The plaintiff filed a lawsuit in state court alleging that from 1968 to 1980, he was a salesman for Kaiser Refractories whose clientele was primarily large industrial facilities to which a quarter of what he sold was asbestos-containing insulation, including refractory material, or material used to insulate the interior metal surfaces of industrial boilers and heaters. He also frequently helped remove and install insulation and refractory at his clientele’s facilities. The plaintiff was diagnosed with mesothelioma in 2011 and then sued a number of manufacturers and suppliers of asbestos-containing products, including defendant Foster Wheeler Energy Corporation, which manufactures industrial boilers insulated with refractory, alleging strict liability and negligence/failure to warn claims. At trial, the jury found for the defendant on the grounds that the plaintiff was a “sophisticated user” of the refractory materials and, thus, the defendant had no duty to warn him of the danger associated with his exposure to the asbestos within said materials. The plaintiff appealed, asserting that the evidence was insufficient to support the verdict, and particularly, the findings of the “sophisticated user” defense.
As indicated above, the plaintiff primarily argued that there was insufficient evidence to prove that he was a “sophisticated user” of the asbestos-containing refractory products. California’s “sophisticated user defense” provides that “a manufacturer is exempt from its general duty to warn users of its product’s dangerous propensities if the plaintiff, but virtue of his or her specialized training or profession, knows or should know about the product’s inherent hazards.” At trial, the plaintiff presented evidence reflecting that while he was “somewhat of an expert” in the installation and removing of refractory products in industrial boilers and heaters, he was “certainly not” an expert regarding the material composition of the products or the health hazards of asbestos. He further presented evidence of extensive exposure to asbestos fibers through his work, such that Philip Templin, a frequent expert industrial hygienist and certified asbestos consultant, opined that the plaintiff’s level of exposure was “the most severe” that he had ever encountered. Evidence was also presented of pertinent industry standards, including those from OSHA employed during the period to lower the occurrence of asbestos-related illness, as well as the defendant’s history of its failure to provide any warning in its specifications as to the dangers of asbestos exposure even several years after acquiring such knowledge and after such warnings appeared on the packaging of similar products. With regard to the plaintiff’s knowledge of the dangers, the plaintiff advised that he received no instruction or training during his employment on how to identify asbestos or how to avoid inhaling asbestos dust, and that no information about the risks to his health posed by working around asbestos-containing products. He advised that while he saw the word “asbestos” on the defendant’s manufacturing specifications and catalog, the word by itself had did not register a health concern in his mind. Further, the plaintiff advised that he never observed any warnings on the refractory products he worked with, which was attributed to the fact that many of the products were removed from their boxes prior to his involvement with any installation at the facilities at which he was a salesperson. For its defense, the defendant cross-examined the plaintiff’s witnesses, but did put on any witnesses of its own and rested after the plaintiff concluded its case-in-chief.
Upon reviewing the record, the Second Appellate District reversed the jury’s judgment and remanded the case for a retrial. In support of its position, the court noted that the defendant presented no expert testimony tending to show that in the relevant time period, salesmen of industrial insulation (including those who supervised the removal and installation of refractory materials) were generally aware of the risk of developing cancer from exposure to asbestos dust in the defendant’s boilers from 1968 onward. The court specifically noted that the fact that the plaintiff “had expertise regarding products to recommend to his clients in servicing [the Defendant’s] boilers, and that he supervised the removal and installation of refractory in those boilers, does not, without more, mean that he or his peer group knew or should have known of the cancer risk from asbestos exposure” and that “[w]ithout some evidence establishing the state of his peer group’s knowledge, [Plaintiff’s] level of expertise in his profession did not create a reasonable inference that he knew or should have known about the risk of contracting cancer from exposure to asbestos dust in servicing [the Defendant’s] boilers.” Further, the court found that “the general state of knowledge, science, medicine and industry cannot be constructively imputed to [Plaintiff], without some explanation of how that knowledge (or relevant portions of it) was personally conveyed to his peer group.” The court noted that while the evidence presented suggested a general state of knowledge that the defendant itself might have possessed, that knowledge “did not filter down to persons in [Plaintiff’s] position.” A meticulous recap of the defendant’s positions and why the court did not agree with them was contained within the decision. The court concluded its analysis of those arguments by holding that the defendant “relied largely on negative inferences from disbelief of [Plaintiff’s] testimony to prove that [he] was a sophisticated user, and presented to affirmative evidence to prove that the cancer risk from exposure to asbestos dust was so generally known in [Plaintiff’s] peer group that he knew or should have known that risk. Thus, the evidence was insufficient to support the sophisticated user defense.”