Asbestos Client Alert: Sophisticated User Doctrine Expanded to Contractors

In Millard v. Robertshaw Controls Company (CGC-09-275091), the San Francisco Superior Court expanded the scope of the “sophisticated user” doctrine adopted in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56 by applying this defense in the contractor context in granting Defendant Robertshaw Controls Company’s (“Robertshaw”) Motion for Summary Judgment. In Johnson, the California Supreme Court held that, “A [defendant] is not liable to a sophisticated user of [the] product for failure to warn of a risk, harm, or danger if the sophisticated user knew or should have known of that risk, harm, or danger.” (Id. at 71.) It reasoned that, “[I]ndividuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class.” (Id.) As an objective standard, “[i]f they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the [defendant ].” (Id.)

Here, Plaintiff Eugene Millard (“Millard”), who was represented by Brayton Purcell LLP, sued numerous defendants, including Robertshaw, for asbestosis due to his alleged exposure to asbestos during the course of his career installing asbestos insulation. Specifically, Plaintiff alleged that Robertshaw exposed him to asbestos by disturbing preexisting asbestos-containing insulation and fireproofing while installing its controls, having first encountered Robertshaw at a jobsite in 1966. Millard asserted causes of action for strict liability, false representation and negligence against Robertshaw but had dismissed the first two causes during the dispositive motion stage, leaving negligence as the sole issue.

In its Motion for Summary Judgment, Robertshaw argued that Millard was a “sophisticated user” of asbestos by virtue of his affiliation starting in 1965 with Local No. 16 of the International Association of Heat & Frost Insulators and Asbestos Workers Union (“Asbestos Workers Union”), thereby absolving it of any duty as a matter of law. Robertshaw used various publications of the Asbestos Workers Union’s official journal The Asbestos Worker to establish the Union’s knowledge of the hazards of asbestos as early as April 1957. For instance, the issue bearing that date reported that, “The problems of Asbestosis and Silicosis were discussed at large [at the regular annual meeting of the Western States Conference on February 9, 1957], stemming from the report of Local No. 16, in which it was revealed that eleven members passed away last year. A large number of the men had definite symptoms of the aforementioned hazards of our trade.” Under Johnson, in light of such indisputable evidence, the Asbestos Workers Union is, therefore, charged with this knowledge of the dangers posed by asbestos.

As a result, using the objective standard adopted by Johnson, Robertshaw contended that Millard was also deemed to have the Asbestos Workers Union’s knowledge of the hazards of asbestos. This knowledge, its argument continued, vitiated any duty that Robertshaw would have otherwise owed to Millard. In opposition, while conceding the Union’s knowledge concerning the hazards of asbestos by not countering Robertshaw’s evidence, Millard posited two main arguments: (1) Robertshaw did not establish that the Union was a sophisticated user of asbestos-containing fireproofing (as opposed to asbestos-containing insulation); and (2) because Johnson only negated the duty to warn, Robertshaw still owed a duty to protect Millard from asbestos against which the sophisticated user doctrine does not provide a defense. In reply, Robertshaw argued that (1) any distinction between insulation and fireproofing is immaterial, as Millard was a sophisticated user of asbestos-containing products; and (2) Robertshaw did not owe a duty to Plaintiff because he assumed the particular inherent risk of working with asbestos in his job as an insulator given that the Asbestos Workers Union then knew that breathing asbestos dust was harmful to human health.

The court’s tentative ruling was to deny Robertshaw’s motion, finding that Robertshaw failed to establish that Millard was a sophisticated user of asbestos-containing fireproofing. Robertshaw requested the opportunity to contest this ruling, with William “Skip” Martin of Haight Brown & Bonesteel appearing on its behalf. At the outset of oral argument, after observing that Millard was a sophisticated user of insulation, the Honorable Teri L. Jackson presided and asked the parties to address two key issues: (1) whether Millard was also a sophisticated user of asbestos-containing fireproofing; and (2) if so, whether Robertshaw owed a duty to protect Millard from asbestos.

In response, on the first issue, Robertshaw argued that neither California courts, particularly as seen in Taylor v. Elliott Turbomachinery Co. (2009) 171 Cal.App.4th 564 and more recently O’Neil v. Crane Co. (2012) 53 Cal.4th 335, nor asbestos plaintiffs have ever drawn a distinction between any asbestos-containing product. Robertshaw also read the following key quote from an article in the November 1964 issue of The Asbestos Worker, where Dr. Irving Selikoff warned of bystander exposure: “A particular variety of environmental exposure may be of even greater concern. Asbestos exposure in industry will not be limited to the particular craft that utilizes the materials. The floating fibers do not respect job classification. Thus, for example, insulation workers undoubtedly share their exposure with their workmates in other trades; intimate contact with asbestos is possible for electricians, plumbers, sheet-metal workers, steamfitters, laborers, carpenters, boiler makers, and foremen; perhaps even the supervising architect should be included.” As such, the court, Robertshaw contended, should also not distinguish between insulation and fireproofing, as asbestos is the key common ingredient posing the danger.

As for the second issue, Robertshaw analogized three cases – Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, Dyer v. Superior Court (1997) 56 Cal.App.4th 61, and Priebe v. Nelson (2006) 39 Cal.4th 1112 (all of which were cited in its Reply) – holding that the defendant did not owe a duty to protect the plaintiff from a risk inherent in the job. Here, breathing asbestos dust was the risk inherent in Millard’s job as an asbestos insulator of which, Robertshaw established, the Asbestos Workers Union was well aware. Because under Johnson, Millard was also deemed to have this knowledge, Robertshaw did not owe a duty to protect Millard from this danger. Moreover, Robertshaw highlighted the absurdity of relieving it of a duty to warn Millard, while also imposing a duty to protect Millard from the same hazard about which it need not warn. Finally, although Johnson only relieved the defendant of the duty to warn, likely because the defendant was a manufacturer, any other duty was not raised. As a result, Johnson did not prevent a finding of no duty to protect. The court took the matter under submission.

On May 3, 2012, the court reversed its tentative ruling and granted Robertshaw’s Motion for Summary Judgment. It ruled that, “[Robertshaw] sustained its burden of demonstrating that the sophisticated user defense is applicable and [Millard] failed to present evidence creating a triable issue whether [Millard] was a sophisticated user.” This decision is significant in two respects. One, the court found that the Asbestos Workers Union is a sophisticated user of asbestos-containing products, thereby rendering this defense potentially available in any case involving an insulator plaintiff. Two, by applying it in favor of a contractor, in addition to the duty to warn, the court expanded the scope of the sophisticated user defense to negate the duty to protect.

This document is intended to provide you with general information about asbestos law developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.