Retaining an independent claim that the product itself is defectively designed will insulate your cause of action from a sophisticated user affirmative defense.
California Imposes Broad Liability in “Take-Home” Toxic Exposure Cases | Product Liability Advocate
If your client is a sophisticated user, the defendant has the initial burden to show undisputed facts supporting each element of the affirmative defense. SmileCare 91 Cal. Johnson requires the defendant to show what is generally, objectively known in the trade or profession.
It is not enough for the defendant to simply describe the position or job title held by the plaintiff.
Here's what you need to prove to win a defective product liability claim.
Second, it is worth noting that this defense has rarely been successful in asbestos litigation. Superior Court 13 Cal. At footnote 5 of the decision, the court made clear it was not announcing a rule for foreseeable negligence of intermediaries since that issue was not before it. Instead, the focus is whether a manufacturer or supplier acted reasonably in relying on an intermediary to pass its warning on to the ultimate user.
Related Asbestos Cases , F.
Thus, it is important to anticipate when a defendant will have a legitimate sophisticated user defense, as articulated in Johnson, and draft your complaint accordingly. Anticipate the defense, whether legitimate or not, and shore up your complaint with facts showing your client was NOT sophisticated; he had no training, certifications or experience in the trade. Also, expand your cause of action beyond failure to warn — assert design defects claims.
It is easy to dismiss asbestos litigation as a specialized area of law, one that is so unique as to render it inapplicable to your practice. Secondary exposure is a perfect example of a way to use something asbestos attorneys have been doing for some time and make it work in general products liability, particularly toxic tort. A case dealing with asbestos recently provided much needed clarity to consumer expectation test.
Biernier previously practiced asbestos litigation at a prominent plaintiffs firm in San Francisco where she represented union trade workers and military service members injured as a result of occupational exposure to asbestos. For reprint permission, contact the publisher: Download this article as a PDF.
There is little, if any, asbestos case law in Utah.
California Imposes Broad Liability in “Take-Home” Toxic Exposure Cases
Although a specific statute of limitations, U. It is anticipated that the issue will arise as to whether the discovery standard will be applied to the statute of limitations in asbestos cases. The 10th Circuit reviewed this issue in an uranium exposure case in Maughan v. In reaching its decision the court stated that asbestos, like uranium causes such cancers. Asbestos victims often develop a lesser disease such as asbestosis before being diagnosed with a cancer such as mesothelioma.
Mountain Fuel Supply Co. In Watkiss and Saperstein v. It is my conclusion, based on the foregoing, that the discovery standard should apply in asbestos cases. In that case, five employees of CCI alleged exposure to asbestos while working at the Mountain Fuel building. They alleged they experienced coughing, wheezing, shortness of breath, chest tightness, headaches, severe eye irritation, and anxiety and mental distress from fear of future cancer. One year after the alleged exposure on medical exam, not surprisingly, none of the plaintiffs was diagnosed with an asbestos-related disease.
On appeal, the Utah Supreme Court also reviewed the dismissal of the negligent infliction of emotional distress NIED claims for fear of cancer. Since the plaintiffs were complaining of injuries, the Court applied Section 1 of the Second Restatement of Torts. The Court held that the plaintiffs could make a NIED claim if they suffered either a physical or mental injury.
California Imposes Broad Liability in “Take-Home” Toxic Exposure Cases
The Court stated that since the plaintiffs were only claiming a mental illness, they must prove that the emotional distress was severe-such that a reasonable person would be unable to adequately cope with the mental stress, The Court stated that for an asbestos case involving fear of cancer that the trial court must consider the likelihood that the disease will actually occur and the duration and nature of the exposure to the toxic substance.
Courts in other jurisdictions, such as California, have developed substantial case law on asbestos issues. With respect to liability, plaintiffs in such jurisdictions often argue their cases on a theory of product liability. They generally use one of three theories: The consumer expectation test is a claim that the product failed to perform as safely as an ordinary consumer would expect when used as intended. The risk benefit test balances the risk of inherent danger vs the feasibility, cost, and adverse consequences of an alternative design.
The failure to warn is a Restatement-based claim for failing to warn of known or knowable inherent dangers. In a consumer-expectation failure-to-perform case, courts have recognized that it is not always necessary to present expert testimony.
The 10th Circuit, has applied Oklahoma law to find no liability in failure to warn cases. In each case, the court held that since the deceased woman had not been a user of the asbestos product or present where the asbestos product was used, they had no basis on which to make a duty-to-warn claim. The state-of-art defense was deemed admissible and relevant in a failure-to-warn case, on the theory that the defendant must have state-of-the art knowledge to be in a position to warn.
Finally, it has been successfully argued to a California court that in an asbestos case involving multiple manufacturer and suppliers, where it is impossible to determine which is responsible, that an alternative liability theory stating the burden shifts to defendants should be submitted in a jury instruction. It is my belief that with a strong product and medical investigation, Utah lawyers can enjoy the same kind of success.
According to their complaint, the Demaras alleged that a Raymond series forklift was backing up, changing direction, and turning, when the drive wheel ran over Mr. The Demaras alleged in their complaint that Mr. Demara did not see the forklift or its warning light. As a result, he had to have multiple surgeries on his foot and remains permanently disabled with pain. In a single cause of action for products liability, the Demaras alleged strict liability on claims for defects in the design, manufacture, and warnings, and one claim for general negligence.
The trial court also rejected the argument that the consumer expectation test ought to be applied as a matter of law and that even assuming the Demaras had raised a triable issue, Raymond had sufficiently applied the necessary elements of the risk-benefit test. The 4th District cited to the decision in Campbell v. The Demaras also presented evidence that a warning light on the forklift was not, at certain angles, visible to pedestrians. Jennifer serves as national coordinating counsel in asbestos litigation matters.
In this role, she works closely with a variety of corporate and expert witnesses to prepare cohesive litigation defense strategies. Lapin practices high-exposure complex litigation. He has significant experience in areas such as medical malpractice, products liability, mass torts, and catastrophic injury litigation.
- The Fog is Lifting - Score.
- Hans Andersens Fairy Tales (Series one Book 1).
- Were Love Conquers All [Were Trilogy 3] [The Dixie Lynn Dwyer Collection] (Siren Publishing Menage Everlasting).
- The Queens Code.
- Romanticismo: L’arte europea nell’età delle passioni (Romanticismo e dintorni) (Italian Edition)!
He is a member of the Complex Litigation Practice Group and focuses his practice on defending a variety of complex civil litigation matters including premises liability, products liability, toxic tort liability, and general defense liability. Clients have come to rely on Freddy for his eight-year career as an aircraft maintenance technician, knowledge of federal aviation regulations and airport operations, and enthusiasm for aviation, to defend toxic tort and products liability aviation cases.