Products Liability Law Reporter

A federal district court held that summary judgment for a defendant valve manufacturer was proper where the plaintiffs failed to offer proof of actual exposure to the defendant’s product.

Donald Varney worked as a marine machinist at both the Puget Sound Naval Shipyard and Hunter’s Point Naval Shipyard. He developed malignant pleural mesothelioma, a condition that later caused his death. Before his death, he signed an affidavit identifying several asbestos-containing materials—manufactured by various companies—with which he worked. Varney’s family sued Velan Valve Corp. and others, alleging strict liability, negligence, and conspiracy, among other claims. The plaintiffs offered the opinion of John Maddox, a causation expert who reviewed Varney’s medical records and affidavit and concluded that his mesothelioma resulted from cumulative asbestos exposure from various component products. Velan and other defendants moved for summary judgment, and the trial court held an evidentiary hearing to determine the admissibility of the affidavit and Maddox’s opinion. The trial court held that both were inadmissible.

Granting Velan’s summary judgment motion, the trial court noted that products liability plaintiffs must establish a reasonable connection between an injury, the product causing the injury, and the product’s manufacturer. Additionally, the court found, a plaintiff must identify the particular manufacturer of the product that caused the injury. Citing case law, the court said that in asbestos suits involving plaintiffs who did not work directly with asbestos-containing products, a plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos-containing products present in the workplace. Courts should consider a plaintiff’s proximity to the asbestos products, the size of the workplace into which the asbestos was released, the length of time a plaintiff was exposed, the types of asbestos products to which a plaintiff was exposed, how the products were handled and used, the tendency of the products to release asbestos fibers into the air, and other potential sources of the plaintiff’s injury, the court said.

The court found that here, the plaintiffs have not offered evidence establishing a reasonable connection between Varney’s mesothelioma, Velan’s products, and Velan. The plaintiffs offered no historical evidence of Velan having used asbestos in its products, the court said. Additionally, the plaintiffs have not shown that Velan products either caused or were a substantial factor in causing Varney’s illness. The court rejected the plaintiff’s argument that the court should consider the affidavit and Maddox’s report, finding that motions for reconsideration are disfavored absent a manifest error.

Citation: Varney v. Air & Liquid Sys. Corp., 2019 WL 2214017 (W.D. Wash. May 22, 2019).

Comment: In Godber v. Amcord Inc., No. BC663471 (Cal. Super. Ct. Los Angeles Cnty. May 3, 2019), James Godber was exposed to asbestos while working as a set lighting technician at various Los Angeles-area television and movie studios from approximately 1959 to 1980. During this period, Godber handled, installed, and repaired asbestos-related materials associated with set lighting and set production, including Mole-Richardson lamps. In 2014, he was diagnosed as having lung cancer. He was diagnosed with asbestosis three years later. Godber sued Mole-Richardson Co. and Mole-Richardson Rentals, among others, alleging negligence, strict liability, design defect, and failure to warn. The defense argued that Godber’s cigarette smoking was sufficient to cause his lung cancer in and of itself. The jury awarded $937,500, including $436,000 for past medical expenses. The jury apportioned liability at 15% each to Mole-Richardson Co. and Mole-Richardson Rentals; 60% to Godber, 3% to Godber’s coworkers, who smoked; and 7% to “Marlboro.” H.W. Trey Jones and AAJ member Simona Farrise, both of Los Angeles, represented the plaintiff.

See also Leren v. Kaiser Gypsum Co., 2019 WL 2265373 (Wash. Ct. App. May 28, 2019), which held that the product line doctrine of successor liability—which affords a products liability victim a means of recovery when a successor business entity acquires a predecessor’s assets, leaving merely a corporate shell—applies to a raw asbestos distributor that faces strict liability under §402A of the Restatement (Second) of Torts. AAJ members Matthew P. Bergman, Glenn Draper, Justin Olson, Colin Mieling, and Craig A. Sims, all of Seattle, represented the plaintiff.