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.    

Foreseeability Gets Its Wings Clipped In California

Late last night we received this message from a correspondent (who will remain anonymous since we lack permission):

Hopefully the groundwork for getting Conte thrown-out has been laid.  Only a matter of time.  And with any luck we’ll have an opportunity some day soon.

Getting a message like that makes us sit up a little straighter.  So we took a look at the attached case, O’Neil v. Crane Co., S177401, slip op. (Cal. Jan. 12, 2011), and we can see what she’s talking about.

As readers may recall from our original rants about Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), we think that decision is just flat wrong.  The California Supreme Court’s unanimous decision in O’Neil only reinforces that view.

O’Neil involved asbestos.  The plaintiff worked on an aircraft carrier.  Decades before the plaintiff was aboard ship, one class of defendants made the carrier’s propulsion system.  Those defendants supplied products that had no asbestos at all, but were manufactured to specifications that required addition of asbestos insulation from other sources.  Slip op. at 2. They were sued because it was “foreseeable” that asbestos would be used in conjunction with their products.

A second group of defendants made the asbestos-containing gaskets that were components of the ship’s engines.  These gaskets wore out and were replaced by similar products made by others well before plaintiff was aboard ship.  Id.  They were sued because it was “foreseeable” that their products would wear out and be replaced by other asbestos-containing products.

In neither case did plaintiff allege that he was exposed to asbestos from any products actually sold by the defendants.  Slip op. at 6.

In O’Neil the court unanimously held that “foreseeability” did not trump the other policies animating product liability – and did so for both strict liability and negligence.

As to strict liability the court stated:

We have never held that strict liability extends to harm from entirely distinct products. . . . Instead, we have consistently adhered to the Greenman formulation requiring proof that the plaintiff suffered injury caused by a defect in the defendant’s own product.

Slip op. at 10.

There is no duty to warn in California about defects in another supplier’s product, even though the defendant also failed to warn about similar risks in its own product:

[Defendants] gave no warning about the dangers of asbestos . . . in their products.  However, [plaintiff] never encountered these original parts. His exposure to asbestos came from replacement gaskets and packing and external insulation added to defendants’ products long after their installation. . . .  There is no dispute that these [other] products were made by other manufacturers.  No case law supports the idea that a manufacturer, after selling a completed product to a purchaser, remains under a duty to warn the purchaser of potentially defective additional pieces of equipment that the purchaser may or may not use to complement the product bought from the manufacturer.

Slip op. at 15 (citation, quotation marks, and footnote omitted).  Substitute a prescribing physician for the navy in O’Neil and you’ve got Conte.

Imposition of warning duties relating solely to other manufacturers’ products goes “too far”:

An interpretation of [the law] that would require a manufacturer to warn about all potentially hazardous conditions surrounding the use of a product, even when those hazards arise entirely from the product of another manufacturer, reaches too far.  There is no precedent in California law for such a broad expansion of a product manufacturer’s duty.

Slip op. at 25-26.

Where the exposure comes solely from subsequent exposure to other manufacturer’s products, there is no warning liability based on “foreseeability.”  “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.”  Slip op. at 27.  “[T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm.”  Id. at 28.

We reaffirm that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product.  The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant’s own product contributed substantially to the harm, or because the defendant participated substantially in creating a harmful combined use of the products.

Id. (citations omitted).

Public policy requires that product liability be limited to the manufacturers of products that actually cause harm.

• “[A] manufacturer cannot be expected to exert pressure on other manufacturers to make their products safe.” Slip op. at 30.
• Non-manufacturers “will not be able to share the costs of ensuring product safety with these other manufacturers.”  Id.
• “It is also 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 plaintiff.”  Id.
• “[I]mpos[ing] on manufacturers the responsibility and costs of becoming experts in other manufacturers’ products . . . would impose an excessive and unrealistic burden.”  Id. (citation omitted).

Now, Conte involved a “negligent misrepresentation” claim rather than strict liability, but that won't save it from O'Neil.  See 85 Cal. Rptr.3d at 310 (“this is a case involving legal principles of negligent misrepresentation, and not a products liability action”), 310 n.7 (“negligent misrepresentation will subsume intentional fraud”).

O’Neil goes on to reach the same result – holding that there is no equivalent non-manufacturer liability claim in negligence.  The California Supreme Court directly addresses “foreseeability” and its limits, applying the public policy factors that Conte refused to address.  “[I]n strict liability as in negligence, foreseeability alone is not sufficient to create an independent tort duty.” O'Neil, slip op. at 29 (citation and quotation marks omitted) (emphasis added).  “Duty” in negligence “is not an immutable fact of nature but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”  Id. at 30-31.

The plaintiff in O'Neil argued foreseeability uber alles.  The court did not agree:

[F]oreseeability alone is not sufficient to create an independent tort duty. Instead, the recognition of a legal duty of care depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.

Slip op. at 31 (citations and quotation marks omitted).  Rather, “when the consequences of a negligent act must be limited to avoid an intolerable burden on society, policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk.  Id. (citation and quotation marks omitted).

These “policy considerations” (the same Rowland v. Christian factors that Conte ignored, 85 Cal. Rptr.3d at 814) mandate no liability where product-related claims are being made against non-manufacturers.

• The connection between defendants’ conduct and [plaintiff’s] injury is extremely remote because defendants did not manufacture, sell, or supply any . . . product that may have caused his [injury].”  O’Neil, slip op. at 32.
• Plaintiff’s injury is “attenuated,” as it occurred decades after the allegedly negligent conduct  Id.
• “[L]ittle moral blame can attach to a failure to warn about dangerous aspects of other manufacturers’ products.”  Id.
• “There is no reason to think a product manufacturer will be able to exert any control over the safety of . . . products made by other companies.”  Id.
• “Manufacturers may also have scant ability to influence their customers’ choices about other products.”  Id.
• “[R]ecognizing a duty of care would clearly impose a significant burden on defendants and all other companies that could potentially be held liable for injuries caused by products they neither made nor sold.”  Id. at 33.
• “[R]ecognition of such a duty could lead to an overabundance of potentially conflicting product warnings.”  Id.
• “[I]t is doubtful that manufacturers could insure against the “unknowable risks and hazards” of other manufacturers’ products used decades later.  Id.

For all these reasons, the court in O’Neil unanimously held that, regardless of foreseeability, there should be no negligence liability against the manufacturer of one product for injuries caused by similar products manufactured by other companies:

[E]xpansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm. To do so would exceed the boundaries established over decades of product liability law. [S]ocial policy must at some point intervene to delimit liability even for foreseeable injury. The same policy considerations that militate against imposing strict liability in this situation apply with equal force in the context of negligence.

Slip op. at 33 (citations and quotation marks omitted).

We hope, as did our anonymous correspondent, that O’Neil spells the beginning of the end for Conte.