Products Liability: Consumer Expectation Test

Saller v. Crown Cork & Seal Company, Inc., (Second District, August 27, 2010) 187 Cal.App.4th 1220, 115 Cal.Rptr.3d 151, 10 Cal. Daily Op. Serv. 11,333, 2010 Daily Journal D.A.R. 13,636

The heirs and estate of a man who died of mesothelioma filed an action for wrongful death against several asbestos manufacturers under various theories of products liability. The plaintiffs alleged that the decedent’s disease had been caused by his exposure decades earlier to asbestos-containing products, while at work and while using home repair products.

Following a jury verdict in favor of the defendants the plaintiffs appealed, contending that the trial court had erred in refusing to instruct the jury with CACI 1203, the consumer expectations test. The court of appeal reversed, rejecting the defendants’ contention that the consumer expectations test did not apply because no one knew of the dangers of asbestos at the time the plaintiff was exposed:

“Here, we agree that the consumer expectations test applied to the use of asbestos at Standard Oil and that Saller’s testimony concerning his expectations about its safety in its ordinary use at Standard Oil were sufficient to require a jury instruction on the issue. The use of asbestos insulation is a product that is within the understanding of ordinary lay consumers. In addition, Saller presented evidence concerning his exposure to the product (in frequent and close proximately to those workers actually using it); the circumstances surrounding his injury (use of asbestos insulation, an apparently innocuous product, frequently produced significant amounts of asbestos-containing dust that he inhaled); and the objective features of the product relevant to an evaluation of its safety (the product was always cut or sawed when used, always produced dust, and was frequently used). Given these circumstances and the widespread use of asbestos in refineries and other industries, the jury could infer that the ordinary consumer of the product, namely refinery workers, would assume that the use of the product was safe, notwithstanding the amount of dust produced.
. . .
Crown misconstrues the nature of the test by positing that it does not apply to asbestos products in use in the 1950’s and 1960’s because no one knew of the dangers of asbestos at that time. If knowledge of the hazardous nature of the product were a prerequisite for the test to apply, then no product would ever fail to meet the safety expectations of the reasonable consumer. Further, Crown erroneously assumes that because the only evidence plaintiffs presented on the issue was Saller’s testimony, not only was it insufficient to support the giving of an instruction, Saller’s viewpoint was also subjective. On the first point, Crown’s complaints go to the weight of the evidence, not whether the instruction applies in the first instance.
. . .
Furthermore, there was nothing in the record to support Crown’s assertion that Saller’s testimony was subjective. On the contrary, he testified to undisputed facts: the plants where he worked, the jobs he performed, the procedures of his coworkers, the use of asbestos insulation, and the dust in the air. Saller’s work experience and exposure to the regular and systematic use of asbestos insulation could permit the jury to draw conclusions about whether the insulation performed as safely as an ordinary consumer (in this case a refinery worker) would expect.”