SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
CELIA MENDENHALL, Individually and as Successor-in-Interest to GENE D. MENDENHALL, Deceased; JULIE HADANO and JUNE VESPO
AMPCO-PITTSBURGH CORPORATION, et al.
Buffalo Pumps, Inc. (“Buffalo”) knew that the use of asbestos-containing gaskets, flanges, and packing was foreseeable in connection with the intended purpose of its pumps. Gene Mendenhall was exposed to respirable asbestos-dust while his co-workers worked on Buffalo pumps. In its motion, Buffalo contends that its product, which utilized dangerous components in its intended use, is not defective as a matter of law. Neither California case law nor public policy supports that contention. Furthermore, Buffalo 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. Buffalo has therefore failed to shift the burden to Plaintiffs. Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 71-72.
Pursuant to clear California law, Buffalo is liable to Plaintiff for the foreseeable uses of its pumps 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. Buffalo has failed to make any evidentiary showing that the use of asbestos-containing packing and gaskets with its pumps was unforeseeable. Thus, Buffalo remains liable for its failure to warn about the foreseeable use of asbestos-containing parts affixed to its pumps. Buffalo’s argument that the Plaintiff has not presented evidence of exposure to Defendant’s asbestos-containing part is similarly without merit as deposition testimony, discovery responses, and documentary evidence establish that Mr. Mendenhall was exposed to asbestos released from component parts during the routine maintenance of Buffalo pumps. Buffalo’s motion must, therefore, be denied.
STATEMENT OF MATERIAL FACTS
Buffalo Knew That the Use of Asbestos-Containing Gaskets and Packing Was Foreseeable in Connection with the Intended Purpose of its Pumps.
All pumps manufactured by Buffalo utilized and were supplied, by Buffalo, to the U.S. Navy with asbestos components, including gaskets and seal packing, from the late 1930s at least until the 1980s. (AMF No.19. Brown Decl. Ex. G. Deposition of Martin Kraft (“Kraft Depo”), taken in Peterson v. Ashland, Inc., Jan. 20, 2004, at 88:21-87:6, 88:7-13, 97:8-13; 101:18-22; Brown Decl. Ex. L, Buffalo Pumps Bulletin, at 27; Brown Decl. Ex. D, BUFFALO PUMPS Responses to Standard Interrogatories, Set Number One, (“Buffalo Interrogatory Responses”) Response No. 14.). Asbestos was utilized on Buffalo pumps located on naval vessels. (AMF No.21. Brown Decl. Ex. J, Buffalo Pumps Letter to Naval Seal Systems Command, October 31, 1984). Buffalo incorporated asbestos components into its pumps before placing them on the market, (AMF No.22. Brown Decl. Ex. D, Buffalo Pumps Interrogatory Response No. 14), and Buffalo was fully aware that asbestos components would be used when parts were replaced during routine maintenance and repair. (AMF No. 23. Brown Decl. Ex. L, Buffalo Bulletin, at 27; Brown Decl. Ex. K, Buffalo Service Manual, at 2).
During the relevant years, gaskets that were incorporated into pumps and that were available as replacement parts were typically comprised of seventy percent asbestos; the packing materials used on pumps were comprised of as much as ninety percent asbestos. (AMF No. 30. Brown Decl. Ex. N. Deposition of Bruce Connor, July 20, 2005, at 200:3-23). Buffalo did not begin changing to asbestos-free packing until 1981. (AMF No. 21. Brown Decl. Ex. I. Buffalo Engineering Bulletin, 9/21/1981). Buffalo continued to use asbestos-containing component parts at least until 1984. (AMF No.25. Brown Decl. Ex. M . Buffalo Letter re: Non-Asbestos Gaskets, October 9, 1984).
Buffalo pumps required routine maintenance and replacement of component parts to continue operating as intended. (AMF No. 23. Brown Decl. Ex. K, Buffalo Service Manual). Buffalo instructed users to remove asbestos components when they became damaged and to replace them with asbestos components. (Id. at 2). Buffalo also sold asbestos gaskets for use as replacement parts on its pumps. (Id. at “Standard Parts List”). Users were not told that they could or should use non-asbestos alternatives during the time that Mr. Mendenhall was injuriously exposed to the asbestos released from Buffalo’s defective product. (Id.; AMF No. 28. Brown Decl. Ex. D. Buffalo Interrogatory Response No. 28; Brown Decl. Ex. C Rapalee Dep. at 43:11-19, 45:10-18; Brown Decl. Ex. F. Deposition of Martin K. Kraft, pp.140:141:14-20). During the regular maintenance of Buffalo pumps, workers would be required to remove asbestos packing material and damaged asbestos gaskets. Mr. Mendenhall’s co-workers could not service the pumps without disturbing the asbestos and releasing asbestos into the breathing zones of workers. (AMF No. 27. Brown Decl. Ex. C Rapalee Dep. at 21:13-16). Mr. Mendenhall and his co-workers were unable to perceive the hazard posed by the released asbestos because Buffalo failed to provide adequate warnings. Buffalo’s pumps were therefore rendered defective.
Buffalo Willfully and Consciously Disregarded Mr. Mendenhall’s Rights and Safety and Concealed Material Facts Regarding Product Hazards.
Prior to and during the years in which Mr. Mendenhall was injuriously exposure to asbestos, Buffalo had actual knowledge regarding the dangers caused by the asbestos components in its pumps, and more specifically, by the asbestos released when the pumps were serviced. AMF No. 27. Brown Decl. Ex.18. Heating and Ventilation, June 1944, at 60; Brown Decl. Ex. L. BUFFALO Bulletin, at 27; Brown Decl. Ex. K, BUFFALO Service Manual, at 2; AMF No. 28. Brown Decl. Ex. F. Kraft Depo p. 55:4-7. Despite that knowledge, Buffalo continued to manufacture and sell the dangerous pumps, and at the same time, concealed the facts regarding known hazards from its customers, product users, and bystanders. AMF No. 28. Brown Decl. Ex. D. Buffalo Interrogatory Response No. 28; Brown Decl. Ex. C Rapalee Dep. at 43:11-19, 45:10-18; Brown Decl. Ex. F. Kraft Depo pp. 140:141:14-20. It was not until many years after Buffalo had learned about the product hazards related to the asbestos components that the company, under extreme pressure from environmental groups, finally began to substitute asbestos-free components for the asbestos components used in its equipment. Id.
Mr. Mendenhall Was Exposed to Respirable Asbestos When Foreseeable Maintenance Was Performed on Buffalo Pumps.
GENE MENDENHALL served aboard the MISPILLION from the years of 1972 until the ship was decommissioned in 1974. AMF No. 5. Brown Decl. Ex. C, Deposition of Gary Rapalee “Rapalee Dep.”) pp. 6:18-7:9; 52:18-53:7 Along with MR. MENDENHALL, Gary Rapalee served aboard the MISPILLION from 1971 until 1974. AMF No. 6. Brown Decl. Ex. C Rapalee Dep., p.6:18-7:9; 52:15-17. While serving on board the MISPILLION, MR. MENDENHALL’s primary responsibility as the ship’s storekeeper was to maintain and distribute supplies to the workers aboard the ship. AMF No. 7. Brown Decl. Ex. C Rapalee Dep. pp. 24:7-25:5. These workers, including Mr. Rapalee, were responsible for repairing the machinery aboard the ship, including the pumps manufactured by BUFFALO, and keeping the ship’s machinery in working order. Numerous pumps, including pumps manufactured by BUFFALO were installed and used aboard the MISPILLION. There were two pumps manufactured by BUFFALO in the engine room, two in the fire room, three in the auxiliary spaces, and one in the fuel pump room. AMF No. 8. Brown Decl. Ex. C Rapalee Dep. pp.81:6-89:17; 89:25-90:19; 93:5-94:1; 94:6-95:25; 96:7-97:7. Work was done on each of the two pumps manufactured by BUFFALO in the engine room, each of the two pumps manufactured by BUFFALO in the fire room, each of the three pumps manufactured by BUFFALO in the auxillary space and the one pump manufactured by BUFFALO in the fuel pumps room. AMF No. 9 Brown Decl. Ex. C Rapalee Dep. pp. 89:25-90:19; 93:5-94:1; 94:6-95:25; 96:7-97:7. When work was being performed on the pumps, the workers would reference technical manuals specific to each pump. There were technical manuals aboard the MISPILLION for pumps manufactured by BUFFALO. These manuals were referenced anytime there was work on the pumps manufactured by BUFFALO. AMF No. 9. Brown Decl. Ex. C Rapalee Dep. pp 100:13-101:5
As the ship’s storekeeper, MR. MENDENHALL, was often present where work was being performed on the ship’s equipment. It was part of his job to inspect the work being done to ensure that workers provided him with the correct information regarding the parts that needed to be replaced. AMF No. 10. Brown Decl. Ex. C Rapalee Dep. pp. 27:7-29:18. MR. MENDENHALL did this because he had much more familiarity with the machinery and parts that needed repair than many of the younger sailors, and he wanted to ensure the quality of their work. AMF No. 10. Brown Decl. Ex. C Rapalee Dep. p. 29:2-18. MR. MENDENHALL, had a great deal of experience and was enthusiastic about making sure the work was done correctly by the workers. AMF No. 10. Brown Decl. Ex. C Rapalee Dep. pp.29:22-32:14. When supervising the workers, MR. MENDENHALL remained in close proximity to them and the machinery they were working on to inspect the progress. AMF No. 11. Brown Decl. Ex. C Rapalee Dep. pp. 31:12-32:14. Mr. Rapalee recalls seeing MR. MENDENHALL in and out of the areas where the repair work was performed on the machinery, including repair work done on pumps manufactured by BUFFALO in the engine room. MR. MENDENHALL would go down to the work locations and consult the workers on needed parts for the repairs. AMF No. 12. Brown Decl. Ex. C Rapalee Dep. pp.40:2-41:23; 103:2-12. The removal of the gaskets from Buffalo pumps would have released asbestos fibers when the workers scraped gaskets to remove them and when asbestos packing was pulled from the equipment. AMF No. 27. Brown Decl. Ex. C Rapalee Dep. at 21:8-16; 35:22-35:1.
Three of the BUFFALO pumps were located in an auxiliary space connected to a storeroom. The pumps in this auxiliary space had to be serviced periodically, which would have released asbestos into the air that Mr. MENDENHALL would have had to breathe. AMF No. 12. Brown Decl. Ex. C Rapalee Dep. pp.40:2-41:23; 103:2-12; 105:16-23. Furthermore, due to the poor ventilation aboard the ship, when workers were performing repairs and other work to the machinery aboard the ship material would float around in areas of the ship. AMF No. 13. Brown Decl. Ex. C Rapalee Dep. pp. 29:22-31:10; 36:20-37:7. Because of the poor ventilation and the various repairs to the machinery creating dust, MR. MENDENHALL would have exposed to asbestos fibers in the air when he was when he passed through the repair areas and when he personally observed repairs taking place.
Mr. Rapalee knew when he was aboard the MISPILLION that asbestos was a product used as a gasket material. AMF No. 13. Brown Decl. Ex. C Rapalee Dep. pp. 42:19-43:9. Of these asbestos-containing gaskets, in addition to other manufacturers’ products, he recalls mainly using Garlock gaskets. AMF No. 13. Brown Decl. Ex. C Rapalee Dep. pp.42:19-43:9.
In addition to the work that Mr. Rapalee recalls on pumps manufactured by BUFFALO on the MISPILLION, Mr. Rapalee recalls ordering materials from BUFFALO through MR. MENDENHALL for repair work on pumps manufactured by BUFFALO. These materials included packing glands, flinger rings, shaft and packing sleeves. AMF No. 14., Brown Decl. Ex. C Rapalee Dep. pp. 109:15-25.
Approximately 29 years after MR. MENDENHALL’S exposure to asbestos from Buffalo pump components, he was diagnosed with mesothelioma, a disease which typically manifests between 20 and 40 years after the injurious exposure. MR. MENDENHALL died from the disease on April 14, 2005.
Defendant’s Discovery Responses Show that Asbestos Gaskets and Packing were Components of Certain Pumps.
BUFFALO answered discovery in similar litigation currently pending, Conrad Beauchamp, et al., v. Allis-Chalmers Corporation Product Liability Trust, et al., Superior Court of California, County of Los Angeles, Cause No. BC357289, on December 15, 2006. AMF No. 17. Brown Decl. Ex. D., Discovery responses of BUFFALO PUMPS INC.. Its discovery responses admit that certain of its pumps typically required packing and gaskets. AMF No.18 Brown Decl., Ex. D. Furthermore, between the years of 1955 and 1985, certain pumps manufactured by BUFFALO utilized asbestos containing component parts and/or replacement parts, such as gaskets and packing. AMF No. 19. Brown Decl. Ex. D. BUFFALO’s response wholly fails to identify specific pump models which did, or did not, contain or utilize asbestos containing component parts and/or replacement parts, it merely states that certain pumps did. AMF No. 20. Brown Decl. Ex.
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 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. Nat’l 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, 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. 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, 69 Cal.App.4th at 71-72.
Buffalo does not, and indeed cannot, establish that Mr. Mendenhall does not have evidence of exposure to asbestos-containing gaskets and packing materials used as components of numerous Buffalo pumps. As outlined above, Plaintiffs have introduced evidence demonstrating such exposure. 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 Gary Rapalee, prior deposition testimony of Buffalo corporate representatives, Buffalo’s own Interrogatory Responses, and company documents produced by Buffalo. The evidence creates triable issues as to whether Buffalo pumps were defective, whether Mr. Mendenhall’s injurious exposure to asbestos was caused by Buffalo pumps, and whether the conduct of Buffalo which caused Mr. Mendenhall to be injuriously exposed to asbestos supports an award of punitive damages.
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 Transp. 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.
Pursuant to clear California law, Buffalo is liable to Plaintiffs for hazards caused by the foreseeable uses of its pumps, even if the hazard is related to original and replacement pump components manufactured by another company.
In its motion, 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 it 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.
As a manufacturer and marketer of a product, a defendant is strictly liable in tort if an article it placed on the market proves to have a defect that caused injury to a human being when that product was being used as intended. See Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal.2d 57. A product manufacturer assumes the responsibility for making sure that its product does not cause injury. Id. Furthermore, 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., 61 Cal.2d 256, 262, 391 P.2d 168, 170, 37 Cal.Rptr. 896, 898 (1964) (“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 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, Buffalo contends that its pumps are not defective as a matter of law because the asbestos components from which the fibers were 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 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. Those are not the facts in this case. Here, Buffalo pumps were manufactured and sold with dangerous asbestos components, (AMF No. 22. Brown Decl. Ex. . Buffalo Pumps Interrogatory Response No. 14; Brown Decl. Ex. . 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 equipment (AMF No.23. Brown Decl. Ex. , Buffalo Pumps Service Manual, at 2). Thus, in their intended operation, Buffalo’s pumps would necessarily continue to pose the same risk to users and bystanders after original unsafe components wear out and are replaced with similar unsafe components.
Indeed, in Tellez-Cordova, the court considered and rejected the precise argument raised in Buffalo’s motion. The plaintiff in that case was a lamp maker who worked for many years cutting, sanding and grinding metal parts with 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. Id. at 579 n.3. The grinder manufacturer 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.The California Court of Appeals flatly rejected such arguments, holding 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. The court explained that although manufacturers were not required “to warn of defects in a final product over which they had no control,” they were 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 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. Thus, the fact that the defendant had not manufactured the component parts with which the tools were used was irrelevant. 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.
Wright is similarly instructive. In Wright, the court considered whether a water deck gun used by firemen was defective when an affixed riser, which was installed by a third party and was not an original part of the deck gun, failed and caused a fireman’s injury. Id. at 1222-24. The court concluded that summary judgment could not be entered because the plaintiff introduced evidence that it was “foreseeable to anyone familiar with fire apparatus” that pressure from the deck gun would be too great for the steel 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 deck gun manufacturer always 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.
Again, in DeLeon, the court held that a manufacturer has a duty to warn of hazards arising from the foreseeable uses 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. 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. While the employee was standing on the conveyor belt cleaning the bin, her arm was injured when it came into contact with an exposed overhead line shaft. Although the bin alone did not present a risk, cleaning the bin put the plaintiff in danger of being injured by the overhead line shaft. The court found fact issues existed as to whether the bin manufacturer participated in selecting the placement of the bin and whether it could have foreseen the hazard, and therefore, reversed summary judgment as to the plaintiff’s strict liability claims. Id. at 350. Finally, the DeLeon court emphasized that any product must not be viewed in a vacuum, but must take into account the reality of the circumstances in which the product operates: “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.”
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). Applying the holding of Gonzalez here, Mr. Mendenhall’s exposure to asbestos occurred in the course of repairing and maintaining the defendant’s pumps – maintenance that Buffalo cannot dispute that it knew would be required. Under Gonzalez, Buffalo cannot disclaim liability for asbestos containing parts used in connection with its product, when it knew or should have known these repair activities would expose users to asbestos.
The conclusion that Buffalo is strictly liable for injuries caused by its defective product and that it had a duty to use reasonable care by providing adequate warnings regarding product hazards is also supported by the facts that Buffalo was in a position to prevent injuries to those who worked on and in the vicinity of its pumps. See Brocklesby, 767 F.2d at 1295-96 (holding that defendant 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).
Plaintiffs have introduced evidence to show that Buffalo’s pumps were specifically designed to be used with replaceable asbestos gaskets and packing. (AMF Nos. 22, 23 Brown Decl. Ex. L. Buffalo Bulletin; Brown Decl. Ex. K. Buffalo Service Manual). The evidence also shows that Buffalo manufactured and shipped the pumps with asbestos gaskets and packing already incorporated into the equipment. (Id.) Buffalo knew that end-users of its pumps would utilize asbestos components to keep the pumps operating as intended. (Id.) On the other hand, Buffalo has not presented any evidence that users would have had a reasonable opportunity to replace asbestos components with component comprised of non-hazardous materials. Indeed, the evidence also shows that Buffalo itself sold asbestos replacement components. (AMF No. 26 Brown Decl. Ex. K. Buffalo Service Manual, at Standard Parts List; AMF No. 16, Brown Decl. Ex. C Rapalee Dep. at 109:15-25). This evidence is more than sufficient to create a triable issue of fact as to whether Buffalo’s pumps were defective and whether Buffalo had an obligation to provide adequate warnings about the hazards related to removal and replacement of the pumps’ asbestos components.
Further, discovery responses establish that prior to and at the time of Mr. Mendenhall’s injurious exposure, Buffalo had not issued any warnings related to use of asbestos-containing components used in conjunction with its pumps. (AMF No. 27. Brown Decl. Ex. D. Buffalo Interrogatory Response No. 28; Brown Decl. Ex. C Rapalee Dep. at 43:11-19, 45:10-18; Brown Decl. Ex. F. Kraft Depo. p. 141:14-20). Buffalo did not provide warnings on instruction manuals provided with its products or on the product itself. (Id.) This utter failure to warn rendered Buffalo’s pumps defective and demonstrates Buffalo’s breach of its duty. Thus, Buffalo is subject to strict liability and liability for its negligent conduct. See Tellez-Cordova, 129 Cal.App.4th at 583; Wright, 54 Cal. App.4th at 1236; DeLeon, 148 Cal.App.3d at 350).
Finally, the rule of foreseeability set forth in Tellez-Cordova, DeLeon, and Wright, as well as their progeny, is directly in line with the majority of jurisdictions in the United States. Courts throughout the country hold a manufacturer of a product remains liable if any repairs, maintenance, alteration or modification was reasonably foreseeable. For example, in the asbestos area, the court in Berkowitz v. A.C.and S., Inc. (N.Y. 2001) 288 A.D.2d 148, 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, despite the fact the pump manufacturer neither manufactured nor installed the asbestos containing gaskets and insulation. Id., 288 A.D. 2d at 149.
The court in Braaten v. Saberhagen Holdings, — P.3d —, 2007 WL 211026 (Wash. Ct. App., Div. I Jan. 29, 2007) also recently reached the same conclusion when presented with strikingly similar facts to those currently before the Court. In Braaten, 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 plaintiff in Braaten worked as a pipe fitter at the Puget Sound Naval Shipyard and was exposed to asbestos materials used in and around pumps, valves and turbines. Id. at *1. The plaintiff argued thatthe defendants’ products were defective because they lacked a warning about the dangers of asbestos exposure to workers performing maintenance work on them. Id. at *2. The court reasoned that the pump manufacturers would be subject to strict liability when the equipment because the pumps, when used in the way normally intended, can release a hazardous asbestos fibers. Id. at *5. The fact that the potential exposure was not accidental, but stemmed from regular use, further supported the a finding that the manufacturer had a duty to warn. Id. Thus, the court concluded that the defendants had a duty to warn and summary judgment was therefore error. Id. at *6.
Notably, 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. In Zambrana v. Standard Oil (1972) 26 Cal.App.3d 209, for example, the plaintiff alleged that a tire manufacturer was strictly liable for injury caused by defective valve stems, which the plaintiff had removed from that manufacturer’s tires and installed on tires manufactured by another company. Id. at 212-17. During the installation of the valves, a service station employee cracked one of the valves, causing the tire to eventually lose pressure and resulting in an automobile accident. Id. at 212-15. The plaintiff filed suit against the valve manufacturer under strict liability principles for failure to warn. Id. The court held that the valve manufacturer was not liable because that defendant did not have reason to know that the valve stem from its tire would be removed and placed on another manufacturer’s tire thereby creating a dangerous combination of parts. Id. at 218.
Defendant’s reliance on Baughman v. General Motors (1986) 780 F.2d 1131, is similarly misplaced. In Baughman, the court held that the defendant truck manufacturer did not have a duty to warn its customers about the hazards associated with a wheel rims that the customer had installed on a truck the defendant had manufactured. Id. at 1133. In that case, however, the unsafe wheel rims had not been installed on the truck during the original manufacture, and there was no evidence that the defendant would intended for the different rims to be used on the vehicle. Id. at 1132-33. The court determined that liability would not be imposed on the truck manufacturer because the manufacturer did not have reason to know that unsafe wheel rims would be placed on the vehicle. Id. at 1133.
Thus, the significant factual differences in the cases cited by Buffalo further support the conclusion that Buffalo pumps were defective and that Buffalo had a duty to provide adequate warnings. Plaintiffs therefore respectfully request that this Court deny Buffalo’s 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.
The evidence presented in this case is sufficient to create a triable issue as to whether Buffalo’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). “Oppression” is demonstrated by “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. at subd. (c)(2).) “Fraud” is demonstrated a defendant’s “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 subd. (c)(3). 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 demonstrates that Buffalo had actual knowledge about the dangers associated with asbestos as far back as 1944, and that Buffalo knew asbestos would be released from its product during the routine maintenance. AMF No. 27. Brown Decl. Ex.O. Heating and Ventilation, June 1944, at 60; Brown Decl. Ex. L. BUFFALO Bulletin, at 27; Brown Decl. Ex. K, BUFFALO Service Manual, at 2; Brown Decl. Ex. F. Kraft Depo, p.55:4-7. The evidence shows that 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 any of its customers or end-users that they needed to take precautions regarding asbestos exposure in order to safely use the equipment. AMF No. 28. Brown Decl. Ex. D. Buffalo Interrogatory Response No. 28; Brown Decl. Ex. C Rapalee Dep. at 43:11-19, 45:10-18; Brown Decl. Ex. F Kraft Depo, pp. 140:141:14-20. Thus, Buffalo continued to manufacture and sell the dangerous pumps, and at the same time, concealed the facts regarding known hazards from its customers, product users, and bystanders. Id. The evidence shows that Buffalo concealed the dangers until it was no longer commercially feasible to do so — due to extreme pressure placed upon it by environmental groups. Id.
This evidence demonstrating Buffalo’s willful and conscious disregard for Mr. Mendenhall’s rights and safety and demonstrating its concealment of material facts that resulted in Mr. Mendenhall’s death is sufficient to create a triable issue of fact regarding whether punitive damages should be imposed on Buffalo in this case.
Triable issues of fact exist as to whether Mr. Mendenhall was exposed to Defendant’s abestos-containing pumps and asbestos released therefrom.
The evidence presented in this case is sufficient to demonstrate that his exposure to products supplied by Buffalo and asbestos released from the maintenance of those products was a substantial factor in causing his disease and subsequent death. Contrary to Buffalo’s suggestion, the requirement that a plaintiff demonstrate a reasonable medical probability that his injury resulted from exposure to a defendants’ 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.) Additionally, 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. Id.
Further, Defendant’s reliance on Hunter v. Pacific Mech. Corp. (1995) 37 Cal.App.4th 1282, to suggest that Plaintiff is required to identify the dates and locations of each exposure with particularity is misplaced. In Hunter, the court found that the evidence was insufficient as a whole because, among other things, there was no evidence that the plaintiff had worked in the vicinity of the defendant’s activities or that he would have inhaled asbestos fibers created by the defendant’s conduct. Id. at 1289.
In Lineaweaver, the issue was whether sufficient evidence to support a jury finding that asbestos supplied by the defendant was a cause of the plaintiff’s injuries. Id. at 1414. The evidence established that the plaintiff had worked for many years as a laborer and boilermaker at an oil refinery, where he was exposed to asbestos while working around others handling insulation products and when he cleaned up debris and old insulation. Id. at 1413. The evidence presented in that case showed that the defendant was the exclusive Northern California distributor of Fibreboard Pabco insulation products, that the defendant was a significant supplier of asbestos products at the refinery in the 1960’s, and that another major insulation contractor used Pabco and another product as “fill-in” supplies. The evidence further showed that Lineaweaver saw boxes of Pabco products at the refinery. Id. Based on those facts, the Court concluded that while there was no direct evidence showing that Lineaweaver was exposed to asbestos-containing products supplied by the defendant, the circumstantial evidence sufficiently supported a reasonable inference of exposure. Id. at 1420. The evidence was sufficient 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.
Plaintiffs in this case have presented evidence that Buffalo pumps were present on the Mispillion during the time that Mr. Mendenhall was stationed there. AMF No. 8. Brown Decl. Ex. C Rapalee Dep. pp.81:6-89:17; 89:25-90:19; 93:5-94:1; 94:6-95:25; 96:7-97:7. The evidence shows that Mr. Mendenhall worked in close proximity to maintenance of Buffalo pumps. AMF No. 11. Brown Decl. Ex. C Rapalee Dep. pp. 31:12-32:14. Plaintiff’s evidence further demonstrates that the removal of the gaskets from Buffalo pumps would have released asbestos fibers when the workers scraped gaskets to remove them and when asbestos packing was pulled from the equipment. (AMF No. 29. Brown Decl. Ex. C Rapalee Dep. at 21:8-16; 35:22-35:1). This evidence is sufficient to create a triable issue regarding his injurious exposure to Defendant’s product. See Lineaweaver, 31 Cal.App.4th at 1413.
Plaintiff’s medical expert, Dr. Samuel Hammar, concluded that Mr. Mendenhall’s mesothelioma was caused by asbestos, and that each and every breath of asbestos-containing air was a potential substantial contributing factor in causing his mesothelioma. (AMF No. 31. Brown Decl. Ex. P. Medical Report, Samuel P. Hammar, M.D.) In this case the facts demonstrate that Mr. Mendenhall would have breathed in asbestos fibers released during the maintenance of Buffalo pumps, thus, 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 his disease.
Plaintiffs are entitled to seek loss of consortium damages for the injury incurred.
Because the evidence, as set forth in detail herein, demonstrates the existence of triable issues regarding Plaintiff’s claims of strict liability, negligence, and malice, Plaintiff is entitled to assert claims for loss of consortium damages in this case.
Buffalo 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 Mr. Mendenhall’s exposure to asbestos-containing products manufactured by Buffalo, and Buffalo’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. Accordingly, Defendant’s motion for summary judgment and/or summary adjudication
should be denied.
DATED: March 7, 2007