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August 2010

Pending California Appellate Decision to Define "Sophisticated User Defense"

More than two years after the California Supreme Court unanimously adopted the "sophisticated user defense" in Johnson v. American Standard, Inc., (2008) 43 Cal. 4th 56,  the Second District Appellate Court is poised to determine the extent of the defense in California.  Plaintiffs Eugene and Elizabeth Rollin have appealed the trial court ruling granting Foster Wheeler, Elliott Turbomachinery and Yarway, Inc.'s motions for judgment notwithstanding the verdict based on Johnson, which overturned the jury's $10 million verdict in plaintiffs' asbestos-related mesothelioma suit.

In the August 24th issue of The Voice, the newsletter of the Defense Research Institute, Partner James Scadden and Senior Counsel Jeff Coons authored an article analyzing the pending appellate decision in Rollin and the broad implications the decision will have on the application of the sophisticated user defense in California, and potentially nationwide.

Three Primary Questions to be Answered by the Court

The article also reviewed three primary questions regarding the sophisticated user defense which the Johnson decision leaves unanswered and will hopefully be resolved in the appellate court's decision in the Rollin case.  These are three issues on which various jurisdictions are divided:

? Does Johnson require that defendants provide evidence that the individual plaintiff either have (or should have) knowledge of the potential hazard in order to apply the sophisticated user defense to negate a manufacturer's duty to warn, or is evidence of the plaintiff's employer's knowledge sufficient. 

? Is the defendant who relies on the sophisticated user defense required to provide evidence that it was aware that the plaintiff's employer had knowledge related to the potential hazards and that it reasonably relied on the employer to provide appropriate warnings to its employees.

? Does the defense apply only to failure to warn causes of action or also to plaintiffs' claims under a design defect theory not premised on failure to warn.

To read the complete article, please click here.


James G. Scadden

Environmental/Toxic Tort