[00:00:14] Speaker 03:
Next, we have Elioraga versus Viacom, CBS, and Warren Pumps, I should say.

[00:00:49] Speaker 03:
Good morning, counsel.

[00:00:50] Speaker 01:
Good morning, your honor.

[00:00:51] Speaker 01:
Chris Conley here today for Viacom CBS Incorporated, formerly known as Westinghouse.

[00:00:56] Speaker 01:
I would like to, with the court's permission, reserve five minutes of rebuttal for Ms.

[00:01:00] Speaker 01:
Hepler to present on behalf of the interveners.

[00:01:03] Speaker 01:
Very well.

[00:01:05] Speaker 01:
Your honor, there are two prior opinions by this court that basically answer the main question in this appeal, McKay and Cooey.

[00:01:12] Speaker 01:
Both of those cases held as a matter of binding precedent both before and after Boyle that a military contractor defense can be stated to a federal law claim, including specifically a maritime law claim.

[00:01:26] Speaker 01:
In fact, the McKay case held that before Boyle, and if you look at footnote one in McKay, the court stressed that that would be true whether you had a statutory maritime claim, like a death on a high sea acts claim, or a common law general maritime claim, that that would make no distinction to the immunity.

[00:01:45] Speaker 02:
How did the district court get so twisted around that it said it could not find any case in which a federal contractor defense was applied in a federal claim?

[00:01:55] Speaker 01:
Your honor, I can give you what I think is an honest question.

[00:01:57] Speaker 01:
It may not be a good question.

[00:01:59] Speaker 01:
Given the good answer, the number of defendants involved and the amount of paper that flowed into the court on this summary judgment motion briefing between the competing summary judgment motion briefs and the record

[00:02:12] Speaker 01:
In the short turnaround, I think the court just missed it.

[00:02:15] Speaker 01:
I don't have a good explanation for why the court didn't notice McKay earlier.

[00:02:20] Speaker 01:
I think it's to the court's credit that once we move for certification, the court did take notice of McKay.

[00:02:28] Speaker 02:
If we thought that the district court was wrong in its analysis of Boyle, that is the Boyle is limited to state claims because it's a preemption case, and we send this back, what do you brief to the district court?

[00:02:40] Speaker 02:
Is this years late?

[00:02:43] Speaker 01:
Your honor, that's the way I read Ninth Circuit precedent.

[00:02:46] Speaker 02:
You would cite Yearsley and what else?

[00:02:50] Speaker 01:
We would cite McKay and Yearsley.

[00:02:53] Speaker 01:
Frankly, I would have some problem in that the way I read Ninth Circuit precedent is we have one standard being applied for military contractors

[00:03:02] Speaker 01:
and one standard being applied for contractors who are not involved in military matters.

[00:03:06] Speaker 01:
That Boyle is a military case that controls military matters, yearsly remains the test for non-military contractors.

[00:03:16] Speaker 01:
I'm frankly going to have difficulty under that dichotomy because it's clear that Westinghouse was a military contractor.

[00:03:24] Speaker 02:
What do we do with degrees?

[00:03:27] Speaker 01:
Your Honor, here I think the answer on DeVries is simple, at least for purposes of Westinghouse.

[00:03:33] Speaker 01:
It certainly doesn't impact the Boyle question in that in DeVries, I know because I argued the case all the way up, back down, and then all the way back up again, is that we raised both a Boyle defense and a bare metal argument in DeVries.

[00:03:48] Speaker 01:
The district court decided the bare metal issue and so decided it did not need to reach the Boyle defense.

[00:03:54] Speaker 01:
That was the exact same approach then taken by the Third Circuit and by the U.S.

[00:03:59] Speaker 01:
Supreme Court.

[00:04:00] Speaker 01:
Neither court on appeal reached Boyle because that issue was not in front of them.

[00:04:04] Speaker 01:
The only issue that had been appealed was the district court ruling on the bare metal issue.

[00:04:09] Speaker 01:
It goes all the way back down to the district court, and we won on the bare-metal issue, which mooted our Boyle defense.

[00:04:15] Speaker 04:
Counsel, the intervener in its reply brief said that, in fact, the parties had stipulated in degrees that there was no, that the contractor defense was not part of the case.

[00:04:31] Speaker 04:
Is that what, in fact, happened in the record?

[00:04:33] Speaker 01:
I don't believe it's in the record.

[00:04:36] Speaker 01:
I believe it's in the appellate brief or one of the appellee briefs, but I'm not sure if it's in the record or not, Your Honor.

[00:04:41] Speaker 02:
So I'm a little confused because Boyle does seem to apply to state torts and it's preemption.

[00:04:48] Speaker 02:
I don't know why Boyle would be applicable in degrees because the court is very clear that that's a federal maritime claim and it's deciding federal common law.

[00:04:56] Speaker 01:
Judge Fitzgerald's opinion in Olerton that we cited to in our initial brief goes a long way to answering that question.

[00:05:03] Speaker 01:
Basically, you have the court in Boyle saying, we are going to strengthen and broaden the protections afforded most contractors by years, Lee, in the specific context of military matters.

[00:05:14] Speaker 01:
We're going to go away from a pure agency test and make it much broader and make it a review and approve standard.

[00:05:22] Speaker 01:
And just like in Allerton, where Judge Fitzgerald was confronted with a military services contract and found that, okay, Boyle only dealt with procurement contracts, but we know the lesser, less rigorous protection afforded all contractors by Yearsley extends to services contracts, because that's what Yearsley was.

[00:05:42] Speaker 01:
We know that Boyle was intended to strengthen the protections afforded contractors in the military context, so there's no sane reason to assume that in all other ways Boyle was meant to strengthen the defense, but to strip away this right enjoyed by all other contractors to voice immunity either to a services contract or to a procurement contract.

[00:06:05] Speaker 01:
We have the same thing here.

[00:06:06] Speaker 01:
Yearsley and then later the Gomez Supreme Court decision makes clear that Yearsley itself can extend to a federal law claim for non-military contractors.

[00:06:17] Speaker 01:
There's no reason to assume the military contractor who was given greater protection under Boyle should not enjoy that same right.

[00:06:25] Speaker 01:
Certainly there's no discussion of that in Boyle because there was no federal law issue in Boyle.

[00:06:29] Speaker 02:
So in a case like DeVries, the court does not refer to Boyle or to Yearsley.

[00:06:34] Speaker 02:
And so I'm left a little confused by the Supreme Court's decision there.

[00:06:37] Speaker 02:
Are those defenses still available to the contractors in DeVries?

[00:06:41] Speaker 01:
Absolutely, Your Honor.

[00:06:42] Speaker 01:
The only reason that wasn't considered by the DeVries Supreme Court is because the only issue that had gone up on appeal to the Third Circuit and then onto the Supreme Court was the summary judgment that had been granted to my client on the bare metal question.

[00:06:55] Speaker 02:
Okay, so if we remanded here and sent this back down for further consideration, is degrees relevant in this case?

[00:07:05] Speaker 01:
Absolutely, Your Honor.

[00:07:07] Speaker 02:
It would at least raise the question of whether your client had the obligation to advise the military of the dangers of

[00:07:17] Speaker 02:
of insulating this with asbestos if the government didn't already appreciate those dangers.

[00:07:21] Speaker 01:
That's correct, Your Honor.

[00:07:22] Speaker 01:
And we would say that our undisputed proof that the government had different choices to make other than asbestos and made the choice to use asbestos does not put us on the hook for that choice.

[00:07:32] Speaker 02:
Because the government would have known that asbestos was dangerous at least as well as you would have known.

[00:07:37] Speaker 02:
Is that your theory?

[00:07:38] Speaker 01:
Well, that's right.

[00:07:39] Speaker 01:
But for the first prong of degrees, you don't even get into knowledge of the hazard.

[00:07:43] Speaker 01:
That's the second and third prong of the three-part contract.

[00:07:46] Speaker 01:
Right.

[00:07:46] Speaker 01:
It's the last prong.

[00:07:47] Speaker 01:
Right.

[00:07:47] Speaker 01:
And what I'm saying is plaintiffs never get to those two prongs because they fail the requirement test.

[00:07:52] Speaker 01:
because Westinghouse didn't require the use of asbestos.

[00:07:55] Speaker 01:
The Navy chose to use asbestos despite knowledge of not asbestos.

[00:07:59] Speaker 02:
My reading of those cases is that if something else is going to have to be incorporated, even if it's not part of what you're providing to them, that you have to give them advice if you know of some dangerous use that the government may not be aware of.

[00:08:12] Speaker 01:
Your Honor, that's not the way I read DeVries.

[00:08:14] Speaker 01:
I believe DeVries applies a three-part test with the plaintiff has to check each of the three boxes serially.

[00:08:21] Speaker 01:
And the first test is there must be some required use of asbestos.

[00:08:25] Speaker 01:
There had to be no choice on the part of the Navy to choose asbestos or not.

[00:08:29] Speaker 01:
We never get past that test here because the evidence is clear they had the ability to use non-asbestos and chose not to.

[00:08:36] Speaker 02:
That's not the way I would have read McKay or Boyle or DeVries, but it seems like you've got plenty of room to argue that.

[00:08:42] Speaker 01:
And Your Honor, I would agree with that, but it's because it's two different questions.

[00:08:46] Speaker 01:
DeVries is answering a question that goes to the merits of plaintiff's tort claim, whether there's a duty or not.

[00:08:52] Speaker 01:
McCay and Boyle answer a separate question, the affirmative defense of immunity.

[00:08:59] Speaker 01:
So those are actually answering two different questions.

[00:09:01] Speaker 01:
It's not that they're giving two answers to the same question.

[00:09:04] Speaker 04:
Council, one of the reasons we're here, obviously, is the argument by the appellees, which explicitly or implicitly the district court agreed with, that there is something special about the general maritime claims.

[00:09:17] Speaker 04:
Why, since you won't be addressing this again, why do you believe that those arguments are incorrect?

[00:09:23] Speaker 01:
Well, Your Honor, we know that they're incorrect because McKay and Cooey both involve maritime claims.

[00:09:27] Speaker 01:
It's not just that binding Ninth Circuit precedent makes us know that federal law claims are susceptible to boil.

[00:09:34] Speaker 01:
They tell us that federal maritime claims are susceptible to boil.

[00:09:37] Speaker 04:
And you don't see a distinction.

[00:09:38] Speaker 04:
You feel that they also don't create any basis for a distinction between statutory and general claims.

[00:09:43] Speaker 01:
No, Your Honor, and footnote one in McKay is explicit about that fact, that that would make no distinction.

[00:09:49] Speaker 01:
And in fact, if you look at footnote four, I believe it's in Cooey, we know that both general maritime and death on the High Sea Act claims were stated in that case, and yet when the court got around to granting the Boyle defense, it did not draw any distinction between those two theories.

[00:10:08] Speaker 01:
Your Honor, I'm really short on time, and I want to reserve something for my fellow defendants, and so unless there are any other questions.

[00:10:18] Speaker 03:
Any other questions?

[00:10:19] Speaker 03:
Any other questions?

[00:10:20] Speaker 03:
All right, thank you.

[00:10:20] Speaker 03:
Thank you, Your Honor.

[00:10:27] Speaker 02:
Counsel?

[00:10:34] Speaker 05:
I want to first apologize for not having a tie, and I want to apologize for being late in my failed attempt to get a tie.

[00:10:48] Speaker 05:
We've been there, counsel.

[00:10:50] Speaker 05:
Counsel, you look very relaxed.

[00:10:52] Speaker 05:
I don't feel it.

[00:10:53] Speaker 05:
Your Honor, the first question Judge Bybee asked is, why did the district court miss McCain?

[00:11:02] Speaker 05:
And the answer is the district court did not miss McKay.

[00:11:05] Speaker 05:
McKay was cited in the moving papers by Viacom in the motion for summary judgment.

[00:11:11] Speaker 05:
McKay was also cited in their reply.

[00:11:14] Speaker 05:
The judge didn't miss McKay.

[00:11:16] Speaker 05:
This case was never cited for the government contract defense.

[00:11:23] Speaker 05:
The defendant cited Boyle for the elements of the government contractor defense.

[00:11:28] Speaker 05:
If they were going to cite

[00:11:30] Speaker 05:
Ninth Circuit precedent.

[00:11:32] Speaker 05:
for the interpretation of the Boyle government contractor defense, they would cite the Nielsen case, or they would cite Inray, Hawaii, Asbestos, because those are the cases that followed the Boyle case.

[00:11:47] Speaker 05:
So at no point has a defendant in this case moved for summary judgment based on the Ninth Circuit interpretation of McKay.

[00:11:55] Speaker 05:
The only citation of McKay in the moving papers from the defendants was

[00:12:02] Speaker 05:
to distinguish who the user of a product is.

[00:12:06] Speaker 05:
Is the user the Navy, or is the user the plaintiff?

[00:12:10] Speaker 02:
But why didn't the district court acknowledge Yearsley?

[00:12:12] Speaker 02:
It's cited later on in the opinion, but not acknowledged to that place where the district court says, I can't find anything.

[00:12:19] Speaker 02:
Yearsley clearly dealt with government contractors in a federal claim.

[00:12:23] Speaker 02:
It's not a military claim.

[00:12:25] Speaker 05:
The Boyle case, now I know that the Supreme Court later in Yule Campbell

[00:12:32] Speaker 05:
Gomez that's our company but the Boyle case specifically says years Lee is not a doctrine that we are to use for this government contractor defense years Lee Involved an act of Congress Congress passed a law to flood this basin that law that law was then carried out by this contractor

[00:12:57] Speaker 05:
who was acting on the authority of the government to flood the basin that was part of a congressional law.

[00:13:06] Speaker 05:
And what Boyle says is it's essentially limited to a takings case.

[00:13:13] Speaker 05:
Now, that's not what Campbell Youwold said.

[00:13:16] Speaker 05:
Campbell Youwold said it's not limited to a takings case, but at the same time,

[00:13:22] Speaker 05:
No one has applied, yearsly, to facts like this.

[00:13:26] Speaker 05:
In fact, yearsly, I can't think of many

[00:13:33] Speaker 05:
times, it's been applied where people said, you were immune because of the Yearsley case, because it's such a unique case.

[00:13:40] Speaker 05:
So that the district court didn't reference Yearsley is not a surprise, because Boyle specifically says, Boyle, as cited by the defendant, says, don't look at Yearsley, look at Boyle.

[00:13:52] Speaker 05:
If you look at Yearsley.

[00:13:54] Speaker 02:
Well, I don't want to hash out all of the differences between Boyle and Yearsley, but Boyle did deal with state tort law claims, and it's a preemption analysis.

[00:14:07] Speaker 02:
Yes.

[00:14:07] Speaker 02:
And that just wouldn't be applicable to Yearsley at all.

[00:14:10] Speaker 02:
But it certainly started with Yearsley.

[00:14:13] Speaker 05:
I mean, Yearsley is part of the history it goes through, Your Honor, but they clearly, I've got the citation where they say specifically,

[00:14:23] Speaker 05:
if I could get it in my computer, they say, Yearsley is not the analysis you use for this sort of question.

[00:14:28] Speaker 02:
Right, because it's a state law claim.

[00:14:29] Speaker 02:
That's why they went with a preemption analysis.

[00:14:30] Speaker 02:
I understand what you're saying.

[00:14:31] Speaker 02:
Preemption analysis would not have been applicable in Yearsley or in any federal claim and any cause of action created under federal law.

[00:14:40] Speaker 02:
Preemption is not the right analysis.

[00:14:43] Speaker 05:
You're saying, I understand now.

[00:14:45] Speaker 05:
You're saying if we're looking at the analysis of federal law and not preemption, you would go to Yearsley and not Boyle.

[00:14:51] Speaker 05:
I'm sorry I didn't understand.

[00:14:53] Speaker 05:
The Supreme Court also says, in Boyle, if yearsly applied, it would have to be a situation where the defendant had no discretion.

[00:15:08] Speaker 05:
If the defendant, none, made no choices, if the defendant was building the helicopter in question, it would have to have not specifications, not guidelines,

[00:15:19] Speaker 05:
The government would essentially have to give them almost an Ikea box, and they would have to build the helicopter from the box, where the government specified every single thing.

[00:15:31] Speaker 05:
And there is no evidence, and no one asserted, not in the moving papers or in the reply for the defendants, no one has asserted that that's the case.

[00:15:40] Speaker 05:
So if that is a basis for immunity from federal law, and I agree it is, I don't disagree, Yearsley is

[00:15:49] Speaker 05:
Yes, I agree, and it's still good law.

[00:15:51] Speaker 05:
It is an impossible standard here.

[00:15:54] Speaker 04:
Council, I'm sorry.

[00:15:56] Speaker 04:
To what degree is your position here that the general maritime claims are special, and if so, what's the basis for that assertion?

[00:16:13] Speaker 05:
I would say there are two reasons.

[00:16:15] Speaker 05:
One is discussed in the papers and the second is not, but I'd raise it here.

[00:16:20] Speaker 05:
One is the special place maritime law has in protecting sailors, and that is distinct from the Death on the High Seas Act.

[00:16:27] Speaker 05:
For example, the Coohee case doesn't involve sailors.

[00:16:30] Speaker 05:
Those people were very unfortunate.

[00:16:32] Speaker 05:
And they were in an airplane that flew through essentially a war zone and was shot down because of a mistake made by the United States.

[00:16:41] Speaker 05:
And that is why the Coohee case is not binding precedent here.

[00:16:46] Speaker 05:
The Coohee case doesn't go through any of the elements of the design defect of the Aegis system.

[00:16:52] Speaker 05:
It doesn't say that there were any specifications from the government.

[00:16:55] Speaker 05:
What it says is essentially is the United States government made a decision to shoot down a plane.

[00:17:01] Speaker 05:
They used this gun to do it, this missile, whatever it is, but it was the agency of the United States that made the decision.

[00:17:08] Speaker 05:
That's why there's no discussion, and that's why the Coohee case wasn't cited in the moving papers or the reply from the defendants in their summary judgment motions.

[00:17:16] Speaker 05:
The first time we see it is in the appeal.

[00:17:19] Speaker 05:
I got lost from your question because I got so excited to discuss Coohee.

[00:17:24] Speaker 04:
Why are the special maritime claim?

[00:17:27] Speaker 04:
What is special about the general maritime claim?

[00:17:31] Speaker 05:
Secondly, it is federal law.

[00:17:32] Speaker 05:
And federal law, certainly maritime law, provides for the defendants to bring this defense, even if it's not an absolute defense.

[00:17:42] Speaker 05:
The defendants, and this is also why maybe we don't need to decide this right now.

[00:17:46] Speaker 05:
Maybe we wait until this thing plays out.

[00:17:48] Speaker 05:
Because the defendants can still present evidence of the Navy's involvement in the design.

[00:17:54] Speaker 05:
They can still present evidence that they weren't allowed to warn.

[00:17:57] Speaker 05:
And at the end of the case, the jury is going to have an opportunity to decide if they were negligent or not.

[00:18:04] Speaker 05:
There's strict liability under maritime law also.

[00:18:08] Speaker 05:
But at the end, they'll get to determine percentages of fault.

[00:18:12] Speaker 05:
And they can put a percentage of fault on the United States Navy as a third party, and they could put 100% fault on the Navy.

[00:18:23] Speaker 05:
So they would have an opportunity to hear this evidence and say, well, I think you acted reasonably based on what the Navy told you to do, so you're not negligent.

[00:18:33] Speaker 05:
And I don't think your design was a problem because the Navy told you the design.

[00:18:39] Speaker 05:
And I don't think the warning was a problem because the Navy told you the warning.

[00:18:42] Speaker 05:
And even if I thought that wasn't a problem, I could put 100% on the Navy at the end.

[00:18:47] Speaker 05:
So there is still an opportunity in this case to present all the same evidence, the Navy's knowledge of asbestos, the Navy's steps to protect or not protect sailors from asbestos, and importantly, the Navy's involvement in the design

[00:19:03] Speaker 05:
of the products, the use of asbestos, and the Navy's procurement of warnings, including, if they have evidence, the Navy's prohibition about warning about asbestos.

[00:19:17] Speaker 02:
If I thought that the district courts, that we should reverse the district court's order and send it back for further consideration of the contractor defense, what role, if any, does DeVries play in the future of this litigation?

[00:19:33] Speaker 05:
So if we look in the history of this issue in the Ninth Circuit and in the Supreme Court, the first case as cited by the defendants for the idea that a government contractor defense would apply to federal law is the McKay case.

[00:19:50] Speaker 05:
That is, of course, referenced in the Boyle case, and the Boyle case also says it's still an open question as to whether or not this applies to federal law.

[00:20:01] Speaker 05:
Note in the dissent where McKay is referenced as one of the cases where it would not, where such a defense would prevail in federal law.

[00:20:09] Speaker 05:
And then there's other districts where it would not.

[00:20:20] Speaker 05:
Then we go to Nielsen, which interprets Boyle.

[00:20:24] Speaker 05:
Then we go to Inray, Asbestos, and Coohee.

[00:20:26] Speaker 05:
Hercules confirms in 1996 in the dissent that McKay is one of the cases that was essentially overruled by Boyle because McKay embraced the Ferris doctrine, whereas Boyle specifically rejected the Ferris doctrine.

[00:20:44] Speaker 05:
But then you get to devise, and that's in 2014.

[00:20:50] Speaker 05:
It is maritime long.

[00:20:52] Speaker 05:
It is exactly this defense.

[00:20:55] Speaker 05:
There is no reference to the government contractor defense.

[00:20:58] Speaker 05:
It is exactly this scenario, ships, I mean, exactly.

[00:21:05] Speaker 02:
So is it your contention?

[00:21:06] Speaker 02:
The same disease, same exposure, same, it's.

[00:21:09] Speaker 02:
So is it your contention then that if we sent this back to the district court, you would just come up and say, well, DeVries answers this question.

[00:21:14] Speaker 02:
There is no government contractor defense.

[00:21:16] Speaker 02:
We're just simply going to apply the elements of DeVries?

[00:21:20] Speaker 05:
If you were to send this back to the district court to determine, we still have to deal with DeVries.

[00:21:28] Speaker 05:
I mean, we have to deal with that at the trial court level.

[00:21:30] Speaker 05:
That was already ruled on separately.

[00:21:32] Speaker 02:
That's a- Mr. Conley says that in the DeVries case, that the government contractor defense is still available, but the Supreme Court didn't decide anything.

[00:21:41] Speaker 02:
It doesn't mention Yearsley.

[00:21:42] Speaker 02:
It doesn't mention McKay.

[00:21:43] Speaker 02:
It doesn't mention Gomez.

[00:21:45] Speaker 02:
It doesn't mention Boyle.

[00:21:47] Speaker 02:
And he suggests that in that litigation, and I looked at the underlying papers, and it seems that the district court in Pennsylvania agrees that the government contractor has not been raised there yet and can still be raised.

[00:22:01] Speaker 02:
Do you disagree with that?

[00:22:03] Speaker 05:
It's shocking.

[00:22:04] Speaker 05:
It seems odd that the Supreme Court would come up, would look at this issue that it described as novel, would

[00:22:14] Speaker 05:
come up with elements for this bare metal defense, but would, I guess from perhaps a strategic reason from the defendants challenging it or the courts, I mean, forgot about it or didn't care, that they would come up with these elements for liability that another opinion would completely wipe out.

[00:22:38] Speaker 05:
So yes, it's not addressed in DeVry's.

[00:22:41] Speaker 05:
I agree.

[00:22:42] Speaker 05:
And I think that is why DeVry's

[00:22:44] Speaker 05:
I don't know.

[00:22:45] Speaker 05:
I think that's why it's important.

[00:22:49] Speaker 05:
But that has been ruled on.

[00:22:51] Speaker 05:
It's a separate issue.

[00:22:52] Speaker 05:
Can we be liable if the insulation on the Westinghouse turbine wasn't purchased from Westinghouse or installed from Westinghouse?

[00:23:03] Speaker 05:
That's the bare metal defense.

[00:23:05] Speaker 05:
They delivered a turbine.

[00:23:06] Speaker 05:
someone else put insulation on it.

[00:23:09] Speaker 05:
You get into things related to foreseeability, but that's a liability issue.

[00:23:14] Speaker 05:
I agree.

[00:23:15] Speaker 05:
It's not a government contractor case.

[00:23:17] Speaker 05:
It's a liability issue.

[00:23:18] Speaker 05:
It's just telling that they never talked about this thing that apparently is

[00:23:24] Speaker 02:
so important.

[00:23:25] Speaker 02:
But does DeVries tell us that there is no government contractor defense if the contractor fails to advise the government of a dangerous situation that the contractor itself is not immediately responsible for?

[00:23:38] Speaker 05:
It's not in those terms.

[00:23:40] Speaker 05:
There's no mention, I don't believe, to government contractors at all.

[00:23:44] Speaker 05:
It's regular old product liability language.

[00:23:47] Speaker 05:
It's product manufacturers.

[00:23:49] Speaker 05:
This is

[00:23:50] Speaker 05:
This is a product.

[00:23:52] Speaker 02:
But they are government contractors, and all of the reasoning in Boyle is likely to come to bear.

[00:23:58] Speaker 02:
That is, if Westinghouse is found liable for having failed to advise the Navy of the dangers of asbestos, even though Westinghouse wasn't installing it at all, it wasn't part of their contract, but failed to advise them,

[00:24:12] Speaker 02:
then they're going to contract differently in the future.

[00:24:16] Speaker 02:
And the Navy will perceive this very differently.

[00:24:18] Speaker 02:
So I'm just trying to figure out, I completely agree with you, but I think it's bizarre that the Supreme Court would decide to rise without mentioning Boyle, Yearsley, and those whole lines of cases.

[00:24:31] Speaker 02:
I don't get this at all, but that's where we are.

[00:24:34] Speaker 02:
I'm trying to figure out how all of this fits together.

[00:24:37] Speaker 02:
It doesn't seem to me that surprise can just be about the merits of the tort.

[00:24:42] Speaker 02:
It seems to me that it has some integration with the question of the government contractor defense.

[00:24:48] Speaker 02:
I'm just buffaloed as to how it fits.

[00:24:51] Speaker 02:
You guys look at more law than me.

[00:24:52] Speaker 05:
I haven't tried to put those together other than it's odd that they would acknowledge it.

[00:24:59] Speaker 02:
Mr. Jones, the only difference today between you and me is that I have a tie.

[00:25:03] Speaker 05:
I can't really tell, but I'll take your word for it.

[00:25:06] Speaker 05:
And the robe.

[00:25:09] Speaker 05:
Thank you.

[00:25:09] Speaker 04:
Council, we heard the argument that McKay footnote one

[00:25:13] Speaker 04:
makes clear that there's no distinction first of all between maritime claims and other federal claims and also between statutory and general claims.

[00:25:23] Speaker 04:
So why do you think that's just a misreading of the footnote or that McKay as to that was implicitly overruled for the reason that you seem to suggest or what's your response to that specific point?

[00:25:38] Speaker 05:
You mean is McKay

[00:25:41] Speaker 05:
finding precedent in the Ninth Circuit for the elements of the government contractor defense?

[00:25:46] Speaker 04:
Well, that's specifically on whether there is a distinction between maritime claims or between statutory and general maritime claims.

[00:26:02] Speaker 05:
I would answer it this way, and it is that

[00:26:06] Speaker 05:
The Death on the High Seas Act, as I mentioned before, involves maritime law.

[00:26:12] Speaker 05:
I am in agreement.

[00:26:14] Speaker 05:
It is not strictly a maritime case in the sense that the cases we're discussing that involve the Death on the High Seas Act don't involve sailors.

[00:26:27] Speaker 05:
Seafarers if you were to look in the Ninth Circuit model jury instructions, it would give you the definition of a I forget if it's a seafarer or whatever and

[00:26:38] Speaker 05:
The Coohee case, those people would not be seafarers.

[00:26:41] Speaker 05:
So there is some distinction in the way general maritime law seeks, I would say, would seek to protect sailors that perhaps is different from a statute that is more general.

[00:26:57] Speaker 03:
Council, I know you're over your time, but are there any other questions?

[00:27:00] Speaker 03:
I have no questions.

[00:27:02] Speaker 03:
Thank you.

[00:27:02] Speaker 03:
All right.

[00:27:03] Speaker 03:
Thank you, Council.

[00:27:06] Speaker 03:
Ms.

[00:27:06] Speaker 03:
Hepler.

[00:27:09] Speaker 00:
Good morning, Your Honors.

[00:27:10] Speaker 00:
Laurie Hepler, representing interveners.

[00:27:12] Speaker 00:
Let me go to this DeVries question first, if I may.

[00:27:15] Speaker 00:
DeVries said absolutely nothing about the government contractor defense or Boyle, much less whether the defense applies in maritime law cases.

[00:27:25] Speaker 00:
Judge Bybee finds it a little strange that it didn't, but to be blunt, DeVries was a little thin in several respects.

[00:27:33] Speaker 00:
There are no facts, for example, discussed in DeVries, or very, very few.

[00:27:38] Speaker 00:
Our position presents no inconsistency whatever with DeVries, and our brief explained why the project of describing a duty to warn in DeVries

[00:27:52] Speaker 00:
really didn't overlap with any need to discuss the government contract or defense because there are situations in which one can apply and not the other or vice versa.

[00:28:01] Speaker 00:
Our brief goes into that in some detail.

[00:28:04] Speaker 00:
The point is, your honor, you can do your full job in this case without ever mentioning DeVries.

[00:28:10] Speaker 00:
That project, the DeVries analysis and the duty to Warren will be part of the district court's job on remand if you reverse, but it has really truly nothing to do

[00:28:21] Speaker 00:
with the government contractor analysis here.

[00:28:24] Speaker 00:
Regardless of whether, and I want to also get to Judge Fitzgerald's concern about the lack of any distinction, if I may, for maritime claims, but the real point I want to make to your honors this morning is that regardless of whether claims arise

[00:28:40] Speaker 00:
Whether claims against the military contractor arise under state law, federal statutory law, or maritime law, the policies that animated Boyle and that drove McKay apply equally.

[00:28:55] Speaker 00:
We can't have undermining of the government's immunity through the back door, as McKay described it, by assigning tort liability to a manufacturer that has complied with reasonably precise specifications and

[00:29:11] Speaker 00:
of course, fulfilled the other factors set forth in Boyle, which Boyle adopted directly from this court.

[00:29:18] Speaker 00:
The only difference in Boyle and McKay is the legal basis for being the Federal Tort Claims Act discretionary function exception versus Ferris Stencil.

[00:29:30] Speaker 00:
That was the only change the Supreme Court made in adopting wholesale the McKay analysis of what public policy requires.

[00:29:41] Speaker 00:
and why we should not, why we should allow manufacturers who supply military products, why supply complex products to the military, why we should allow them to assert the defense under the criteria set forth in Boyle.

[00:29:59] Speaker 00:
Judge Fitzgerald, maritime claims are not different.

[00:30:04] Speaker 00:
Miles versus Apex Marine from the US Supreme Court is the leading teaching case on this.

[00:30:10] Speaker 00:
The court should reject plaintiff's efforts to make this government contract defense unavailable in general maritime, where this court has clearly applied it to federal statutory claims.

[00:30:21] Speaker 00:
Apart from the policies that underlie all of them equally, the doctrine of solicitude for sailors cannot justify a distinction.

[00:30:30] Speaker 00:
They haven't cited a single case in which the solicitude doctrine foreclosed

[00:30:36] Speaker 00:
this affirmative defense, and in fact, both Miles and Dutra Group versus Batterton specifically require rejection of that argument.

[00:30:46] Speaker 00:
Miles requires uniformity in the treatment of statutory and general maritime claims, and it rejected a plaintiff's argument identical to the one we've heard today, that the special solicitude doctrine justifies allowing a recovery in maritime common law that would not be allowed under maritime statutes.

[00:31:05] Speaker 00:
Dutra Group, and I'll just quote briefly, said only five years ago that the special solicitude doctrine, quote, has only a small role to play in contemporary maritime law, unquote.

[00:31:17] Speaker 00:
Nothing in DeVries changes that.

[00:31:19] Speaker 00:
DeVries itself weighed the special solicitude doctrine against other policy concerns in selecting a middle path between the foreseeability rule that the plaintiffs advocated and the bare metal rule that the defendants advocated in that case.

[00:31:36] Speaker 00:
So special solicitude for sailors still has a little bit of vitality, not a lot, but it has a little bit under degrees.

[00:31:46] Speaker 00:
But the point is that the U S Supreme court weighed that doctrine against other public policies that are.

[00:31:53] Speaker 00:
were more important in its view in rejecting the rule that the plaintiff advocated.

[00:31:59] Speaker 00:
This court has already endorsed in McKay the public policies that require recognizing the general contractor defense

[00:32:13] Speaker 00:
The US Supreme Court affirmed and adopted that rationale in Boyle.

[00:32:19] Speaker 00:
And that, we submit, is all that's required to resolve the question before you.

[00:32:26] Speaker 00:
Thank you, Your Honors.

[00:32:27] Speaker 03:
All right.

[00:32:27] Speaker 03:
Any other questions?

[00:32:29] Speaker 03:
Any other questions?

[00:32:31] Speaker 03:
All right, thank you.

[00:32:32] Speaker 03:
Thank you for your presentations.

[00:32:36] Speaker 03:
The matter of El Oriaga versus Avaya Combs, CBS Inc.

[00:32:42] Speaker 03:
is submitted at this time.

[00:32:45] Speaker 03:
Thank you again.