Tuesday, August 21, 2012

Foreseeability in the Evergreen State -- An Unfortunate Development

The last time we blogged about an asbestos case it was to bring you the good news about O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012) from the California Supreme Court – and our hope that it spelled the beginning of the end for Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008) (see here for our clear distaste for Conte).  Unfortunately, earlier this month, the Washington Supreme Court zigged where California zagged and Macias v.  Saberhagen Holdings, Inc., 2012 Wash. LEXIS 543 (Wash. Aug. 9, 2012) is the result.

Plaintiff Macias allegedly developed mesothelioma from cleaning respirators worn by shipyard workers to filter out asbestos, welding and paint fumes, and dust.  Id. at *2-3.  Plaintiff brought suit against the respirator manufacturers alleging that although the respirators themselves contained no asbestos, it was “foreseeable” that the respirators would be used with asbestos to which he would then be exposed when he cleaned them.  The trial court denied defendants’ motion for summary judgment, but the appellate court reversed holding that the manufacturers had no duty to warn “because they did not manufacture the asbestos-containing products that were the source of the asbestos to which [plaintiff] was exposed.”  Id. at *2.    

In a 5-4 decision, the Washington Supreme Court overturned that summary judgment order finding that “the duty at issue is to warn of the danger of asbestos exposure inherent in the use and maintenance of the defendant manufacturers’ own products, the respirators.”  Id. at *2.  But, the respirators don’t contain asbestos and they don’t have to be used with asbestos – it is only foreseeable that they might be.  This is precisely the argument rejected in O’Neil.

A quick refresher on O’Neil helps to set the stage.   Plaintiff O’Neil, an aircraft carrier worker, sued the manufacturer of the carrier’s propulsion system alleging that while the propulsion system contained no asbestos at all, it was manufactured to specifications that required the addition of asbestos insulation from other sources and it was “foreseeable” that asbestos would be used in conjunction with their products.  The California Supreme Court, citing the appellate court’s decision in Macias, said no:  “California law does not impose a duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together.”  O’Neil, 266 P.2d at 1004.   Just like Mr. Macias, Mr. O’Neil did not allege that he was exposed to asbestos from any products actually sold by the defendants.  So how are the results in these cases so different?

Well, O’Neil is a California decision and therefore not controlling in Washington.  But Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008) and Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008) are.  And they are virtually identical to O’Neil.  Non-asbestos containing pumps/valves on Navy ships were insulated with asbestos.  When workers had to repair or perform maintenance on the pumps/valves, they were exposed to the asbestos insulation.  They sued the pump/valve manufacturers for asbestos-related injuries.  Macias, at *16.   In those cases the Washington Supreme Court held that “to find strict liability in a product liability case, the manufacturer must be in the chain of distribution”  Id. at *10.  Applying that principle to the facts of Simonetta and Braaten, the court found:
that the manufacturers were not in the chain of distribution of the asbestos insulating products and therefore had no duty to warn of the danger of exposure to asbestos during servicing, and it makes no difference whether the manufacturers knew that their products would be used in conjunction with asbestos insulation.
Id. at *17 (emphasis added).   We wholeheartedly agree with this conclusion and its premise that a manufacturer is not required to warn users of risks inherent in another’s product.  Id. at *11.  We also highlight the portion that says foreseeability doesn’t matter – because that is where the Macias court seems to have made its biggest u-turn.

            While the court acknowledged its ruling in Simonetta that “foreseeability of injury, does not in and of itself, create a duty to warn,” id. at *22, it then undertook a risk-benefit analysis with foreseeability at its core.  Id. at *22-26.  And while the Washington Product Liability Act does look in part to foreseeability of the harm in order to determine whether a product is unsafe – that’s not the question before the court.  As the court itself said: “The only issue before us is whether as a matter of law the manufacturers are entitled to summary judgment on the basis that they had no duty to warn of the danger of exposure to asbestos when their respirators were cleaned and maintained for reuse because these manufacturers were not in the chain of distribution of the asbestos-containing products themselves.”  Id. at *10.  So, “whether the defendant is in the chain of distribution of the relevant product is a threshold matter that must be determined before considering whether the product is reasonably safe.”  Id. at *36 (dissent).  Clearly a case of the cart before the horse.

The Macias court also focused on the fact that there are exceptions to the general “chain of distribution” rule – such as “assembler liability” for defective component parts or where two non-defective products are combined and create a dangerous condition.  Id. at *12-14. But then the court goes onto say that neither exception applies to the current case.  Id. at *15.   So, if the exceptions don’t apply, shouldn’t the general rule stand? 

In fact, plaintiff’s argument in Macias might be even more of a stretch than in O’Neil.  In O’Neil, defendant’s products were required to be used with insulation and the only insulation meeting Navy specifications was asbestos.  Id. at *22 n.4.    As the Macias dissent points out:
In contrast, these respirators were complete upon sale and did not require the addition of an asbestos-containing component. Moreover, these respirators were intended to protect against a number of different contaminants, including welding fumes, paint fumes, and various types of dust. The manufacturers should not be expected to warn of the dangers of every contaminant a user could conceivably encounter. Imposing such an obligation would render all the warnings given virtually meaningless. 
Id. at *35 (dissent).  It is difficult to imagine the length and breadth of the warning that would be required by this decision?

Since all four cases involve maintenance performed on products that post-manufacture and post-sale come into contact with another maufacturer's product that contains asbestos, we find it extremely difficult to understand how Macias could have come down any differently than O’Neil, Simonetta or Braaten.  And we think the court must have struggled with this too, because their ultimate holding is frankly ponderous.  To fit within the general rule that a manufacturer is only liable for harm caused by its own product, the court ruled that the respirators are “the very products that posed the risk to [plaintiff]” and “[i]t does not matter that the respirator manufacturers were not in the chain of distribution of products containing asbestos when manufactured.”  Id. at *18-19.  Wait a minute. That’s a direct contradiction of the very general rule the court claims to be applying.  If the respirator manufacturers’ products don’t contain asbestos, they shouldn’t be liable for plaintiff’s alleged exposure to asbestos.  Plaintiff wasn’t harmed by the respirator itself, but by asbestos that the respirators came in contact with.  If the respirators had been used somewhere where there was no asbestos – also very foreseeable – plaintiff wouldn’t have been injured.  There is no claim for injury without the asbestos and the defendants didn’t manufacture the asbestos-containing products. 

We also need to point out the serious flaw in the court’s analogies.  The court likens the respirators to blenders or table saws – that while sitting dormant in their boxes pose no real risk.  Rather “[i]t is only when the product is put to use at some point in the future that the hazards inherent in swiftly turning blades exist.” Id. at *24.  That’s right – the risk is from the blades.  The blades are part of the product – they were designed by, manufactured by, and sold by the maker of the blender or table saw.  Not true of the asbestos that allegedly caused injury to Mr. Macias.  And a gas stove doesn’t work without gas – respirators work without asbestos.  That analogy doesn’t hold water either.  It is just a further example of how far the court had to stretch to find a cause of action against the non-manufacturer defendants.  

 It’s just this type of stretch that makes us nervous about where a court is heading.  The court could easily have decided that this case was governed by Simonetta and Braaten and held that the respirator manufacturers owed no duty to warn about asbestos because they were not in the chain of distribution of the asbestos-containing products.  Having gone out of its way to distinguish its prior rulings, we can only wonder what’s next in the Evergreen State.

Thank you to one of our faithful readers, Brendan M. Kenny of Blackwell Burke PA for brining this important, although unfortunate, decision to our attention.    

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