The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion for Summary Judgment filed by Defendant MD Helicopters, Inc. (ECF No. 76).
On September 29, 2009, Plaintiffs initiated this action by filing a Complaint against Rolls Royce Corporation ("Rolls Royce"), regarding a 2009 helicopter accident in San Clemente, California. (ECF No. 1). On November 17, 2010, Plaintiffs filed a Second Amended Complaint ("Complaint") against Rolls Royce, MD Helicopters, Inc. ("MDHI"), and the Boeing Company ("Boeing"). (ECF No. 33). In the Complaint, Plaintiffs allege two causes of action against Defendant MDHI; they are the fourth and fifth causes of action in the Complaint. The fourth cause of action alleges "negligence, negligence per se, and failure to warn." (ECF No. 33 at 11). Plaintiffs allege that, as successive manufacturer of the accident helicopter and holder of the accident helicopter's Type Certificate, MDHI was responsible for the safe operation and continued airworthiness of the helicopter, including informing owners, operators, and the Federal Aviation Administration ("FAA") of any design defects and performance capabilities of the helicopter. The fifth cause of action alleges strict liability for design and manufacturing defects of the accident helicopter and its components. Plaintiffs allege that the accident helicopter had defective engine components and autorotation characteristics.
On October 27, 2011, Defendant Boeing notified the Court of its settlement with Plaintiffs. (ECF No. 63). On November 30, 2011, the Court approved the settlement between Plaintiffs and Boeing. (ECF No. 69). On December 13, 2011, all claims against Defendant Boeing were dismissed with prejudice. (ECF No. 77).
On December 6, 2011, MDHI filed a motion for summary judgment. (ECF No. 76). On January 20, 2012, Plaintiffs filed an opposition. (ECF No. 81). On January 27, 2012, MDHI filed a reply. (ECF No. 82). On February 3, 2012, the Court heard oral argument on the motion for summary judgment. (ECF No. 83).
On February 7, 2012, Plaintiffs filed responsive briefing to MDHI's reply papers. (ECF No. 84). On February 8, 2012, Plaintiffs filed additional evidence in support of their opposition. (ECF No. 85). On February 15, 2012, MDHI filed a reply to the responsive briefing and an opposition to the additional evidence submitted by Plaintiff. (ECF Nos. 88, 89). On February 20, 2012, Plaintiff filed a reply in support of their additional evidence. (ECF No. 91). On February 24, 2012, Plaintiff filed a reply in support of their responsive briefing. (ECF No. 93). On April 25, 2012, MDHI filed a reply to the additional evidence and the responsive briefing. (ECF Nos. 123, 124).
B. Undisputed Material Facts
The MD600N model helicopter was designed and manufactured by McDonnell Douglas Helicopter Systems ("MDHS") in 1994 and certified by the FAA in 1997. The MD600N model helicopter included an engine designed and manufactured by Rolls Royce. Upon certification in 1994, the FAA approved the MD600N for handling quality and autorotation performance at a maximum weight of 3,650 pounds at 7,000 feet density altitude and 4,100 pounds at 1,700 feet density altitude. In 1998, the FAA increased the approved limits for MD600N handling quality and autorotation performance to a maximum weight of 3,850 pounds at 7,000 feet density altitude and 4,100 pounds at 4,000 feet density altitude. Autorotation is a pilot-recovery maneuver performed in the event of engine failure that keeps the main helicopter rotor blades moving so that the aircraft descent can be controlled.
In 1997, Boeing merged with MDHS and acquired the MD600N product line ("MDHS/Boeing"). In 1998, U.S. Border Patrol purchased a number of MD600N model helicopters from MDHS/Boeing, including the accident helicopter.
In 1999, MDHI purchased the MD600N product line from MDHS/Boeing pursuant to an Asset Purchase Agreement ("Purchase Agreement"). In the Purchase Agreement, MDHI assumed the following liability from MDHS/Boeing:
Liability for personal injury, death or property damage, whether arising in contract or in tort (including negligence) arising from or relating to all MD500/600N Products delivered by [MDHS/Boeing] prior to [January 18, 1999] for causes of actions based on notices to customers, such as contained in maintenance manuals, service notices, etc., and arising from aircraft incidents occurring after [January 18, 1999]. (ECF No. 76-27 at 15). MDHS/Boeing retained the following liability:
Liability for personal injury, death or property damage, whether arising in contract or in tort (including negligence) arising from or relating to Products delivered by [MDHS/Boeing] prior to [January 18, 1999], regardless of legal theory asserted and arising from aircraft incidents occurring prior to [January 18, 1999].... [and]
Liability for personal injury, death or property damage, whether arising in contract or in tort (including negligence) arising from or relating to MD500/600N Products delivered by [MDHS/Boeing] prior to [January 18, 1999], regardless of legal theory asserted, except for causes of actions based on notices to customers such as contained in maintenance manuals, service notices, etc., and arising from aircraft incidents occurring after [January 18, 1999] provided always that any dispute as to whether a cause of action is based on a notice to customers or some other cause of action shall be responded in accordance with Article 11.15 "Dispute Resolution; Arbitration."
(ECF No. 76-27 at 16).*fn1 In this transfer, MDHI became the Type Certificate Holder for the MD600N helicopter model. The Type Certificate "prescribes conditions and limitations under which the [MD600N] meets the airworthiness requirements of the Civil Air Regulations and, where specified, the Federal Aviation Authority Regulations." (ECF No. 81-20 at 2).
In 2000, the U.S. General Accounting Office ("GAO") issued a report that addressed the performance of the MD600N model helicopter during autorotation. The report collected information on U.S. Customs and Border Protection ("CBP") (formerly the U.S. Border Patrol) pilots experiences with the MD600N model helicopter. The GAO interviewed dozens of CBP personnel, including 25 of the 29 pilots then certified to fly the MD600N, and three of the four training pilots. "Several" of the interviewed pilots stated that "the manner in which the MD600N handles could make successful autorotations more difficult, in part, because it descends faster than other helicopters... [B]ecause it is heavier and has a higher descent rate, there is little room for error at the bottom of the descent." (GAO report; ECF No. 76-7 at 22). The GAO report stated:
Responding to our inquiry regarding these concerns, the current manufacturer of the MD 600N, MD Helicopters Incorporated (MDH), stated that all known problems with parts or components have been or will be corrected.... MDH has proposed modifications to the helicopter to make it easier and less fatiguing to fly. A major handling improvement being considered-the addition of a stabilization system-may greatly improve handling concerns....
Pilots in all four sectors with the MD 600N reported a lack of confidence in the MD 600N because of flight safety and performance concerns. These concerns included a perceived lack of ability to successfully recover from an engine failure when flying at lower altitudes and speeds (autorotation characteristics)... and poor flight-handling characteristics. Several pilots outside of the Border Patrol also have had some of these concerns. MDH[I] officials stated that the autorotation characteristics of the MD 600N were approved by the FAA and that the problems with aircraft components either had been or would soon be addressed...
An MDH official said they took a test pilot to one sector to discuss the autorotation concerns with Border Patrol pilots and provided additional autorotation training to all Border Patrol sectors with MD 600Ns, at company expense.... MDH officials also said they were testing a 1 to 2 degree change in the angle of the rotor blades that will make the MD 600N easier to handle during ...