Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Leslie Controls, Inc.’s Motion for Summary Judgement
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CASE NO. BC349841
MILTON DARWIN KNUTSON and DELORES MAY KNUTSON,
ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST; ET AL.,
PLAINTIFFS’ RESPONSE IN OPPOSITION TO LESLIE CONTROLS, INC.’S SEPARATE STATEMENT OF “UNDISPUTED” MATERIAL FACTS; PLAINTIFFS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS;
DECLARATION OF BRENDAN S. MAHER;
PLAINTIFF’S LODGMENT OF NON-CALIFORNIA AUTHORITIES IN SUPPORT; and PROOF OF SERVICE
Hearing Date:May 16, 2007
Table Of Contents
INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiffs MILTON DARWIN KNUTSON and DELORES MAY KNUTSON (“Plaintiffs”) bring claims against Defendant LESLIE CONTROLS, INC. (“LESLIE” or “Defendant”). Plaintiffs’ claims arise out of MILTON KNUTSON’s exposure to asbestos from working with and around LESLIE products.
Pursuant to established California law, LESLIE is liable to Plaintiff for the foreseeable use of its valves and other products when the asbestos hazard arises either from its use of unsafe original components or unsafe replacement parts manufactured by another company. See Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 129 Cal.App.4th 577, 583 (Cal.App. 2004); Wright v. Stang Mfg. (1997) 54 Cal. App.4th 1218, 1236; DeLeon v. Commercial Mfg. and Supply Co. (1983) 148 Cal.App.3d 336, 350. When this clear legal authority is applied to the equally straightforward facts of this case, it is plain that Defendant’s motion must be denied.
Plaintiffs have introduced evidence that LESLIE’s valves were specifically designed to be used with replaceable internal asbestos gaskets and packing and external asbestos insulation. LESLIE manufactured and shipped the valves with asbestos gaskets and packing already incorporated into the equipment. LESLIE knew and recommended that end-users of its valves would utilize asbestos components to keep the valves operating as intended. In fact, LESLIE itself sold asbestos replacement components. Indeed, LESLIE has presented no evidence that between 1955 and 1976 when MR. KNUTSON served in the Navy, users would have had a reasonable opportunity to replace asbestos components with something different. This evidence is more than sufficient to create a triable issue of fact as to whether LESLIE’s valves were defective and whether LESLIE had an obligation to provide adequate warnings about the hazards related to removal and replacement of the valves’ asbestos components.
Further, the evidence establishes that during the time of MR. KNUTSON’S injurious exposure, LESLIE never tested its products to determine their safety or danger, nor did Defendant ever provide warnings on instruction manuals provided with its products or on the product itself. This utter failure to warn rendered LESLIE’s valves defective and demonstrates LESLIE’s breach of its duty under a negligence theory.
LESLIE has failed to make any evidentiary showing that the use of asbestos-containing packing and gaskets with its valves was unforeseeable. Thus, LESLIE remains liable for its failure to warn about the foreseeable use of asbestos-containing parts inside and affixed to its valves.
Furthermore, LESLIE is not entitled to summary judgment on Plaintiffs’ claims because it has not met its burden of showing that Plaintiffs cannot establish an element of their causes of action. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. LESLIE has therefore failed to shift the burden to Plaintiffs. Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 71-72. Finally, Plaintiffs have established a triable issue of fact on the issue of punitive damages.
STATEMENT OF MATERIAL FACTS
LESLIE Used and Instructed Others to Use Asbestos-Containing Replacement Parts, Which LESLIE Itself Sold.
Defendant has previously stipulated that, between 1944 and 1976, LESLIE’s pump pressure regulators, temperature regulators (for steam service), control valves (for steam service), pressure reducing valves (for steam service), and pump pressure regulators or governors (for steam service), sold, marketed, or distributed for installation on board Navy ships for steam service applications contained asbestos-containing parts. See Deposition of Matthew Wrobel, taken on August 17, 2006, in Cummings v. Alfa Laval, Inc. (Superior Court, State of California, Los Angeles County), at 60:15-62:14, 65:13-19 (Maher Decl. Ex. D). LESLIE would not dispute that insulation used on its valves during that time period would have contained asbestos. Id. at 65:3-7, 67:1-6. LESLIE continued to sell products “which utilized asbestos-containing materials” until 1988, nearly two decades after OSHA was enacted. See Defendant’s Responses to Interrogatories, Cunningham v. AGCO Corp., Cause No. BC-318049 (Superior Court, Los Angeles County), Resps. No. 15, 16 (Maher Decl. Ex. G).
LESLIE intended workers to replace asbestos-containing component parts in its equipment with other asbestos-containing component parts that LESLIE itself supplied. For example, LESLIE’s 1956 Technical Manual promotes the use of LESLIE’s own asbestos-containing Lubrisoft packing material to replace the original LESLIE packing used on its valves. See 1956 LESLIE Technical Manual (Maher Decl. Ex. L ), at 3. Defendant’s instructions state “When renewing diaphragms and gaskets be sure to use standard parts made by LESLIE Co.,” confirming that Defendant recommended the use of its own asbestos-containing gaskets to the Naval after-market. Id. at 30.
From the 1950s through the mid-1970s, any pumps or valves used on board Navy vessels to service steam lines or other high temperature equipment would have been insulated with asbestos containing insulation. Were the pumps and valves not insulated, they would have been unable to maintain the necessary temperature and pressure levels, and otherwise operate properly. Ay Decl., at ¶ 16 (Maher Decl. Ex. A). The pumps and valves around which MR. KNUTSON worked were not stand-alone equipment; they worked in conjunction with other pieces of equipment necessary to operate a Navy vessel. At the point at which a pump or valve connected to the piping or equipment with which the pump or valve was designed to be used, it was necessary to affix flange gaskets to the pumps and valves to prevent leakage at the connecting juncture. From the 1950s through the mid-1970s, these flange jackets were asbestos containing. Ay Decl., at ¶ 17 (Maher Decl. Ex. A).
LESLIE was keenly aware that the proper insulation of its products and the systems with which they connected was essential for the performance of LESLIE’S valves and other equipment. Indeed,. LESLIE itself sold three types of asbestos-containing valve bonnet and bottom flange gaskets. See Defendant’s Objections and Responses to Plaintiffs’ Master Interrogatories and Request for Production, Drye v. Leslie Controls, Inc., et al., Cause No. 2003-676-B (District Court, Gregg County, Texas) (Maher Decl. Ex. H), Interrogatory No. 3, p. 9. Further, LESLIE’S 1956 Technical Manual also instructed Navy personnel to use thermal insulation to insulate the piping systems going into and out of the LESLIE valves. See 1956 LESLIE Technical Manual (Maher Decl. Ex.L), at 15-17 (noting the use of LESLIE valves in high-temperature applications and the need for insulation to reduce condensation).
LESLIE’s corporate representative, Mr. Wrobel, acknowledged that LESLIE sold and marketed replacement asbestos packing material for use on its valves. Aug. 17, 2006 Wrobel Depo (Maher Decl. Ex. D), at 56:14 – 57:3 (objections omitted). In prior discovery responses, LESLIE admitted that it used asbestos-containing gaskets and asbestos-containing packing in its products, including valves, and that it sold such gaskets and packing as replacement parts for those products. See Defendant’s Objections and Responses to Plaintiffs’ Master Interrogatories and Request for Production, Drye v. Leslie Controls, Inc., et al., Cause No. 2003-676-B (District Court, Gregg County, Texas) (Maher Decl. Ex. H), Interrogatory No. 3, p. 9. LESLIE “marketed and sold” such products under several names, including LESLIE, Leslie Eventemp, Leslie Tyfon, and Leslie Constantemp. Ibid. LESLIE sold asbestos-containing products divided into five categories: three types of valve bonnet and bottom flange gaskets, valve stem packing, and whistles. Ibid. LESLIE “commonly” purchased asbestos-containing valve stem packings and gaskets for Leslie’s further sale and distribution from many entities, including Johns-Manville and John Crane. Id. at p. 10. LESLIE sold its asbestos-containing products “to the U.S. government for use on military ships” and its valves and gaskets were generally used in the ship’s tight, confined engine rooms and machinery spaces. Id. at p. 9. LESLIE ceased selling asbestos-containing products, except for some for the military, in 1988 — seventeen years after OSHA regulations were issued. Id. at p.10.
From the 1950s to the mid-1970s, the technical manuals provided to the Navy by the manufacturers specified that during maintenance and repair, when old gaskets and packing material were removed, the area was to be thoroughly cleaned before installing replacement gaskets or packing. Cleaning out the areas occupied by the old flange gaskets and packing, as recommended by the manufacturers, would cause respirable asbestos fibers to be released into the breathing zone of those working in the area of the valves and pumps. Ay Decl., at ¶ 19 (Maher Decl. Ex. A). Given that, from the 1950s to the mid-1970s, the manufacturers knew that their pumps and valves were outfitted when new with asbestos-containing gaskets and packing material, and that the manufacturers recommended to the Navy that those parts be replaced with the same or equivalent gaskets and packing material during maintenance and repair, it is inconceivable that the manufacturers of pumps and valves did not expect and know that workers performing such maintenance and repair would be exposed to the asbestos-containing replacement parts removed from and reinstalled in and on their pumps and valves. Ay Decl., at ¶ 20 (Maher Decl. Ex. A).
Despite such knowledge, LESLIE never placed any warnings or caution labels on its products that would warn potential users such as MR. KNUTSON of the health hazards of asbestos exposure. See Deposition of Matthew Wrobel, taken on Jan. 27, 2005 (Maher Decl. Ex. C), at 103:11 – 104:22 (objections omitted). See also Maher Decl. Ex. H, Response No. 6, at p. 12 (admitting that it was “not aware of any” documentation that it ever published or distributed regarding any warnings concerning the possibility of injury from asbestos).
MR. KNUTSON Was Exposed to Asbestos from LESLIE Valves.
The evidence shows that MR. KNUTSON sustained significant exposure to asbestos from Defendant’s asbestos-containing equipment, and such exposure was a substantial cause of his mesothelioma. MR. KNUTSON worked as a fireman and then a machinist mate for the United States Navy for nineteen years – from 1954 to 1958, and from 1961 to 1976. See Deposition of MILTON KNUTSON, taken on July 10-15, 18 & 19, 2006, Knutson, et al. v. Allis-Chalmers Corp., et al., No. BC349841, in the Superior Court of Los Angeles, Central District (“KNUTSON Depo.”) (Maher Decl. Ex. B). His work as a machinist mate required him to get the ships’ equipment ready to run and to maintain the equipment. Id. at 23:16-20; 26:1-19. Even as he was promoted to supervisory positions, MR. KNUTSON was still “hands on completely … tearing down the stuff just like the other guys.” Id. at 961:22-24. This included working on pumps and valves many times, such as every day aboard the USS Hancock, on which MR. KNUTSON served form 1955 to 1958. Id. at 23:10-23; 32:3 – 33:13. MR. KNUTSON personally worked on LESLIE equipment, including LESLIE air ejector valves on every ship and LESLIE regulator valves. Id. at 101:1-12; 997:13-16. He specifically recalled the LESLIE nameplate on a regulating valve. Id. at 643:10 – 644:15. MR. KNUTSON worked on the types of valves that LESLIE has admitted contained asbestos, including LESLIE valves “to maintain the pressure” and to regulate steam to “raise the temperature up to a certain point.” Id. at 865:6, 865:11-13.
MR. KNUTSON recalled working on LESLIE valves on each ship he served aboard. Id. at 101:21-24; 635:18-19; 996:2-18. In fact, LESLIE was the only company he knew of that manufactured regulating valves for the air ejectors. Id. at 866:8-14. Each vessel MR. KNUTSON served aboard had two LESLIE ejector valves that he would service. Id. at 102:5-8. MR. KNUTSON was exposed to asbestos when he removed old gaskets from the LESLIE ejector valves and pulled insulation out of the pipes leading to and from LESLIE valves. Id. at 102:25 – 103:4; 103:11-13. LESLIE ejector valves had to have insulation in order to protect the men and to keep the steam from condensing inside: “if you got that much heat in the line you’ve got to have insulation….” Id. at 1002:25 – 1003:21.
MR. KNUTSON had to remove gaskets, including from LESLIE valves, which were located “right on the flanges, right on the valve.” Id. at 103:14-21. To remove old gaskets from the LESLIE valves, MR. KNUTSON had to “scrape them off, sand them down,” and use an air compressor. Id. at 103:23 – 104:1. Scraping, sanding, and blowing the old gaskets from the LESLIE ejector valves produced dust, which MR. KNUTSON inhaled. Id. at 104:3-20. MR. KNUTSON also had to tear the LESLIE valves out and send them to a shop. Id. at 645:7-11. He would first have to break the flanges and clean the gaskets in between; he would reinstall gaskets manufactured by John Crane or Garlock, which was “about all we ever used.” Id. at 646:11 – 647:23. MR. KNUTSON recalled that he often had to work with Flexitallic gaskets, which had asbestos lining. Id. at 84:24 – 85:3. MR. KNUTSON also had to work with Garlock sheet gaskets and Garlock preformed gaskets, as well as Johns Manville gaskets. Id. at 85:6-15. MR. KNUTSON also had to change packing on LESLIE valves that regulated steam. Id. at 637:12-22. He testified that he believed the packing was supplied by LESLIE “because I don’t know that we could buy anything that fit that packing gland.” Id. at 639:18-24.
Guy Palermo, who served with MR. KNUTSON on the USS Manatee, corroborated MR. KNUTSON’s description of working on LESLIE valves. See Deposition of Guy Palermo (“Palermo Depo.”), January 30, 2007 (Maher Decl. Ex. F), at 20:22-25; 24:15 – 25:3, 44. Mr. Palermo stated that the feed pump regulators and steam regulator valves that MR. KNUTSON worked on were manufactured by LESLIE, and he specifically remembered an iron medallion with the LESLIE name affixed directly to the regulating valve. Id. at 26:3-14; 45. The process of working on the feed pump valves required he and MR. KNUTSON to cut back the insulation leading to and from the regulator, which released dust. Id. at 26:1-18. The men were exposed to and breathed dust which Mr. Palermo believed contained asbestos. Id. at 26:19-25. Mr. Palermo also recalled that they had to remove Flexitallic gaskets, which were on either end of the LESLIE feed pump regulators. Id. at 4-12. The LESLIE regulator would have to be reinsulated by cutting cloth-like material and using a plaster solution around the equipment. Id. at 29:5 – 30:11. When the men poured the dry plaster mix from the bag into a bucket and mixed it with water, it produced dust, which the men breathed. Id. at 30:18 – 31:10.
Charles Finch, who also served with MR. KNUTSON on the USS Manatee, specifically recalled LESLIE valves, and he testified that when the men removed old packing from valves, it fell apart and generated dust. See Deposition of Charles Finch, taken on Feb. 13, 2007 (Maher Decl. Ex. E), at 22:13 – 23:9. He specifically recalled removing gaskets and packing from LESLIE valves during the time he was aboard the Manatee with MR. KNUTSON, and this process produced dust. Id. at 37:4-16. He also recalled that they had to work on LESLIE regulators “all the time,” and LESLIE’s name was right on the regulator. Id. at 75:24 – 76:2. He also recalled seeing LESLIE’s name on a steam valve and on a manual for LESLIE brand regulators. Id. at 158:13-16; 165:16-21. Mr. Finch specifically recalled seeing MR. KNUTSON work with gaskets and packing on the LESLIE regulators as well as Flexitallic gaskets that were on the valve. Id. at 181:1 – 182:24.
Defendant’s own documents, as well as documents obtained from the National Archives of the United States corroborate the testimony of MR. KNUTSON, Mr. Palermo and Mr. Finch and establish that LESLIE products that contained asbestos were installed on the ships on which MR. KNUTSON served. The evidence also shows that LESLIE intended asbestos-containing component parts to be used as replacement parts in its products used on ships on which MR. KNUTSON served. For example, LESLIE’s “Pump Governors for Main Feed Pumps (January 5, 1943), “Pump Governor for Fire Pumps” (December 30, 1942), “Pump Governor for Fuel Oil Service Pumps” (December 22, 1942) (Maher Decl. Exs. M , N, and O) each list asbestos packing of two different sizes to be used in LESLIE’s products aboard the USS Hancock, on which MR. KNUTSON served from 1955 to 1958. The Navy specifications show that LESLIE provided reducing valves and pressure regulating governors, including several main feed pump regulators and fuel oil service pump regulators, for the USS Cowell (DD-547), on which MR. KNUTSON served from 1962 to 1966. See “List of Reducing Valves and Pressure Regulating Governors” by shipbuilder Gibbs & Cox, Inc., Contractor’s Plan for Design and Engineering, No. 445-4824-10, dated May 7, 1941, labeled frame 375 (Maher Decl. Ex. P). LESLIE’s own drawing plans for ships such as the USS Epperson, on which MR. KNUTSON served, shows that LESLIE specified asbestos packing its products, including in pieces 46 and 47 of its pump governor for lubricating oil service. See LESLIE Co. Class Plans, approved Dec. 10, 1943, “Pump Governor for Lub. Oil Service”, labeled frame 1527 (Maher Decl. Ex.Q).
MR. KNUTSON never wore a mask or respiratory protection during this work in the Navy. KNUTSON Depo. (Maher Decl. Ex. B), at 57:13-20. Despite MR. KNUTSON’s repeated exposure to asbestos during the servicing of LESLIE valves, MR. KNUTSON never saw any warning on any container that breathing asbestos dust could cause cancer, nor did LESLIE or any other manufacturer ever come out to a ship that he was on and warn him that their products called for the use of asbestos-containing products. Id. at 140:15–141:9. Had MR. KNUTSON been warned that asbestos can cause cancer, he would have taken precautions or not used the product. Ibid. There is sufficient evidence to create a triable issue of fact as to whether exposure to asbestos released from LESLIE valves was a substantial factor in causing MR. KNUTSON’s disease.
ARGUMENT AND AUTHORITIES
The Scope of Defendant’s Motion is Limited to the Issues Presented in its Moving Papers.
Summary judgment is a drastic measure that deprives the losing party of trial on the merits, and implicates the party’s constitutional right to a jury trial. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395. Thus, the moving party’s papers are strictly construed, while the opposing party’s papers are liberally construed. Murillo v. Rite Stuff Food, Inc. (1998) 65 Cal.App.4th 833, 840. A court has no power to weigh one inference against another or against other evidence. Id. at 841. Any doubts about the propriety of granting the motion must be resolved in favor of the opponent. Saelzler v. Advanced Group 400 (2001) 25 Cal. App 4th 763, 768; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355.
Code of Civil Procedure §437c “impose[s] on the moving party. . . a pleading requirement. . . in order to prevail on a motion for summary judgment.” Judge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66. Pursuant to this requirement, “the initial duty to define the issues presented by the complaint and to challenge them factually is on the defendant who seeks a summary judgment.” Conn v. Nat’l Can Corp. (1981) 124 Cal.App.3d 630, 638. This duty necessarily requires a defendant to set forth in “the moving papers. . . with specificity (1) the issues tendered. . . that are pertinent to a summary judgment motion; and (2) each of the grounds of lawsuit on which the moving party is relying. . .” Judge, 12 Cal.App.4th at 67.
More specifically, the moving party must set forth in its separate statement of undisputed material facts all of the facts upon which it bases its motion. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337. This requirement serves “to inform the opposing party of the evidence to be disputed to defeat the motion.” Id. If a separate statement does not set forth a fact, for purposes of the motion, the fact “does not exist.” Id.
Defendant Has Failed to Shift Its Burden of Proof.
A party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that it is entitled to judgment as a matter of law. Aguilar, 25 Cal.4th at 850; Weinstein v. Dep’t of Transp. (2006) 139 Cal.App.4th 52, 57. It is well-established that a defendant can only satisfy its burden on summary judgment by showing that a necessary element of the plaintiff’s case cannot be established or that it has a complete defense to the cause of action. Code Civ. Pro. § 437c.; Aguilar, 25 Cal.4th at 850; City of San Diego v. Superior Court of San Diego (2006) 137 Cal.App.4th 21, 25. The defendant has a burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. Aguilar, 25 Cal.4th at 850. In particular, “a defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Id. at 854. Only if the defendant meets its burdens of persuasion and production does the burden shift to the plaintiff to show that a triable issue of material fact exists. Scheiding, 69 Cal.App.4th at 71-72.
LESLIE does not, and indeed cannot, establish that MR. KNUTSON does not have evidence of exposure to asbestos-containing gaskets and packing materials used as components of numerous LESLIE valves and other products and to insulation affixed to Defendant’s products. As outlined above, Plaintiffs have introduced evidence demonstrating such exposure. Defendant has thus failed to shift its burden of proof and summary judgment should be denied.
Plaintiff Has Established Triable Issues of Fact.
Under every standard of causation articulated in any asbestos case brought before the California judiciary, triable issues of material fact are raised by the evidence proffered by Plaintiffs and outlined above. The evidence creates triable issues as to whether LESLIE valves and other products were defective, whether Mr. Knutson’s injurious exposure to asbestos was caused by LESLIE valves, and whether the conduct of LESLIE which caused Mr. Knutson to be injuriously exposed to asbestos supports an award of punitive damages.
1.The “component parts” doctrine cited by LESLIE is limited to situations where “generic” or “off-the shelf” components do not have a foreseeable use with other parts in connection with the intended purpose of a defendant’s product.
LESLIE does not even suggest that MR. KNUTSON has not proffered evidence of his work with and around Defendant’s products. Rather, LESLIE spends the bulk of its time arguing that it cannot be liable for its failure to warn of the harm caused by the use of its product in conjunction with the very asbestos components that Defendant intended its valves to be used with. Defendant first suggests that it bears no liability for the external flange gaskets and thermal insulation it knew would be affixed to the outside of its valves (for which LESLIE sold replacement asbestos flange gaskets). It next decries its liability for a product that was shipped from the factory with internal asbestos-containing component parts that LESLIE recommended be replaced with more asbestos-containing component parts, preferably supplied by LESLIE! Under California law, LESLIE is liable for the harm caused under either circumstance.
Defendant mistakenly rests its plea for non-liability on California case law concerning the component parts doctrine, which holds that a manufacturer of a product component or ingredient is not liable for injuries caused by the finished product unless it appears that the component itself was “defective” when it left the manufacturer. The component parts doctrine “rests on a line of cases holding an entity supplying a nondefective raw material or component part is not strictly liable for defects in the final product over which it had no control.” Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Company (2004)129 Cal. App. 4th 577, 581. The component part doctrine applies to “generic” or “off-the-shelf” components, as opposed to those which are “really a separate product with a specific purpose and use.” Tellez-Cordova, 129 Cal. App. 4th at 582, citing Springmeyer v. Ford Motor Co. (1998) 60 Cal. App. 4th 1541, 1554.
In attempting to mis-apply the component parts doctrine in this case, LESLIE relies on Zambrana v. Standard Oil Co. (1972) 26 Cal App. 3d 209 to contend that it is not liable for harm caused by asbestos-containing parts affixed to the LESLIE valves. In Zambrana, the plaintiff was in an automobile accident after she was hit by a car that had lost its tire pressure. The plaintiff sued Firestone in strict liability for having sold the other driver a 1/4 inch metal extension to be attached to a 1 ½ inch metal stem valve, already owned by the driver, when she bought tires from the tire dealer. The court held that Firestone was not liable, because this was not the intended use of the 1/4 inch metal extension, but rather an obvious peril created by the purchaser. 26 Cal App. 3d at 218. However, the Zambrana ruling made clear that where there is a machine or product that is unreasonably dangerous in its intended use, then the manufacturer would be held strictly liable. Thus, Zambrana demonstrates that the component parts doctrine is a narrow exception to the broader principle that a manufacturer is liable for foreseeable harm caused during the course of ordinary, intended use of its product. Pursuant to Zambrana, there is (i) no liability for injury arising from non-foreseeable use or for obvious misuse of a product; but (ii) liability for injury arising from a product that is unreasonably dangerous in its intended use.
Defendant’s reliance on Baughman v. General Motors (1986) 780 F.2d 1131, is similarly misplaced. There, the court held that the defendant truck manufacturer did not have a duty to warn its customers about the hazards associated with wheel rims that the customer had installed on a truck the defendant had manufactured. Id. at 1133. In Baughman, however, the unsafe wheel rims had not been installed on the truck during the original manufacture, and there was no evidence that the defendant intended for the different rims to be used on the vehicle. Id. at 1132-33. Liability would not be imposed on the truck manufacturer because it did not have reason to know that unsafe wheel rims would be placed on the vehicle. Id. at 1133.
Here, LESLIE knew that its valves were intended to be used with internal asbestos-containing gaskets and packing, and external flange gaskets and insulation. Further, LESLIE knew that exposure to asbestos-dust would occur upon performance of the required maintenance and repair of these valves. Thus, the component parts doctrine, which applies to “non-defective raw material” over which the manufacturer has no control, is inapplicable to LESLIE’s manufacture and distribution of the valves and other products at issue here. Accordingly, LESLIE may be held liable for Mr. Knutson’s mesothelioma arising from the foreseeable use of LESLIE’s valves and other equipment.
2. Pursuant to clear California law, and specifically the law of the Second Circuit, LESLIE is liable to Plaintiff for the foreseeable uses of its valves, even if the asbestos hazard arises from additional products or replacement parts manufactured by another company.
LESLIE contends that its valves, manufactured with asbestos-containing internal original parts, are not defective as a matter of law. Yet California case law and public policy make clear that a manufacturer is subject to strict liability for injury caused by products that create a dangerous condition in their intended and foreseeable use. See Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, 583; Wright v. Stang Mfg. (1997) 54 Cal. App.4th 1218, 1236; DeLeon v. Commercial Mfg. and Supply Co. (1983) 148 Cal.App.3d 336, 350.
A manufacturer of a product is strictly liable in tort if an article it placed on the market proves to have a defect that caused injury when the product was used as intended. See Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal.2d 57. Further, a manufacturer is strictly liable for injuries caused by a defective product it sells even though the defect originated from a component part manufactured by another party. E.g., Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262 (“regardless of their source . . . a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another”); Brocklesby v. U.S. (9th Cir. (Cal.) 1985) 767 F.2d 1288, 1295-96 (manufacturer was subject to strict liability where it was in position to prevent injuries to users of its product despite the fact that unsafe procedures developed by a third party contributed to the dangerous condition of the product); see Prosser and Keeton on the Law of Torts § 100, at 705 (1984). A product manufacturer must give adequate warnings of any dangerous propensity of its product which it knows or should have known would result in the type of injury that occurred, and is strictly liable for failing to provide such warnings. Greenman, 59 Cal.2d at 62; Vandermark, 61 Cal 2d at 260-61.
Despite clear law to the contrary, LESLIE contends that its valves were not defective as a matter of law because the asbestos components from which the fibers were released might have been installed inside and affixed to its valves subsequent to their original sale and shipment. Defendant’s argument ignores a crucial fact — the same dangerous condition that was present when the product was originally sold and shipped necessarily continued to exist after the routine replacement of internal and external asbestos components. The fact that product components may have been replaced after the manufacture of the product is not relevant unless the hazard associated with the product was not present when the product was manufactured and the use of the product did not pose a risk prior to an unanticipated modification of the product. See Tellez-Cordova, 129 Cal.App.4th at 583; Wright, 54 Cal. App.4th at 1236; DeLeon, 148 Cal.App.3d at 350. Here, however, the hazard was present when the product left the factory floor. LESLIE valves were manufactured and sold with dangerous asbestos components; LESLIE knew and recommended that the asbestos components originally installed in its valves would repeatedly need to be removed and replaced with other asbestos materials during the life of the equipment; and LESLIE intended that asbestos containing flange gaskets (which LESLIE sold as a replacement part) be affixed to its valves during routine maintenance and repairs. Thus, in their intended operation, LESLIE’s valves would necessarily continue to pose the same risk to users and bystanders after the valves’ original unsafe components wore out and were replaced with similar unsafe components – replacement components that were available for purchase from LESLIE itself.
The Second Circuit in particular recognizes that a manufacturer remains liable for injury by the products of another when, as here, their use is intended and foreseeable in connection with the intended purpose of a defendant’s product. Tellez-Cordoba, 129 Cal. App. 4th 577 (2004). Moreover, a manufacturer’s duty to warn extends to the foreseeable uses of its product, even if a hazard arises from additional products or replacement parts manufactured by another company. DeLeon, 148 Cal. App. 3d 336 (1983). Thus, the component parts case law relied upon by defendant does not apply where “we do not have a clear-cut legal question of component part liability, but instead find a factual issue of involvement in design . . . .” DeLeon, 148 Cal. App. 3d at 343 (holding that the manufacturer of “shaker” bins for a fruit processing plant was liable for injuries suffered by Plaintiff where the line shaft connected by the plant was misinstalled, even though the “shaker” bin itself was not defective and even though the manufacturer of the “shaker” bin did not connect the line shaft to the “shaker” bin).
This was the precise decision reached recently by the trial court in (Maher Decl. Ex. R and S). Just as LESLIE contends here, Crosby Valves argued there that because the external insulation affixed to its valves was not sold by the defendant, Crosby Valves should not be liable for any exposure to asbestos dust arising from maintenance of the external insulation. The court, however, denied Crosby Valves’ motion, because the Plaintiff introduced evidence showing that his physical exposure to asbestos as a result of the inlet and outlet flanges used in connection with the Crosby valves was entirely foreseeable. Order Denying Crosby Valve, Inc.’s Motion for Summary Judgment, Merrill v. Laval, Inc. (Maher Decl. Ex. R). See also Order Denying Warren Pumps, LLC and Cooper Cameron Corp’s Motions for Summary Judgment (Maher Decl. Ex. S)(the components parts doctrine does not preclude a manufacturer’s liability “for injuries caused by products of another, when their use is foreseeable in connection with the purpose of defendant’s product.”) .
The facts in this case are identical to the facts underling Merrill: LESLIE put into the stream of commerce various valves that it knew and intended to be used with asbestos-containing internal gaskets and packing and external flange gaskets and insulation. Given this foreseeable, known use of asbestos components with the LESLIE valves and other products, the law of the Second Circuit, as specifically set forth by Tellez-Cordova and in Merrill, requires that LESLIE’s motion be denied.
3.LESLIE is Liable For Its Failure To Warn About the Foreseeable Use of Asbestos-Containing Replacement Parts.
A manufacturer has a duty to warn of hazards arising from the foreseeable use of its product, even if the hazard arises from the addition of a product which, although manufactured by another, is used in the normal operation of the defendant’s product. DeLeon, 148 Cal.App.3d 336, 344. In DeLeon, the defendant manufactured a sorting bin for use on the plaintiff’s employer’s conveyer belt line, in close proximity to an overhead line shaft manufactured by another. The overhead line shaft was not manufactured by the defendant, but cleaning the sorting bin put the plaintiff in danger of being injured by the overhead line shaft, and the court found that the bin manufacturer could have foreseen this danger and therefore had a duty to warn. Id. at p. 341. In reversing summary judgment, the court noted that the defendant had not shown that “such an act was unforeseeable” and explained that “[t]he design and manufacture of products should not be carried out in an industrial vacuum but with recognition of the realities of their everyday use.” Id. at 344.
Applying similar logic, in Tellez-Cordoba, 129 Cal.App.4th 577, Division Five of this appellate district explained that a manufacturer remains liable for the danger of injury caused by products of another, when such products are foreseeably used in connection with the intended purpose of the defendant’ product. 129 Cal.App.4th at 583. There, a manufacturer of grinders was held liable for failing to warn of injuries caused by the disintegration and release of respirable toxins from third-party discs used with the grinders. Id. at 582-583. The court rejected the grinder manufacturer’s argument that it was shielded by a bright-line rule preventing any manufacturer from liability for “defects in a final product over which it had not control,” finding that the defendant was not “asked to warn of defects in a final product over which they had no control, but of defects which occur when their products are used as intended . . . .” Id. at 581, 583. As in Tellez-Cordoba, LESLIE is not shielded here from liability caused by the intended and foreseeable use of its valves, regardless of whether LESLIE supplied the asbestos-containing packing, gaskets and insulation used inside and outside the valves.
California law also extends the duty to warn to foreseeable hazards in regular maintenance and repair of a product. See Gonzalez v. Carmenita Ford Truck Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151. In Gonzalez, the court reversed a defense judgment where the trial court failed to instruct the jury that the defendant truck manufacturer could be liable for failing to warn with respect to the hazards arising in brake repairs and maintenance. The court held that “the warning requirement is not limited to unreasonably or unavoidably dangerous products. Rather, directions or warnings are in order where reasonably required to prevent the use of a product from becoming unreasonably dangerous.” Id. (emphasis in original). Under Gonzalez, LESLIE cannot disclaim liability for harm caused by asbestos containing parts used both inside and outside its product, when it intended that repair and maintenance would take place and knew that such activities would expose workers to asbestos.
California’s courts are aligned with the vast majority of courts to consider the issue and rule that the manufacturer of a product remains liable where the repairs, maintenance, alteration or modification of the product was reasonably foreseeable. See Braaten v. Saberhagen Holdings, 151 P.3d 1010, 1013 (Wash. App. 2007)(use of asbestos on manufacturers’ pumps, valves and turbines was not “by chance” but rather by design where defendant manufacturers either sold products containing asbestos-containing components or were aware that asbestos insulation was regularly used in and around their machines on Navy ships); Simonetta v. Viad Corp., 151 P.3d 1019, 1023 (Wash. App. 2007)(“[T]he danger of asbestos exposure is ‘inherent’ in the use of its product, because the evaporators were built with the knowledge that insulation would be needed for the units to operate properly and that workers would need to invade the insulation to service the units.”); Berkowitz v. A.C.and S., Inc. (N.Y. 2001) 288 A.D.2d 148, 149 (pump manufacturer had an ongoing duty to warn of dangers of asbestos gaskets and insulation used on its pumps, despite the fact the pump manufacturer neither manufactured nor installed the asbestos components, where issues of fact existed concerning the manufacturer’s knowledge that asbestos insulation and gaskets would be used with its equipment); Chicano v. General Electric Co. 2004 WL 2250990 at *6 (E.D. Pa. 2004)(GE could be liable for external insulation manufactured and applied by others to its turbines because evidence raised triable issues of fact as to whether “GE could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos”); and Rauch v Am. Radiator & Standard Sanitary Corp., 104 NW 2d 607 (Iowa 1960) (holding manufacturer responsible for testing and inspecting replacement parts made by others).
The well-established law from both California and other jurisdictions, then, provides that the manufacturer of a product that is subsequently altered or modified, even after it leaves the defendant’s possession, retains a duty to warn if such modification was foreseeable, indeed, intended, as shown here. Further, as explained in DeLeon, a manufacturer’s products cannot be viewed in a vacuum. The undisputed reality is that LESLIE valves and other equipment were, in fact, intended to operate with asbestos-containing internal gaskets and packing and external flange gaskets and insulation. Further, the circumstances in which Defendant’s products were used required predictable and scheduled maintenance on LESLIE’s valves, which would then produce asbestos dust that was breathed in by workers in the area. Defendant’s claim that it cannot be held liable for the foreseeable use of a third party’s asbestos-containing parts under such circumstances is simply not supported in law or in fact.
4.LESLIE Failed To Make Any Evidentiary Showing That The Use of Asbestos-Containing Packing, Gaskets and Insulation Was Unforeseeable.
LESLIE’s motion presents a legal issue disclaiming any duty to warn of asbestos containing gaskets and insulation used on its valves, whether such use was foreseeable or not. LESLIE takes the position that foreseeability is irrelevant, and has made no evidentiary showing to demonstrate it could not have foreseen the use of asbestos containing gaskets and insulation. LESLIE therefore again has failed to carry its burden of demonstrating that there are no triable issues of fact concerning its duty to warn of asbestos-containing gaskets, packing and insulation foreseeably applied both inside and on the exterior surface of its equipment. Accordingly, LESLIE’S motion should be denied.
5. The evidence is sufficient to create a triable issue of whether LESLIE’s wrongful conduct warrants the imposition of punitive damages.
A jury may award punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ.Code, § 3294 subd. (a). “Malice” is demonstrated by “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. at subd. (c)(1). As used in section 3294, conduct justifying punitive damages includes “not only a malicious intention to injure the specific person harmed, but conduct evincing ‘a conscious disregard of the probability that the actor’s conduct will result in injury to others.’” Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808.
The evidence outlined above demonstrates that LESLIE knew asbestos would be used with its product, and even supplied original and replacement asbestos components with its products. LESLIE knew that asbestos dust would be released from those components during routine maintenance and repair. Nevertheless, the evidence shows that LESLIE never tested its products to determine whether they were safe or dangerous and it never warned of the dangers of asbestos well known to science and industry alike. This evidence demonstrating LESLIE’s willful and conscious disregard for MR. KNUTSON’S rights and safety is sufficient to create a triable issue of fact regarding whether punitive damages should be imposed on LESLIE in this case.
Defendant’s Motion Should Be Continued Pursuant to C.C.P. §437c(h).
A party that stands in opposition to a summary judgment motion may seek a continuance of the motion if it can show, from affidavits offered, that additional time is needed to obtain facts essential to justify opposition to the motion. C.C.P. §437c(h). Once the showing is made, continuance is mandatory. Bahl v. Bank of America (2001) 89 Cal. App. 4th 389; Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 253-54. Further, the motion should not be granted if discovery has not been completed or if the opposing party’s attempts to obtain important evidence have been frustrated. Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal. App. 4th 164, 174.
On March 7, 2007, plaintiffs noticed the deposition of LESLIE CONTROLS, INC.’s person most knowledgeable and custodian of records. (Maher Decl., Exhibit —). Defendant served boilerplate objections and plaintiffs sent two letters and have made several telephone calls to LESLIE’s counsel, Christopher Strunk. (Maher Decl., paragraph —). In the last conversation on May 7, 2007, Mr. Strunk stated that his client’s witness, Matthew Wrobel, had identified documents relating to LESLIE equipment on the USS HANCOCK. Id. Counsel reportedly was still looking for seven boxes of LESLIE documents produced by LESLIE for another plaintiffs’ firm in 2003. Id. Plaintiffs noticed an ex parte motion to compel production for May 1, 2007, but at the behest of Defendant, who was still searching for records, the deposition has been continued three times to May 7, 9 and 11, 2007. Id. Plaintiffs are being assured by LESLIE that these issues will be resolved amenably. Id. Shining Declaration, paragraph 4. Id. Thus, a continuance is mandatory as issues relating to those presented by Defendant will be the subject of this deposition.
LESLIE has failed to shift its burden to negate an element of Plaintiffs’ negligence and strict liability claims. Further, Plaintiffs have established triable issues of fact with respect to LESLIE’s liability for injury caused by its failure to warn of the dangers of the asbestos-containing component parts integral to the design and intended use of its valves. In addition, Plaintiffs have proffered evidence sufficient to create a triable issue of fact on the issue of punitive damages. Accordingly, Defendant’s motion for summary judgment and/or summary adjudication should be denied.
DATED: May 9, 2007
BARON & BUDD, P.C.
- ↑ John Crane manufactured literally hundreds of asbestos gaskets and packing materials during the years of MR. KNUTSON’S service in the Navy. See John Crane Interrogatory Responses, at General Asbestos Packing Style List (Maher Decl. Ex. J). Garlock, too, manufactured a seemingly infinite variety of asbestos gaskets during the time MR. KNUTSON worked with them. See Garlock Interrogatory Responses at 9-10 (Maher Decl. Ex. I).
- ↑ LESLIE attempts to argue that Plaintiffs cannot meet their burden of proving causation, because LESLIE did not manufacture the asbestos affixed to its valves. However, as discussed at length infra, a manufacturer’s duty to warn extends to the foreseeable uses of its product, even if a hazard arises from additional parts or replacement parts manufactured by another company. Therefore, the hazards inherent in breathing asbestos dust arising from the foreseeable use of the LESLIE valves are imputed to LESLIE, even though LESLIE did not supply the asbestos-containing parts.
- ↑ See also Notice of Ruling Denying Foster Wheeler, LLC’s Motion for Summary Judgment, Williams v. Carver Pump Co., No. BC 309034 (Sup. Ct. of Ca., Los Angeles Cty., December 16, 2004) (holding that because the equipment at issue required asbestos-containing insulation, “[t]his gave rise to a duty imposed on the manufacturer to warn of the hazard created by the insulation”) (Maher Decl. Ex.T); Order Denying LESLIE-Rand’s Motion for Summary Judgment, Landingin v. A.W. Chesterton Co., No. 437009 (Sup. Ct. of Ca., San Francisco Cty., Nov. 1, 2005) (Maher Decl. Ex. U).
- ↑ See also Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224-26, 1234-35 (manufacturer of deck gun for use on a fire truck, mounted by equipment manufactured by another, liable for failure to warn where plaintiff produced evidence that it was foreseeable that pressure from the deck gun would result in failure of the mounting equipment); Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1978-1979 (foreseeable alterations by plaintiff’s physician to the defendant’s plastic medical tubing did not relieve the manufacturer of liability for failure to warn, under a negligence theory, if the alteration was foreseeable).
- ↑ LESLIE attempts to assert that “No California court has defined the scope of a manufacturer’s duty to warn under a negligence’s cause of action.” Defendant’s Motion at 14. LESLIEthen cites a series of cases from New York, Maryland, and Texas as potentially instructive as to the negligence principles that California might adopt. Incredibly, LESLIE attempts both to obviate and rewrite clear, established California case law. Specifically, as the Court explained in Balido v. Improved Machinery, Inc., 29 Cal. App. 3d 633 (1973), “the test for strict liability is the same as that for negligence, except for the element of scienter.” “A danger is unreasonable when it is foreseeable, and the manufacturer’s ability, actual, constructive, or potential, to forestall unreasonable danger is the measure of its duty in the design of the product. A manufacturer’s failure to achieve its full potential in design and thereby forestall unreasonable danger forms the basis for its strict liability in tort. It is a liability whose essence parallels the lack of due care that is the essence of its liability for negligence.” Id. at 640.