Brayton Purcell Wins Asbestos Appeal for Client

Consumer Expectations Determine Whether Product is Defective

SAN FRANCISCO, CA — April 12, 1998 — Brayton Purcell LLP attorneys won a major victory for their clients when a California Court of Appeal upheld the idea that consumer expectations may determine whether a product such as asbestos is defective (Arena v. Owens Corning Corp. (1998) 63 Cal.App.4th 1178, 74 Cal.Rptr.2d 580). Other tests provide weaker protections for the public, according to the Court.

A History of Asbestos Exposure

Our client, Angelo Arena, was a machinist and engineering technician at the Puget Sound Naval Shipyard in Washington State from 1946 through 1977. Mr. Arena worked in the engine rooms of ships with pipefitters, electricians and insulators who were installing and removing asbestos insulation. He recalled that when workers were tearing out insulation the area was "one big cloud of ...asbestos dust." At those times, the dust covered his clothes and face, but he received no breathing protection device. He was never warned about the dangers of breathing asbestos.

In 1951, Mr. Arena became an engineering technician. His duties included ordering parts and taking inventory of the equipment in engine rooms, shops and storage spaces throughout the shipyard. One of these shops was Shop 56 where asbestos ship insulation was mixed before application. Mr. Arena recalled that the dust in Shop 56 was so thick that he would breathe through a folded handkerchief. When he left the shop, his clothes would be covered in dust, which he shook off with his bare hands.

In 1995, Mr. Arena's doctors discovered a mass in his lung that was later diagnosed as mesothelioma, a fatal cancer caused by asbestos exposure. Through Brayton Purcell LLP, Mr. Arena filed a lawsuit against the makers of the ship insulation asbestos as well as against the mining companies that supplied the raw asbestos to these manufacturers.

Asbestos As a Defective Product

Under California consumer products law, products may be considered defective under several legal theories. Under one of these, the "consumer expectations theory," a product is defective if the product failed to perform "as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."

Two asbestos insulation suppliers, ACL and Cassiar Mining Corporation, argued that their raw asbestos could not be considered a defective product under product liability law as it was simply a mineral mined from the ground. Cassiar's attorneys used the example of rat poison, which when properly labeled, may not be considered defective. The trial court and appellate courts disagreed.

Arena is considered a major victory for consumer rights, as it establishes the continuing viability of the "consumer expectation" test for defective products. Other legal rules championed by the defense and which could govern defective products are weaker. For example, under the "risk–benefit" test a defendant may be able to argue that the risks of making the product safe outweighed the benefits of consumer safety. While this test seems reasonable, those injured by unsafe products rarely feel that the risks outweighed the need for safety. Another commonly applied test for product defects, the "failure–to–warn test" holds that a manufacturer can only be held liable for those known or reasonably foreseeable dangers. Clearly, the consumer expectation test championed by Brayton Purcell LLP case better meets modern society's need for products that are safe and reliable.