Products Liability Law Daily Wrap Up, DEFENSES TO LIABILITY—ASBESTOS—W.D. Wash.: Most affirmative defenses by pump maker dismissed in decedent shipyard worker’s asbestos-related action, (Oct 10, 2018)

By Susan Lasser, J.D.

In an action by the family of a deceased U.S. Navy shipyard worker whose alleged workplace exposure to asbestos-containing products caused his mesothelioma, affirmative defenses by one of the manufacturers of products handled by the now-deceased worker during his employment were dismissed in part by a federal district court in Washington on the family’s summary judgment motion. The court dismissed the manufacturer’s failure to mitigate, contributory negligence, assumption of risk, sophisticated purchaser, and intervening/superseding cause defenses. However, the court found that the manufacturer’s government contractor defense could not be resolved as a matter of law on the current record (Mikelsen v. Air & Liquid Systems Corp., October 9, 2018, Lasnik, R.).

The decedent worked at the Puget Sound Naval Shipyard from about 1942 to 1980, with the exception of two years during World War II when he enlisted in the Army. His family alleged that Warren Pumps LLC manufactured pumps that contained asbestos and that the worker was exposed to its products, as well as to the asbestos that was incorporated in those products, while he was employed in the shipyard machine shop. The worker subsequently developed mesothelioma and died in 2014. The family contends that Warren Pumps is liable for the worker’s death and the family’s injuries because the manufacturer put into the stream of commerce products that were negligently designed, were not reasonably safe as manufactured, and were not reasonably safe due to a lack of warnings. The family also alleged that the manufacturer was liable because it failed to reasonably inspect, test, warn, instruct, monitor, and/or recall the products. In response, Warren Pumps asserted a number of affirmative defenses. The family moved for summary judgment on six of the affirmative defenses: (1) the manufacturer’s failure to mitigate; (2) contributory negligence; (3) assumption of risk; (4) sophisticated purchaser; (5) intervening/superseding cause; and (6) government contractor.

Failure to mitigate. Warren Pumps did not oppose the family’s summary judgment motion with respect to an alleged failure to mitigate.

Contributory negligence and assumption of risk. The court dismissed the defenses of contributory negligence and assumption of risk because the manufacturer failed to produce evidence in support of those defenses. Warren Pumps had argued that there was sufficient evidence to raise a fact issue that the worker knew or should have known that asbestos was hazardous and disregarded safety protocols. However, no such evidence was offered indicating that the worker knew of the risks posed by asbestos-containing products in the workplace. Moreover, it was Warren Pumps’ position that it was unaware of the dangers of asbestos until decades after the decedent began working in the machine shop. The manufacturer failed to provide an explanation of how the worker would have or should have known what the manufacturer did not.

In the absence of any evidence of comparative fault on the decedent’s part, Warren Pumps offered evidence that the U.S. Navy knew of the potential hazards of asbestos throughout the decedent’s work in the machine shop and argued that the employer’s knowledge should be imputed to the employee. The court rejected this contention as the manufacturer offered no supporting cases or other authority. The court stated that a person who is not aware of a hazard does not assume the risk of injury or otherwise act unreasonably merely because a third party had knowledge of the risk. Thus, without proof that the worker was aware of the dangers of the asbestos to which he was exposed or that he knew of but ignored warnings and safety protocols, the manufacturer could not succeed on comparative negligence and assumption of risk defenses.

Sophisticated purchaser. Warren Pumps argued that the worker was employed by knowledgeable and sophisticated employers, and that any alleged duty the pump maker might have had to warn the decedent of any potential risks involved in using the maker’s products was discharged by those employers’ intervening duty to give any required warnings. The court found that while the manufacturer recited the law accurately on the duty to warn a sophisticated end user of a product, it did not provide evidence that the worker himself was sophisticated as to the hazards of the product at issue. Rather, the manufacturer asserted that the U.S. Navy was a sophisticated purchaser and acted as an intermediary between the manufacturer and the decedent. According to Warren Pumps, because the Navy knew of the hazards of asbestos since the 1920s and had developed safety protocols for shipyard workers, and the worker was a trained machinist working in the shipyard, it was reasonable for Warren Pumps to conclude that the Navy would train workers like the decedent accordingly. The court, however, stated that the sophisticated purchaser defense applies only when the manufacturer has supplied to the employer all the information necessary to make its product safe for use by the end user and has "reasonable assurance that the information will reach those whose safety depends upon their having it." Here, there was no evidence that the maker was aware of the Navy’s knowledge of the dangers of asbestos or had a basis to form a reasonable belief that the Navy would take affirmative steps to warn its employees. Lacking this evidence of the manufacturer reasonably relying on the Navy, the court held that the maker could not establish the sophisticated purchaser defense.

Intervening or superseding cause. Warren Pumps also argued that the Navy’s and/or other manufacturers of asbestos-containing products’ failure to warn or protect the decedent was the superseding cause of any injuries he suffered. The court noted that to absolve Warren Pumps of liability for its own negligence, the intervening negligence must "be so extraordinary or unexpected that it falls outside the realm of reasonably foreseeable events" and must operate independently of the negligence of the original tortfeasor and produce a different harm than that resulting from the individual negligence. The court concluded that the manufacturer failed to satisfy these elements.

Moreover, the alleged negligence of Warren Pumps, other manufacturers, and the Navy were all of the same type—a failure to warn shipyard employees of the hazards of asbestos exposure—and caused the same injury. Although the decedent’s mesothelioma may have had more than one proximate cause or more than one substantial contributing factor, that did not mean that any "concurrent negligence" by third parties intervened to break the chain of causation between Warren Pumps’ actions and the decedent’s injury. The court concluded that if the family could establish causation, no reasonable juror could find that the potentially contributory negligence of the Navy or other manufacturers superseded Warren Pumps’ alleged conduct as the cause of the decedent’s illness.

Government contractor immunity. Finally, the court found there was a genuine issue of fact as to Warren Pumps’ argument that, as a supplier of military equipment, it was immune from liability for alleged defects in the design or manufacture of the equipment under the "government contractor" defense. The court found in a companion decision by the court ruling on the manufacturer’s motion for summary judgment [see today’s Products Liability Law Daily, "Pump maker heads to trial in asbestos-exposure case"] that Warren Pumps did not prove as a matter of law that the Navy had reasonably precise specifications requiring the use of asbestos in the maker’s products or precluding the warnings and labeling that would otherwise be required by state law. Here, the question was whether Warren Pumps had raised a genuine issue of fact as to the existence of those specifications. In spite of the manufacturer’s expert opinion by a Navy rear admiral to support its government contractor defense, the court found that the rear admiral did not identify any particular specification, regulation, or procedure that required Warren Pumps to use asbestos in its products or that precluded it from providing warnings in the instructions or labels on the equipment. However, assuming the expert testimony on these points admissible, the court said, then there was a disputed issue of fact regarding whether the Navy’s specifications and regulations precluded Warren Pumps from satisfying its state law duties regarding design and warnings.

The case is No. C17-0700RSL.

Attorneys: Kristin M. Houser (Schroeter Goldmark & Bender) for Alice Mikelsen. Alice Coles Serko (Tanenbaum Keale LLP) and Rachel Tallon Reynolds (Bullivant Houser Bailey PC) for Air & Liquid Systems Corp. Kevin J. Craig (Gordon Rees Scully Mansukhani, LLP) for Asbestos Corp., Ltd. Christopher S. Marks (Tanenbaum Keale LLP) for CBS Corp.

Companies: Air & Liquid Systems Corp.; Asbestos Corp., Ltd.; CBS Corp.

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