1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO ELORREAGA, et al., Case No. 21-cv-05696-HSG

8 Plaintiffs, ORDER DENYING DEFENDANTS’

MOTIONS FOR SUMMARY

9 v. JUDGMENT AND GRANTING

PLAINTIFFS’ MOTION FOR PARTIAL

10 ROCKWELL AUTOMATION, INC., et al., SUMMARY JUDGMENT 11 Defendants. Re: Dkt. Nos. 123, 125, 129, 130, 131

12 13 Pending before the Court are motions for summary judgment, filed by Plaintiffs and 14 Defendants General Electric Company; ViacomCBS Inc.; Air & Liquid Systems; and Warren 15 Pumps, LLC. Dkt. Nos. 123, 125, 129, 130, 131. The Court finds these matters appropriate for 16 disposition without oral argument and the matters are deemed submitted. See Civil L.R. 7-1(b). 17 For the reasons detailed below, the Court DENIES Defendants’ motions for summary judgment 18 and GRANTS Plaintiffs’ motion for partial summary judgment. 19 I. BACKGROUND 20 Roberto Elorreaga initially brought this lawsuit in the Superior Court of San Francisco, 21 alleging that he developed malignant pleural mesothelioma from exposure to asbestos-containing 22 products or equipment while working aboard United States Naval vessels and in Naval shipyards. 23 See Dkt. No. 1-1, Ex. A; Dkt. No. 1-1, Ex. B. Mr. Elorreaga passed away in October 2021, Dkt. 24 No. 55, and his wife and sons, Plaintiffs Rosemary Elorreaga, Robert Paul Elorreaga, Richard 25 Andrew Elorreaga, and Ronald Edward Elorreaga, continue to pursue this case, Dkt. No. 66 26 (“SAC”). Plaintiffs allege that Defendants either manufactured or supplied the asbestos- 27 containing equipment with which Mr. Elorreaga worked. Id. 1 from October 1959 to January 1960 as a machinist mate, and the USS Cowell (DD-547) from 2 October 1960 until February 1963 as a fireman’s apprentice and then as an electrician’s mate. 3 Dkt. No. 130-6, Ex. D at 3–6 (ll. 31:13–32:9, 34:4–18, 129:6–8). 4 II. LEGAL STANDARD 5 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 6 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 7 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 8 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence 9 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 10 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 11 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 12 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence 13 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 14 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court 15 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to 16 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a). 17 III. DISCUSSION 18 A. Government Contractor Defense 19 As an initial matter, Defendants argue that they are entitled to summary judgment based on 20 the preemptive government contractor defense outlined in Boyle v. United Technologies Corp., 21 487 U.S. 500 (1988). See Dkt. Nos. 129 at 13–18; Dkt. No. 125 at 14–16; Dkt. No. 130 at 16–24. 22 In short, Defendants contend that the Navy is responsible for any asbestos exposure because they 23 simply complied with its specifications when supplying any asbestos-containing materials. 24 Plaintiffs, for their part, argue that the government contractor defense does not apply here, and 25 seek partial summary judgment on this issue. See generally Dkt. No. 131. 26 The government contractor defense “protects government contractors from tort liability 27 that arises as a result of the contractor’s ‘compli[ance] with the specifications of a federal 1 Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th Cir. 2008)). “Stripped to its 2 essentials,” under this defense, the contractor asserts that “[t]he Government made me do it.” In 3 re Hawaii Federal Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992) (quotations omitted). To 4 establish the defense, a contractor must show: 5 (1) the United States approved reasonably precise specifications; 6 (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the 7 equipment that were known to the supplier but not to the United States. 8 9 Boyle , 487 U.S. at 512. The defendant bears the burden of establishing this affirmative defense, 10 and at the summary judgment stage, the defendant must do so in a way that “no reasonable jury 11 could fail to find that the defense ha[s] been established.” Snell v. Bell Helicopter Textron, 107 12 F.3d 744, 746 (9th Cir. 1997). 13 i. Application to Federal Claims 14 Plaintiffs first contend that the government contractor defense does not apply to federal 15 claims. See Dkt. No. 131 at 1–2, 17–19. Because they bring claims under federal maritime law, 16 they urge that Defendants may not rely on this defense. Id. Despite the age of Boyle, the parties 17 have not cited—and the Court has not found—a case directly addressing whether the defense may 18 apply to federal claims. 19 A brief overview of Boyle is instructive. As Plaintiffs point out, in Boyle itself the 20 Supreme Court only addressed whether the defense applied to state law claims. See id. at 16–17; 21 see Boyle, 487 U.S. at 512, n.5. A Marine helicopter copilot died after his helicopter crashed into 22 the ocean during a training exercise. Id. at 502. Although the copilot survived the crash, he could 23 not open the helicopter’s escape hatch and drowned. Id. The copilot’s father filed suit under 24 Virginia law against the contractor that built the helicopter, alleging that it had defectively 25 repaired part of the flight control system and had defectively designed the escape hatch. Id. at 26 502–03. The jury awarded the father $725,000, but the Court of Appeal reversed and remanded, 27 finding that as a matter of law the company could not be held liable due to the “military contractor 1 protect government contractors from state tort liability for design defects. Id. at 504–14. 2 The Supreme Court framed the question as one of preemption. See id. at 504. The Court 3 explained: 4 In most fields of activity, to be sure, this Court has refused to find 5 federal pre-emption of state law in the absence of either a clear statutory prescription or a direct conflict between federal and state 6 law. But we have held that a few areas, involving “uniquely federal interests,” are so committed by the Constitution and laws of the 7 United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed 8 (absent explicit statutory directive) by the courts-so-called “federal common law.” 9 10 Id. at 504 (citations omitted). The Court found that procurement contracts such as the one 11 involved in Boyle invoked “uniquely federal interests,” and that there was a risk of “significant 12 conflict” between these federal interests and state law in this context. Id. at 507–14. 13 Specifically, under the Federal Tort Claims Act, damages cannot be recovered against the 14 United States for claims “based upon the exercise or performance or the failure to exercise or 15 perform a discretionary function or duty on the part of a federal agency or an employee of the 16 government whether or not the discretion involved be abused.” See id. at 511 (citing 28 U.S.C. 17 § 2680(a)). Because “the selection of the appropriate design for military equipment to be used by 18 our Armed Forces is assuredly a discretionary function,” the Supreme Court explained that the 19 FTCA would insulate government officials from liability for defective equipment design. Id. But 20 they concluded that “[i]It makes little sense to insulate the Government against financial liability 21 for the judgment that a particular feature of military equipment is necessary when the Government 22 produces the equipment itself, but not when it contracts for the production.” Id. at 512. 23 The dissent in Boyle argued that Congress—not the Court—has the power to fashion such 24 a defense. See id. at 515–19 (Brennan, J., dissenting). The dissent also questioned how state tort 25 law could conflict with federal law since the Death on the High Seas Act (“DOHSA”) “would 26 provide a tort suit, but no (at least no explicit) Government-contractor defense, against the same 27 designer for an accident involving the same equipment” if the accident had occurred further off the 1 emphasized that “Justice Brennan’s assumption that the outcome of this case would be different if 2 it were brought under [DOHSA] is not necessarily correct.” Id. at 512, n.5. Nevertheless, the 3 Court explicitly reserved the question of whether the government contractor defense applies to 4 federal claims too. Id. 5 Plaintiffs urge that the preemption concerns underlying Boyle do not apply in this case 6 where they are suing Defendants under federal maritime law. See Dkt. No. 131 at 17–18. They 7 also contend that the Ninth Circuit has, at least in dicta, agreed that the defense does not apply to 8 federal claims. Id. In Gomez v. Campbell-Ewald Co., the Navy contracted with the defendant to 9 develop a recruitment campaign. See 768 F.3d 871, 873 (9th Cir. 2014), aff’d but criticized, 577 10 U.S. 153 (2016), as revised (Feb. 9, 2016). The plaintiff received an unsolicited text message 11 encouraging him to join the Navy, and brought claims against the defendant under the Telephone 12 Consumer Protection Act (“TCPA”). Id. at 873–74. The defendant claimed that it was entitled to 13 derivative sovereign immunity under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 14 (1940).1 Id. at 874. The plaintiff, for his part, had argued that Yearsley was “outdated” and that 15 the district court should have applied the standard articulated in Boyle. Id. at 879. The Ninth 16 Circuit concluded that Yearlsey was not applicable because it only “established a narrow rule 17 regarding claims arising out of property damage caused by public works projects.” Id. at 879–80. 18 The Court also considered “the Boyle pre-emption doctrine,” and concluded that it did not 19 “provide [the defendant] with a relevant defense.” Id. at 880. 20 The Court explained that “[a]lthough Boyle in effect created a defense for some 21 government contractors, it is fundamentally a pre-emption case.” Id. at 881; id. (rejecting 22 “assumpt[ion] that Boyle represents a general grant of immunity for government contractors”). 23 1 Although Defendants do not raise a Yearsley defense in this case, a brief overview of the case 24 may be helpful in understanding their Boyle defense and the parties’ respective arguments. In Yearsley, a company entered into a contract with the federal government to build dams in the 25 Missouri river to improve the navigation of the river. 309 U.S. at 19–20. The petitioners sought to recover damages after this process had washed away part of their land, arguing that the 26 company had taken their land without just compensation in violation of the Takings Clause. Id. The Supreme Court held that as an agent of the government, the company could not be held liable 27 because it had simply followed the government’s instructions for the dam’s construction, and thus 1 The defense “precludes state claims where the imposition of liability would undermine or frustrate 2 federal interests.” Id. at 880; see also Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 3 1450, 1454 (9th Cir. 1990) (“As we understand [Boyle], it is directed toward deciding the extent to 4 which federal law should displace state law with respect to the liability of a military contractor.”). 5 The Court explained that the defense is thus “rooted in pre-emption principles and not in any 6 widely available immunity or defense.” Id. The Court reasoned that the plaintiff “brings a claim 7 under federal law, so pre-emption is simply not an issue” and “[t]he Boyle doctrine is thus 8 rendered inapposite.” Id. The Court also pointed out that the defendant—despite having every 9 incentive to raise applicable defenses—did not invoke Boyle, so “we need not belabor the present 10 discussion—we accept [the defendant’s] concession that Boyle is not relevant.” Id. 11 In response, Defendants suggest that the reasoning in Gomez is wrong and not binding on 12 this Court. See, e.g., Dkt. No. 140 at 6–8. Defendants point out that even as it affirmed the Ninth 13 Circuit in Gomez, the Supreme Court criticized the opinion. See id. at 7, n.8 (citing Campbell- 14 Ewald Co. v. Gomez, 577 U.S. 153, 167 (2016), as revised (Feb. 9, 2016)). But Defendants 15 overread the Supreme Court’s opinion in Campbell-Ewald Co. 16 In a footnote, the Supreme Court stated that “[w]e disagree with the Court of Appeals [in 17 Gomez] to the extent that it described Yearsley as ‘establish[ing] a narrow rule regarding claims 18 arising out of property damage caused by public works projects.’” Campbell-Ewald, 577 U.S. at 19 167, n.7 (quoting Gomez, 768 F.3d, at 879). The Court explained that “[c]ritical in Yearsley was 20 not the involvement of public works, but the contractor’s performance in compliance with all 21 federal directions” Id. However, the Court ultimately affirmed the Ninth Circuit. It explained 22 that although “[g]overnment contractors obtain certain immunity in connection with work which 23 they do pursuant to their contractual undertakings with the United States,” this immunity “is not 24 absolute.” Id. at 166. The plaintiff had presented evidence that the Navy only authorized the 25 marketing company to send text messages to people who had “opted in” to receive such messages, 26 and the company had failed to follow these instructions. Id. at 168. The Supreme Court held that 27 “[w]hen a contractor violates both federal law and the Government’s explicit instructions, as here 1 the violation.” Id. at 166. 2 Despite Defendants’ urging that Campbell-Ewald somehow undermines the Ninth Circuit’s 3 interpretation of Boyle, the Supreme Court did not question—or even address—that interpretation. 4 It only considered “derivative sovereign immunity” under Yearsley, which Defendants in this case 5 do not raise. Cf. Dkt. No. 142 at 8 (Defendant Air & Liquid Systems Corporation recognizing that 6 Yearsley is “a separate defense of derivative immunity”). 7 In a final effort to persuade the Court to disregard Gomez, Defendants list several cases in 8 which courts have considered the government contractor defense in the context of federal claims. 9 See, e.g., LaCourse v. PAE Worldwide Inc., 980 F.3d 1350, 1359 (11th Cir. 2020) (applying 10 defense to claims brought under DOHSA); Pizarro v. Nat’l Steel & Shipbuilding Co., No. C 19- 11 08425 WHA, 2021 WL 1197467, at *3 (N.D. Cal. Mar. 30, 2021) (“[M]aritime law recognizes the 12 Boyle framework as a legitimate defense worthy of genuine analysis . . . .”); Spurlin v. Air & 13 Liquid Sys. Corp., 537 F. Supp. 3d 1162, 1178, 1181 (S.D. Cal. 2021) (applying defense to claims 14 arising under federal maritime law); Hammell v. Air & Liquid Sys. Corp., No. 15 CV1400013MASTJB, 2020 WL 5107478, at *7 (D.N.J. Aug. 31, 2020) (same); Lund v. Crane 16 Co., No. 2:13-CV-02776-WGY, 2016 WL 2742383, at *2, *5 (C.D. Cal. May 10, 2016) (same); 17 Nelson v. A.W. Chesterton Co., No. 10-00065, 2011 WL 6016990, at *1 (E.D. Pa. Oct. 27, 2011) 18 (same). But critically, the parties in those cases did not appear to challenge the applicability of the 19 government contractor defense to federal claims, so the courts had no occasion to decide that 20 issue. The courts simply applied the test without any analysis of the scope of Boyle or the fact that 21 the Supreme Court has said it is based on preemption concerns. 22 The Court understands Defendants’ concern that the Ninth Circuit’s interpretation of Boyle 23 may lead to disparate results depending on whether a plaintiff brings claims under state or 24 maritime law. But in the absence of more direct authority, the Court is persuaded by the Ninth 25 Circuit’s interpretation that Boyle is premised on preemption concerns that do not exist where, as 26 here, claims are brought under federal law. Cf. United States v. Montero-Camargo, 208 F.3d 27 1122, 1132, n.17 (9th Cir. 2000) (en banc) (noting that “Supreme Court dicta have a weight that is 1 not blandly shrug them off because they were not a holding” (quotation omitted)). The Court 2 accordingly finds that the government contractor defense under Boyle does not apply here because 3 Plaintiffs’ claims arise under federal maritime law.2 The Court thus DENIES Defendants’ 4 motions for summary judgment on this basis and GRANTS Plaintiffs’ motion for partial summary 5 judgment. 6 B. Punitive Damages and Loss of Consortium 7 Defendants also argue that Plaintiffs are not entitled to either punitive damages or loss of 8 consortium under federal maritime law. See Dkt. No. 123 at 14–17; Dkt. No. 125 at 16–19; Dkt. 9 No. 129 at 11–13. The Court already addressed these arguments in its prior order granting in part 10 and denying in part Defendants’ motion to dismiss. Dkt. No. 138. As relevant here, the Court 11 granted the Defendants’ motion as to Plaintiffs’ request for punitive damages and loss of 12 consortium under general maritime law. Id. Defendants’ arguments in their motions for summary 13 judgment are therefore moot, and Plaintiffs’ arguments are preserved for appeal. 14 C. Causation 15 Lastly, and more substantively, Defendants argue that Plaintiffs lack sufficient evidence to 16 establish that their products caused Mr. Elorreaga’s mesothelioma. 17 Plaintiffs bear the burden of establishing that exposure to Defendants’ products was a 18 substantial contributing factor in causing Mr. Elorreaga’s illness. See McIndoe v. Huntington 19 Ingalls Inc., 817 F.3d 1170, 1174, 76–77 (9th Cir. 2016). The Ninth Circuit has explained that “a 20 party may satisfy the substantial-factor test by demonstrating that the injured person had 21 substantial exposure to the relevant asbestos for a substantial period of time.” Id. at 1176 22 (emphasis added). In other words, plaintiffs may proffer evidence regarding “the amount of 23 exposure” or “the duration of such exposure.” Id. at 1176–77 (emphasis in original); see also 24 Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019) (explaining that proximate 25 cause may be established with evidence that exposure to asbestos-containing product was 26

27 2 In any event, even if Defendants had raised a Yearsley defense in this case or Boyle nevertheless 1 “sufficiently sustained (or frequent) and intense”) (quotation omitted). The Court contrasted such 2 evidence with “[e]vidence of only minimal exposure to asbestos,” which “is insufficient.” Id. at 3 1176. “[T]here must be a high enough level of exposure that an inference that the asbestos was a 4 substantial factor in the injury is more than conjectural.” Id. (quotation omitted). 5 As this Court has acknowledged, “there are of course ‘inherent practical difficulties, given 6 the long latency period of asbestos-related disease,’ in establishing causation from work 7 performed several decades ago.” See In re Toy Asbestos, No. 19-CV-00325-HSG, 2021 WL 8 1167638, at *5 (N.D. Cal. Mar. 26, 2021) (quoting Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 9 953, 958 (Cal. 1997), as modified on denial of reh’g (Oct. 22, 1997)). Plaintiffs often lack direct 10 evidence of causation, and often must rely on circumstantial evidence. Defendants urge that 11 Plaintiffs lack sufficient evidence showing the amount or duration of Mr. Elorreaga’s exposure 12 attributable to any of their specific products, and that they are accordingly entitled to summary 13 judgment in their favor.3 14 i. Exposure to Asbestos 15 Defendants first argue that Plaintiffs lack evidence that Mr. Elorreaga was actually 16 exposed to any asbestos from their products. In evaluating the parties’ arguments, the Court 17 considers the evidence in the light most favorable to Plaintiffs—as it must at this stage. See 18 Matsushita, 475 U.S. at 587–88. 19 a. General Electric 20 Plaintiffs allege that Mr. Elorreaga was exposed to asbestos-containing electrical 21 equipment from General Electric (“GE”), including control panels, “arc chutes,” and cable. See 22 Dkt. No. 148 at 1, 6–7, 18; see also SAC at ¶¶ 13–16. GE responds that Plaintiffs lack sufficient 23 evidence to support this contention. See Dkt. No. 123 at 11–14. 24 3 Defendants note that this case was initially filed in state court, and Mr. Elorreaga’s deposition 25 was first taken in 2020 before they were a part of the case. See, e.g., Dkt. No. 130 at 1–3; Dkt. No. 165 at 2. However, Defendants do not dispute that they were provided copies of the 26 transcripts from Mr. Elorreaga’s prior deposition, or that Mr. Elorreaga sat for a “continuation” of his deposition in 2021 after they joined the case. See Dkt. No. 150-1 at ¶¶ 2–8; see also Dkt. No. 27 150-2, Ex. M. To the extent Defendants suggest that Plaintiffs’ reliance on any of the 2020 1 During his deposition, Mr. Elorreaga explained that as an electrician’s mate on the Cowell, 2 he was responsible for working on the ship’s electrical systems. Dkt. No. 148-2, Ex. A at 23–29 3 (ll. 54:10–57:9, 58:1–7, 59:12–20, 61:14–24, 76:5–8). He said this included control panels and 4 arc chutes manufactured by GE. Id.; see also id. at 37–38 (ll. 118:20–119:9) He said the arc chute 5 was the “major failure component,” and he would have to clean the inside of these parts and also 6 replace them. Id. at 29–31 (ll. 65:14–24, 66:24–67:1). To clean an arc chute, he would use a 7 small wire brush to clean the contacts and remove large pieces that would stick to the components. 8 Id. at 30–31 (ll. 66:24–67:9). He would also use a rag or just blow off the dust inside. Id. This 9 work, he said, created dust. See id. at 50 (ll. 273:3–9). 10 Mr. Elorreaga described the arc chutes as “grayish” or dark in color, and hard like a 11 “Bakelite material.” See id. at 34, 51 (ll. 75:7–9, 274:17–22). He also described them as “safety 12 devices” to protect components from the high heat and high currents in the system. See id. at 34– 13 35 (ll. 75:30–76:6). He would work on them frequently, and on a “regular maintenance schedule.” 14 Id. at 52 (ll.276:5–15); see also id. at 33–34 (ll. 74:23–75:6). He said they would have visible dust 15 whenever he inspected them. Id. at 52–53 (ll. 276:17–277:11). Mr. Elorreaga recalled seeing the 16 GE name on the arc chutes, and he would install GE replacement chutes. See id. at 53 (300:19– 17 25); see also id., Ex. B at 72 (ll. 161:10–18). He said the replacements were not interchangeable, 18 so they used arc chutes from the same manufacturer as the control box. See id., Ex. A, at 32 (ll. 19 68:19–25). 20 Plaintiffs also presented indirect evidence regarding the asbestos content of the GE 21 products. According to GE’s interrogatory responses, it manufactured products during the 1960 to 22 1963 timeframe that would have contained encapsulated chrysotile asbestos, including its 23 insulating Textolite material. See Dkt. No. 148-2, Ex. C at 82–85. One of GE’s corporate 24 representatives, Thomas Tarka, testified that GE knew some of its products contained asbestos, 25 including some electrical distribution and control products. See Dkt. No. 148-2, Ex. D at 100–04 26 (ll. 44:19–24, 48:2–9, 50:25–51:4, 84:1–18). Plaintiffs’ industrial hygienist expert, Mr. Jerome E. 27 Spear, also opined, based on Mr. Elorreaga’s description of the GE products he worked with, that 1 Dkt. No. 148-2, Ex. I at 246–47 (¶¶ 14–16). 2 GE highlights the limitations of Plaintiffs’ evidence. For example, Mr. Elorreaga did not 3 explain how many “arc switches” were on the ships, or provide a precise estimate of how often he 4 worked on them. See Dkt. No. 123 at 13 (citing Dkt. No. 123-3, Ex. A at 58:1–7, 60:20–61:1). 5 GE also suggests that Mr. Elorreaga’s work would not have disturbed any asbestos in the arc 6 chutes. Id. Similarly, GE questions the strength of Plaintiffs’ evidence that any of its products 7 actually contained asbestos, and urges that Plaintiffs are attempting to displace their own burden. 8 See Dkt. No. 167 at 2–3. Although certainly not overwhelming, the Court finds that Plaintiffs 9 have proffered some evidence from which a reasonable jury could conclude that the products 10 contained asbestos and that Mr. Elorreaga was exposed to it during the course of his work. GE 11 will have ample opportunity to explore the strength of Plaintiffs’ evidence at trial, including the 12 nature of the GE products with which Mr. Elorreaga worked. However, it is not the Court’s role at 13 this stage to resolve such factual disputes. 14 b. ViacomCBS 15 Plaintiffs allege that Mr. Elorreaga was also exposed to asbestos-containing products 16 associated with Westinghouse electrical components and turbines.4 See Dkt. No. 147 at 1–2, 5–8; 17 see also SAC at ¶¶ 13–16. ViacomCBS responds that Plaintiffs lack sufficient evidence to support 18 this contention. See Dkt. No. 125 at 8–10. 19 During his deposition, Mr. Elorreaga explained that he worked with Westinghouse 20 electrical equipment, including control panels, on the Cowell. See Dkt. No. 147-2, Ex. A at 21, 21 23–24, (ll. 106:16–24, 109:14–20, 110:24–111:11); see also id., Ex. B at 68, 87 (ll. 109:1–25, 22 664:6–665:2). He said that the control panel was labeled both on the outside with a plate and on 23 the inside with a smaller label. See id., Ex. A at 23–24 (ll. 110:24–111:11); id., Ex. B at 69–70 24 (ll. 160:6–161:9). He also saw the name Westinghouse on the replacement arc chutes. Id., Ex. B 25 at 70 (ll. 16110–24, 277:18–278:8). Much like the GE electrical components discussed above, Mr. 26 Elorreaga testified that he would open the control panels and clean the internal arc chutes, which 27 1 created dust. See id., Ex. A at 24, 50 (ll. 111:12–20, 272:14–274:5). Mr. Elorreaga also recalled a 2 Bakelite material in the equipment. See id., at 52 (ll. 274:17–22). 3 Additionally, Mr. Elorreaga explained that while working on the Rupertus, he recalled a 4 Westinghouse propulsion turbine in the aft engine room. See id., Ex. A at 28 (ll. 132:5–16); see 5 also id., Ex. C at 141–42 (ll. 84:15–85:21) (Westinghouse expert Roy C. Belanger explaining the 6 turbines Westinghouse supplied for the Rupertus). The turbine’s insulation blanket was marked 7 with the name “Westinghouse.” See id., Ex. A at 39 (ll. 145:2–10). Although he did not 8 personally participate in removing the insulation, Mr. Elorreaga testified that he was present and 9 doing other work close by while the insulation was being removed and then reapplied. Id. at 31– 10 38 (ll. 135:23–143:23.) He said this was a lengthy process and would have taken more than a day. 11 Id. He explained the air was very dusty as a result, and he breathed it in. Id. at 49–50 (ll. 271:9– 12 272:13). 13 Unlike some of the other products at issue in this case, Plaintiffs do not appear to argue 14 that the Westinghouse turbines themselves contained asbestos. Rather, Plaintiffs argue that they 15 required incorporation of asbestos-containing insulation in order to function properly. See Dkt. 16 No. 147 at 1, 6–8. The Supreme Court has considered the scope of an equipment manufacturer’s 17 duty to warn of the dangers of asbestos from third-party components See Air & Liquid Sys. Corp. 18 v. DeVries, 139 S. Ct. 986, 995 (2019). The Court concluded: 19 In the maritime tort context, a product manufacturer has a duty to 20 warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product 21 is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will 22 realize that danger. 23 Id. at 995. 24 Here, Westinghouse’s corporate representative explained that the turbines required thermal 25 insulation to function properly, and acknowledged that before 1970 the insulation included 26 asbestos. See Dkt. No. 147-2, Ex. C at 104–106, 113 (ll. 23:23–26:3, 34:12–14). The designs for 27 Westinghouse turbines included hooks and rails that were intended to hold this insulating blanket. 1 under DeVries. ViacomCBS does not appear to meaningfully challenge Plaintiffs ability to 2 establish the second and third prongs under DeVries. See Dkt. No. 170 at 7–8. And in any event, 3 Plaintiffs have proffered some evidence to satisfy these prongs. See id., Ex. H at 239; id., Ex. A at 4 55 (ll. 301:15–25). 5 At bottom, ViacomCBS disputes the nature of Mr. Elorreaga’s exposure to their products. 6 They state that he had only limited exposure to Westinghouse products, particularly the turbine, 7 and was unable to quantify his time spent with any specific product. The Court finds that at this 8 stage, Plaintiffs have presented sufficient evidence that Mr. Elorreaga was exposed to asbestos- 9 containing products from or attributable to Westinghouse. Defendants will be able to challenge 10 Plaintiffs’ evidence directly at trial, but the Court may not weigh the relative persuasiveness of the 11 asserted facts at this stage. 12 c. Warren 13 Plaintiffs allege that Mr. Elorreaga was exposed to “asbestos-containing insulation and 14 gaskets” from Warren brand pumps. See Dkt. No. 150 at 5–6; see also SAC at ¶¶ 13–16. Warren 15 responds that Plaintiffs lack sufficient evidence to support this contention. See Dkt. No. 130 at 9– 16 11. 17 During his deposition, Mr. Elorreaga explained that he would perform maintenance on 18 pumps aboard the ships, including pumps connected to the steam propulsion system. Dkt. No. 19 150-2, Ex. B at 50 (ll. 27:4–20); id., Ex. A at 32–35 (ll. 293:2–295:24, 297:3–24). On the 20 Rupertus, Mr. Elorreaga explained that he worked as a machinist mate on Warren pumps. See 21 Dkt. No. 150-2, Ex. A at 28–30 (ll. 215:4–218:12). He worked primarily in the two engine rooms. 22 See id., Ex. B at 48–49 (ll. 21:13–22:5). He described replacing pumps that were connected to 23 high temperature and high pressure systems. Id. at 50 (27:4–10). To do so, he had to remove the 24 insulation from the outside of the pumps. See id., Ex. A at 33–34 (ll. 294:24–295:4). He said the 25 air was “quite nasty” with visible dust when he did this, and he breathed it in. See id. at 34 (ll. 26 295:6–24). In order to fix any leaks, he would then have to remove the nuts and bolts, separate the 27 pump from the pipes, and remove the old gaskets. Id., Ex. B at 50–52 (ll. 27:15–28:8, 29:17–20). 1 to take the pump itself apart to access an internal gasket. Id. at 51–52 (28:9–29:16). He would 2 use a wire brush to remove the gasket that was between the body and the head of the pump. See 3 id. at 53 (ll. 30:3–31:1). There was also packing material from the pumps. See id. at 55 (ll. 4 33:16–19). Doing so, he said, created visible dust. See id. at 53 (ll. 30:20–22). He would then 5 sweep this up to clean up afterward. Id. at 54–55 (ll. 31:13–32:14). 6 However, Mr. Elorreaga acknowledged that given his short time on the Rupertus, he likely 7 would have replaced the pumps only once. Id., Ex. A at 29 (ll. 216:8–13). But he also said that as 8 an electrician’s mate on the Cowell he would have to shut down the pumps in the engine room so 9 the machinists could work, and he was present right next to them while they did their work. Id. at 10 30, 35 (ll. 218:8–24, 297:3–24); see also Dkt. No. 130-7, Ex. E at 3 (ll. 214:5–215:20). Mr. 11 Elorreaga explained that he knew the pumps were Warren because “Warren” was stamped on the 12 pumps themselves. See Dkt. No. 130-7, Ex. E at 4 (ll. 219:15–25); see also Dkt. No. 150-2, Ex. B 13 at 56 (ll.34:13–35:1). At one point in his deposition, Mr. Elorreaga stated that he believed the 14 gaskets he worked with on Warren pumps were from Warren because they came in the same 15 packaging and the name was on the gaskets too. See id., Ex. A at 36 (ll. 338:6–19); see also id., 16 Ex. B at 58–59 (ll. 243:17–244:12). He also said that the gaskets were specific to the 17 manufacturer of the pump and not interchangeable. See id., Ex. B at 55 (ll. 34:1–5). 18 Warren contends that Mr. Elorreaga’s deposition testimony is vague. Dkt. No. 130 at 4, 9– 19 11. For example, Warren notes that Mr. Elorreaga could not identify what type of Warren pumps 20 he worked on or other physical characteristics in connection to the pump. See Dkt. No. 130-7, Ex. 21 E at 4–6 (ll. 216:22–217:11, 218:2–7, 220:9–16, 293:2–20). Warren also suggests that Mr. 22 Elorreaga’s testimony is unreliable. For example, Mr. Elorreaga referenced working on what he 23 called a “bonnet gasket,” but Plaintiffs’ expert Captain Francis Burger, said he didn’t know what 24 Mr. Elorreaga meant by this since bonnet gaskets are generally parts of valves and not pumps. See 25 id. at 3 (ll. 215:23–216:2); see also Dkt. No. 130-8, Ex. F at 28 (ll. 110:6–21). 26 Plaintiffs’ argument is not a model of clarity. At times they appear to suggest that the 27 asbestos-containing insulation and gaskets were on the outside of the pumps. See Dkt. No. 150 at 1 Pumps . . . “) (emphasis added); id. at 5 (“Mr. Elorreaga would replace gaskets and packing on 2 pumps.” (emphasis added). Elsewhere, they suggest that these were internal components of the 3 pumps. See id. (“Plaintiffs have provided evidence to the asbestos-containing components in these 4 products, and the dust that would have been generated from this work.”) (emphasis added). But 5 Mr. Elorreaga’s deposition testimony does indicate that he worked on and around Warren pumps, 6 including internal components. Warren’s evidence challenging this testimony merely highlights 7 the fundamentally factual dispute at issue here. 8 d. Air & Liquid Systems 9 Like the Warren pumps, Plaintiffs also allege that Mr. Elorreaga was exposed to asbestos- 10 containing insulation and gaskets associated with Buffalo Pumps.5 See Dkt. No. 149 at 1, 4–6; see 11 also SAC at ¶¶ 13–16. Air & Liquid Systems responds that Plaintiffs lack sufficient evidence to 12 support this contention. See Dkt. No. 129 at 7–11. 13 Mr. Elorreaga testified that while serving on the Rupertus, he worked on Buffalo pumps in 14 the engine rooms. See Dkt. No. 149-2, Ex. A at 27, 34–35 (ll. 221:21–230:11, 228:11–229:20, 15 298:2–8). He recalled the name “Buffalo” stamped on the pumps themselves. See Dkt. No. 149- 16 2, Ex. A at 29–30 (ll. 223:19–224:8). He would remove and replace the gaskets on those pumps, 17 although he never worked on any internal parts of the pumps. See id. at 30–32 (ll. 224:17–225:18, 18 226:10–17). He saw the word “Buffalo” on the packaging for the replacement gaskets. See id. at 19 35–36 (ll. 229:23–230:11); see also id., Ex. B at 71–72 (ll. 39:17–40:13). Mr. Elorreaga explained 20 that as part of his work, he would use a wire brush to clean out the debris between the head and 21 body of the pump before replacing the gaskets, and that he would then clean up this debris 22 afterward. See id., Ex. B at 66–67 (ll. 30:3–32:19). He also recalled that while working on the 23 Cowell, others would work on Buffalo pumps while he was present. See id., Ex. A at 37–40 (ll. 24 231:19–234:8). Mr. Elorreaga further explained that the Buffalo pumps were insulated, and that 25 insulation had to be removed during the course of the repairs to the pumps. See id. at 42 (ll. 26 296:1–25). 27 1 Plaintiffs appear to argue that although the Buffalo pumps themselves may not have 2 contained asbestos, they required gaskets and packing to work properly, and those items contained 3 asbestos. See Dkt. No. 149 at 16–18. Plaintiffs offer little evidence explaining their theory, but 4 they do point out that Buffalo’s person most knowledgeable indicated that the design of the pumps 5 provided for asbestos packing and gasket material. See, e.g., Dkt. No. 142-2, Ex. C at 81–84 (ll. 6 57:20–60:9, 61:12–25). Buffalo also appears to admit that during the relevant timeframe in this 7 case, the gaskets and packing that it initially supplied with some of its pumps required and 8 therefore contained asbestos. See id., Ex. D at 103–04. Although there may not be evidence that 9 these original materials were on the pumps in either the Rupertus or the Cowell, Mr. Elorreaga 10 testified about how these pumps require maintenance. Plaintiffs have therefore presented evidence 11 that Buffalo made its products with asbestos and knew that they would require replacement with a 12 similar part. See DeVries, 139 S. Ct. at 995. As with the other Defendants, the Court again finds 13 that this Defendant has not met its burden of showing that it is entitled to summary judgment on 14 this basis. 15 ii. Substantial Contributing Factor 16 Defendants all argue that even if Plaintiffs have provided sufficient evidence that Mr. 17 Elorreaga was exposed to asbestos attributable to their products, that exposure was de minimis and 18 Plaintiffs cannot establish that this exposure was a substantial factor in causing Mr. Elorreaga’s 19 mesothelioma. See, e.g., Dkt. No. 130 at 11–15. In particular, Defendants appear to argue that 20 Mr. Elorreaga’s testimony was not specific enough, meaning that Plaintiffs’ experts do not have— 21 and cannot create—dose-specific information about their products. See id. at 13–16. As a result, 22 Defendants urge that these experts will inevitably provide causation testimony that every exposure 23 to asbestos is a substantial factor in causing mesothelioma (the “every exposure” theory). Id. The 24 Ninth Circuit in McIndoe rejected the “every exposure” theory, reasoning that it would “permit 25 imposition of liability on the manufacturer of any [asbestos-containing] product with which a 26 worker had the briefest of encounters on a single occasion.” See McIndoe, 817 F.3d at 1177 27 (quotation omitted). As this Court has already determined, however, none of Plaintiffs’ experts 1 reject their testimony on this basis, and Defendants obviously can challenge their opinions with 2 their own experts and on cross-examination. As the Court explained in its prior order, “[v]igorous 3 cross-examination, presentation of contrary evidence, and careful instruction on the burden of 4 proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 5 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993). 6 * * * 7 Although the evidence that Plaintiffs proffered is not especially strong, when viewed in the 8 light most favorable to them, the Court finds that it is sufficient to raise at least one genuine 9 dispute of material fact regarding: (1) whether Mr. Elorreaga was exposed to asbestos-containing 10 products made, sold, or supplied by each Defendant; and (2) whether such exposure was a 11 substantial factor in causing his disease. 12 IV. CONCLUSION 13 Accordingly, the Court DENIES Defendants’ motions for summary judgment, Dkt. Nos. 14 123, 125, 129, 130, and GRANTS Plaintiffs’ motion for summary judgment as to the government 15 contractor defense. The Court further SETS a telephonic case management conference on May 2, 16 2023, at 2:00 p.m. All counsel shall use the following dial-in information to access the call: 17 Dial-In: 888-808-6929; 18 Passcode: 6064255 19 All attorneys and pro se litigants appearing for a telephonic case management conference are 20 required to dial in at least 15 minutes before the hearing to check in with the courtroom deputy. 21 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 22 possible, parties shall use landlines. 23 // 24 // 25 // 26 // 27 // 1 The Court further DIRECTS the parties to meet and confer and submit a revised joint case 2 || management statement by April 25, 2023. The parties should be prepared to discuss how to move 3 this case forward efficiently, including resetting the pretrial and trial dates. 4 IT IS SO ORDERED. 5 Dated: March 31, 2023 °

HAYWOOD S. GILLIAM, JR.

7 United States District Judge 8 9 10 11 12

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