Manufacturer of Asbestos-Free Product May Still Be Liable for Asbestos Related Injuries

In Sherman v. Hennessy Industries, Inc. (No. B252566, filed June 18, 2015), the Court of Appeal, Second District, reversed a trial court’s grant of summary judgment in favor of a manufacturer of a brake grinding machine. The Court cited an exception to the general rule that manufacturers may not be held liable, under a strict products liability theory, where the plaintiff’s injuries arise from other products that are used in conjunction with the defendant’s product.

Plaintiff and appellant, Michael Sherman, was an automobile mechanic from 1962 to 1977. Mr. Sherman alleged that during this period he used an arcing machine, which abraded brake linings by means of sand paper moving at high speeds. Sherman alleged the machine released asbestos dust, which he then brought home, exposing his wife Debra Sherman to asbestos. Ms. Sherman developed mesothelioma and passed away from exposure to the asbestos dust carried home by her husband.

Defendant, Hennessy Industries, Inc., is the successor-in-interest of the manufacturer of the arcing machine. Hennessy filed a motion for summary judgment contending that it could not be liable to plaintiff because the arcing machine itself contained no asbestos, and that the machine had the capacity to abrade asbestos-free brake linings, which were available during the time period Mr. Sherman utilized the arcing machine. Hennessy relied on O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 342 (“O’Neil”), which held “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”

The trial court granted summary judgment and plaintiff appealed. The Court of Appeal reversed, holding that an exception to the O’Neil holding was applicable.

The Court of Appeal relied on Tellez-Cordova v. Campbell-Hausfield/Scott Fetzger (2004) 129 Cal.App.4th 577, 579-581 (“Tellez-Cordova”). The Tellez-Cordova Court held an exception exists when the defendant’s product was intended to be used with another product for the very activity that created a hazardous situation.” O’Neil, supra, 53 Cal.4th at 361-362 citing Tellez-Cordova, supra, 129 Cal.App.4th at 579-581.

Sherman argued the Tellez-Cordova exception applied because the arcing machine was intended to be used for grinding asbestos containing brake linings. Hennessy countered that the machine could also be used with asbestos-free brake linings and that the Tellez-Cordova exception was, therefore, inapplicable.

The Court of Appeal rejected Hennessy’s argument by noting that Sherman’s evidence in opposition to the motion demonstrated that the arcing machine was designed to abrade only a certain type of brake lining, namely, drum brake linings for passenger cars and light trucks. During the time Sherman was using the arcing machine, brake linings for those types of vehicles almost universally contained asbestos. The Court concluded that the arcing machine substantially contributed to the plaintiff’s harm because the arcing machine was necessarily used in conjunction with the asbestos containing brake linings, and that the danger resulted from the use of the two products together.

The Sherman decision affirms the applicability of the Tellez-Cordova exception, effectively heightening the burden on a manufacturer defendant seeking summary judgment under O’Neil. Sherman will likely be frequently cited by plaintiffs seeking to impose liability on manufacturers of asbestos-free products which incidentally expose persons to asbestos when combined with products that contain asbestos.

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June 22, 2015