[author: Brian Thompson]
The Supreme Court of Washington recently decided the case of Macias v. Saberhagen Holdings, Inc. – a decision that flows against the trend of courts ruling that manufacturers of non-asbestos containing products cannot be held liable simply because their products were used in conjunction with or in the vicinity of asbestos products manufactured by third parties.
In Macias, plaintiff Leo Macias was allegedly exposed to asbestos dust while working as a toolkeeper in a shipyard. One of his duties had been to clean and maintain respirators that other workers wore to filter out dangerous contaminants. Macias later developed mesothelioma.
In a 5-4 decision authored by Chief Justice Barbara Madsen, the court concluded that the defendant manufacturers of the respirators owed a duty to warn Macias of the hazards of asbestos. But just four years ago, this same court announced in Braaten v. Saberhagen Holdings, Inc. and Simonetta v. Viad Corp. that manufacturers have no duty to warn of the dangers inherent in products they do not manufacture, sell or supply. The cases of Braaten and Simonetta are in line with decisions from other jurisdictions. (See e.g. O’Neil v. Crane Co., 53 Cal.4th 335 (2012); Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005); Ford Motor Co. v. Wood, 119 Md. App. 1 (1998); Baughman v. General Motors Corp., 780 F.2d 1131 (4th Cir. 1986); Acoba v. General Tire, Inc., 92 Haw. 1 (1999); Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289 (1992); Faddish v. Buffalo Pumps, Inc., 2012 U.S. Dist. LEXIS 108055 (S.D. Fla. Aug. 2, 2012).)
Interestingly, Chief Justice Madsen authored the majority opinion in Braaten. Another of the justices “switching sides” in Macias to find potential liability on the part of the defendants was Justice Mary Fairhurst, who had previously voted with the majority in Braaten and Simonetta. Justice James Johnson, who had voted with the majority in Braaten and Simonetta, penned Macias’ dissent.
The Macias majority concluded that “Simonetta and Braaten do not control the present case because the duty at issue is to warn of the danger of asbestos exposure inherent in the use and maintenance of the defendant manufacturers’ own products, the respirators.” Specifically, the court reasoned that the plaintiffs’ claims “are fundamentally different from those in Simonetta and Braaten because here the focus of the claims is on the respirator itself[:] it failed to include adequate warnings and instructions regarding the safe use, handling, maintenance, and cleaning of the respirator.” The plaintiffs’ claims “rest squarely on the respirator product in and of itself, and specifically on the inadequate warnings and instructions of the respirator product, without reference to any other manufacturer’s products."
The court noted that the defendant manufacturers in Simonetta and Braaten were outside the chain of distribution of the harmful asbestos products; the defendants’ products did not require the use of asbestos, were not specifically designed to be used with asbestos, by their very nature did not necessarily involve exposure to asbestos, and “only happened to be insulated by asbestos products because the Navy chose to insulate the equipment on its ships with asbestos products.” In contrast, the court reasoned that the respirators were specifically designed and intended to filter contaminants from the air, including asbestos. And, integral to reuse, the respirators had to be safely cleaned. The majority distinguished the respirators from other tools such as hammers and tarps – which were used around the shipyards and similarly returned for cleaning – that came into contact with hazardous asbestos by happenstance: “the respirators come into contact with asbestos because that is what they are designed to do.”
Thus, according to the majority, the defendants in Macias were in the chain of distribution of the products that posed the risk to the plaintiff’s asbestos exposure – the respirators. It did not matter, said the majority, that the respirator manufacturers were not in the chain of distribution of products containing asbestos when manufactured. The majority concluded: “[t]his case comes within the general rule that a manufacturer in the chain of distribution is subject to liability for failure to warn of the hazards associated with use of its own products.”
The dissent criticizes the majority for relying on “false distinctions” in justifying its departure from Braaten and Simonetta, and characterizes the majority’s reasoning as “reminiscent of the Simonetta dissent.” The dissent insists that the issue in Braaten and Simonetta was the same in the present case: the duty to warn of the danger of asbestos exposure inherent in the use and maintenance of the defendants’ own products. The dissent points out that the critical point in Braaten and Simonetta – that the defendants’ products were outside the chain of distribution of the harmful asbestos products – was ignored by the Macias majority.
The dissent reasons that, like the plaintiffs in Braaten and Simonetta, Macias was not harmed by the defendant’s products themselves, but by outside asbestos that came into contact with the defendant’s product. Thus, “to state a claim of injury, Macias necessarily must reference another manufacturer’s asbestos-containing product.” The dissent also points out (and the majority acknowledges) that the respirators were not designed specifically and expressly for the purpose of filtering asbestos, but rather to filter numerous contaminants from the air breathed by the wearer, including welding fumes, paint fumes, dust and other contaminants.
Finally, the dissent echoed several of the policy considerations supporting a finding of no liability in this case. Expecting a manufacturer to warn of the dangers of every contaminant a user could conceivably encounter undermines consumer safety by diluting the effectiveness of warnings: “to warn of all potential dangers is to warn of nothing.” Moreover, “[t]he expansion of liability for asbestos exposure to safety product manufacturers provides strong disincentive to continue making safety products, such as protective respirators.”
Though it remains to be seen what influence Macias will have in other jurisdictions, one court – the California Supreme Court – has already suggested it would have reached a different conclusion on Macias’ same facts. In O’Neil v. Crane Co., 53 Cal.4th 335, 358 (2012), the court cited favorably the Washington Court of Appeal decision below in Macias that rejected the plaintiffs’ theory of liability.
Even within the state of Washington, it may come to pass that lower courts will struggle with determining whether a product that is neither a respirator, a pump, nor a valve falls within the rule of Braaten and Simonetta or within the rule of Macias, prompting the Washington Supreme Court to once again take up the issue.