants Copes Vulcan and Flowserve s position, Plaintiffs have made a threshold showing that when Mr. Coulbourn worked at Norfolk, he was exposed to asbestos-containing products that Copes Vulcan and Edward Valve manufactured. In his depositions, Mr. Coulbourn testified extensively about the nature of his work with asbestos-containing products at Norfolk. His initial testimony focused on when he worked in the assembly section of the shipyard where he removed and reinstalled asbestos sheet gaskets used on every piece of equipment having a flange connection or some other connection that required a sheet gasket. (Dep. of George Coulbourn, July,, at :-:.) He testified that he inhaled dust from asbestos sheet gaskets every day he worked in the machine shop when he removed gaskets from flange equipment. (Id. at :-:.) Mr. Coulbourn later testified about the pre-formed asbestos gaskets that manufacturers sent to Norfolk usually in boxes or plastic bags marked with the manufacturer s name and the part number that he installed on the machinery onsite. (Id. at :-:, 00:-0:.) Mr. Coulbourn testified he personally removed and replaced asbestos packing products when disassembling equipment like pumps and valves, work that created dust. (Id. at :-:.) Included with each of the manufacturer s products were technical manuals that diagramed and described the equipment. (Id. at :-.) Mr. Coulbourn described a flange as a round plate welded to connect two pieces of pipe together. (Id. at :-.) - -

6 Case :-cv-0-srb Document Filed 0// Page of 0 Mr. Coulbourn testified about the types of products he worked with and around over the seven-year period he was an apprentice machinist and journeyman mechanic at Norfolk. These products included Copes Vulcan and Edward Valve asbestos-containing valves and replacement parts supplied to the U.S. Navy. Mr. Coulbourn testified that Copes Vulcan products were part of his normal workload, and he frequently worked on these products at Norfolk when he was a journeyman mechanic. (Doc. -, Dep. of George Coulbourn, July,, at :-:.) He recalled removing factoryinstalled gaskets from new Copes Vulcan valves, and that he knew he was working with Copes Vulcan valves because Vulcan was marked on the body of the valves and the valves came boxed with Cope Vulcan s technical manuals. (Doc. -, Dep. of George Coulbourn, July,, at :-, :-:.) He testified he inhaled dust from asbestos-containing Copes Vulcan replacement products, such as pre-formed gaskets and packing materials, in unpacking the parts and repairing and overhauling them. (Id. at :-:.) This testimony is consistent with documents Defendant Copes Vulcan produced in discovery indicating that it manufactured and sold asbestos-containing products like valves, gaskets, and packing. (Doc. -, Def. Copes Vulcan, Inc. s First Supplemental Disclosure Statement & Exs.) Plaintiffs have produced similar evidence that Edward Valve manufactured asbestos-containing products and supplied them to the U.S. Navy, and that Mr. Coulbourn inhaled asbestos dust from the Edward Valve products he worked around at Norfolk. (Doc. -, Dep. of George Coulbourn, July,, at :-0: (testifying that he occasionally worked on Edward valves by, among other things, unpacking the valves and removing gaskets from the valves; testifying that he knew he was working with Edward Valve products because of the packaging and technical manuals), :-: (testifying that he worked on Edward valves as an apprentice machinist and journeyman mechanic); see also Doc. -, Dep. of James Tucker III (Flowserve Manager of Engineering), Apr., 0, at :- (testifying that Edwards sold asbestos-containing valves that were incorporated in U.S. Navy ships).) Defendants Copes Vulcan and Flowserve have not developed any - -

7 Case :-cv-0-srb Document Filed 0// Page of 0 argument in reply explaining why this evidence is insufficient to show Mr. Coulbourn s exposure to their asbestos-containing products. To the extent they have produced competing evidence or have assigned a different weight to Plaintiffs evidence, these are factual issues that a fact-finder must resolve.. Substantial Factor Standard Defendants Copes Vulcan and Flowserve also contend that any exposure attributable to Copes Vulcan and Edward Valve products was not a substantial factor in increasing Mr. Coulbourn s risk for contracting mesothelioma. (Def. Copes Vulcan s MSJ at -; Def. Flowserve s MSJ at -.) Defendant Copes Vulcan directs the Court to expert testimony and reports from Charles Blake a certified hygienist with consulting experience in asbestos-exposure matters and Dr. David Weill a board-certified physician in pulmonary disease and critical-care medicine. (Def. Copes Vulcan s MSJ at -.) Defendant Flowserve relies on expert testimony and reports from Dr. Weill and a certified hygienist named Donna Ringo. (Def. Flowserve s MSJ at -.) These expert opinions, read together, generally indicate that any exposure Mr. Coulbourn had to the airborne-chrysotile in Copes Vulcan and Edward Valve gaskets and packing would not have increased his risk for contracting mesothelioma. (See Doc. 0-, Charles Blake Report, May,, at -0; Doc. 0-, Dep. of David Weill, Aug.,, at :-, :-; Doc. -, Donna Ringo Report, May,, at.) Instead, these experts opine that Mr. Coulbourn s primary risk factor for mesothelioma was his occupational exposure to amphibole asbestos fibers from other types of thermal insulation used on piping and steam systems on naval ships. Defendant Flowserve relies on a report from retired rear admiral David Sargent, who opined that several of Mr. Coulbourn s jobs at Norfolk placed him in close proximity to asbestos-containing thermal insulation, a conclusion Defendants Copes Vulcan and Flowserve maintain is consistent with Plaintiffs own expert opinion evidence. (Doc. -, Report of David Sargent, Jr., May,, at -; see Doc. -, Dep. of Carl Brodkin, Aug.,, at :-: (Plaintiffs expert).) - -

8 Case :-cv-0-srb Document Filed 0// Page of 0 Plaintiffs have responded by producing controverting expert testimony and reports from Dr. Eugene Mark a physician and pathologist; Dr. Carl Brodkin a physician specializing in the practice of occupational and environmental medicine; and Dr. James Millette an environmental scientist and microscopist with experience in testing asbestos-containing products for fiber release. (See Doc., Pls. Memo. of Points & Authorities in Opp n to Def. Flowserve s MSJ at -; Doc., Pls. Memo. of Points & Authorities in Opp n to Def. Copes Vulcan s MSJ at -.) These expert opinions suggest that a person can contract mesothelioma from the types of chrysotile asbestos fibers released from the dry removal of gaskets or from the manipulation of asbestoscontaining packing materials, even though some encapsulated fibers will not be released upon rubbing or abrasion. (Doc. -, Eugene Mark Report & Decl., Mar.,, at - ; Doc. -, Dep. of Carl Brodkin, Aug.,, at :-:; Doc. -, Report of James Millette, Mar.,, at -.) Dr. Mark stated that diffuse malignant mesothelioma is a dose-responsive disease and that the resulting disease is the cumulative result of the exposures to asbestos that a person receives. (Eugene Mark Report & Decl., Mar.,, at 0.) In other words, [t]he more significant exposures to asbestos that a person has, the greater his/her chance of developing [the disease]. (Id. at.) In reviewing the scientific literature and Mr. Coulbourn s testimony, Dr. Mark opined that Mr. Coulbourn s inhalation of asbestos dust from Copes Vulcan and Edward Valve products was a substantial contributing factor and a medical cause in the development of his malignant pleural mesothelioma and death. (Id. at -.) Dr. Brodkin s opinions were consistent with Dr. Mark s conclusions. (Doc. -, Carl Brodkin Report & Decl. (Diagnosis & Assessment), Feb.,, at -.) Defendants Copes Vulcan and Flowserve challenge the sufficiency of Plaintiffs evidence by contending that it is only possible, not probable that the Copes Vulcan and Edward Valve products Mr. Coulbourn worked around were substantial factors in him contracting mesothelioma. (Doc. 0, Def. Copes Vulcan, Inc. s Reply in Supp. of MSJ ( Def. Copes Vulcan s Reply ) at -; Doc. 0, Def. Flowserve US Inc. s, Solely as - -

9 Case :-cv-0-srb Document Filed 0// Page of 0 Successor to Edward Valve, Inc., Reply in Supp. of MSJ ( Def. Flowserve s Reply ) at -.) In developing this argument, they cite to evidence that they interpret as suggesting that the vast majority (at least 0%) of Mr. Coulbourn s exposure in the seven-year period he worked as an apprentice machinist and journeyman mechanic came from unknown gaskets, packing, and thermal insulation manufactured by other companies. (Def. Copes Vulcan s Reply at -; Def. Flowserve s Reply at -.) The implication of this argument is that there was little risk that Mr. Coulbourn would contract mesothelioma from their products. These Defendants also argue that Mr. Coulbourn s exposure to asbestos from Copes Vulcan and Edward Valve products could only have been de minimis because some of the asbestos fibers in these products were encapsulated and could not be released through Mr. Coulbourn s handling or manipulation of the products. The Court cannot say that a reasonable jury could not conclude that Copes Vulcan and Edward Valve products contributed to Mr. Coulbourn s development of mesothelioma. There is expert testimony that not all chrysotile asbestos fibers in gaskets are encapsulated, meaning that exposure to these types of fibers could contribute to the development of mesothelioma. Mr. Coulbourn s testimony was that he was exposed to asbestos fibers from Copes Vulcan and Edward Valve products, which connects his exposure to asbestos-containing products to his contraction of mesothelioma. Interpreted together, this evidence forecloses summary judgment on the causation element. Whether the nature of his work with the products was frequent (Copes Vulcan) or occasional (Edward Valve) in the many years he worked with machinery at Norfolk, the parties experts disagreed on whether Copes Vulcan and Edward Valve asbestos-containing products could have been a substantial factor in Mr. Coulbourn s development of mesothelioma based on the totality of his exposure to the products. Plaintiffs experts said yes; Defendant Copes Vulcan s and Defendant Flowserve s experts said no. It is not the Court s responsibility to weigh the parties competing evidence. Those are jury functions. What matters in the summary judgment stage is that Plaintiffs have - -

10 Case :-cv-0-srb Document Filed 0// Page 0 of 0 produced admissible evidence from which a reasonable jury could find that Copes Vulcan and Edward Valve products contributed to Mr. Coulbourn s mesothelioma. Defendants Copes Vulcan and Flowserve s arguments taken to their logical conclusion would preclude Plaintiffs from recovering against any of the products manufacturers because Mr. Coulbourn could not more specifically identify the frequency he worked with or around Copes Vulcan and Edward Valve products. See Benshoof v. Nat l Gypsum Co., F.d, n. (th Cir. ) ( The Arizona courts would doubtless recognize, as have other courts, that because of the long latency period of asbestosis, the plaintiff s ability to recall specific brands by the time he brings an action will be seriously impaired. (alteration incorporated and quotation marks omitted)). This argument is unsupported by the law in Arizona, including the substantial factor test set forth in cases like Salica, and is unreasonable given the inherent uncertainties in proving causation when a person is exposed to multiple asbestos-containing products over a multiple-year period. There is not a failure of proof on the causation element that would leave the element to a jury s speculation. None of the out-of-state and out-of-circuit authority Defendants Copes Vulcan and Flowserve cite persuades the Court to reach a different result given the parties competing expert testimony. B. Affirmative Defenses Other defendant manufacturers have moved for summary judgment on two affirmative defenses: the learned intermediary doctrine and the government contractor defense. In evaluating a summary judgment motion based on an affirmative defense, a court must review the record to determine whether, resolving disputed facts in favor of the [nonmoving party], it would permit a reasonable jury to reject the defense. Snell v. Bell Helicopter Textron, Inc., 0 F.d, (th Cir. ). Summary judgment on an affirmative defense is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact. Hunt v. Cromartie, U.S., ().. Learned Intermediary Doctrine - 0 -

11 Case :-cv-0-srb Document Filed 0// Page of 0 Defendant Goodyear Tire & Rubber Company moves for summary judgment under the learned intermediary doctrine, contending that it had no duty to issue warnings about any asbestos-related health hazards because the U.S. Navy had equal or superior knowledge about the dangers associated with asbestos exposure. (Doc., Goodyear Tire & Rubber Co. s Mot for Summ. J. at -0.) Under this doctrine, a manufacturer is not liable for failing to warn consumers of a product s potential risks so long as it provides a proper warning to the specialized class of people who are authorized to sell, install, or provide the product. Watts v. Medicis Pharm. Corp., No. CA-CV -0, WL, at * (Ariz. Ct. App. Jan., ). After briefing had concluded on the summary judgment motions, the Arizona Court of Appeals issued an opinion in Watts v. Medicis Pharmaceutical Corp., a decision in which the court held that the learned intermediary doctrine is no longer a viable affirmative defense because it conflicts with Arizona s Uniform Contribution Among Tortfeasors Act. Id. at *-. That opinion is the controlling law in Arizona because the Arizona Supreme Court has never explicitly adopted or commented on the [learned intermediary] doctrine. Id. at *; see Hayes v. Cnty. of San Diego, F.d, (th Cir. ) ( An intermediate state appellate court decision is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. (quoting Estrella v. Brandt, F.d, (th Cir. ))). Even if the learned intermediary doctrine remained a viable affirmative defense in Arizona, there is no evidence in the record showing that Defendant Goodyear provided any warning to the U.S. Navy about the dangers of asbestos exposure or that the U.S. Navy should have been aware of the dangers of asbestos exposure in all the different products Defendant Goodyear supplied. This analysis would have foreclosed summary judgment regardless of the continued viability of the defense in Arizona.. Government Contractor Defense Defendants Air & Liquid Systems Corporation, successor-by-merger to Buffalo - -

12 Case :-cv-0-srb Document Filed 0// Page of 0 Pumps, Inc., CBS Corporation, successor-by-merger to Westinghouse, and Warren Pumps, LLC, move for summary judgment on Plaintiffs design-defect and failure-towarn claims under the government contractor defense. (Doc., Def. CBS Corp. s Mot. for Summ. J. at -; Doc., Def. Warren Pumps, LLC s Mot. for Summ. J. at -; Doc., Def. Air & Liquid Systems Corp. s, Successor-by-Merger to Buffalo Pumps, Inc., Mot. for Summ. J. or, Alternatively, Partial Summ. J. at -0.) a. Design-Defect Claims The Court turns first to the government contractor defense as it applies to the design-defect claims brought against Defendants Air & Liquid Systems Corporation (for Buffalo pumps), CBS Corporation (for Westinghouse turbines and generators), and Warren Pumps, LLC (for its pumps). Th[e government contractor] defense protects government contractors from tort liability that arises as a result of the contractor s compli[ance] with the specifications of a federal government contract. Getz v. Boeing Co., F.d, 0 (th Cir. ) (second alteration in original) (quoting In re Hanford Nuclear Reservation Litig., F.d, 000 (th Cir. 0)). Under the framework the U.S. Supreme Court established in Boyle v. United Technologies Corp., U.S. 00, (), a military equipment supplier cannot be held liable for a defect in equipment if: () the United States approved reasonably precise specifications; () the equipment conformed to those specifications; and () 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. The need for such a defense derives from the recognition that military equipment design is assuredly a discretionary function of the government which entails a careful balancing of technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness and which should not be subject to second-guessing through tort suits against the equipment s suppliers. Id. at ; see also Getz, F.d at ( [T]he potential for increased liability could dissuade contractors from providing the United States with sophisticated military equipment... [ ]either the government would be - -

13 Case :-cv-0-srb Document Filed 0// Page of 0 unable to obtain necessary equipment or it would be forced to pay higher prices to offset the contractor s increased risk of liability. ). The parties dispute generally centers on the first element of the Boyle standard whether the U.S. Navy approved reasonably precise specifications for Defendants manufactured products. Getz summarizes the controlling Ninth Circuit law: As we explained in Snell v. Bell Helicopter Textron, Inc., the government s approval of a particular specification must be more than a cursory rubber stamp approving the design. Rather, approval must result from a continuous exchange and back and forth dialogue between the contractor and the government. When the government engages in a thorough review of the allegedly defective design and takes an active role in testing and implementing that design, Boyle s first element is met. Getz, F.d at (citations omitted). Plaintiffs contend that a reasonable jury could find in their favor on this element because the U.S. Navy did not approve reasonably precise specifications for design features incorporating asbestos-containing products or engage in the necessary back and forth dialogue with the manufacturers and suppliers regarding the use of asbestos in each of the specific components of the products (e.g., the gaskets, packing, insulation, etc.). (See Pls. Opp n to Def. Air & Liquid Systems Corp. s MSJ at -0; Doc., Pls. Memo. of Points & Authorities in Opp n to Def. Warren Pumps, LLC s MSJ at -; Doc., Pls. Memo. of Points & Authorities in Opp n to Def. CBS Corp. s MSJ at -.) Defendants present overlapping theories to explain why they are entitled summary As a threshold argument, Plaintiffs rely on the stock-item product exception to Boyle recognized in the Ninth Circuit decision In re Hawaii Federal Asbestos Cases, 0 F.d 0 (th Cir. ), to argue that the government contractor defense does not apply to the products at issue here because the asbestos-containing gaskets and insulation were generic items available for private purchase not specifically designed for military use. (See, e.g., Doc., Pls. Memo. of Points & Authorities in Opp n to Def. Air & Liquid Systems Corp. s MSJ at 0-); see In re Haw., 0 F.d at - (concluding that the government contractor defense did not apply to bats of asbestos insulation that had not been manufactured with the special needs of the military in mind and were sold primarily to civilian petroleum companies). Other courts have rejected similar arguments. See Miller v. Diamond Shamrock Co., F.d, - (th Cir. 0) (construing similar arguments as adding an additional element to the government contractor defense and noting that all products can eventually be broken down into various off-the-shelf components ). The Court will reach the merits of this affirmative defense. - -

14 Case :-cv-0-srb Document Filed 0// Page of 0 judgment under the government contractor defense on the design-defect claims. Their main argument is that the U.S. Navy s own design specifications ( MilSpecs ) required the use of asbestos in the ship turbines, generators, and pumps used during the period of Mr. Coulbourn s exposure. For example, Defendant Warren Pumps relies on a report David Sargent prepared to support its position that the U.S. Navy made a military decision to use asbestos in ship equipment and components like sealing materials. (Def. Warren Pumps, LLC s MSJ at (citing Doc., Def. Warren Pumps, LLC s Statement of Facts -).) There is nothing in that report that focuses specifically on the types of Warren Pumps products Mr. Coulbourn worked with or around at Norfolk; moreover, the summary judgment motion does not include any records of the U.S. Navy specifications for Warren Pumps products. In reply, Defendant Warren Pumps has attempted to cure this failure of proof by including what appear to be completed order forms from and for pump parts Warren Pumps manufactured based on U.S. Navy specifications. (Doc., Def. Warren Pumps, LLC s Reply (citing Ex., Excerpts of Warren produced documents).) Included with these order forms is a schematic of a pump that contains asbestos sheet gaskets, signed by a U.S. Navy supervisor of shipbuilding as being approved. It is unclear how these documents, which predate the start of Mr. Coulbourn s exposure to asbestos-containing parts by at least seventeen years, conclusively show that Defendant Warren Pumps is entitled to summary judgment under the government contractor defense. First, the approved schematic, standing alone, is exactly the type of rubber stamp approval that cannot support summary judgment under the government contractor defense. It says nothing about whether approval of the asbestos-containing features came from the type of continuous exchange and back and forth dialogue between Warren Pumps and the U.S. Navy necessary to successfully invoke the defense. Second, even if the U.S. Navy unilaterally imposed this specification without input from the manufacturer, this evidence does not establish that the U.S. Navy required asbestos in all the different Warren Pumps products that Mr. Coulbourn worked around at Norfolk. - -

15 Case :-cv-0-srb Document Filed 0// Page of 0 Defendant Air & Liquid Systems Corporation also relies on David Sargent s report. (Def. Air & Liquid Systems Corp. s MSJ at - (citing Doc., Def. Air & Liquid Systems Corp. s Statement of Facts -).) Again, this report discussed the role of MilSpecs in military contractor agreements and how these specifications governed all aspects of a pump s design features that would have applied to the Buffalo Pumps parts supplied to the U.S. Navy. Included as well is information that U.S. Navy machinery workers inspected the products onsite at Buffalo Pumps manufacturing plant and again at the shipyard. Defendant Air & Liquid Systems Corporation also directs the Court to a declaration from Buffalo Pumps current vice president of manufacturing, Martin Kraft, who began his career at Buffalo Pumps in 0. (Id. (citing Def. Air & Liquid Systems Corp. s Statement of Facts -).) With David Sargent s report, Defendant Air & Liquid Systems Corporation interprets Martin Kraft s declaration as demonstrating that the U.S. Navy s specifications required that gaskets and packing on many pumps contain asbestos. (Id. at (emphasis added).) Defendant Air & Liquid Systems Corporation seems to implicitly acknowledge that certain specifications did not require a manufacturer to use an asbestos-containing product. In fact, Plaintiffs expert Arnold Moore stated that most military specifications left it up to the manufacturer whether to use asbestos-containing or non-asbestoscontaining products, except for products exposed to superheated steam, in which case, the specifications required asbestos-containing products. (Doc. -, Arnold Moore Report, Mar.,, at.) Defendant Air & Liquid Systems Corporation does not explain how that narrow exception covers all the Buffalo Pumps products Mr. Coulbourn testified to being exposed to at Norfolk, including stock-items like asbestos-containing gaskets and packing materials. Without such proof, there are factual issues concerning the application of the government contractor defense that cannot be resolved at the summary judgment stage. Arnold Moore s report and testimony also forecloses summary judgment for Defendant CBS Corporation for Westinghouse products. Consistent with his report, Arnold Moore testified specifically that Westinghouse in many cases chose the asbestos - -

16 Case :-cv-0-srb Document Filed 0// Page of 0 applications from the allowable list of materials. (Doc. -, Dep. of Arnold Moore, June 0,, at :-.) In sum, the Court cannot find that the evidence submitted by any Defendant conclusively shows the type of careful consideration necessary to demonstrate that the government made a discretionary decision when it approved the inclusion of asbestos in the products at issue. See Getz, F.d at. In light of this conclusion, the Court does not need to address the application of the second and third elements of Boyle to the design-defect claims. b. Failure-to-Warn Claims The Ninth Circuit has extended the government contractor defense to failure-towarn claims under a three-element test analogous to the Boyle standards. Getz, F.d at (applying the government contractor defense to failure-to-warn claims when () the government exercised its discretion and approved certain warnings; () the contractor provided the warnings required by the government; [and] () the contractor warned the government about dangers in the equipment s use that were known to the contractor but not to the government (alteration in original) (quoting Oliver v. Oshkosh Truck Corp., F.d, 00-0 (th Cir. ))); accord Leite v. Crane Co., F.d, (th Cir. ) (applying the Getz standards in determining whether there was a colorable government contractor defense to support removal jurisdiction), cert. denied, S. Ct. (). The government contractor defense is not limited to instances in which the government specifically forbids warnings altogether or... where the government explicitly dictates the content of the warnings adopted. Getz, F.d at. Boyle makes clear that government discretion, rather than dictation, is the standard. Id. Defendants generally argue that Getz s reasonably precise specifications standard is met through evidence that they interpret as showing the U.S. Navy s direct involvement in formulating the content of warnings in the manuals and other technical materials provided with their products. (See, e.g., Def. CBS Corp. s MSJ at -.) They contend that the evidence shows that the U.S. Navy engaged in a collaborative review - -

17 Case :-cv-0-srb Document Filed 0// Page of 0 and approval process relative to all written materials to be furnished with their products and that no warnings would have been approved without the U.S. Navy s prior review and approval. (See, e.g., id. at.) The evidence they cite is similar in form and substance to the affidavits that formed the basis for a colorable government contractor defense in Leite namely, evidence showing that the Navy issued detailed specifications governing the form and content of all warnings that equipment manufacturers were required to provide, both on the equipment itself and in accompanying technical manuals. Leite, F.d at ( According to the[] [expert] affidavits, the Navy was directly involved in preparing the manuals, which included safety information about equipment operation only to the extent directed by the Navy. Horne and Sargent further state that equipment manufacturers could not include warnings beyond those specifically required and approved by the Navy, and that the Navy s specifications did not require equipment manufacturers to include warnings about asbestos hazards. ). As made clear in Leite, the issue of whether Defendants are entitled to prevail on the merits of the defense is different from whether they have made a colorable defense. See id. at ( At this stage [for removal], Crane doesn t have to prove that its government contractor defense is in fact meritorious, and we express no view on whether it is. ). The evidence without question shows that the U.S. Navy instructed contractors through the MilSpecs to provide warnings in technical manuals and service instruction books for equipment used on its vessels. Arnold Moore testified that after a contractor put forward what it believed sailors would need to know about a product, the U.S. Navy reviewed the technical manuals and instructions and made comments on them. (Doc. -, Dep. of Arnold Moore, Aug.,, at :-0:.) The U.S. Navy required manufacturers to provide warnings for special hazards and safety precautions, but according to Arnold Moore, the U.S. Navy did not attempt to give them a list of what they should warn about and what they should not warn about. That was left to the manufacturer of the equipment. (Id. at :-; Arnold Moore Report, Mar.,, at ( The Navy relied heavily upon its equipment manufacturers to identify hazards - -

18 Case :-cv-0-srb Document Filed 0// Page of 0 associated with their products. The hazards associated with exposure to asbestos and asbestos containing materials and equipment were not exempt. ).) Although the Court agrees that the MilSpecs set up a collaborative process between the U.S. Navy and the contractors, this system is not unique in militarycontractor agreements. If the existence of military specifications for product warnings was sufficient alone to entitle a defendant to summary judgment, the government contractor defense would apply in almost all military contractor cases. The Ninth Circuit s most recent discussion of the military contractor defense in Getz and Leite does not compel summary judgment on the current record. Unlike Getz, the evidence does not show that the U.S. Navy exercised discretion over the content of the product warnings by selecting the specific warnings included in the technical manuals, thereby limiting the contractors ability to comply with their state-law duty to warn. See Getz, F.d at (concluding that because the U.S. Army, and not the government contractors, selected the warnings to include in a helicopter operator manual, the plaintiffs contention that the government did not exercise discretion over the content of these warnings [wa]s meritless ). The removal issues the Ninth Circuit addressed in Leite did not require the court to expound on the standards for determining what evidence is sufficient to entitle a defendant to summary judgment under the government contractor defense. See Leite, F.d at. The Court cannot conclude that a reasonable jury could not reject the government contractor defense on the failure-to-warn claims. The evidence is not undisputed about the extent to which Defendants could have included product warnings notwithstanding the U.S. Navy s involvement in approving product warnings. The Court does not need to address the application of the second and third elements of Getz to the failure-to-warn claims. C. Punitive Damages All Defendants except Defendant CBS Corporation move for partial summary judgment on the punitive damages request on grounds that the evidence in the record is insufficient as a matter of law to show that they acted with the requisite evil mind. - -

19 Case :-cv-0-srb Document Filed 0// Page of 0 Punitive damages are those damages awarded in excess of full compensation to the victim in order to punish the wrongdoer and deter others from emulating his conduct. Linthicum v. Nationwide Life Ins. Co., P.d, (Ariz. ). To recover punitive damages under Arizona law, the plaintiff must establish by clear and convincing evidence that the defendant acted with an evil mind through conduct that is aggravated and outrageous. Id. at 0-. An evil mind requires something more than the mere commission of a tort. Olson v. Walker, P.d 0, 0 (Ariz. Ct. App. ). It is conscious action of a reprehensible character. The key is the wrongdoer s intent to injure the plaintiff or his deliberate interference with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. Linthicum, P.d at 0 (citing Rawlings v. Apodaca, P.d, (Ariz. )). The evidence Plaintiffs have produced in opposing each of the partial summary judgment motions focuses substantially on a collection of research studies and other publicly available information about the dangers of asbestos exposure. (See, e.g., Doc., Pls. Memo. of Points & Authorities in Opp n to Def. Crane Co. s Mot. for Partial. Summ. J. at -0 (summarizing evidence).) Although some of this evidence relates to information known publicly about asbestos several decades after the period of Mr. Coulbourn s exposure, Plaintiffs have submitted evidence dating as far back as the 0s warning that asbestos-containing dust was a carcinogen capable of causing certain lung pathologies. Even if this evidence did not relate specifically to the types of asbestos fibers found in the products Mr. Coulbourn worked around at Norfolk, the Court cannot conclude that the evidence is insufficient for a reasonable jury to find that the dangers of asbestos-containing products were well-known within manufacturing circles and that the defendant companies were deliberately indifferent to the substantial risk of significant harm by failing to do more to limit asbestos use in their products or provide warnings about asbestos inhalation in their technical manuals or otherwise. /// - -

20 Case :-cv-0-srb Document Filed 0// Page of 0 III. CONCLUSION Defendants have failed to show that they are entitled to prevail as a matter of law on the liability and damages issues they have raised in their summary judgment and partial summary judgment motions. Plaintiffs have produced evidence sufficient to create genuine issues of material fact. The parties are instructed to confer and prepare a joint status report to propose a jury trial date. This joint status report should be filed no later than fourteen days () from the date of this Order. IT IS ORDERED denying Defendant Wm. Powell Company s Motion for Partial Summary Judgment re Punitive Damages (Doc. ). IT IS FURTHER ORDERED denying Defendant CBS Corporation s Motion for Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Warren Pumps, LLC s Motion for Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Crane Co. s Motion for Partial Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant IMO Industries, Inc. s Motion for Partial Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Goodyear Tire & Rubber Company s Motion for Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Air & Liquid Systems Corp. s, Successor-by-Merger to Buffalo Pumps, Inc., Motion for Summary Judgment or, Alternatively, Partial Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Copes Vulcan, Inc. s Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (Doc. ). IT IS FURTHER ORDERED denying Defendant Flowserve US Inc. s, Solely as Successor to Edward Valve, Inc., Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (Doc. ). - -

21 Case :-cv-0-srb Document Filed 0// Page of 0 IT IS FURTHER ORDERED instructing the parties to confer and prepare a joint status report to propose a jury trial date. This joint status report should be filed no later than fourteen days () from the date of this Order. Dated this th day of February,. - -