Split makes world of product liability litigation trickier for firms to navigate
By Kimberly Atkins
The Daily Record Newswire
Mass tort litigators are abuzz over a recent Washington state court ruling that some say expands manufacturers’ duty to warn about potential hazards associated with their products, even when those hazards are not caused by the products themselves.
The decision in Macias v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2012), which said that a respirator manufacturer had a duty to warn against dangers associated with cleaning asbestos from the product, also diverges from rulings in other state and federal courts. That split makes the already complex world of product liability litigation even trickier to navigate.
The Washington case is “a sharp departure from the general rule that has existed throughout American jurisprudence,” said Kenneth M. Gorenberg, a partner in the Chicago office of Barnes & Thornburg, where he defends manufacturers in asbestos personal injury litigation.
But Juan P. Bauta, a plaintiffs’-side trial attorney, disagreed, saying the ruling is case-specific and distinguishable from others.
“The difference with these respirators is that they were designed to be reusable. They were designed to be cleaned, and it was this poor guy’s job to clean them out,” said Bauta, who practices at the Miami-based Ferraro Law Firm, handling products liability and toxic tort litigation.
The issue:
Does a manufacturer have a duty to warn against risks associated with the use of its product even when the risk isn’t created by the product itself?
The break:
— Washington Supreme Court: Manufacturers have a duty to warn against risks “inherent in the use and maintenance of [their] own products” — in this case the risk associated with cleaning asbestos dust from the manufacturer’s respirators.
— California Supreme Court: Manufacturers do not have a duty to warn against harm caused by other products unless their own products contributed substantially to the harm, or the manufacturers helped to create a harmful combined use of the products.
The solution:
The U.S. Supreme Court has not yet been asked to weigh in, leaving unsettled this issue affecting mass tort litigation, which tends to be handled on a class-wide basis across jurisdictions.
The case involved Leo Macias, a shipyard tool keep whose job duties included cleaning respirators used by shipyard workers to protect them from asbestos exposure. Macias developed mesothelioma due to being exposed to asbestos while cleaning the respirators, and brought suit in a Washington State trial court against the respirator manufacturers, claiming that they failed to warn against the risks associated with maintaining their products.
‘Inherent’ dangers
The defendants sought summary judgment, relying on state case law holding that manufacturers do not have a duty to warn if their products are not the source of the asbestos that harmed a plaintiff.
But the Washington Supreme Court disagreed, ruling that a duty to warn does exist for hazards “inherent in the use and maintenance of the defendant manufacturers’ own products, the respirators.”
The court distinguished the cases proffered by the defendants, noting that the products at issue in those cases were not “specifically designed to be used with asbestos. Nor were those products designed as equipment that by its very nature would necessarily involve exposure to asbestos.”
In the Macias case, the court said, the respirators “were specifically designed to and intended to filter contaminants from the air breathed by the wearer, including asbestos. … They were also designed to be reused [and] integral to reuse, the respirators had to be safely cleaned of the contaminants from the last use, and prior to this cleaning, they had to be safely handled.”
The ruling conflicts with several other decisions. For example, in O’Neil v. Crane Co., (266 P.3d 987 (Cal. 2012), the California Supreme Court held that a product manufacturer did not have a duty to warn against harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant helped to create a harmful combined use of the products.
In that case, the plaintiffs sued the manufacturers of Navy ship pumps and valves, which were installed as part of a complex stem propulsion system that also included separate asbestos-containing insulation products. The court dismissed the claim against the defendants, holding that no liability existed where “no defect inherent in defendants’ pump and valve products caused [the plaintiff’s] disease.”
Similarly, in Connor v. Alfa Laval, Inc., 842 F. Supp. 2d 791 (E.D. Pa. 2012), the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the defendants in a consolidated asbestos product liability multidistrict case, holding that they were not liable under maritime law for injuries caused by asbestos-containing products that were incorporated into their products or used as replacement parts, but which were not manufactured or distributed by the defendants.
‘Unrealistic’ and ‘unfortunate’ consequences
Gorenberg said the recent Washington case expands the duty to warn in a way that is unrealistic.
“The fact is that the plaintiff, who unfortunately died in this case, wasn’t someone who used the respirators,” Gorenberg said. “The hazards are really not related to the product. Indeed, what this opinion can do, and this is wildly unrealistic as well as unfortunate, is impose upon manufacturers a duty to anticipate, become an expert on, and warn about every risk from every other product that may be used in conjunction with its own – especially when its own product is made to last a long time.”
The solution — placing warnings on a product that cover every possible situation that may lead to exposure associated with the product — is burdensome, Gorenberg said.
“Excessive or difficult-to-understand warnings become useless,” he said.
But Bauta said courts in the past have rejected the so-called “bare metal defense” that was used in the Naval ship case. That defense argues that manufacturers of items like pipes that are commonly used in conjunction with asbestos-containing materials, such as insulators, cannot be liable for asbestos exposure from the other product. The more recent cases holding in favor of defendants are really what caused the split, not Macias, he said.
“Historically people have been suing on behalf of the sailors [who worked on] valves and pumps and were exposed to asbestos,” Bauta said. “Recent rulings have gone the other way.”
Nevertheless the disparate outcomes of the recent cases make litigating similar matters, which tend to involve classes that span many jurisdictions, more challenging.
“That’s the nature of mass tort litigation,” Bauta said. “What happens in Washington State affects us here in Florida; what happens in Florida affects those in New York; what happens there affects someone in California. The cases get shopped around, arguments are made and they come out different ways.”
