246 Cal. App. 4th 500
Cal. Ct. App.2016Background
- Moran sold refractory/insulation for Kaiser from 1968–1980, supervising installations/removals (often inside large Foster Wheeler boilers) and heavily exposed to visible asbestos dust; diagnosed with mesothelioma in 2011.
- He testified he never knew asbestos inhalation caused cancer until 1989, received no training about asbestos, and rarely saw product packaging or warnings at job sites.
- Foster Wheeler manufactured boilers and listed asbestos-containing refractory products in its specifications/catalogue; an internal 1968 memo noted asbestos hazards but Foster Wheeler did not add warnings to its catalogue.
- Industry/medical sources recognized asbestos hazards decades earlier; OSHA promulgated asbestos workplace regulations in 1972; limited product packaging warnings began in mid-1960s and expanded in early 1970s.
- At trial the jury found for Foster Wheeler after being instructed on the sophisticated user defense (modified CACI No. 1244), concluding Moran "knew or should have known" the asbestos cancer risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence Moran was a "sophisticated user" who knew or should have known the cancer risk from asbestos exposure beginning in 1968 | Moran lacked training/knowledge about asbestos composition/health risks; he never saw warnings or received training; peer-group knowledge not established | Foster Wheeler argued industry knowledge, product warnings, OSHA regs and catalogue listings show Moran or his peer group knew or should have known the risk | Reversed: evidence insufficient. Foster Wheeler failed to show Moran's peer group generally knew the specific cancer risk at relevant times; inferences offered were speculative |
| Whether general scientific/industry knowledge or post-1972 OSHA regulations can be imputed to Moran or his peer group to establish the defense | Generalized industry knowledge and later regulations did not meaningfully reach Moran or his peer group at the initiation of exposure in 1968; warnings were sparse and packaging often removed before Moran saw products | Foster Wheeler relied on industry knowledge, limited packaging warnings, and likely post-1972 employer compliance to argue constructive knowledge | Held: Cannot impute broad scientific/ regulatory knowledge without evidence it was generally conveyed to Moran's peer group at relevant times; 1972 OSHA rules post-dated the start of Moran's exposure and thus could not alone establish knowledge beginning in 1968 |
Key Cases Cited
- Johnson v. American Standard, Inc., 43 Cal.4th 56 (Cal. 2008) (adopts sophisticated-user defense; focuses on objective "knew or should have known" standard)
- Chavez v. Glock, Inc., 207 Cal.App.4th 1283 (Cal. Ct. App. 2012) (summary adjudication appropriate where plaintiff's training/experience made risk objectively known)
- Scott v. Ford Motor Co., 224 Cal.App.4th 1492 (Cal. Ct. App. 2014) (substantial evidence required to impute knowledge over long cumulative asbestos exposure period)
- Collin v. CalPortland Co., 228 Cal.App.4th 582 (Cal. Ct. App. 2014) (insufficient proof of peer-group knowledge; summary adjudication denied)
- Buckner v. Milwaukee Elec. Tool Corp., 222 Cal.App.4th 522 (Cal. Ct. App. 2013) (scope of sophisticated-user knowledge must match scope of warning that would otherwise be required)