Rollin v. Foster
Wheeler
Filed 8/2/12
Rollin v. Foster Wheeler CA2/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
EUGENE W. ROLLIN,
JR., et al.,
Plaintiffs and
Appellants,
v.
FOSTER WHEELER, LLC et al.,
Defendants and Respondents.
B209935
(Los Angeles County
Super. Ct. No. BC372275)
APPEAL
from a judgment of the Superior Court
of
County. Richard L.
Fruin, Jr., Judge. Reversed and remanded
for new trial.
Waters,
Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants.
Sedgwick,
Detert, Moran & Arnold, Frederick D. Baker and Kelly Savage Day; Brydon,
Hugo & Parker, John R. Brydon and James C. Parker for Defendant and
Respondent Foster Wheeler, LLC.
Morgan
Lewis & Bockius, Joseph Durry, P. Daffodil Tyminski, and John M. Boylston
for Defendant and Respondent Yarway Corporation.
Walsworth,
Franklin, Bevins & McCall, Thomas G. Scully and Elizabeth L. Huynh for
Defendant and Respondent Elliott Company.
Plaintiffs
and appellants Eugene W. Rollin, Jr. (Rollin) and Elizabeth Rollin
(collectively, plaintiffs)
name="_ftnref1" title="">[1] appeal from the judgment entered in favor of
defendants and respondents Foster Wheeler, LLC (Foster Wheeler), Yarway
Corporation (Yarway), and Elliott Company (Elliott) (collectively, defendants)
after the trial court granted defendants’ motions for judgment notwithstanding
the verdict (JNOV) and, in the alternative, their motions for a new trial.
mesothelioma, claimed to have been exposed to asbestos fibers released from
equipment manufactured by defendants during his employment at Mobil Oil
Company’s (Mobil) Torrance refinery.
After a three-week trial, the jury returned a verdict in favor of
plaintiffs on their claims for strict
liability design defect, strict liability failure to warn, and negligence.
One
month after the jury returned its verdict, the California Supreme Court issued
its decision in Johnson v. American
Standard, Inc. (2008) 43 Cal.4th 56 (Johnson),
ruling that the “sophisticated user defense” applied to relieve a manufacturer
of the duty to warn of a product’s potential hazards when the user knew or
should have known of those hazards.
Defendants filed motions for JNOV and a new trial on various grounds,
including that the sophisticated user defense barred plaintiffs’ causes of
action and that the jury should have been instructed regarding that
defense. The trial court granted the
motions for JNOV, concluding that all of plaintiffs’ causes of action were barred
because Rollin’s employer, Mobil, was a sophisticated user of asbestos
products. The trial court reasoned that
there had been sufficient evidence that Mobil was a knowledgeable user of
asbestos-containing products during the period that Rollin was exposed to
asbestos as a Mobil employee, obviating the need to provide any asbestos
warnings. The trial court also found
that all of plaintiffs’ causes of action, including the design defect claim,
were premised on a failure to warn.
The
trial court in the alternative granted defendants’ motions for a new trial, “to
be effective only if the court’s grant on the JNOV motion is overturned.” The court granted the new trial motions on
the ground that its failure to instruct the jury on the sophisticated user defense
after defendants requested such instruction was an error in law. Judgment was subsequently entered in favor of
defendants, and this appeal followed.
While
this appeal was pending, the California Supreme Court issued its decision in
335 (O’Neil), in which the court held
“that 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.” (Id. at p. 342.)
name="_ftnref3" title="">[3] The Supreme Court in O’Neil undertook a comprehensive analysis of strict liability
principles for three types of product defects -- manufacturing defects, design
defects, and failure to warn. The
Supreme Court also applied these principles to asbestos-containing components
and insulation used with the O’Neil defendants’
products, but not manufactured or distributed by any of them. (Ibid.)
We
hold that the sophisticated user defense does not apply to the circumstances
presented in the instant case, and that the trial court erred by granting
defendants’ motions for JNOV based on that defense. We therefore reverse the judgment. We affirm the trial court’s alternative order
granting the motions for a new trial, but not for the reasons stated by the
trial court. Rather, we do so to enable
the parties to address the issues and legal principles framed by the Supreme
Court in O’Neil, as those principles
are applicable here.
FACTUAL
BACKGROUND
Foster Wheeler
Foster Wheeler makes industrial
boilers. In 1965, Foster Wheeler sold
Mobil a single industrial boiler for use in the fluid catalytic cracker (FCC)
unit of Mobil’s Torrance refinery. The
boiler sold to Mobil was designed in accordance with Mobil’s general
specifications, unless such specifications were not specific to the particular
unit, in which case the parties agreed that Foster Wheeler’s standard
procedures and design bases would apply.
The
Foster Wheeler boiler was delivered to Mobil in 1966. The boiler was configured with one steam drum
and one water drum, which contained four manhole covers sealed with asbestos
gaskets. Asbestos-containing insulation
also covered portions of the boiler.
Foster Wheeler did not manufacture the asbestos gaskets or the
asbestos-containing insulation. Contract
specifications provided by Foster Wheeler to Mobil stated that the asbestos
insulation used on the boiler was to be furnished and installed by Foster
Wheeler’s Fired Heater Division.
However, later contract documents indicated that Mobil was to supply the
asbestos insulation for the boiler and that an entity named Fiberglass
Engineering & Supply Division installed the insulation.
2. Rollin’s work at Mobil
Rollin
began working at Mobil’s Torrance refinery in December 1970. Sometime between late 1972 and early 1973, he
became a stillsman in the FCC unit, where he worked until the mid-1980’s. Rollin retired in 1997.
The
FCC was a large unit that contained many different pieces of equipment. As a stillsman, Rollin was responsible for
the FCC’s operation, including oversight of work performed by others on
boilers, valves, turbines, and other equipment.
Boilers
in the FCC, including a Foster Wheeler boiler, were insulated on the
outside. Rollin was present when the
insulation was disturbed during work on the boilers, releasing dust into the
air. Because the boilers were under
positive internal pressure, dust from inside the boilers was blown out during
maintenance. Rollin breathed this dust.
Valves
in the FCC were also insulated, and the insulation released dust when it was
disturbed. Rollin was present when valve
insulation was removed and breathed the dust generated while this
occurred. Rollin was also present when
gaskets and internal packing were removed and replaced from valves in the FCC
and he breathed the dust generated from the gasket and packing materials.
Turbines
in the FCC were insulated, and Rollin was present when the insulation was
disturbed and when turbine gaskets were replaced. He breathed the dust released during these
procedures.
There
were no asbestos-related warnings on equipment at the refinery, and Rollin
received no information from Mobil regarding asbestos at the refinery, or the
need to use respiratory protection until the mid-1980’s, when Mobil instituted
an asbestos program.
1. Trial and verdict
Plaintiffs
brought the instant action in June 2007 against defendants and others for
negligence, strict liability, false representation, intentional failure to
warn, and loss of consortium. The case
proceeded to trial. Before the jury was
instructed, defendants requested a jury instruction concerning the
sophisticated user doctrine.
name="_ftnref4" title="">[4] The trial court denied that request.
The
jury subsequently returned a verdict finding that Foster Wheeler’s boiler,
Elliott’s turbine, and Yarway’s valves failed to perform as safely as an
ordinary consumer would have expected, and that the boiler, turbine and valves
were defective because the defendants failed to provide an asbestos
warning. The jury awarded plaintiffs
economic damages of $440,000, Rollin’s noneconomic damages of $6 million, and
Mrs. Rollin’s noneconomic damages of $3.5 million. The jury found five percent of the fault was
attributable to Foster Wheeler, and two percent attributable each to Elliott
and Yarway. Judgment was entered against
Foster Wheeler in the amount of $475,000.
2. Motion for JNOV and new trial
In
its motion for JNOV, Foster Wheeler argued that plaintiffs’ claims were barred
under the sophisticated user doctrine, and the evidence of Rollin’s exposure to
asbestos-containing products used in connection with Foster Wheeler’s boiler
was insufficient to support an allocation of five percent fault to Foster
Wheeler.
Elliott
brought both a motion for JNOV, or in the alternative, for a new trial in which
it argued that the trial court erred by not instructing the jury on the
sophisticated user defense, that there was insufficient evidence to support the
jury’s finding that any asbestos-containing insulation was used in connection
with an Elliott turbine that was sold, supplied, or specified by Elliott, and
that a new trial was warranted pursuant to Code of Civil Procedure section 657.
The
trial court granted the motions for JNOV on the ground that the sophisticated
user defense barred plaintiffs’ claims, which were all premised on defendants’
failure to warn of asbestos hazards associated with their products. The court reasoned that the documentary
evidence showed that Mobil was aware, as early as May 1972, of the Occupational
Health & Safety Administration (OSHA) regulations requiring Mobil as an
employer to protect its workers who were exposed to asbestos hazards. The trial court concluded that this evidence
was sufficient to establish that Mobil was a sophisticated user of
asbestos-containing products during the period that Rollin was exposed to
asbestos as an employee in Mobil’s FCC unit and that under Johnson defendants had no duty to warn Mobil of the asbestos
hazards associated with their products.
The court further concluded that Mobil’s knowledge about the OSHA
regulations obviated the need for defendants to present any additional evidence
that Mobil was a sophisticated user.
The
trial court also granted Elliott’s motion for a new trial, to be effective only
if the court’s ruling on the motion for JNOV was overturned. The court reasoned that its failure to
instruct the jury on the sophisticated user defense was an error of law
warranting a new trial. The trial court
noted that its ruling granting Elliott’s motion for a new trial inured to the
benefit of Foster Wheeler and Yarway as well.
The
trial court thereafter vacated the judgment on the jury’s verdict in favor of
plaintiffs and entered judgment in favor of defendants. The court awarded $15,961.27 for Foster
Wheeler as costs. Plaintiffs appealed
from the judgment and the trial court’s orders.
I. Standard of Review
“‘“A
motion for judgment notwithstanding the verdict of a jury may properly be
granted only if it appears from the evidence, viewed in the light most
favorable to the party securing the verdict, that there is no substantial
evidence to support the verdict. . . .”
[Citation.]’” (
Cal.3d 865, 878.) When the motion for
JNOV raises a legal issue, we review the trial court’s ruling under a de novo
standard of review. (
(2001) 25 Cal.4th 62, 68.)
We
review the trial court’s ruling on a motion for a new trial for abuse of
discretion. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31
Cal.App.4th 1791, 1800.)
II. JNOV--Sophisticated User
Defense
Manufacturers
generally have a duty to warn consumers about the hazards inherent in their
products, and can be held strictly liable for
failure to warn. (Anderson v. Owens-Corning Fiberglass Corp. (1991) 53 Cal.3d 987,
1003.) The sophisticated user defense
relieves a manufacturer from its usual obligation to warn product users about
the product’s potential hazards. The
defense and its underlying rationale has been explained by our Supreme Court as
follows: “Under the sophisticated user
defense, sophisticated users need not be warned about dangers of which they are
already aware or should be aware.
[Citation.] Because these
sophisticated users are charged with knowing the particular product’s dangers,
the failure to warn about those dangers is not the legal cause of any harm that
product may cause. [Citation.] The rationale supporting the defense is that
‘the failure to provide warnings about risks already known to a sophisticated
purchaser usually is not a proximate cause of harm resulting from those risks
suffered by the buyer’s employees or downstream purchasers.’ [Citation.]
This is because the user’s knowledge of the dangers is the equivalent of
prior notice. [Citation.]” (Johnson,
supra, 43 Cal.4th at p. 65.)
In
Johnson, the Supreme Court applied
the sophisticated user defense to bar an action by a trained and certified
heating, ventilation, and air conditioning (HVAC) technician asserting causes
of action for negligence, strict liability, failure to warn, strict liability
design defect, and breach of implied warranties based on the defendant’s
alleged failure to warn him of the potential hazards of exposure to R-22, a
refrigerant commonly used in large air conditioning systems. (Johnson,
supra, 43 Cal.4th at p. 61.) The
court in Johnson found that as an
HVAC technician, the plaintiff knew or should have known about the hazards of
R-22 exposure. (Id. at p. 74.)
The
Supreme Court in Johnson did not
address the situation presented here, as defendants do not claim that Rollin
was a sophisticated user. Rather, they
contend Mobil was knowledgeable about the hazards of asbestos and was required
by OSHA to warn employees such as Rollin about those hazards. The court in Johnson did not impute a sophisticated employer’s knowledge to the
plaintiff, or charge him with any knowledge except that which had been made
available to him through his own training and professional certification. The sophisticated user doctrine articulated
in Johnson accordingly does not apply
to the factual situation involved here.
Defendants
argue that a variant of the sophisticated user defense known as the
“sophisticated intermediary doctrine” applies in this case. Under that doctrine, a manufacturer can be
absolved of its duty to warn a consumer if there has been an adequate warning
to an intermediary. (See, e.g.,
217 Cal.App.3d 168, 170-172.)
The
sophisticated intermediary doctrine does not apply here. “[T]hat doctrine, where it applies at all,
applies only if a manufacturer provided adequate warnings to the
intermediary. [Citations.]” (Stewart
v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 29.) No California court has applied the
sophisticated intermediary doctrine to absolve a manufacturer of any duty to
warn based solely on an intermediary’s knowledge or sophistication with respect
to a particular type of product. In the
instant case, there was no evidence that defendants provided any warnings to Mobil. For that reason, the sophisticated
intermediary doctrine does not apply.
Because
neither the sophisticated user defense nor the sophisticated intermediary
doctrine applies to the factual situation presented in the instant case, the
trial court erred as a matter of law by granting defendants’ motions for JNOV
based on the court’s determination that Mobil was a sophisticated user of
asbestos products during the relevant time period.
Reversal
of the JNOV requires review of the trial court’s order granting defendants’
motions for a new trial.
name="_ftnref5" title="">[5] For reasons we discuss below, we affirm the
order granting the motions for a new trial.
III. New Trial Motion--
While
this appeal was pending, the Supreme Court issued its decision in
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.” (O’Neil,
supra, 53 Cal.4th at p. 342.) The
defendants in O’Neil sold valves and
pumps to the United States Navy for use in steam propulsion systems on Navy
ships. Navy specifications required the
use of asbestos-containing insulation on all external surfaces of its steam
propulsion systems as well as in the internal gaskets and packing materials in
valves. (Id. at pp. 343, 344.)
The pumps and
valves sold to the Navy were not made or shipped with external insulation. Such insulation was applied subsequently by
the Navy. (O’Neil, supra, 53 Cal.4th at pp. 344, 349.) The valves sold to the Navy contained
internal asbestos-containing gaskets and packing at the time they were sold;
however, the Navy replaced the gaskets and packing during routine maintenance
operations, and there was no evidence that the O’Neil defendants ever made or sold these replacement parts. (Id. at
p. 344.)
The
plaintiff in O’Neil served on a Navy
ship from 1965 to 1967 and was exposed to asbestos fibers released from
external insulation, gaskets and packing during repair and maintenance of the
ship’s equipment. The
the ship’s steam propulsion system in 1943 or earlier, at least 20 years before
the plaintiff worked aboard the ship. (
345.) The plaintiff in
liable for his injuries caused by the asbestos exposures because their products
included and were used in connection with asbestos-containing parts. The plaintiff also argued that the defendants
should be held strictly liable for failing to warn him about the potential
hazards of breathing asbestos released from their products. (Id. at
p. 348.)
The
Supreme Court in O’Neil analyzed
strict liability principles for three types of product defects -- manufacturing
defects, design defects, and failure to warn -- and concluded the defendants
were not strictly liable for the plaintiff’s injuries under any of these
principles. (O’Neil, supra, 53 Cal.4th at p. 347.)
Manufacturing defect
The
court in O’Neil determined that the
defendants were not strictly liable for the plaintiff’s injuries as the result
of any manufacturing defect because the plaintiff was exposed to no asbestos
from a product made by the defendants.
The evidence showed that the plaintiff was exposed to asbestos dust
released from exterior insulation the Navy had applied to the pumps and valves. None of the defendants manufactured or sold
that insulation, nor had they required or advised that it be used with their
products. (O’Neil, supra, 53 Cal.4th at p. 349.) The uncontroverted evidence also showed that
the plaintiff had been exposed to asbestos from replacement gaskets and packing
inside the pumps and valves that were not the original parts supplied by the
defendants, but were replacement parts the Navy had purchased from other
sources. (Ibid.) The court in
assuming the inclusion of asbestos makes a product defective, no defect
inherent in defendants’ pump and valve products caused O’Neil’s disease.” (Id. at
p. 350.)
Design defect
The
court in O’Neil also rejected the
plaintiff’s argument that the products were defective because they were
“designed to be used” with asbestos-containing components. (O’Neil,
supra, 53 Cal.4th at p. 350.) The
court stated: “The products were
designed to meet the Navy’s specifications.
Moreover, there was no evidence that defendants’ products
packing in order to function.
Plaintiff’s assertion to the contrary is belied by evidence that
defendants made some pumps and valves without asbestos-containing parts. As alternative insulating materials became
available, the Navy could have chosen to replace worn gaskets and seals in
defendants’ products with parts that did not contain asbestos. Apart from the Navy’s specifications, no
evidence showed that the design of defendants’ products required the use of
asbestos components, and their mere compatibility for use with such components
is not enough to render them defective.”
(Ibid., fn. omitted.)
3. Failure to warn
The
Supreme Court in O’Neil similarly
strict liability premised on the defendants’ failure to warn about the dangers
of asbestos in the gaskets and packing originally included in their
products. The court stated: “We reaffirm that a product manufacturer
generally may not be held strictly liable for harm caused by another
manufacturer’s product. The only
exceptions to this rule arise when the defendant bears some direct
responsibility for the harm, either because the defendant’s own product
contributed substantially to the harm [citation], or because the defendant
participated substantially in creating a harmful combined use of the products
[citation].” (O’Neil, supra, 53 Cal.4th at p. 362.) For these exceptions to apply, the court
imposed a threshold requirement that the defendant manufactured, sold or
supplied the injury-causing product. (
sold, or supplied the injury-causing product is a separate and threshold
requirement that must be independently established”].)
The
court in O’Neil discussed at length
the First Appellate District’s decision in Taylor
v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564 (
addressed the liability of pump and valve manufacturers for asbestos-containing
gaskets and packing manufactured by others but used in conjunction with the pumps
and valves. In Taylor, the First Appellate District gave three reasons for concluding that the pump and valve
manufacturers could not be held strictly liable for failing to warn about the
dangers of asbestos exposure. First, the
Taylor court noted that California
law recognizes “a bright-line legal distinction” imposing liability only on
those entities responsible for placing an injury-producing product into the
stream of commerce. (
manufacturers could not be strictly liable for failure to warn, the
“were not part of the ‘chain of distribution’” for the asbestos-containing
gaskets, packing and insulation that the plaintiff in that case had
encountered. (Id. at p. 579; O’Neil, supra,
53 Cal.4th at p. 354.)
Second,
the court in Taylor reasoned that
under California law, “a manufacturer has no duty to warn of defects in
products supplied by others and used in conjunction with the manufacturer’s
product unless the manufacturer’s product itself causes or creates the risk of
harm.” (Taylor, supra, 171 Cal.App.4th at p. 575; O’Neil, supra, 53 Cal.4th at p. 354.) The Taylor
court went on to note that “[a]though a manufacturer may owe a duty to warn when the use of its product in combination
with the product of another creates a potential hazard, that duty arises
causes or creates the risk of harm.” (
Third,
the Taylor court relied on the
component parts doctrine as a basis for concluding the pump and valve
manufacturers owed no duty to warn about the dangers of asbestos.
supra, 171 Cal.App.4th at pp. 584-586; O’Neil,
supra, 53 Cal.4th at p. 355.) Noting
that the pumps and valves at issue were “part of a larger ‘marine steam
propulsion system’” (Taylor, at p.
584), the Taylor court concluded the
manufacturers could be held liable only if the defects in these components
caused injury or if the manufacturers participated in the integration of their
pumps and valves into the ship’s propulsion system. (Id.
at p. 585; O’Neil, at p. 355.)
After
its detailed discussion of Taylor,
the Supreme Court then discussed Tellez-Cordova
v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577 (
court in O’Neil had based its
decision to impose liability on the pump and valve manufacturers for injury
caused by asbestos packing and insulation used in conjunction with their
products. The plaintiff in
from breathing toxic dust generated from metals he cut and sanded using power
tools manufactured by the defendants. (
tools were “specifically designed” to be used with abrasive discs for grinding
and sanding metals, and it was reasonably foreseeable that toxic dust would be
generated when the tools were used for their intended purpose. (Id.
at p. 580.) The defendants demurred,
arguing California law imposed no duty to warn of hazards associated with the
abrasive discs, which were products of another manufacturer. The Tellez-Cordova
court rejected their argument, reasoning that the intended purpose of
defendants’ tools was to abrade metal surfaces, and toxic dust was a
foreseeable product of this activity. (
In
O’Neil the Supreme Court noted that
the case before it in two significant respects:
“First, the power tools in Tellez-Cordova
could only be used in a
potentially injury-producing manner.
Their sole purpose was to grind metals in a process that inevitably
produced harmful dust. In contrast, the
normal operation of defendants’ pumps and valves did not inevitably cause the
release of asbestos dust. This is true
even if ‘normal operation’ is defined broadly to include the dusty activities
of routine repair and maintenance, because the evidence did not establish that
defendants’ products needed asbestos-containing components or insulation to
function properly. It was the Navy that
decided to apply asbestos-containing thermal insulation to defendants’ products
and to replace worn gaskets and packing with asbestos-containing components. Second, it was the action of the power tools
in Tellez-Cordova that
though the dust emanated from another substance. . . . The same is not true here. . . . Nothing about defendants’ pumps and valves
caused or contributed to the release of [asbestos] dust.” (O’Neil,
supra, 53 Cal.4th at p. 361.) The
principle that “California law does not impose a duty to warn about danger
arising entirely from another manufacturer’s product, even if it is foreseeable
that the products will be used together.”
(Ibid.)
4. Applying O’Neil
to the instant case
Applying
the principles set forth in O’Neil to
the instant case, we cannot conclude as a matter of law that defendants are not
strictly liable for plaintiffs’ injuries.
In the case of Foster Wheeler, there was evidence that the equipment
sold to Mobil included asbestos-containing components or insulation. The evidence is conflicting or incomplete,
however, as to whether Foster Wheeler or Mobil specified the use of such
asbestos-containing components and there was no finding as to who made such
specification. There was also no
evidence as to how often asbestos-containing components or insulation was
replaced during maintenance operations in the FCC unit. Accordingly, there could be no determination
that Rollin was exposed only to asbestos from replacement components that were
not the original parts supplied by defendants.
In light of these unresolved factual issues, liability cannot be decided
as a matter of law.
We
cannot conclude as a matter of law that Foster Wheeler is not strictly liable
for Rollin’s injuries as the result of exposure to asbestos insulation on its
boiler. Foster Wheeler’s contract
specifications for the boiler state that the boiler was to be externally
insulated with sprayed asbestos insulation.
Although Foster Wheeler contends the boiler was designed “in complete
conformity with Mobil specifications,” it fails to direct us to the particular
Mobil specification requiring the external surface of the boiler to be
insulated with sprayed on asbestos.
The
evidence shows that Foster Wheeler did not merely incorporate Mobil’s
specifications without question but rather took an active role in modifying
certain specifications in order to meet cost and scheduling parameters. A Foster Wheeler internal memorandum dated
July 26, 1965, states “that the use of Asbestospray and the sprayed on Epoxy
type coating could save a month of lapsed time in the field” and “strongly
suggested this route if we can get customer acquiescence.” A letter dated July 16, 1965, from Foster
Wheeler to Mobil confirming certain contract terms states: “In the interests of providing the best
possible erection time, Foster Wheeler reserves the right to employ the
‘limpet’ asbestos spray external insulation.”
Foster
Wheeler also reserved the right to use its own design specifications in
instances when Mobil’s specifications were not specific to the boiler
unit. An October 13, 1965 memorandum
from Foster Wheeler to Mobil states: “As
per our proposal, the heater design, etc., will generally conform with SMOC
specs. Where such specifications are not
specific to the particular unit, however, it has been agreed that Foster
Wheeler standard procedures and design basis shall prevail.”
Finally,
there was evidence that the asbestos insulation used on the boiler was supplied
by Foster Wheeler’s own Fired Heater Division.
Foster Wheeler argues that other documents offered into evidence show
that Mobil, and not Foster Wheeler, actually supplied the asbestos insulation
for the boiler, and that the insulation was applied by another company, not
Foster Wheeler. This conflict in the
evidence presents a factual issue that precludes us from concluding that Foster
Wheeler is not strictly liable as a matter of law.
The
absence of a Mobil specification requiring the use of asbestos-containing
insulation on the external surface of the boiler, Foster Wheeler’s active role
in specifying the use of such asbestos insulation, and Foster Wheeler’s
potential role in supplying the asbestos insulation to Mobil distinguishes the
instant case from O’Neil, in which
Navy specifications required the use of asbestos-containing insulation on all
external surfaces of the steam propulsion system used on its warships and the
defendants’ products were designed to meet the Navy’s specifications. (O’Neil,
supra, 53 Cal.4th at pp. 343, 350.)
For
the same reasons, a new trial should be granted as to plaintiffs’ negligence
claim.
Although the Supreme Court in O’Neil
concluded that “strong policy considerations counsel against imposing a
duty of care on pump and valve manufacturers to prevent asbestos-related
disease” (O’Neil, supra, 53 Cal.4th
at p. 365), the court ultimately based its decision on the particular factual
circumstances presented in that case.
The court in O’Neil reasoned
that the connection between the defendants’ conduct and the plaintiff’s injury
was “extremely remote” because the defendants did not manufacture, sell, or
supply any asbestos product that may have caused the plaintiff’s mesotheliomia;
the plaintiff did not work around the defendants’ pumps and valves until more
than 20 years after they were sold; and he did not develop an injury from the
replacement parts until nearly 40 years after his workplace exposure. (Ibid.)
The
parties here did not have the benefit of the court’s reasoning in
to marshal the evidence and present the case necessary to address the
case. A new trial is therefore
appropriate.
DISPOSITION
The judgment is reversed. The order granting the motions for a new
trial is affirmed, for the reasons stated in this opinion. The trial court is directed to conduct a new
trial. The parties will bear their
respective costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
_____________________________, P. J.
BOREN
_____________________________, J.
DOI TODD
name="_ftn1" title="">[1] By
order dated May 10, 2012, Elizabeth Rollin was substituted in place of Eugene
W. Rollin, Jr. who died during the pendency of the appeal.
name="_ftn2" title="">[2] Following
oral argument we received notice that the case settled as to defendants and respondents
Yarway and Elliott.
