California Court of Appeal Reverses $10.6M Asbestos Verdict on “Sophisticated User” Grounds

A California appellate court has affirmed the sophisticated user defense and applied it to an asbestos plaintiff who was the owner/operator of a garage subject to OSHA and thus chargeable with knowledge of asbestos risks.

In Watts v. Pneumo Abex, LLC, the three-justice panel reversed a jury verdict that Pneumo Abex LLC should pay more than $10.6 million to the widow of a man who died after developing lung cancer from alleged exposure to asbestos-containing building and automotive products. The panel determined that the Alameda County Superior Court trial judge had erred in granting a directed verdict against Abex’s affirmative defense that the man was a “sophisticated user” who was already aware of the risks of asbestos. It was up to the jury to decide this issue given that the decedent owned an automotive repair business from 1983 to 2005 and thus was required to know about and abide by government warnings about the risks of working with brakes containing asbestos.

Abex presented evidence that Mr. Watts knew in the early 1980s that brakes were made of asbestos and that compressed air should not be used to blow out brake dust. Further, Mr. Watts admitted that he had not looked at manufacturer manuals or warnings because he believed he knew enough about fixing and inspecting brakes.

Nevertheless, the trial court granted the plaintiffs a directed verdict on Abex’s affirmative defense of sophisticated user. Ultimately, the jury found Abex 60% at fault, awarding the plaintiffs $2.9 million in economic damages, $6.75 million in non-economic damages, and $1 million for loss of consortium.

The Court of Appeal did not agree with the trial court and found that there was in fact substantial evidence to support Abex’s sophisticated defense. For example, by the time Mr. Watts opened his shop in 1983, both state and federal entities began to regulate the handling of asbestos-containing parts. Additionally, Mr. Watts had “admitted in his testimony in his brother’s lawsuit that he knew that the brakes contained asbestos.” He further admitted that he “avoided using compressed air because he did not want to fill the air with dust, as dust could be dangerous.”  The Court of Appeal concluded that a jury could infer that Mr. Watts knew about the dangers of asbestos in brakes, especially due to his training and position as an owner of an auto repair shop.

The panel concluded that Mr. Watts’ training and ownership of the automotive repair shop made him a member of a professional class and required him to know about and abide by government warnings regarding how to work with asbestos-containing brakes. Mr. Watts should have known, the panel said. Mr. Watts’ own admission that “he felt he was sufficiently proficient and knew to professionally and safely perform brakes jobs that he didn’t need to consult” manuals, proved that he was in fact a sophisticated user. 

While the decision does not explicitly state that a sophisticated user finding was necessary in this case, it reaffirms that there was sufficient evidence for the issue to be decided by a jury rather than through a directed verdict. The panel remanded the case for a new trial.

Contact the authors or a member of Gordon Rees Scully Mansukhani’s Environment/Toxic Tort Practice Group with any questions about this legal update or other asbestos legal developments.

Challenging Plaintiff’s Proof of Reasonable Alternative Design

In the majority of jurisdictions, to establish a claim for design defect in a product liability action, the plaintiff must present some proof of a “feasible alternative design” or “reasonable alternative design.” 

In an article published in the IADC Product Liability Committee Newsletter (February 2012), "No Other Alternative: Challenging Plaintiff’s Proof of Reasonable Alternative Design",  Elbert S. Dorn, a partner at Nexen Pruet, LLC, in South Carolina, provides valuable tips to the defense practitioner concerning how to agressively press legal and factual points to test plaintiff’s proof of reasonable alternative design.   

According to Dorn, legal arguments on reasonable alternative design should be included in Daubert or other motions to exclude or limit the plaintiff’s expert testimony, motions for summary judgment, motions in limine to challenge evidence of proposed design alternatives, and in oral and written motions for judgment as a matter of law at the close of plaintiff’s case, at the completion of the defense case, and after any adverse verdict. Additionally, the defense position on reasonable alternative design should be articulated clearly in proposed requests to charge (or jury instructions).

In challenging plaintiff’s proof or evidence of a reasonable alternative design, the following factors and issues should be considered:

• whether the reasonable alternative design is being presented through expert testimony, and, if so, is the expert qualified to present reliable evidence of a design alternative?

• Is the design merely conceptual or theoretical in nature?

• Has the design been reduced to scale drawings fully illustrating its dimensions, characteristics and mechanics?

• The existence of a prototype or model demonstrating or incorporating the proposed design.

• Is the alternative design subject to a U.S. or foreign patent – has the proponent or anyone else sought patent protection?

• Has the alternative design been the subject of peer-reviewed articles or treatises or otherwise reviewed in the scientific community?

• Has the proposed design ever been incorporated or utilized by another manufacturer in a real-world setting – while not a totally decisive factor, it is powerful to establish that which plaintiff proposes as an alternative design has never before been utilized in the particular industry.

• Has the proposed design been subjected to testing to measure its effectiveness, functionality, and performance?

• What is the effect of the reasonable alternative design on the utility and functionality of the product – does the proposed design compromise or diminish the utility of the product – this is an overarching issue and should be fully explored.

• What analysis has been performed of the adverse or increased safety risks of the alternative design – does it potentially affect the relative safety of other components or the overall safety of the product?

• What cost analysis or economic impact of the alternative has been performed?

• What analysis or testing supports the durability of the proposed alternative – will it require additional maintenance and repair or affect product longevity?

• The effect of the alternative design on compliance with governmental regulations and standards.

• Would the alternative design have prevented the specific harm or injury which is the subject of the case?

• Was the technology supporting the alternative design readily available to the manufacturer at the time the subject product was designed or manufactured? 

Fundamentally, the defense against plaintiff’s argument that there existed a reasonable  alternative designr resonates with a basic human emotion – “don’t criticize the way I do things unless you can do it better” or “do not criticize my play-calling and execution, if you have never played the game.”  If this notion can be conveyed to judge and jury, all the better in establishing the defense to plaintiff’s contentions. 

A Primer On New York Product Liability Law

Michael Hoenig’s Product Liability column in The New York Law Journal, “Complexities Abound In Product Design Claims” (January 11, 2010), provides an excellent primer  on the law of product liability in New York state and a good discussion of the leading cases. (NYLJ.com requires a subscription to access. If you cannot download the article, Mr. Hoenig  will post the article within a couple of weeks on his law firm’s web site).   Mr. Hoenig devotes the body of his article to a recent Appellate Division, First Department decision, Chow v. Reckitt & Colman Inc., 2010 NY Slip Op 00013 (App. Div., 1st Dept., Jan. 5, 2010).  There, a split First Department upheld the trial court’s grant of summary judgment to the defendant manufacturer of of a drain cleaner called "Lewis Red Devil Lye", which blinded the plaintiff during an attempt to unclog a floor drain in the kitchen of the restaurant where he worked.  Applying the Court of Appeals standard in Voss v. Black & Decker Manufacturing Co, the court examined the ‘risk-utility balancing’ calculus, which often lies at the heart of a defective design product liability inquiry. In addition to Mr. Hoenig’s “refresher” survey of the law of product design liability, he directs his readers to the commentary issued by the Committee on Pattern Jury Instructions of the Association of Justices of the Supreme Court of the State of New York, particularly PJI 2:120. For further reading, a thoughtful discussion of PJI 2:120 appears in a 2008 article "New  Design-Defect Jury Instructions: Catching ‘Denny’ " by Stephen R. Blacklocks, a partner in Hunton & Wiliams’  New York office.  As Mr. Hoenig states in the conclusion of NYLJ article, “Mastery of the legal principles – our survey merely scratches the surface – is indispensable in perfecting one’s advocacy.”  When your client next assigns you a new case for  you to defend, take a few minutes to review Mr. Hoenig’s primer to remind yourself just how many hurdles plaintiff’s counsel needs to overcome to make out a prima facie case of design defect.