Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com A Duty To Warn For The Other Manufacturer's Product? Law360, New York (May 18, 2012, 1:18 PM ET) -- A recent decision from a California appellate court may have handed plaintiffs a victory after a string of decisions limiting the tort liability of manufacturers to products that they actually manufactured. In Shields v. Hennessy Industries Inc., the appellate court permitted a claim to proceed against the manufacturer of a brake-arcing machine under the theory that the machine was designed for the purpose of grinding asbestos-containing brake linings and caused plaintiffs to inhale asbestos fibers. (Cal. Ct. App. Apr. 13, 2012) This decision pursues a narrow exception to O Neil v. Crane Co., in which the California Supreme Court adopted the general rule that a manufacturer does not have a duty to warn of hazards associated with another manufacturer s products. 266 P.3d 987 (Cal. 2012). Although Shields represents the application of a narrow exception to a very unique piece of equipment, manufacturers of products should be aware of attempts by plaintiffs to develop novel theories to expand the scope of a manufacturer s liability for hazards associated with the products of other manufacturers. O Neil and Typical Duty to Warn Claims by Plaintiffs Across the country, plaintiffs have pushed a theory of liability under which a manufacturer has a duty to warn about the dangers associated with using its product with another manufacturer s product. For example, in O Neil, the plaintiff sued a pump manufacturer and valve manufacturer, alleging that third-party products, such as external insulation and other asbestos-containing parts, were added to the manufacturers products post-sale. Although the defendants did not produce the asbestos-containing products, the plaintiff sought to impose liability on the defendants based solely on the use of their products in conjunction with other asbestos-containing products. Plaintiff s argument was that, because it was foreseeable the products would be used in conjunction with asbestos-containing products, the defendants owed the plaintiff a duty to warn about the potential health consequences of breathing asbestos dust.
The California Supreme Court unanimously rejected the plaintiff s argument for an expanded duty to warn and preserved the traditional tort principle that a manufacturer does not owe a duty to warn of dangers or defects associated with another manufacturer s product. Several other jurisdictions already had reached the same conclusion. See, e.g., Braaten v. Saberhagen Holdings, 198 F.3d 493 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008); Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005); Ford Motor Co. v. Wood, 703 A.2d 1315 (Md. Ct. Spec. App. 1998); see also Baughman v. Gen. Motors. Corp., 780 F.2d 1131 (4th Cir. 1986); Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992). In adopting the rule, the court explained that products liability law requires proof that the plaintiff suffered an injury caused by a defect in the defendant s product. In this case, it was undisputed that the defendants did not manufacture or supply the asbestoscontaining products to which plaintiff was exposed. Any asbestos-containing gaskets and insulation which were originally supplied with the products would have been replaced with replacement parts due to the frequency of repairs and maintenance by the time the plaintiff came in contact with the defendants products. Further, the court noted that recognizing an expanded duty to warn would represent an unprecedented expansion of liability. Such an expansion does not comport with traditional policy goals which seek to impose liability on the manufacturers who actually derive economic benefit from the sale of the products that injure the plaintiffs. Generally, liability is assigned to a party in the chain of distribution of a product because that party is in the best position to absorb the cost of liability into the cost of production of the products. The Exception: Liability Exists When a Product Contributes to the Risk of Harm Although California in O Neil joined the growing number of jurisdictions adopting the general rule, the court left the door open to a few potential scenarios in which a defendant might be held to owe a plaintiff a duty to warn. First, the court carefully noted that the plaintiff did not present any evidence that the defendant manufacturers ever supplied asbestos-containing replacement parts. Implicitly, a manufacturer who supplied a product may be liable as an entity in the chain of distribution under traditional tort principles. Similarly, plaintiffs did not present any evidence that the defendants products required asbestoscontaining parts to operate properly. Finally, the court in O Neil seemingly approved of the scenario in which plaintiffs can allege that a manufacturer owes a duty when that manufacturer s product, in combination with another product, contributes to the creation of the harm to the plaintiff. For example, plaintiffs have sought recovery for injuries associated with breathing metallic dust on the theory that a manufacturer of a grinder should warn of the danger of breathing metallic dust from the accessories degrading. See, e.g., Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 28 Cal. Rtpr. 3d 744 (Cal. Ct. App. 2004). The plaintiffs in Shields successfully pressed this exception of Tellez-Cordova to their advantage.
In Tellez-Cordova, the plaintiff sought recovery for his development of pulmonary fibrosis, which he attributed to his exposure to airborne toxic substances released from metal parts on grinders, sanders and saws during his work as a lamp-maker. Plaintiff alleged breathing metallic dust created from two sources: (1) the metal workpiece which was the subject of the grinding and sanding, and (2) the metal abrasive wheels and discs on the defendants grinders, sanders and saws. Plaintiff alleged that the defendants, manufacturers of abrasive products with which the plaintiff worked, were liable for failure to warn of hazards and negligently designing their tools which released respirable metallic dust from the metal being ground and from the abrasive wheels and discs which performed the grinding. The Court of Appeal reversed the trial court s dismissal for failure to state a claim, and rejected the defendants argument that a manufacturer need not warn of defects in the products of another manufacturer. Instead, the court reasoned that plaintiff alleged that the metallic dust emanated from not only the metal workpiece but also from the metal abrasive wheels and discs attached to the grinders and sanders. Thus, defendants had a duty to warn of the risks of using the products. Because the California Supreme Court cited Tellez-Cordova with approval, the case represents a narrow exception to the general principle. Plaintiffs Apply the Exception in Shields v. Hennessy Industries Inc. In Shields, plaintiffs successfully framed their case as an exception to the general rule of O Neil. The plaintiffs were mechanics, ironworkers or pipefitters with asbestos-related diseases. Plaintiffs alleged that Hennessy negligently designed and manufactured an asbestos brake shoe grinding machine which failed to protect the plaintiffs from inhalation of asbestos fibers caused to be released from asbestos-containing brake linings. Because brake shoe linings contained asbestos during the relevant time periods, plaintiffs argued that the only intended use of the machine was for grinding brake shoe linings. Thus, the intended use of the machine to grind asbestos-containing brake shoe linings created the exposure to asbestos and the risk of harm to plaintiffs. The trial court, applying the holding of O Neil, granted judgment on the pleadings to Hennessy because Hennessy did not manufacture or distribute any product made with asbestos. The Court of Appeal reversed and found the plaintiffs properly alleged facts sufficient to state a claim consistent with O Neil and Tellez-Cordova. Taking the allegations of the complaints as true, the court distinguished the claims from O Neil because the causes of action contend that Hennessy distributed a machine directly to consumers designed only to grind asbestos-containing brake linings, a machine that was defective because its intended operation necessarily released asbestos fibers into the air and was not a machine manufactured for use as a component in another finished product.
The sole intended use of the machine, the court reasoned, was for an activity known to Hennessy to pose an unreasonable risk of harm. The court then articulated the exception to the general rule: A product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer s product unless the defendant s own product contributed substantially to the harm or the defendant participated substantially in creating a harmful combined use of the products. According to the appellate court, the theory against Hennessy, then, fits conceptually within the framework of O Neil, which explained that it is reasonable to expect a manufacturer to give warnings when the defendant s product was intended to be used with another product for the very activity that created a hazardous situation. Shields should be viewed with a cautious eye and could ultimately be overturned by the California Supreme Court. First, because the appellate review focused on the grant of judgment on the pleadings, the allegations in the plaintiffs complaint against Hennessy were accepted as true. Plaintiffs in Shields and other similar cases must meet their burden to demonstrate that the product s sole intended use contributed to the risk of harm. Furthermore, Shields is one step removed from Tellez-Cordova because the brake shoe grinding machine was not composed of asbestos and did not subsequently result in respirable asbestos fibers in contrast to the metallic dust from the abrasive wheels and discs used with the tools at issue in Tellez- Cordova. Under the logic of Shields, a manufacturer of saws intended for use solely to cut wood must warn users of the dangers of inhaling wood dust. But such an expansion of liability has already been criticized by the California Supreme Court in O Neil, who reasoned that to find such a duty to warn would lead to an absurd result that manufacturers of the saws used to cut insulation would become the next targets of asbestos lawsuits. Thus, Shields is a likely candidate for review by the California Supreme Court. Additionally, as a result of pressing this narrow exception, plaintiffs have transformed what had been a failure to warn claim into a defective design claim. In Shields, plaintiffs alleged that the machine was defective because it did not have reasonable, protective design features such as a dust-collection system or a grinding mechanism to convert asbestos fibers into nonharmful forsterite. This contrasts with the failure to warn claims against the manufacturers in O Neil. The viability of such defective design claims in any given case remains to be seen, but the important takeaway is that defendants must be alert to plaintiffs developing these types of claims. Although one federal judge has recently rejected a similar attempt to use an exception outlined in O Neil (Floyd v. Air & Liquid Systems Corp., E.D. Pa. Feb. 10, 2012), the Shields decision gives plaintiffs a new strategy to pursue. As a result, manufacturers should challenge a plaintiff s theory at the outset of a case to properly frame the issue for the court as either a traditional duty to warn theory or a defective design claim. Then, through careful discovery, defense counsel can create the factual record necessary to demonstrate that the general rule applies to bar tort liability or, alternatively, that the plaintiff lacks evidence that the manufacturer s product contributed to creating the risk of harm.
-- By Joseph W. Hovermill and Matthew R. Schroll, Miles & Stockbridge PC Joseph Hovermill is a principal and chairman of the products liability and mass torts group in Miles & Stockbridge s Baltimore office. Matthew Schroll is an associate in the same office. The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. All Content 2003-2012, Portfolio Media, Inc.