Summary and Post-Trial Motions for Judgment Upheld on Issues of Take-Home Exposure and Post-Sale Duty to Warn

U.S. Court of Appeals for the Ninth Circuit, February 22, 2021

The plaintiffs appealed the decision of the United States District Court for the Western District of Washington, granting summary judgment to Union Pacific Railroad Company (UP) and granting post-trial motions for judgment as a matter of law for Ford Motor Company and DCo, LLC in a case that arose out of the decedent Patrick Jack’s alleged mesothelioma. Mr. Jack alleged, inter alia, that he was exposed to asbestos via take-home exposure from his father, who worked at UP, and from his own personal automotive work with Ford and DCo products.

On the appeal of summary judgment granted to UP, the court held that based on the record, the plaintiffs “did not produce evidence sufficient to raise a triable issue of fact that asbestos was present on UP’s premises, that [Mr. Jack] or his father actually encountered asbestos, and that exposure was a ‘substantial factor’ in causing [Mr. Jack’s] mesothelioma.” Furthermore, the court held that even if asbestos was present at UP, the claim of liability, which was founded in take-home exposure, failed. That is, the court noted that under Washington law, the concept of duty “encompasses the concept of foreseeability,” and “Washington courts look to evidence specifically addressing the foreseeability of risks to someone in the plaintiff’s position.” Here, the plaintiffs failed to produce evidence to allow “a reasonable trier of fact to conclude that the hazards of take-home asbestos exposure to workers’ family members were or should have been foreseeable to UP before 1955,” the time period at issue, because studies of the occurrence of asbestos-related disease as to family members of asbestos-exposed workers were not published until the 1960s. Given this, the court found that UP did not owe a duty to Mr. Jack and summary judgment was appropriate.

On the appeal of Ford and DCo’s post-trial motions, the court found that “judgment as a matter of law on the post-sale warning claim was proper.” The court held that “even if Washington law countenanced the existence of a manufacturer’s duty to warn of the dangers of post-sale exposure to a third party’s products that exacerbate the original risk,” the plaintiffs failed to present sufficient evidence to prove that an adequate post-sale warning would have caused Mr. Jack to avoid the injury. Rather, the plaintiffs needed to produce evidence “addressing the specific measures plaintiffs would have taken to avoid harm.” Here, Mr. Jack’s testimony on the issue did not meet plaintiff’s burden, and the court found that the trier of fact would have been left “to speculate precisely how, and whether he would have altered his conduct because of a post-sale warning from Ford and DCo.”