Products Liability

Products Liability — Adjacent Products

By on December 15, 2015 - Comments off

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Sherman v. Hennessy Industries, Inc. (Second District, June 18, 2015, as Modified on Denial of Rehearing July 8, 2015) 237 Cal.App.4th 1133, 188 Cal.Rptr.3d 769, 15 Cal. Daily Op. Serv. 6450, 2015 Daily Journal D.A.R. 6888

The husband and children of a woman who died from mesothelioma allegedly caused by exposure to asbestos dust her husband carried home from work, filed a products liability action against the manufacturer of a brake lining arcing machine. The plaintiffs alleged that the machine, which was used by the decedent’s husband for 15 years in his job as a brake mechanic, released asbestos dust into the air when it was applied to brake linings containing asbestos.

Relying on O’Neil v. Crane Co. (2012) 53 Cal.4th 335, the defendant moved for summary judgment, contending that the  machine itself contained no asbestos, and that the plaintiffs could not establish the circumstances necessary for the imposition of strict liability. The defendant argued that the plaintiff could not prove the sole intended purpose of the machine was to abrade asbestos-containing brake linings, since the machine had the capacity to abrade asbestos-free brake linings, which were available in the 1960’s and 1970’s. The plaintiffs opposed the motion, arguing that the machine was designed to grind brake linings only of a certain type, and that during the pertinent period, those linings “almost universally” incorporated asbestos.

The trial court granted summary judgment, concluding that the AMMCO machine “did not contain asbestos, was not designed to be operated exclusively with asbestos-containing brakes, and could be operated with asbestos-free brakes.” However, the court of appeal reversed, under what it called the Tellez–Cordova exception to the general rule barring imposition of strict liability on a manufacturer for harm caused by another manufacturer’s product:

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Products Liability: General and Specific Jurisdiction

By on July 6, 2015 - Comments off

Bristol-Myers Squibb Company v. Superior Court, (First District, July 30, 2014) 228 Cal.App.4th 605, 175 Cal.Rptr.3d 412, 14 Cal. Daily Op. Serv. 8653, 2014 Daily Journal D.A.R. 10,059

Hundreds of users of the prescription drug Plavix, including both Californians as well as residents of other states, filed products liability actions in California against BMS, the drug’s manufacturer. The plaintiffs alleged that BMS falsely represented the drug as providing greater cardiovascular benefits, while being safer and easier on a person’s stomach than aspirin, but that those claims were untrue, and that ingesting the drug involved a risk of suffering a heart attack, stroke, internal bleeding, blood disorder or death, far outweighing any potential benefit.

The manufacturer moved to quash service of the summons of the complaints by the non-California residents, contending that the trial court could not assert general jurisdiction over the defendant unless it was “at home” in California under the holding in Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) ––– U.S. ––––, 131 S.Ct. 2846, 180 L.Ed.2d 796. The manufacturer argued that its California contacts did not rise to that level since it was neither headquartered nor incorporated here. The defendant also argued that out of state plaintiffs could not invoke specific jurisdiction here because such jurisdiction is limited to cases where the controversy is related to or arises out of the defendant’s contacts with the forum.

The trial court denied the motion based on its conclusion that California has general jurisdiction over BMS, but did not address the issue of specific jurisdiction. The court of appeal summarily denied a petition for a writ of mandate, but following the U.S. Supreme Court’s decision in Daimler AG v. Bauman (2014) ––– U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624, which limited the application of general jurisdiction, the California Supreme Court granted a petition for review and transferred the matter back to the court of appeal for further consideration. The court of appeal denied the petition, finding that although the trial court did not have general jurisdiction over the defendant, the motion to quash was properly denied based upon the doctrine of specific jurisdiction: Read the rest »

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Anti-SLAPP Statute: Negligent Undertaking

By on June 15, 2015 - Comments off

Hardin v. PDX, Inc., (First District, June 19, 2014) 227 Cal.App.4th 159, 173 Cal.Rptr.3d 397.

A woman who suffered complete blindness and permanent scarring after taking a prescription anticonvulsant drug, filed suit against several defendants, including the manufacturer, the prescribing doctor and the pharmacy where the drug was purchased, alleging that she would not have taken the drug had she been provided adequate warnings.  The plaintiff also named a supplier of software which distributed to pharmacy customers information known as drug education monographs, and alleged the defendant was negligent in reprogramming its software to permit the pharmacy to print abbreviated warnings, omitting 3 pages of additional information about the drug.

The defendant moved to strike the plaintiff’s claims under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute) on the ground that the products liability and negligence claims against it arose from protected speech concerning a public issue or an issue of public interest. The trial court denied the motion, finding that the activity underlying the alleged liability was the reprogramming of software, and was not in furtherance of the defendant’s right of petition or free speech within the meaning of section 425.16. The court of appeal affirmed, holding that the plaintiff had demonstrated a probability she may prevail on her claim under a theory of negligent undertaking, distinguishing the case from Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 115 Cal.Rptr.3d 1: Read the rest »

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Products Liability: Component Parts Doctrine

By on June 3, 2015 - Comments off

Uriarte v. Scott Sales Co., (Second District, June 13, 2014) 226 Cal.App.4th 1396, 172 Cal.Rptr.3d 886, 14 Cal. Daily Op. Serv. 6588, 2014 Daily Journal D.A.R. 7553

A man who worked as a sandblaster filed suit against the manufacturers and suppliers of silica sand purchased by his employer, contending that the airborne toxins produced by sandblasting with their product caused him to develop interstitial pulmonary fibrosis and other illnesses. The plaintiff alleged that the sandblasting media supplied by the defendants, when used in the manner intended by the manufacturers and suppliers, resulted in the generation and release of toxicologically significant amounts of toxic airborne fumes and dust.
The defendants moved for judgment on the pleadings on the basis of the component parts doctrine, which provides that the manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.  The trial court granted the motions but the court of appeal reversed, concluding that because the plaintiff’s injuries were allegedly caused by the use of the silica sand during the manufacturing process, rather than by the finished product, the component parts doctrine did not apply, disagreeing with the interpretation and application of the component parts doctrine articulated in Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 136 Cal.Rptr.3d 630:  Read the rest »

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Products Liability: Take Home Exposure

By on May 26, 2015 - Comments off

Haver v. BNSF Railway Co., (Second District, June 3, 2014 | As Modified June 23, 2014) 226 Cal.App.4th 1104, 172 Cal.Rptr.3d 771.

The heirs of a woman who died after contracting mesothelioma, throat cancer and progressive lung disease, filed a wrongful death action against her husband’s former employer, contending that she had contracted the disease as a result of secondary exposure to asbestos. The plaintiffs alleged that asbestos from products and equipment on the employer’s premises had adhered to the decedent’s husband’s clothing, tools and vehicles, and that the decedent had inhaled asbestos fibers which had been transferred to the couple’s home.

The defendant demurred to the complaint, contending that under Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 141 Cal.Rptr.3d 390, it owed no duty to protect family members from take-home exposure. The trial court sustained the demurrer without leave to amend and the court of appeal affirmed, rejecting the plaintiffs’ argument that the holding in Campbell applied only to relatives of independent contractors and not employees. The court also distinguished the case from the recent decision in Kesner v. Superior Court (May 15, 2014, No. A136378, 2014 WL 1962217) 226 Cal.App.4th 251, 171 Cal.Rptr.3d 811, which had permitted a take-home exposure claim under products liability principles: Read the rest »

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Products Liability: Take-Home Exposure

By on April 6, 2015 - Comments off

Kesner v. Superior Court, (First District, May 15, 2014) 2014 WL 1962217, — Cal.Rptr.3d —-, 14 Cal.Daily Op. Serv. 5376, 2014 Daily Journal D.A.R. 6110

A man who contracted mesothelioma filed suit against his uncle’s employer, a brake lining manufacturer, alleging that his disease was caused by exposure to asbestos which his uncle brought home from work on his clothing. Asserting theories of products liability, including negligence, breach of express and implied warranties, and strict products liability, the plaintiff alleged that over a period of several years he was a frequent guest in his uncle’s home, and often spent the night there, and that the uncle would come home in his work clothes covered in asbestos dust. The plaintiff further alleged that his uncle would often play with him and sometimes sleep near him while still in his work clothes, and that his exposure to the asbestos dust was a contributing cause of his disease.

Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the trial court granted the manufacturer’s motion for a nonsuit,  finding that there was no duty to the plaintiff for any exposure to asbestos through contact with an employee, as none of the exposures took place at or inside the defendant’s plant.  However, the court of appeal reversed, holding that under the circumstances a duty of care did extend to members of the employee’s household who were likely to be affected by toxic materials brought home on the worker’s clothing: Read the rest »


Products Liability: Consumer Expectations Test

By on March 16, 2015 - Comments off

Romine v. Johnson Controls, Inc., (Second District, March 17, 2014) 2014 WL 1012960, 14 Cal. Daily Op. Serv. 2958, 2014 Daily Journal D.A.R. 3414, — Cal.Rptr.3d —-

A woman who was rendered quadriplegic when her seat collapsed when her pickup truck was rear-ended, filed a products liability action against the manufacturer of the seat. The plaintiff contended that the seat was defectively designed, in that it had failed to restrain her in the collision, allowing her body to slide up the seat and strike her head on the vehicle’s back seat.

Following a jury verdict in favor of the plaintiff the manufacturer appealed, contending that the trial court erred in permitting the plaintiff to try that claim under the consumer expectations test rather than the risk/benefit test. The defendant argued that the consumer expectations test may not be used to evaluate “the performance of the design of a single part of a multi-component vehicle and restraint system in a violent, multi-vehicle car crash, and that the trial court erred in excluding evidence relevant to the risk/benefit test. However, the court of appeal affirmed, rejecting the argument that the complexity of the collision precluded application of the consumer expectations test: Read the rest »


Products Liability: Component Parts Doctrine

By on February 17, 2015 - Comments off

Ramos v. Brenntag Specialties, (Second District, March 21, 2014) 2014 WL 1116961, 14 Cal. Daily Op. Serv. 3129, 2014 Daily Journal D.A.R. 3597, — Cal.Rptr.3d —-

A mold maker/machine operator who was diagnosed with interstitial pulmonary fibrosis brought an action against several manufacturers of metals, plaster and minerals which he had worked around for many years at a metal foundry. The plaintiff alleged that his disease was caused by on- the-job exposure to, inter alia, fumes from the molten metal and dust from plaster, sand, limestone and marble, which were used in the fabrication process. The plaintiff further alleged that although state and federal regulations identified the products or their constituents as hazardous, the defendant provided no warnings to him.

The defendants moved for judgment on the pleadings, contending that the claims were barred under Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 136 Cal.Rptr.3d 630, which addressed similar claims and held that because the metal products at issue were raw material and were not inherently dangerous, under the component parts doctrine the defendants could not be liable.  Following amendments to the complaint, the trial court sustained demurrers without leave to amend.

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Products Liability: Noerr-Pennington Doctorine

By on June 25, 2014 - Comments off

Hernandez v. Amcord (2013) 215 Cal.App.4th 659, 156 Cal.Rptr.3d 90

A man who was diagnosed with mesothelioma brought a products liability action against the manufacturer of a plastic cement which contained asbestos. The plaintiff alleged that while working as a carpenter and in the construction industry his exposure to asbestos in the product was a substantial factor contributing to his risk of developing cancer.  At trial the plaintiffs sought to introduce evidence of the defendant’s government lobbying activities, and that the defendant had successfully lobbied for an exemption to a ban on asbestos spray construction products. Read the rest »


Duty To Warn: Sophisticated User

By on April 14, 2014 - Comments off

Webb v. Special Electric Company, Inc. (2013) 214 Cal.App.4th 595, 153 Cal.Rptr.3d 882

A man who allegedly contracted mesothelioma as a result of working for many years around pipe containing asbestos, filed a product liability action against Johns-Manville, the pipe manufacturer, as well as Special Electric, a company which supplied bags of asbestos to Johns-Manville. The plaintiff contended that both defendants were liable for failing to warn of the risk of injury and disease presented by the use and handling of asbestos.

A jury rendered a verdict in favor of the plaintiff, finding that Special Electric had failed to adequately warn consumers of its products’ potential risks, and assessed 49% fault to the manufacturer and 18% to Special Electric. The trial court granted judgment notwithstanding the verdict, and entered judgment in favor of Special Electric, relying on the rule that sophisticated users of dangerous products need not be warned about dangers of which they are already aware. The court found that as a matter of law, the supplier had no duty to warn Johns-Manville because it was already aware that asbestos was a dangerous product. However, the court of appeal reversed, holding that the trial court’s finding that the supplier had discharged its duty was unsupported by the record: Read the rest »