By Michael Hoenig - New York Law Journal -
February 17, 2012
In our October
2011 column, "Courts
Shoot Down Asbestos Causation Theory,"1 we
reported that waves of asbestos litigation with claimants
alleging they had asbestosis, lung cancer or mesothelioma drove
many corporations into bankruptcy. The U.S. Supreme Court,
recognizing the existence of an "asbestos-litigation crisis"
years ago, urged creation of a national dispute-resolution
scheme,2 but Congress failed to respond. A
Congressional Budget Office estimate in August 2005 posited that
some 322,000 asbestos bodily injury cases were pending in state
and federal courts.
In 1982, some 300 companies,
mainly producers of asbestos and asbestos-containing products,
were targeted as defendants. But, as these defendants were
felled and waves of new lawsuits spread, companies farther
removed from direct production, said now to number over 8,500
defendants, were sued. A well-known plaintiff's lawyer described
the litigation as an "endless search for a solvent bystander."
To deal with swollen case dockets, many courts over the years
adopted case handling procedures that, while innovative and
perceived as necessary, sometimes made mass-production factories
out of halls of justice.
As the litigation waves moved
away from asbestos producer defendants to target many companies
farther removed from direct production, the expedient mass case
handling procedures adopted by courts to rush cases through the
system collided with demands for more careful, more deliberate
judicial consideration of factual, legal and procedural issues
raised by defendants who did not manufacture asbestos. They now
raised defenses that were normal for remote "deep pocket"
targets. Healthy companies more recently named in lawsuits
because of tangential connections to asbestos-containing
products or their use started to dig in and demand case handling
protections accorded to all other litigants. Shocked by
curtailed, so-called "rolling discovery" techniques, by
"standing orders" from outdated, bygone years dictating that
routine motions could not be made, by joinder into consolidated
trials involving separate plaintiffs and loads of other
defendants, and other techniques they associated with "turnstile
justice," the newer defendants sought to better level the
Some courts, hardened and
ossified by decades of hard-core asbestos litigation, resisted
the newcomers' insistence on a more deliberate, individualized
pace of case handling practices. But, as new judges took on the
dreaded asbestos caseload, and, as advocacy by newcomers
sharpened, a renewed focus emerged on the part of some to try to
look at cases in line with traditional substantive and
procedural rules. Leading this charge of "taking another look"
at asbestos litigation as more remote defendants are sued, are
those who ask courts to "gatekeep" experts for reliability of
their opinions, methodologies and foundational underpinnings.
Reliability requirements under Daubert and Frye
tests have forced many courts to scrutinize more carefully
purported proofs of defect and causation. Indeed, our October
column analyzed recent court decisions shooting down the
so-called "any fiber," or "single fiber" or "any exposure"
theory of causation.3
Here we report on a new spate
of court decisions rejecting yet another attempt by savvy,
ever-creative, ever resourceful, ever-persistent claimants'
lawyers to expand the pool of solvent deep-pocket defendants.
One of the new decisions is
O'Neil v. Crane Co.,4 issued last month by
the California Supreme Court on Jan. 12. Another is
Conner v. Alfa Laval Inc.,5 an Eastern
District of Pennsylvania federal court decision under maritime
law but evaluating the legal issues under the common law of
products liability. The Conner opinion was issued on Feb.
1, 2012. These cases and others before them6 confront
the issue whether a product manufacturer should be liable for
injuries caused by adjacent products or replacement parts that
were made by others and used in conjunction with the defendant's
product. Sometimes, the claim is framed as a design issue;
often, it is pled as a failure to warn theory.
In O'Neil, the
California Supreme Court's unanimous decision issued last month,
plaintiff formerly served on an aircraft carrier. He brought
products liability claims against Crane Company and Warren
Pumps, which manufactured equipment used in the ship's steam
propulsion system. Pursuant to Navy specifications, asbestos
insulation, gaskets and other parts were used with the defendant
manufacturers' equipment, some of which was originally supplied
by the defendants. Patrick O'Neil, however, worked on the ship
some 20 years after the defendants supplied the equipment and
original parts. There was no evidence that defendants made any
of the replacement parts to which plaintiff was exposed. Nor was
there evidence that defendants made or distributed asbestos
products to which O'Neil was exposed.
The California court held
that the defendant manufacturers were not liable for the harm
caused by asbestos products they did not manufacture or
distribute. As to the design defect claim, the court observed
that "strict products liability in California has always been
premised on harm caused by deficiencies in the defendant's own
product." Further, "the defective product…was the asbestos
insulation, not the pumps and valves to which it was applied
after defendants' manufacture and delivery."
The California court likewise
rejected plaintiff's failure-to-warn claim. Plaintiff urged a
strict liability for failing to warn about the hazards of the
release of asbestos dust surrounding defendants' products. This
duty, plaintiff argued, arose from the fact that it was
"reasonably foreseeable" that defendants' products would be used
with asbestos insulation. However, said the court, 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."
The California court
indicated that policy considerations precluded any expansion of
liability. Placing an obligation to compensate on those whose
products caused plaintiff no harm "would exceed the boundaries
established over decades of product liability law." The policy
driving product liability confirms that manufacturers in the
chain of distribution can be liable only for harm caused by
their own products. That party is in the best position to absorb
the costs of liability into the costs of production. This policy
also militates against holding manufacturers liable for harm
caused by asbestos products they did not manufacture or
distribute because those manufacturers cannot account for the
costs of liability created by third parties' products. It is
unfair to require manufacturers of nondefective products to
shoulder a burden of liability when they derived no economic
benefit from the sale of the products that injured the
The Washington Supreme Court
Simonetta v. Viad Corp.7 ruled in 2008
that a former Navy machinist could not recover against the
successor to the manufacturer of an evaporator used to
desalinize water on a ship for exposure to asbestos-containing
parts. The evaporator required use of asbestos-containing parts
to function, but the asbestos was not manufactured, provided or
installed by the defendant. The court viewed the
asbestos-containing components to be the harm-causing product,
not the evaporator. The court said that state precedent did not
support extending strict liability for failure to warn to those
outside the chain of distribution of a product.
In a companion case,
Braaten v. Saberhagen Holdings,8 the
Washington Supreme Court took the Simonetta ruling a step
further. The issue was "whether manufacturers were required to
warn of the danger of exposure to asbestos in packing and
gaskets in their products if they originally included in their
products asbestos-containing packing or gaskets manufactured by
others."9 Plaintiff was a pipefitter aboard Navy
ships who contracted mesothelioma. While the manufacturers
provided pumps and valves to be used on the ships, it was the
Navy that insulated the products with asbestos-containing
insulation. The manufacturers did not provide the insulation
but, in some cases, the original products contained asbestos
components when delivered to the Navy.
Plaintiff failed, however, to
show that he was exposed to any asbestos products manufactured
by defendants. Relying on the policy underlying products
liability, the court said, "a manufacturer does not have an
obligation to warn of the dangers of another manufacturer's
product." The court reinstated summary judgment for defendants.
In Surre v. Foster
Wheeler, LLC,10 a Dec. 20, 2011, a Southern
District of New York decision by Second Circuit Judge Denny
Chin, a boiler manufacturer was held not liable for failure to
warn when the manufacturer "did not place into the stream of
commerce the asbestos to which [the plaintiff] was exposed." The
court reasoned that, generally, a manufacturer has no duty to
warn against defects in third-party products so long as the
manufacturer had no control over the production of the defective
product and did not place it into the stream of commerce.
Citing and quoting from
Rastelli v. Goodyear Tire & Rubber Co.,11 a
New York Court of Appeals decision in 1992, Judge Chin noted
that there is no duty to warn where defendant "did not
contribute to the alleged defect in the product, had no control
over it, and did not produce it." In Rastelli, a
multipiece wheel rim exploded during a tire change. Plaintiff
sued Goodyear, the tire manufacturer, arguing that Goodyear
should have warned about the inherent dangers of multipiece rims
because its tires were compatible for use with such rims. The
Court of Appeals refused to impose such a duty. Rastelli
was cited by the California Supreme Court in O'Neil as a
holding "in accord" with California law.
In Conner v. Alfa Laval
Inc.,12 just weeks ago, a Pennsylvania federal
court held that a manufacturer is not liable for harm caused by
asbestos products that it did not manufacture or distribute. In
applying maritime law, the court reviewed and analyzed the
common law of products liability, noting the recent O'Neil
decision in California as well as the Washington state cases (Braaten
and Simonetta) as well as many others. The court noted
that the policy motivating products liability law weighs against
holding manufacturers liable for harm caused by third parties'
Additionally, a U.S. Court of
Appeals for the Sixth Circuit admiralty decision in 2005,
Lindstrom v. A-C Prod. Liab. Trust,13
affirmed a grant of summary judgment to multiple defendants
because a manufacturer cannot be responsible for a third party's
asbestos products. There, a merchant seaman claimed he was
exposed to asbestos while replacing gaskets on pumps
manufactured by a defendant but the replacement gaskets
themselves were not manufactured by the defendant. The federal
district court in Conner "adopted" Lindstrom and
so held under maritime law.
Asbestos litigation, over the
decades, has taken products liability substantive law, case
handling procedures, trial practice and evidence well beyond
then-existing frontiers. Responsive to creative, persuasive and
resourceful claimants' counsel, sensitive to the plight of
numerous seriously injured plaintiffs, fearful of clogged court
dockets and institutional paralysis, many courts rushed headlong
to create systems that would force settlements and penalize
those defendants who chose trial by saddling them with onerous
Many bankruptcies later, however, the new waves of asbestos
litigation now reach out farther to more remote defendants, and
often stretch proofs of exposure and causation in seeking to
cast the broader liability net. The recent decisions reported
here and in our October 2011 article reflect that bedrock
evidentiary and products liability principles and the policies
that underlie them ought not be compromised even though the
claim is labeled as one involving "asbestos."
Michael Hoenig is a
member of Herzfeld & Rubin.
1. New York Law
Journal, Oct. 19, 2011, p. 3.
Amchem Products Inc. v. Windsor, 521 U.S. 591, 597-598
3. Supra n. 1.
4. 53 Cal. 4th
335, 2012 Cal. LEXIS 3 (Cal. Sup. Ct. Jan. 12, 2012).
5. 2012 U.S.
Dist. LEXIS 11812 (E.D. Pa. Feb. 1, 2012).
6. See, e.g.,
Surre v. Foster Wheeler, LLC, 2011 U.S. Dist. LEXIS
147731, 2011 WL 6382545 (S.D.N.Y. Dec. 20, 2011) (Judge Denny
Chin); Braaten v. Saberhagen Holdings, 198 P. 3d 493
(Wash. 2008) (en banc); Simonetta v. Viad Corp., 197 P.
3d 127 (Wash. 2008) (en banc).
7. 197 P.3d 127
(Wash. 2008) (en banc).
8. Supra n. 6.
9. 198 P.3d at
10. Supra n. 6.
11. 79 N.Y.2d
289, 297 (1992).
12. 2012 U.S.
Dist. LEXIS 11812 (E.D. Pa. Feb. 1, 2012).
13. 424 F.3d
488 (6th Cir. 2005).
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