Products Liability Law Daily Post-sale duty to warn claim fails due to insufficient evidence in mesothelioma case
Tuesday, February 23, 2021

Post-sale duty to warn claim fails due to insufficient evidence in mesothelioma case

By Susan L. Smith, JD, MA

The decedent’s family failed to meet their burden of showing that a post-sale warning would have caused the decedent to avoid injury.

In an action brought by the family of a worker who died from asbestos-related mesothelioma, the U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion, rejected the family’s attempt to reverse the district court’s order granting judgment as a matter of law to two companies that allegedly manufactured and supplied the asbestos-containing products to which the worker had been exposed. The appeals court concluded that the family failed to provide sufficient evidence to support their contention that a post-sale warning from the companies would have altered the decedent’s conduct. Therefore, the appeals court affirmed the order of the district court (Jack v. DCo, LLC, February 22, 2021, per curiam).

The worker developed mesothelioma allegedly caused by his exposure to asbestos-containing products while he worked as an automotive mechanic, a machinist in the U.S. Navy, and a machinist and nuclear inspector at the Puget Sound Naval Shipyard. Following his diagnosis with the disease, he sued multiple companies that allegedly supplied, manufactured, or sold asbestos-containing materials and equipment to which he was exposed over several decades. After he died, his wife and son proceeded as the plaintiffs in the case.

A jury trial was held on claims of negligence, strict liability for design defect, and strict liability for failure to warn against DCo, LLC (f/k/a Dana Companies, LLC) (DCo) and Ford Motor Company (Ford). At trial, the wife and son brought evidence that the decedent used gaskets manufactured or sold by DCo, and brakes and clutches sold by Ford. The jury found that the plaintiffs did not prove their strict liability design defect or failure to warn claims. It also did not reach a verdict on the negligence claims, causing the district court to declare a mistrial as to the negligence claims.

DCo and Ford then renewed their motions for judgment as a matter of law that they initially had brought during trial. The companies contended there was insufficient evidence for a reasonable jury to find that the decedent was exposed to asbestos while working with their products, or that any such asbestos exposure was a substantial factor in causing his mesothelioma. They also argued that the family’s assertion that the companies breached their duty to alert the decedent of their products’ hazards after the point of sale was neither legally cognizable nor supported by substantial evidence.

District court’s ruling. The district court ruled that the evidence provided by the family was insufficient to show that a failure to warn by DCo and Ford proximately caused the worker’s injuries and death from mesothelioma [see Products Liability Law Daily’s May 31, 2019 analysis]. According to the district court, the family’s theory of post-sale failure to warn liability was inherently speculative, and they did not point to any evidence that the decedent knew he was working with asbestos-containing products at the naval shipyard or in his automotive work.

Breach of post-sale duty to warn. The appeals court concluded that judgment as a matter of law on the post-sale warning claims was proper after determining that the family lacked sufficiently specific evidence to meet their burden to prove that an adequate post-sale warning from the companies would have allowed the worker to avoid injury. Further, the worker’s deposition testimony of the precautions he would have taken did not meet the necessary bar. Therefore, the court concluded that judgment as a matter of law was appropriate.

Premises liability. The appellate court also rejected the family’s premises liability claim against another company, finding that they failed to present sufficient evidence for a trier of fact to conclude that the hazards of take-home exposure to the worker’s family members were or should have been foreseeable to the company before 1955, the last date when the decedent’s son would have been exposed to his father’s clothes. There was almost nothing published about family members of asbestos-exposed workers until 1960. Therefore, the court concluded that the harm to the worker’s family members was not foreseeable and that the company did not owe a duty to the decedent’s son. Therefore, summary judgment was appropriate on this claim as well.

The case is No. 19-35563.

Attorneys: Thomas J. Breen (Schroeter Goldmark & Bender) for Leslie Jack and David Jack. Brian Timothy Burgess (Goodwin Procter LLP) for DCo, LLC f/k/a Dana Companies, LLC. Peder Kristian Batalden (Horvitz & Levy LLP) for Ford Motor Co. Steven M. Crane (Berkes Crane Robinson & Seal LLP) for Union Pacific Railroad Co.

Companies: DCo, LLC f/k/a Dana Companies, LLC; Ford Motor Co.; Union Pacific Railroad Co.

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