SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
CONRAD BEAUCHAMP and OPAL GERALDINE BEAUCHAMP,
ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST; ET AL,
Case No.: BC 357289
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT GOULDS PUMPS, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
PLAINTIFFS’ RESPONSE IN OPPOSITION TO GOULDS’ SEPARATE STATEMENT OF “UNDISPUTED” MATERIAL FACTS;
PLAINTIFF’S SEPARATE STATEMENT DISPUTED MATERIAL FACTS;
DECLARATION OF JOHN LANGDOC
Date:March 1, 2007
Judge: Hon. Soussan G. Bruguera
Action Filed:August 18, 2006 Trial Date:February 26, 2007
Table Of Contents
SUMMARY OF ARGUMENT
Plaintiffs Conrad Beauchamp and Opal Geraldine Beauchamp (“Plaintiffs”) have brought negligence and strict liability claims against Defendant Goulds Pumps, Inc. (hereinafter “Goulds” or “Defendant”) for damages arising out of Conrad Beauchamp’s exposure to asbestos from working with and around Goulds pumps. Goulds 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.) Goulds has therefore failed to shift the burden to Plaintiffs. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 71-72.)
Assuming Goulds has shifted its burden, Plaintiffs have established a triable issue of material fact with regard to Mr. Beauchamp’s exposure to asbestos from Goulds pumps. Deposition testimony and discovery responses establish that Mr. Beauchamp was exposed to asbestos-containing internal component parts incorporated by Goulds into its pumps, including gaskets and packing material.
Additionally, Plaintiffs have raised a triable issue of fact regarding Mr. Beauchamp’s exposure to asbestos-containing internal and external component parts of Goulds pumps supplied by third parties, including replacement head gaskets, flange gaskets, and external insulation. Goulds is liable for injuries caused by its failure to warn of the dangers of such third-party component products because its pumps were designed to be used with asbestos-containing components and the use of such components was foreseeable to the intended use and maintenance of the pumps. (See Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 129 Cal.App.4th 577, 583 (Cal.App. 2004); Skip Wright v. Stang Manufacturing (1997) 54 Cal. App.4th 1218, 1236; DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336, 350.) Accordingly, Defendant’s motion for summary judgment and/or summary adjudication should be denied.
STATEMENT OF FACTS
Plaintiff Conrad Beauchamp is a 76-year-old man suffering from terminal malignant mesothelioma. (Plaintiffs’ Disputed Material Fact (hereinafter “DMF”) No. 1.). Mesothelioma is a painful, terminal cancer of the lung lining caused uniquely by asbestos exposure. (DMF No. 2.) Mr. Beauchamp is currently under hospice care for his terminal cancer and his doctor does not expect him to survive. (DMF No. 3.)
Mr. Beauchamp developed mesothelioma through occupational exposures from his employment in the United States Navy, as well as from his employment at Premier Oil Refinery in Fort Worth, Texas. (DMF No. 4.) Mr. Beauchamp boarded the U.S.S. St. Paul in 1948 and served aboard that ship until 1952. (DMF No. 5.) During that time he worked as a fireman apprentice, a fireman, a third class petty officer and a second class petty officer. (DMF No. 5.) While aboard the U.S.S. St. Paul, Mr. Beauchamp’s primary duties were focused on Fireroom #2, including operation of the oil pumps and minor pump maintenance. (DMF No. 6.) There were at least three Goulds pumps in Fireroom #2. (DMF No. 6.) Mr. Beauchamp performed maintenance and repair on pumps on an “as needed” basis, such as when there was a leak or a suspected leak in the pumps and pipes. (DMF No. 10.)
Mr. Beauchamp assisted in the maintenance and repair of flange connections in pipes leading to pumps, which involved changing out gaskets connecting the pipes to pumps manufactured by Defendant Goulds. (DMF No. 7.) He also performed maintenance and repair on the internal head gaskets located on the Goulds pumps between the upper and lower portions of the pump body. (DMF No. 7.) Mr. Beauchamp thought it likely that he had come into contact with original gaskets installed by the pump manufacturer because those gaskets lasted a long time with proper care and usage. (DMF No. 7.) In the course of maintaining and repairing Goulds pumps, Mr. Beauchamp would open up the pump if necessary, and perform whatever nut bolting operations were required. (DMF No. 8.) Mr. Beauchamp further testified that he was involved in removing packing from pumps on board the U.S.S. St. Paul. (DMF No. 9.)
Mr. Beauchamp was directly exposed to asbestos by visible dust that was released during the process of changing old flange and head gaskets on Goulds pumps. (DMF No. 11.) He recalls removing and using gaskets manufactured by Garlock, Flexitallic, and Anchor. (DMF No. 7.) When Mr. Beauchamp would remove old gaskets, he would clean the surfaces with wire brushes prior to installing new gaskets, creating additional dust. (DMF No. 12.)
Not only was Mr. Beauchamp exposed to asbestos-containing components of Gould pumps while working on the pumps directly, but he was also present while other workers opened up the Goulds pumps to perform repairs. (DMF No. 13.) The room where the pump repair work was done, Fireroom #2, was a very confined space. (DMF No. 13.)
Goulds admits that some of its pumps have incorporated asbestos-containing component parts, such as gaskets and seal packing. (DMF No. 14.) Goulds utilized asbestos-containing gaskets and packing manufactured by Garlock, John Crane, Flexitallic, Anchor, and many others. (DMF No. 14.) Corporate representatives for Goulds in fact acknowledge that the majority of Goulds pumps were equipped with asbestos-containing gaskets and packing. (DMF No. 15.) The only types of pumps that would not have contained asbestos-containing packing were those that used a different technology called a mechanical seal. (DMF No. 15.)
Moreover, all packing in pumps sold to the Navy in the 1930s, 1940s, and 1950s contained asbestos. (DMF No. 16.) Asbestos was standard in all pumps from the 1920s forward. (DMF No. 16.) Goulds continued to use asbestos-containing component parts until 1985. (DMF No. 15.) Most of the gaskets incorporated into Goulds pumps contained 70% asbestos, and the packing materials contained as much as 90% asbestos. (DMF No. 17.) Goulds was aware that the gaskets and packing would have to be replaced in order to maintain the pump in good working order. (DMF 18.) Goulds therefore sold replacement gaskets and packing material. (DMF No. 18.)
During maintenance and repair of the pumps, Mr. Beauchamp was further exposed to asbestos dust when tearing apart pipe insulation in order to access the areas to be repaired. (DMF No. 19.) This insulation also contained asbestos, and the tear-down created more dust. (DMF No. 19.) Importantly, corporate representatives of Goulds were aware that asbestos-containing insulation was used on the outside of the pipes attached to the pumps, and on the outside of the actual pumps, if the pipes carried hot or cold liquid. (DMF No. 20.)
In 1954, two years after his discharge from the U.S. Navy, Mr. Beauchamp began working for Premier Oil Refinery in Fort Worth, Texas. (DMF No. 21.) Mr. Beauchamp worked for Premier for thirty-two years. (DMF No. 21.) During his employment at the refinery, Mr. Beauchamp served as an insulator, laborer, pipe fitter, pipe fitter helper, purchasing worker, supply room manager, and office manager. (DMF No. 22.)
Mr. Beauchamp recalls that in addition to other pumps which may have been present at the refinery, there were Goulds pumps in three areas: the Catalytic Cracker Unit, the Kellogg Unit and the Platform Unit. (DMF No. 23.) He also recalls that the pipes leading to these pumps were encased in insulation. (DMF No. 23.) Mr. Beauchamp recalls routinely working on pumps as part of his duties as a pipefitter. (DMF No. 24.) Specifically, his job was to connect and disconnect the pipes from the pumps that were in need of repair. (DMF No. 24.) The process of disconnecting these pipes required disturbing the asbestos-containing insulation on the pipes. (DMF No. 25.) While working at Premier, Mr. Beauchamp also assisted in pump repairs and was involved in changing flange gaskets around Goulds pumps. (DMF No. 26.)
The vast majority of Goulds pumps used asbestos-containing component parts, Goulds officials knew that those parts would have to be replaced in order to maintain the pumps in working order, and Goulds knew that their pumps were commonly insulated externally. (DMF Nos. 15-16, 18, 19, 21.) Goulds was also aware that there were no alternatives to asbestos-containing packing and gaskets until the 1960s or 1970s at the earliest. (DMF No. 27.) Yet Goulds never provided any warnings as to the hazards of asbestos in either instruction booklets provided with its equipment, or on the equipment itself. (DMF No. 28.)
A.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 thus 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. (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. National Can Corp. (1981) 124 Cal.App.3d 630, 638.) This duty necessarily requires a defendant seeking summary judgment 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, supra, 12 Cal.App.4th at p. 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, supra, 25 Cal.4th at 850; Weinstein v. Dept’ 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, supra, 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, supra, 25 Cal.4th at 850.) Under California law, “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, supra, 69 Cal.App.4th at 71-72.)
Goulds does not, and indeed cannot, establish that Mr. Beauchamp does not have evidence of exposure to asbestos-containing internal gaskets, internal packing, flange gaskets, and external insulation from numerous Goulds pumps. As outlined above, there is overwhelming evidence of such exposure. (DMF Nos. 6-17, 19, 23-26.) Under these circumstances, Defendant has 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, including the deposition testimony of Mr. Beauchamp, prior deposition testimony of Goulds corporate representatives, and Goulds’ own Interrogatory Responses. These triable issues of material fact include whether Mr. Beauchamp was exposed to asbestos-containing internal components of Goulds pumps, as well as Goulds’ liability for exposure to asbestos-containing external gaskets and insulation used in conjunction with Goulds pumps.
In determining whether there is a triable issue of material fact, the Court must examine all the evidence properly produced by the parties. (Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1612.) The Court is obliged to liberally construe Plaintiff’s submissions in opposition to the Motion, and to resolve doubts in Plaintiff’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal. App 4th 763, 768; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355.)
Facts that tend to demonstrate whether a plaintiff presents sufficient evidence of exposure to a particular defendant’s asbestos-containing product have been articulated by California courts in four illustrative cases: Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409; Dumin v. Owens Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal App 4th 953; and Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77.
The Lineaweaver Court recognized that the concept and language of “substantial factor” in asbestos litigation might be “misused” by defendants:
[T]he word “substantial” should not be weighted too heavily. The substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the “but for” test, now has been embraced by defendants where their conduct is a “but for” cause of plaintiff’s injury but is nevertheless urged as an insubstantial contribution to the injury. Misused in this way, the substantial factor test “undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.
(Lineaweaver, supra, 31 Cal.App.4th at 1415 (emphasis added, cites omitted.))
Causation is established by a defendant’s products contributing to the disease process, or contributing to the risk of the disease process. The Rutherford Court held that:
[T]he jury should be told that the plaintiff’s or decedent’s exposure to a particular product was a substantial factor in causing or brining about the disease if in reasonable medical probability it was substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.”
(Rutherford, supra, 16 Cal App 4th at 977.) Courts have rejected what asbestos defendants typically argue to the courts and to juries: that plaintiff must prove exposure “extensive enough to cause substantial harm.” (Lineaweaver, supra, 31 Cal.App.4th at 1416; Rutherford, supra, 16 Cal App 4th at 977.) Consistent with BAJI 3.77 regarding concurrent causes, defendants’ products or conduct typically combine with other causes to result in the harm produced.
The Lineaweaver case established that circumstantial evidence of exposure to a given product can be sufficient to raise a triable issue of fact. In that case the plaintiff had worked at the Standard Oil refinery from 34 years as a laborer and boilermaker/welder. (Lineaweaver, supra, 31 Cal.App.4th at 1413). As a laborer his duties included cleaning up asbestos debris and ripping out old insulation. (Id.) As a boilermaker/welder plaintiff worked near insulators producing asbestos dust. The plant was a significant supplier of insulation products at the refinery, performing about 50 percent of the insulation work at the refinery in the 1960’s, according to one witness. Plant-supplied Pabco was also used as substituted “fill-in” by another major insulation contractor at the refinery when its own insulation supplies ran out. (Id.) Based on those facts, the Court concluded that while there was no direct evidence that Lineaweaver was exposed to Plant-supplied Pabco, the circumstantial evidence sufficiently supported a reasonable inference of exposure. (Id. at 1420.) There was sufficient evidence of exposure because “the plaintiff [had] established that defendant’s product was definitively at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it . . . .” (Id.)
This criteria was recently further discussed in Jones v. John Crane Inc. (2005) 132 Cal.App.4th 990. In Jones, the court explained plaintiff’s burden in proving causation:
“In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to plaintiff’s or decedent’s risk of developing cancer.” Id at 998. (emphasis in original).
In essence, the court in Jones found that, contrary to defendant’s contentions, the plaintiff need not prove enough exposure to the defendant’s asbestos-containing rope packing to independently cause lung cancer. (Id.) The Jones court concluded that through evidence of plaintiff’s occupational exposure while in the Navy, which included asbestos releases from asbestos-containing packing and gasket products, plaintiff had proven enough exposure showing that the defendant’s rope packing was a substantial factor in contributing to the aggregate dose of asbestos that the plaintiff inhaled. (Id. (emphasis added).)
1.A triable issue of fact exists that Mr. Beauchamp was exposed to asbestos-containing internal gaskets and packing in Goulds pumps.
Defendant asserts that Plaintiff has failed to provide evidence that Mr. Beauchamp was exposed to asbestos-containing components within Goulds pumps. Goulds argues, therefore, that Plaintiff has failed to show a triable issue of fact because there is no admissible evidence of causation. See Defendant’s Motion for Summary Judgment at 8.
Contrary to Defendant’s contentions, Mr. Beauchamp definitively recalls Goulds pumps both during his naval service aboard theU.S.S. St. Paul and during his employment at Premier Oil Refinery. (DMF Nos. 6, 23.) More significantly, he did not just work “around” those pumps, he recalls personally replacing gaskets, including flange and internal head gaskets, and removing packing on Goulds pumps while in the Navy. (DMF Nos. 7-9.) The flange gaskets were typically located on the pipes connected to the pump, while the internal head gaskets were located directly between the lower and upper portions of the pump body. (DMF No. 7.)
Mr. Beachamp testified that he thinks it likely that he was exposed to gaskets installed by the pump manufacturers, given the long life of those gaskets. (DMF No. 7.) Mr. Beauchamp testified that during his naval service, he used and removed asbestos gaskets, including but not limited to, products manufactured by Garlock. (DMF No. 7.) He further testified that the removal and installation of gaskets required the use of a wirebrush to clean the residue old gaskets prior to the installation of new ones. (DMF No. 12.) He recalls that changing the gaskets created visible dust to which he was exposed. (DMF No. 11.)
Goulds has admitted that the majority of its pumps contained asbestos gaskets and that some of those gaskets were supplied by Garlock. (DMF No. 14-15.) Plaintiff notes that in prior deposition testimony, Goulds does not distinguish between flange gaskets and head gaskets. Rather, Goulds corporate representatives simply state that gaskets were generally supplied with its pumps. (DMF No. 15.) Further, Goulds has admitted that the installation of asbestos-containing parts, such as gaskets, occurred as part of the manufacturing process prior to shipment and sale of its product. (DMF No. 15.) Goulds further admits that all asbestos packing supplied to the Navy in the 1930s, 1940s, and 1950s–during the time of Mr. Beauchamp’s service–contained asbestos. (DMF No. 16.)
Defendant attaches a declaration to its motion which summarily states that not all Goulds pumps contained internal asbestos components. However, Plaintiff notes that despite these assertions, there is no averment that Goulds pumps never housed asbestos-containing components. Indeed, such a statement would directly contradict prior deposition testimony and Interrogatory Responses stating otherwise.
Goulds cannot escape the evidence demonstrating that asbestos gaskets and packing were, in fact, internal components of Goulds pumps. (DMF Nos. 14-15.) There is also no escaping Goulds’ admission that the installation of asbestos-containing parts occurred as part of the manufacturing process and that all of its pumps shipped to the Navy during the relevant time frame contained asbestos-containing packing. (DMF Nos. 14-16.) This, in and of itself, is sufficient to support a reasonable inference that Goulds pumps contained asbestos-containing gaskets and packing to which Mr. Beauchamp was subsequently exposed. (See Lineaweaver, supra, 31 Cal.App.4th at 1420.) Due to the location of the head gaskets on the pumps, Mr. Beauchamp has shown that he did in fact work on asbestos-containing internal components of the equipment. (DMF No. 7.) He also testified regarding removing packing from pumps while onboard the U.S.S. St. Paul. (DMF No. 9.)
For these reasons, Plaintiff has created a triable issue of fact as to causation. Plaintiff, therefore, respectfully requests that Defendant’s motion be denied.
2.A triable issue of fact exists as to Defendant’s liability for exposure to asbestos-containing external gaskets and insulation used in conjunction with Goulds pumps.
Goulds contends that it is not liable for injuries caused by Mr. Beauchamp’s exposure to asbestos-containing replacement gaskets, external flange gaskets and external insulation because those products were affixed to its pumps by third parties subsequent to original sale and shipment. Goulds only advances this argument by ignoring prevailing California law holding that it in fact has a duty to warn of the dangers of component products when such products are integral to the very design of its pumps and foreseeable to the use and maintenance of the pumps.
As an initial matter, well-settled California law provides that product manufacturers are liable for injury caused by component parts, even when supplied by third parties. In Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, the California Supreme Court held that under strict liability, “regardless of their source . . . a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another.” (Id. at 261 (citing, inter alia, Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 726-27).) The Court went on to stress that, “even before such strict liability was recognized, the manufacturer of a completed product was subject to liability for the negligence of his suppliers or subcontractors that resulted in defects in the completed product.” (Id.)
Though Defendant fails to mention it, the precise argument raised in its motion has been considered and rejected in California. In Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 129 Cal.App.4th 577 (Cal.App. 2004), the plaintiff was a lamp maker who worked for many years cutting, sanding and grinding metal parts with various power tools, including different types of grinders, that required the use of various abrasive wheels and discs. (Id. at 579.) After developing pulmonary fibrosis as a result of exposure to the toxic particles released during his work, the plaintiff sued the manufacturers of the grinders he had used as well as the makers of the various wheels, discs, and substances he had been exposed to while operating the grinders. (Id. at 579 n.3.) The grinder manufacturers moved to dismiss the plaintiff’s complaint, arguing that his injury was not caused by their grinders, but by the substances on and with which the plaintiff used the grinders. (Id. at 581.) In addition, the tool manufacturers argued that their duty to warn was limited to their own products. (Id.) The California Court of Appeals flatly rejected such arguments.
In holding that the manufacturer of the grinder was liable for injuries caused by other parts used with the grinder, the critical fact was “not that [the defendants] manufactured component parts to be used in a variety of finished products, outside their control, but instead that [the defendants] manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with, for the intended purpose of grinding and sanding metals . . . .” (Id. at 582 (emphasis added).) The court observed that the defendants were not required “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 – indeed  as they must be used.” (Id. at 583.) Because the grinders were specifically made to be used with the abrasive wheels and discs that in fact were used, the defendants could not complain “that it was impossible for them to foresee what attachment would be used and to what surface it would be applied.” (Id. at 584.) Finally, the court reasoned that because a manufacturer has a duty to warn of a foreseeable misuse of its product, it cannot logically “be exempt from liability for the consequences of the intended use.” (Id.)
Liability for injuries caused by the consequences of a product’s intended use therefore gives rise to a manufacturer’s duty to provide adequate warnings against the potential dangerous posed by the foreseeable combination of their products with other products. In Skip Wright v. Stang Manufacturing (1997) 54 Cal. App.4th 1218, the court considered whether a water deck gun used by firemen was defective when an affixed piece of pipe, that was not part of the deck gun, failed and caused a fireman’s injury. (Id. at 1222-24.) The affixed pipe was installed by another party. (Id. at 1222.) In determining whether the manufacturer of the water deck gun provided an adequate warning “against the potential dangerous and foreseeable ‘mismatch’” of the deck gun with the third party’s piece of pipe, the court concluded that “triable issues of fact exist[ed] on the ‘warning defect’ aspect of strict products liability.” (Id. at 1236.)
Similarly, in DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336, the court noted well-settled California law that “the 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 (quoting Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126).) In DeLeon the court considered whether a storage bin was defective when an adjacent but unrelated piece of machinery severed the plaintiff’s arm. (Id. at 340-41.) The court held that there was a triable question of fact regarding whether the bin manufacturer was responsible under either strict liability warning defect and negligent failure to warn for the combination of the unrelated piece of machinery and bin together as an entire system. (Id. at 350.)
It is clear that Goulds designed its pumps in such a way that asbestos-containing replacement parts would have to be used. Goulds acknowledges that proper maintenance of the pumps required periodically replacing the packing and that the gaskets would sometimes have to be replaced. (DMF No. 18.) Goulds was also aware that there were no alternatives to asbestos-containing gaskets and packing materials for many years. (DMF No. 27.) Indeed, Goulds itself sold asbestos-containing original parts and replacement parts until 1985. (DMF No. 15.) Because Goulds pumps could not be operated without the use of asbestos-containing gaskets and packing, it is liable for Mr. Beauchamp’s asbestos exposure during routine maintenance and repair of the pumps.
Goulds is similarly liable, under strict liability and negligence theories, for the actions of the third parties suppling external insulation and flange gaskets for use in conjunction with its pumps. Mr. Beauchamp had to disturb the external insulation covering the pipes and pumps in order to change the flange gaskets around the pumps or even just to connect or disconnect the pipes from the pumps. (DMF No. 19, 25.) Goulds was certainly aware that its pumps would be connected to pipes by flange gaskets. Goulds also admits it was aware that the pumps and surrounding piping would be insulated externally if the pipes were used for liquids at high temperature settings. (DMF No. 20.) Therefore, Goulds actually foresaw that the end user of its pumps would utilize asbestos-containing components in order to protect the pipes and gaskets sitting directly between the pipe connections and the pump itself.
Deposition testimony and discovery responses clearly establish that Goulds never issued any warnings related to use of asbestos-containing components used in conjunction with its pumps. This included a lack of warnings on either instruction manuals provided with its products, or on the product itself. (DMF No. 28.) This utter failure to warn was contrary to Goulds’ duty under California law to provide adequate warnings against the potential and dangerous foreseeable match of its products with asbestos-containing insulation, packing material, and gaskets. (See Tella-Cordova, supra, 129 Cal.App.4th at 583; Skip Wright, supra, 54 Cal. App.4th at 1236; DeLeon, supra, 148 Cal.App.3d at 350).
In arguing that Goulds should not be required to warn of the dangers associated with affixed parts, Goulds relies on the inapposite case of Zambrana v. Standard Oil (1972) 26 Cal.App.3d 209. In Zambrana, Firestone sold automobile tires and valve stems to the plaintiff. (Id. at 212-13.) The next year, the plaintiff purchased four new tires from Standard, a different manufacturer and distributor. (Id.) Standard took the valve stems from the old Firestone tires and put them on the new Standard tires. (Id. at 217.) When taking the old Firestone valves, and installing them in the new Standard tires, the Standard service station employee cracked one of the valves. (Id. at 214-15.) The tire lost air pressure, and caused the automobile to crash. (Id. at 212.) The plaintiff brought a lawsuit against Standard for negligently installing and injuring the valve stem, and Firestone under strict liability for manufacturing the valve stem that Standard negligently installed in the improper tires and negligently damaged. (Id.)
The Zambrana court held that Firestone was not under a duty to warn of the danger that would result when a valve stem from its tire was removed and placed on another manufacturer’s tire thus creating a dangerous combination of parts in use which was “not generally known and recognized.” (Id. at 218.) Zambrana, however, is inapposite to this case, where Goulds possessed a duty to warn of the knowable (in fact, “known”) fact that their pumps would be used in combination with asbestos-containing gaskets, asbestos-containing packing, and asbestos-containing insulation in high temperature settings.
California law simply does not allow Goulds to escape liability under either strict liability or negligence by placing the blame on asbestos-containing component parts supplied by others.Because Goulds pumps were, by admission, designed to contain asbestos, as well as to be used in combination with asbestos gaskets, asbestos packing, and asbestos insulation, there is a triable issue of fact under both strict liability and negligent failure to warn theories. Plaintiffs therefore respectfully request that this Court deny Goulds’ attempt to obtain summary adjudication on this issue and escape liability for its failure to warn of the dangers posed by asbestos-containing component parts used in conjunction with its pumps.
Goulds’ motion for summary judgment must be denied as it has failed to shift its burden to negate an element of Plaintiffs’ negligence and strict liability claims. Moreover, Plaintiffs have established triable issues of fact with respect to Mr. Beauchamp’s exposure to asbestos-containing products manufactured by Goulds, and Goulds’ 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 pumps. Accordingly, Defendant’s motion for summary judgment and/or summary adjudication should be denied.
DATED this 26th Day of February, 2007.