SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES
|MILTON DARWIN KNUTSON and DELORES MAY KNUTSON,|
ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST; ET AL.,
|CASE NO. BC349841|
[COMPLEX ASBESTOS LITIGATION-SUBJECT TO THE GENERAL ORDERS CONTAINED IN FILE NO. C700000.]
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT BUFFALO PUMPS, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
PLAINTIFFS’ RESPONSE IN OPPOSITION TO BUFFALO PUMPS, INC.’S SEPARATE STATEMENT OF “UNDISPUTED” MATERIAL FACTS; PLAINTIFFS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS; DECLARATION; PLAINTIFFS’ LODGMENT OF NON-CALIFORNIA AUTHORITIES; and
PROOF OF SERVICE
Hearing Date:April 23, 2007
Hearing Time:8:30 a.m.
Judge: Hon. Victor Person
Action Filed:March 29, 2006
Trial Date:May 29, 2007
MEMORANDUM OF POINTS AND AUTHORITIES
Table Of Contents
Milton Knutson has mesothelioma, a rare and fatal form of cancer, resulting from his substantial exposure during his career in the Navy to asbestos-containing pumps manufactured by Buffalo Pumps (“Defendant” or “Buffalo”). California law imposes liability for the foreseeable use of a defendant’s products when danger arises either from the use of unsafe original component parts, or unsafe replacement parts, even if those components are manufactured by another company. (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. & Supply Co. (1983) 148 Cal.App.3d 336, 350.) The overwhelming evidence shows that Buffalo itself used and knew and intended that others would continue to use asbestos-containing gaskets and packing in using its pumps. Buffalo’s theory that its products are not defective because they were mere “platforms” for asbestos components created by others is wrong as a matter of law.
To prevail on summary judgment, Buffalo must present affirmative evidence that the use of asbestos-containing components with its pumps was unforeseeable. Buffalo presents no such evidence. Accordingly, it has not shifted its burden and cannot win summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 71-72.) Buffalo’s other proffered grounds for summary relief similarly lack merit. Its claim that Mr. Knutson was not sufficiently exposed to its products ignores the record, which, as set forth below, is replete with evidence that Mr. Knutson was exposed to asbestos dust from his and his colleague’s frequent and regular work on Buffalo Pumps in confined ship engine rooms. (See, e.g., Jones v. John Crane Inc. (2005) 132 Cal.App.4th 990, 997-98.) In fact, Buffalo concedes that Mr. Knutson recalled working on or witnessed others working on Buffalo Pumps on at least two ships, the USS Epperson and the USS Passumpsic. See Motion at 3-4.
Tellingly, Buffalo’s very arguments here–including those regarding strict liability, negligence, punitive damages, and loss of consortium–were rejected on March 21, 2007 in another asbestos case in this county. (Decl. Ex. A, Gene Mendenhall, et al., v. Ampco-Pittsburgh Corp., et al., Superior Court of California, County of Los Angeles, Cause No. BC330896 (Buffalo’s motion for summary judgment or in the alternative summary adjudication and order denying same)). The same result is appropriate here: Buffalo’s motion should be denied.
STATEMENT OF MATERIAL FACTS
Buffalo Used, and Knew That Others Would Use Asbestos in its Pumps.
Buffalo Pumps on naval vessels used asbestos. (Decl. Ex. C, Buffalo Pumps Letter to Naval Seal Systems Command, October 31, 1984). In fact, from the late 1930s to the 1980s, all Buffalo Pumps supplied to the U.S. Navy had asbestos components, including gaskets (up to 70% asbestos) and packing (up to 90% asbestos). (Decl. Ex. D, Deposition of Martin Kraft (“Kraft Depo”), at 88:21-87:6, 88:7-13, 97:8-13; 101:18-22; Decl. Ex. E, Buffalo Pumps Bulletin, at 27; Decl. Ex. F, Buffalo’s Response to Standard Interrogatories (“Buffalo Rog. Resp.”) No. 14; Decl. Ex. G, Deposition of Bruce Connor, at 200:3-23.) Buffalo even provided lagging plans to the Navy with explicit instructions on how to insulate Buffalo Pumps with asbestos cloth and asbestos felt. (Decl. Ex. H, Buffalo Pump Lagging Plans for Vertical Auxiliary Feed Booster Pump, Vertical Main Feed Booster Pump, 1st Effect Evaporator Tube Nest Drain Pump, Buffalo Plan CA-7727 for the Combined Main Feed and Booster Pump, Bath Iron Works Insulation and Lagging Plan for the CA-7727, and Letter dated Sept. 27, 1940 from Buffalo Pumps to Navy Yard, forwarding lagging plans.) Buffalo’s plans requiring asbestos on its pumps gave no indication or warning that asbestos is dangerous to those working with or around it. (Ibid.)
Buffalo incorporated asbestos components into its pumps (Decl. Ex. D, Buffalo Pumps Interrogatory Response No. 14), and was fully aware asbestos would be used in replacement and repair. (Decl. Ex. E, Buffalo Bulletin, at 27; Decl. Ex. K, Buffalo Service Manual, at 2). Operation of the pumps required routine maintenance and replacement of component parts. (Decl. Ex. I, Buffalo Service Manual). Buffalo did not tell users to use non-asbestos alternatives for component replacement or repair. (Decl. Ex. I, Buffalo Service Manual; Decl. Ex. F, Buffalo Rog. Resp. No. 28; Decl. Ex. S, Kraft Depo. at 141:14-20.) Instead, Buffalo instructed users to replace damaged asbestos components with new asbestos components. (Decl. Ex. E, Buffalo Bulletin, at 27; Decl. Ex. I, Buffalo Service Manual at 2). Buffalo itself sold asbestos gaskets for use as replacement parts on its pumps. (Decl. Ex. I, Buffalo Service Manual at “Standard Parts List”).
Mr. Knutson Was Exposed to Asbestos from Buffalo Pumps.
The evidence shows that Mr. Knutson sustained significant exposure to asbestos from Defendant’s pumps, and such exposure was a substantial cause of his mesothelioma. Mr. Knutson worked as a machinist mate for the United States Navy for nineteen years – from 1954 to 1958, and from 1961 to 1976. (Decl. Ex. B, Deposition of Milton Knutson, at 20:1-16 (July 10-15, 18 & 19, 2006) (“Knutson Depo.”).) Mr. Knutson firmly recalled working with and around Buffalo Pumps throughout his naval career. (Decl. Ex. B, Knutson Depo. at 40:13-20; 525:25; 658:13-17.) For example, both he and his crew had to repack a Buffalo pump “fairly often” on the USS Epperson, on which he served from 1962 to 1965. (Decl. Ex. B, Knutson Depo. at 653:7-16; 655:8-15; 660:18-24.) He knew that the specific pump he had worked on was a Buffalo pump because he saw the name on the casing. (Id. at 658:13-17.) Mr. Knutson also saw Buffalo’s name on emergency diesel fire pumps and manuals. (Id. at 884:6-20.)
Mr. Knutson explained that he had to remove gaskets from Buffalo Pumps by splitting the casing and scraping and sanding the gaskets off; this process produced dust, which he breathed. (Id. at 58:12-23, 59:1-4, 59:19-20.) Mr. Knutson also removed old insulation and packing from pumps, which generated dust that he breathed. (Id. at 51:15-21, 51:24 – 24 – 52:6.) He described repacking pumps: “Well, first, you’d have to dig the packing out. You have a packing remover or – or you’d probably fashion something yourself if you couldn’t get a packing remover in there and get it dug out, then you’d blow it out with air, clean it up, then you’d cut your packing and start sliding the segments back in on the pumps.” (Id. at 34:6-12; see also id. at 49:21 – 50:11.) This process brought him into contact with asbestos-containing materials, including packing and gaskets. (Ibid.) Mr. Knutson had to remove packing from Buffalo Pumps “many times.” (Id. at 52:10-13.)
While serving on the USS Manatee from 1971 to 1973, Mr. Knutson was a supervisor, but he was still “hands on completely. I’m tearing down the stuff just like the other guys are.” (Id. at 39:3-8, 961:22-24.) His coworker, Charles Finch, testified that Mr. Knutson worked on a Buffalo pump while on the Manatee. (Decl. Ex. J, Deposition of Charles Finch (Feb. 13, 2007) at 9:1-20; 10:18-25; 95:22-25; 148:5-7; 148:23 – 149:1.) Mr. Finch specifically recalled that the men had to take the Buffalo pump apart and work on it regularly because it was “finicky.” (Id. at 96:3-13.)
Defendant’s own documents, as well as documents obtained from the National Archives of the United States corroborate the testimony of Mr. Knutson and Mr. Finch and establish that Buffalo Pumps that contained asbestos were installed on the ships on which Mr. Knutson served. For example, four Buffalo Main Feed Booster Pumps and two Buffalo Auxiliary Feed Booster Pumps were on the USS Epperson DD-719. (Decl. Ex. K, Navy Department Bureau of Ships Allocation for Feed Booster Pump supplied by Buffalo for the USS Epperson, at 4, Acceptance Test Data by Buffalo Pumps, INC. for the USS Epperson, Mechanical Equipment Test Procedures.) Further, the Navy specifications for the USS Epperson show that the Main Feed Booster Pumps and the Auxiliary Feed Booster Pumps — which were supplied by Buffalo — used asbestos felt and asbestos cloth. (Decl. Ex. N, Gibbs & Cox, Inc. Contractor’s Plan No. 445-3902-5 for Insulation and Lagging Schedule, at 3 & 7, “Boilers, Machinery, and Misc. Equipment;” Decl. Ex. K, supra.) Mr. Knutson worked on all the pumps on the Epperson, except for the circulating pumps. (Decl. Ex. B, Knutson Depo. at 622:7 – 624:12.) Garlock, John Crane, and Crane packing materials were used for refurbishing on board the ship, thermal insulation materials were removed from pumps on this ship, and Garlock, John Crane, and Crane gasketing materials were used during repair work. (Id. at 627:15-19, 628:11-18, 632:11-13, 662:23 – 669:22.)
Similarly, Buffalo manufactured the main condensate pumps and main feed booster pumps on the USS Cowell DD-547. (Decl. Ex. L, Navy Memorandum re Worm Reduction Gears at 3 (Dec. 24, 1941).) Buffalo’s Manufacturer’s Plan shows that its main condensate pump used on the Cowell required asbestos sheet. (Decl. Ex. M, Buffalo Pumps, INC. Details of Casing Split for Main Condensate Pump). In addition, the Insulation Schedule prepared by Gibbs & Cox, Inc. for the Navy shows that the main condensate pumps and the main feed booster pumps — which were supplied by Buffalo — on the USS Cowell used asbestos felt and asbestos cloth. (Decl. Ex. N, Gibbs & Cox, Inc. Contractor’s Plan No. 445-3902-5 for Insulation and Lagging Schedule, at 3 & 7, “Boilers, Machinery, and Misc. Equipment;” see also Ex. L, supra.) Mr. Knutson refurbished both booster pumps and one condensate pump on board the USS Cowell. (Decl. Ex. B, Knutson Depo. at 695:13 – 704:18; 708: 6-14; 719:3-14.)
Mr. Knutson never wore a mask or respiratory protection during this work. (Decl. Ex. B, Knutson Depo. at 57:13-20.) During his time in the Navy, Mr. Knutson never saw any warning on any container that breathing asbestos dust could cause cancer, nor did Buffalo PUMP or any other pump manufacturer ever come out to a ship that he was on and advise him that their pumps 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.) Finally, Plaintiff’s medical expert, Dr. Eugene Mark, concluded that Mr. Knutson’s mesothelioma was caused by asbestos, and that all of his exposures to asbestos before the malignancy occurred contributed in causing Mr. Knutson’s mesothelioma. (Decl. Ex. O, Medical Report, Eugene J. Mark, M.D.) There is sufficient evidence to create a triable issue of fact as to whether exposure to asbestos released from Buffalo Pumps was a substantial factor in causing Mr. Knutson’s disease.
Buffalo Willfully and Consciously Disregarded Mr. Knutson’s Rights and Safety and Concealed Material Facts Regarding Product Hazards.
Defendant knew the asbestos components in its pumps were dangerous and that asbestos was released when its pumps were serviced. (Decl. Ex. P, Heating and Ventilation, June 1944, at 60; Decl. Ex. E, Buffalo Bulletin, at 27; Decl. Ex. I, Buffalo Service Manual, at 2; Decl. Ex. S, Kraft Depo. at 55:4-7.) Despite that knowledge, Buffalo continued to manufacture and sell its pumps while simultaneously concealing the facts regarding known hazards from its customers, product users, and bystanders. (Decl. Ex. F Buffalo Rog. Resp. No. 28; Decl. Ex. B, Knutson Depo. at 140:15 – 141:9; Decl. Ex. S, Kraft Depo. at 140:141:14-20.) Not until many years after Defendant knew of the hazards posed by its pumps’ asbestos components did Buffalo, under extreme pressure from environmental groups, finally begin to employ asbestos-free components in its equipment. (Ibid.) Buffalo did not begin changing to asbestos-free packing until 1981. (Decl. Ex. Q, Buffalo Engineering Bulletin, 9/21/1981.) Buffalo continued to use asbestos-containing component parts at least until 1984. (Decl. Ex. R, Buffalo Letter re: Non-Asbestos Gaskets, October 9, 1984.)
ARGUMENT AND AUTHORITIES
Buffalo Has Failed to Meet Its Summary Judgment Burden.
Summary judgment 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 Am. (2001) 89 Cal.App.4th 389, 395.) The movant’s papers must be strictly construed and the nonmovant’s construed liberally; a court may not weigh evidence or inferences. (Murillo v. Rite Stuff Food, Inc. (1998) 65 Cal.App.4th 833, 840-41.) Any doubts must be resolved in favor of the nonmovant. (Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355.) Further, “[t]he 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; see also Cal. C.C.P. §437c.) This duty requires the movant 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 v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.) The movant must set forth in a separate statement all of the undisputed facts upon which it relies. (United Cmty. 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.” (Ibid.) If a separate statement does not set forth a fact, for purposes of the motion, the fact “does not exist.” (Ibid.)
- A party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact. (Aguilar, supra, 25 Cal.4th at 850; Weinstein v. Dep’t of Transp. (2006) 139 Cal.App.4th 52, 57.) A defendant can satisfy this burden only 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. Super. Court of San Diego (2006) 137 Cal.App.4th 21, 25.) The movant also 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. (Scheiding, supra, 69 Cal.App.4th at 71-72.)
Buffalo provides no evidence for any of its claims, but instead contends that to win summary judgement “[t]he moving defendant may point to the absence of evidence to support plaintiff’s case.” (Defendant’s Motion at 5 (citing Hunter v. Pac. Mech. Corp., (1995) 37 Cal.App.4th 1282.)) The California Supreme Court says Defendant is wrong:
Language in certain decisions purportedly allowing a defendant moving for summary judgment simply to “point” out “an absence of evidence to support” an element of the plaintiff’s cause of action (e.g., Hunter v. Pacific Mechanical Corp., supra, 37 Cal.App.4th at p. 1288, italics in original) does not reflect summary judgment law as it has ever stood, and is accordingly disapproved.
(Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 855.) Even were Defendant correct about the law, Defendant’s “absence of evidence” claim is preposterous. As set forth above, there is overwhelming evidence that Buffalo knew that asbestos-containing gaskets and packing would be used in connection with the intended use of its pumps, and that Mr. Knutson inhaled asbestos from his frequent work with, on and near Defendant’s pumps and their components.
Defendant contends that Plaintiffs may not rely on Mr. Knutson’s direct and re-direct deposition testimony absent a showing of unavailability. (See Defendant’s Motion at 3 n.1.) On the contrary, deposition testimony is admissible in the summary judgment setting. The use of depositions is limited at trial, where live testimony is preferred. (Powers v. Rug Barn (2004) 15 Cal.Rptr.3d 292, 302 -303, superseded on other grounds 16 Cal.Rptr.3d 61.) But the rule governing summary judgment provides that a party must establish a triable issue of material fact based on papers, not live testimony, and the court rules on the motion based on the papers. (Cal.C.C.P. § 437c(b)(2) & (c) (summary judgment is determined based on “all the papers submitted”).) “[T]he Legislature did not intend to limit the use of depositions in summary judgment proceedings to the situations in which their use is expressly authorized.” (Powers, supra at 302.) Defendant itself relied on and cited Mr. Knutson’s deposition testimony, and thus Plaintiffs may cite other portions of the deposition to fill in the gaps and clarify Defendant’s claims drawn from its selective presentation of the testimony. (See Cal. C.C.P. § 2025.620(e) (“…if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.”).)
Finally, even if this Court were to consider only those portions of Mr. Knutson’s deposition that were elicited on cross-examination, such testimony establishes that Mr. Knutson was exposed to Buffalo’s asbestos-containing pumps. (See, e.g., Decl. Ex. B, Knutson Depo. at 525:25 – 526:2 (worked on Buffalo Pumps while in the Navy); id. at 653:7-16, 655:8-15 (worked on Buffalo pump aboard USS Epperson, the packing leaked “all the time” such that “we had to prepack it fairly often”); id. at 877:8-11 (personally performed hands-on work overhauling Buffalo pump); (Decl. Ex. J, Finch Depo. at 95:22-25 (Mr. Knutson worked on Buffalo pump on the USS Manatee).) Defendant has failed to shift its burden of proof and summary judgment should be denied.
Plaintiff Has Established Triable Issues of Fact.
The evidence creates triable issues as to whether Buffalo Pumps were defective, whether Mr. Knutson’s injurious exposure to asbestos was caused by Buffalo Pumps, and whether the conduct of Buffalo which caused Mr. Knutson to be injuriously exposed to asbestos supports an award of punitive damages.
1.Buffalo is liable for hazards caused by the foreseeable uses of its pumps, even if the hazards are related to components manufactured by another company.
Buffalo contends that its pumps, which contain and utilize unsafe asbestos-containing original and replacement parts, are not defective as a matter of law. That position is without merit, as California case law and public policy make clear that a manufacturer is subject to strict liability for injuries 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 is strictly liable if a defect in an article it placed on the market injures someone when that product was used as intended. (See Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal.2d 57.) A manufacturer assumes the responsibility for ensuring that its product does not cause injury. (Ibid.) 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; see Prosser & Keeton on the Law of Torts § 100, at 705 (1984).) A 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.)
Buffalo contends that its pumps are not defective because the components from which the asbestos was released might have been affixed to its pumps 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 some components. The fact that 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.) But here, Buffalo Pumps were manufactured and sold with dangerous asbestos components, (Decl. Ex. F, Buffalo Pumps Rog. Resp. No. 14; Decl. Ex. E, Buffalo Pumps Bulletin, at 27), and Buffalo knew the asbestos components would need to be removed and replaced with other asbestos materials during the life of the pumps (Decl. Ex. I, Buffalo Pumps Service Manual, at 2). Thus, in their intended operation, Buffalo necessarily continued to pose the same risk to users and bystanders after original unsafe components wore out and were replaced with similar unsafe components.
In Tellez-Cordova, 129 Cal.App.4th 577, the court considered and rejected the precise argument raised by Buffalo. The plaintiff was a lamp maker who worked for years sanding metal parts with grinders that required the use of abrasive wheels and discs. (Id. at 579.) After developing a disease from exposure to the toxic particles released during his work, the plaintiff sued the grinder manufacturer, who argued that the injury was not caused by their grinders, but by the substances on and with which the plaintiff used the grinders. (Id. at 581.)The appellate court held that liability was properly imposed on a defendant that “manufactured tools which were specifically designed to be used with the abrasive wheels or discs…for the intended purpose of grinding and sanding metals.” (Id. at 582.) Although manufacturers are not required “to warn of defects in a final product over which they had no control,” they are obligated to warn about “defects which occur when their products are used as intended – indeed…as they must be used.” Id. at 583. Because the grinders were 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.) The fact that the defendant had not manufactured the component parts with which its product was used was irrelevant. 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.” (Ibid.)
In Wright, 54 Cal.App.4th 1218, the court considered whether a water deck gun was defective when a component that was installed by a third party and was not an original part of the deck gun failed, causing a fireman’s injury. Id. at 1222-24. Summary judgment could not be entered given plaintiff’s evidence that it was “foreseeable to anyone familiar with fire apparatus” that pressure from the deck gun would be too great for the riser, and that the combination of the deck gun and riser could result in the failure that injured plaintiff. (Id. at 1225-26.) The deck gun manufacturer failed to negate that it “knew that the fire department intended to attach the deck gun to a threaded riser pipe.” (Id. at 1234-35.) Simply stated, the manufacturer had a duty to warn of the foreseeable dangers posed by the combination of a product, even one manufactured by another, with its own product. (See also DeLeon, 148 Cal.App.3d at 350(fact issues existed as to whether manufacturer could have foreseen hazard; “[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.”).)
California law also extends the duty to warn to foreseeable hazards in regular maintenance and repair of a product. In Gonzalez v. Carmenita Ford Truck Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151, 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 of 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.” (Ibid.) Each of the cases cited by Buffalo as support for its contention that its product was not defective is distinguishable in that the hazard was not a consequence of the design of the product itself, but was instead the result of an unintended modification or use of the product. (Zambrana v. Standard Oil (1972) 26 Cal.App.3d 209, 218 (tire valve manufacturer did not have reason to know valve stem from its tire would be removed and placed on another manufacturer’s tire thereby creating dangerous combination of parts); Baughman v. Gen. Motors (1986) 780 F.2d 1131, 1133 (truck manufacturer did not have reason to know unsafe wheel rims would be placed on vehicle and no evidence that defendant intended different rims to be used).)
Finally, the rule of forseeability set forth in Tellez-Cordova, DeLeon, and Wright, and their progeny, is in accordance with the majority of jurisdictions in the United States, which hold that a manufacturer of a product remains liable if any repair, maintenance, alteration or modification was reasonably foreseeable. For example, the court in Berkowitz v. A.C.& S., Inc. (N.Y. 2001) 288 A.D.2d 148, 149, found that a pump manufacturer was not entitled to summary judgment on strict liability claims arising from dangers caused by asbestos gaskets and insulation used on its pumps, even though the pump manufacturer neither manufactured nor installed the asbestos-containing gaskets and insulation. In Braaten v. Saberhagen Holdings (Wash. Ct. App. 2007) 151 P.3d 1010, the court held that four manufacturers – including Buffalo Pumps – had a duty to warn users of the health risks involved in maintaining valves and pumps that they had supplied to the Navy and that were used in conjunction with asbestos-containing components. The court reasoned that the pump manufacturers would be subject to strict liability because the pumps, when used in the way normally intended, could release asbestos. (Id. at *5.) The fact that the potential exposure was not accidental, but stemmed from regular use, further supported a finding that the manufacturers had a duty to warn. (Ibid.)
Under Gonzalez, Buffalo cannot disclaim liability for asbestos-containing parts used with its product, when it knew or should have known these repair activities would expose users to asbestos. As the evidence discussed above shows, Buffalo’s pumps were specifically designed to be used with replaceable asbestos gaskets and packing, Buffalo manufactured and shipped the pumps with asbestos gaskets and packing already incorporated into them; and Buffalo knew and intended that end-users of its pumps would use asbestos components to keep the pumps operating as intended. (Decl. Ex. E, Buffalo Bulletin; Decl. Ex. I, Buffalo Service Manual). Buffalo itself sold asbestos replacement components. (Decl. Ex. I, Buffalo Service Manual, at Standard Parts List). Buffalo had not issued any warnings related to asbestos-containing components used in conjunction with its pumps. (Decl. Ex. F, Buffalo Rog. Resp. No. 28; Decl. Ex. S, Kraft Depo. p. 141:14-20). Yet Buffalo was in a position to prevent injuries to those who worked on and around its pumps. (See Brocklesby, 767 F.2d at 1295-96 (defendant subject to strict liability where it was in position to prevent injuries to users of its product despite fact that unsafe procedures developed by third party contributed to product’s dangerous condition).) Buffalo’s utter failure to warn rendered Buffalo’s pumps defective, demonstrates Buffalo’s breach of its duty, and establishes a triable issue regarding Buffalo’s strict liability and liability in negligence. (See Tellez-Cordova, 129 Cal.App.4th at 583; Wright, 54 Cal. App.4th at 1236; DeLeon, 148 Cal.App.3d at 350).)
2. The evidence creates a triable issue as to whether Buffalo’s wrongful conduct warrants the imposition of punitive damages.
A jury may award punitive damages against a defendant who is “guilty of oppression, fraud, or malice.” Cal. Civ. Code, § 3294 subd. (a). “Malice” is “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,” “oppression” is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights,” and “fraud” is “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id. at subds. (c)(1)-(3).) 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 demonstrates that Buffalo had actual knowledge of the dangers associated with asbestos as far back as 1944 and knew asbestos would be released from its product during routine maintenance. (Decl. Ex. P, Heating and Ventilation, June 1944, at 60; Decl. Ex. E, Buffalo Bulletin at 27; Decl. Ex. I, Buffalo Service Manual, at 2; Decl. Ex. D, Kraft Depo. at 55:4-7.) Despite actual knowledge of the dangers of asbestos that it supplied in its pumps and that it knew its pumps required, Buffalo chose not to tell its customers or end-users that they needed to take precautions regarding asbestos exposure. (Decl. Ex. F, Buffalo Rog. Resp. No. 28; Decl. Ex. S Kraft Depo. at 141:14-20.) Thus, Buffalo continued to manufacture and sell the dangerous pumps, while concealing the facts regarding known hazards from its customers, product users, and bystanders. (Ibid.) Buffalo concealed the dangers until it was no longer commercially feasible to do so. (Ibid.) This evidence demonstrates Buffalo’s willful and conscious disregard for Mr. Knutson’s rights and safety and Buffalo’s concealment of material facts that resulted in Mr. Knutson’s development of a fatal illness. This evidence establishes a triable issue regarding whether punitive damages are warranted.
3.Triable issues of fact exist as to whether Mr. Knutson was exposed to asbestos from Defendant’s asbestos-containing pumps.
The evidence amply demonstrates that Mr. Knutson’s exposure to products supplied by Buffalo and asbestos released from the maintenance of those products was a substantial factor in causing his mesothelioma. Contrary to Buffalo’s suggestion, the requirement that a plaintiff demonstrate a reasonable medical probability that his injury resulted from exposure to a defendant’s asbestos-containing product “does not impose an onerous burden upon plaintiffs.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1417; see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978 (“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.)) Direct evidence of exposure to the defendant’s product is not necessary to support a product liability claim. (Id. at 1420.) Circumstantial evidence that supports a reasonable inference of Plaintiff’s exposure to defendant’s product is sufficient. (Ibid. See also Lineaweaver, 31 Cal.App.4th at 1420 (despite absence of direct evidence of plaintiff’s exposure to asbestos-containing products supplied by defendant, circumstantial evidence supported reasonable inference of exposure because “plaintiff 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.”).)
As set forth above, Plaintiffs have presented evidence that Buffalo Pumps containing asbestos were present on the naval ships on which Mr. Knutson worked. Mr. Knutson personally serviced Buffalo Pumps, scraping gaskets and packing off them, which released asbestos dust that he inhaled. Finally, the expert evidence establishes that Mr. Knutson’s exposure to asbestos caused his mesothelioma. This evidence is sufficient to create a triable issue regarding Mr. Knutson’s injurious exposure to Buffalo Pumps. (See Lineaweaver, 31 Cal.App.4th at 1413.)
4.Plaintiffs are entitled to seek loss of consortium damages.
Because the evidence demonstrates the existence of triable issues regarding Plaintiffs’ claims of strict liability, negligence, and punitive damages, Plaintiffs are entitled to assert claims for loss of consortium damages.
Buffalo 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. Knutson’s exposure to asbestos-containing products manufactured by Defendant and Defendant’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 pumps. Thus, Plaintiffs respectfully request that this Court DENY Buffalo’s motion for summary judgment. For the reasons supporting that denial, this Court should DENY Buffalo’s motion for summary adjudication. At a minimum, Defendant’s motion should be continued until discovery is complete and/or denied in all respects.
DATED this 9th day of April, 2007.
- ↑ In the event that this Court finds that the evidence presented herein is not sufficient to withstand summary judgment, Plaintiffs respectfully request a continuance pursuant to Cal. C.C.P. §437c(h) to obtain facts essential to justify this opposition. (See Decl. at Paragraph 23; see also Decl. Ex. T, copies of meet and confer letters sent to counsel for Buffalo Pumps to attempt to set a deposition of Buffalo Pumps’s corporate representative.) A showing of the need for a continuance having been made, continuance is mandatory. (Bahl v. Bank of Am. (2001) 89 Cal.App.4th 389; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-54). Defendant’s motion should not be granted, since discovery has not been completed. (Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 174.)
- ↑ Mr. Kraft’s testimony is particularly significant as Buffalo identified him as the person most knowledgeable regarding Buffalo’s historical operations, including Buffalo’s manufacture of pumps containing asbestos-containing packing and asbestos-containing gaskets between 1955 and 1985. (Decl. at F, Buffalo’s Rog. Resp. No. 14.)