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April 2013

What a Tangled Webb We Weave: Court Imposes Failure to Warn Liability On Supplier to Johns-Manville

A California Court of Appeal has ruled that a supplier of asbestos to Johns-Manville is liable for failure to warn a downstream user who contracted mesothelioma. Although the decision in Webb v. Special Electric Co., Inc. may be limited to its facts and some unfortunate jury special verdict findings, there is plenty to concern defendants that may seek to rely on an intermediary to give warnings.

Plaintiff Webb, a pipefitter, claimed exposure to asbestos from Johns-Manville transite pipe that had asbestos fibers supplied by Special Electric. Special Electric “argued that it was entitled to rely on Johns-Manville to warn downstream users such as Webb. It argued that Webb’s harm therefore resulted from Johns-Manville’s breach of its own duty to warn, not from Special Electric’s breach of duty.” The trial court agreed and granted JNOV, explaining that “[t]elling Johns-Manville about asbestos is like telling the Pope about Catholicism,” like carrying “coals to Newcastle.” “[A]lthough it would have been relatively easy for Johns-Manville to provide warnings to users of its products such as Webb, it would be unreasonable to obligate Special Electric to require Johns-Manville to do so.” Further, the dangers of asbestos were known to Johns-Manville, “and Special [Electric] could not have harmed Mr. Webb by failing to tell Johns-Manville what it already knew.”

On March 15, the Court of Appeal reversed. “[T]hose who provide dangerous products … have a duty to warn consumers about the hazards inherent in their products, and that is true even where … it is downstream users and consumers, not the products’ initial purchasers, who are deserving of the warnings.” 

Apparently recognizing the potential breadth of this holding, the court clarified: “We do not hold that an asbestos-supplier’s duty to warn users of its asbestos cannot be obviated by proof that the users needed no warning, or that its duty may not be discharged by a showing of reasonable efforts to provide warnings, or by reasonable reliance upon others to do so.” But in this case, “[t]he effect of the trial court’s ruling was to hold that—as a matter of law—Special Electric had no duty to warn foreseeable users of the dangers of its asbestos, even though Special Electric knew or should have known that those foreseeable users would be unaware of the dangers. [¶] The conclusion that Special Electric had no such duty, or that its duty was discharged as a matter of law, is unjustified by the law and is contrary to the record in this case.”

A spirited dissenting opinion disagreed with both the duty and the causation analysis of the majority. On duty, the dissent rejected the majority holdings “that it can be a tort to fail to tell someone something they already know, and that it can also be a tort to fail to impose on someone a contractual duty to do something they already have a tort duty to do.” Instead, “the law entitled Special Electric to presume that Johns-Manville would provide the warnings it was legally obligated to provide.”

On causation, the dissent employed an analogy. “[I]f the defendant in an automobile collision breached the duty of care by driving a car with nonfunctioning headlights, then the plaintiff cannot prove causation merely by demonstrating that the defendant’s car caused the plaintiff‘s injuries when they collided. Rather, the plaintiff must show that the defendant’s driving with nonfunctioning headlights caused the plaintiff’s injuries (because, for example, the accident happened in the dark of night rather than in broad daylight). This is not an obscure or novel legal technicality. It is hornbook law.”

The Webb decision addresses a familiar witness in the litigation and some highly questionable testimony. “[T]he Webbs’ expert, Barry R. Horn, M.D., testified that beginning before the 1920s … there was ‘an enormous literature, just huge,’ that occupational exposure to asbestos posed a great risk of cancer.” As misleading and overbroad as this statement is, it probably was untethered to the product at issue in this case, transite pipe used in  plumbing and water heaters.

A nearly overlooked aspect of the case is whether plaintiff was ever exposed to asbestos supplied by the defendant, only one of many suppliers to Johns-Manville. As the dissent noted, “Transite pipe was made partly from ground-up scraps of other pipes, which may have contained crocidolite, which may have been supplied by Special Electric.” The majority opinion glossed over this issue by relying on, and perhaps misinterpreting, statements made by counsel in argument. 

Because the decision was reversed on procedural grounds (not addressed in this summary) and substantive grounds, the substantive discussion is arguably dicta. But the court spent more than half its lengthy opinion on the substantive issue, and so apparently saw it as an alternative holding, not an aside. It is likelier that other defendants can seek to limit Webb to the findings made by the jury in that case, and use it as guidance in crafting special verdicts.

The decision in Webb v. Special Electric Co., Inc. (2013) 214 Cal.App.4th 595, is not yet final. It may be altered on petition for rehearing. It may also be depublished or reviewed by the California Supreme Court, either of which would make this decision unusable as precedent in California courts.



Michael J. Pietrykowski
Don Willenburg

Environmental/Toxic Tort