Motion,Ex Parte: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                & WwW Ww

LANKFORD.
CRAWFORD
MORENO LLP

ATTORNEYS ATLAW

PAUL V, LANKFORD (State Bar No. 181506)
PAUL LANNUS (State Bar No. 192551)
LANKFORD CRAWFORD MORENO LLP
1850 Mt. Diablo Blvd., Suite 600

Walnut Creek CA 94596

Telephone: 925.300.3520

Facsimile: 925.300.3386

Attorneys for Defendant
FORD MOTOR COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 12 2011

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAMUEL LEAL,
*Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

LOUIS CASTAGNA,
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

ASBESTOS
BRAYTON GROUP 536

Case No, CGC-08-274807

Case No. CGC-07-274230

DEFENDANT FoRD MOTOR COMPANY’S
Motion In Liming TO PRECLUDE
PLAINTIFF FROM UTILIZING THE
CONSUMER EXPECTATION TEST TO
PROVE A DesiGn Derect [MIL #31]

* The use of the term “plaintiff” as used herein refers to the plaintiff in a personal injury action and the
decedent in a wrongful death action; and the use of “plaintiff” shali refer to both plaintiff in the singular and plural, as

appropriate,

-1-

ALANKFORD
CRAWFORD
MORENO LLP

ATYORNEYS AT LAW

GARY COATES,
Plaintiff, CASE No. CGC-08-274784

Vv.
ASBESTOS DEFENDANTS (BP),

Defendants.

CLEM FITZHUGH,
CASE No. CGC-08-274645
Plaintiff,
v.
ASBESTOS DEFENDANTS (B¥#P),

Defendants.

DEFENDANT FORD MOTOR COMPANY’S MOTION IW LIMINE TO PRECLUDE PLAINTIFF
FROM UTILIZING THE CONSUMER EXPECTATION TEST TO PROVE A DESIGN DEFECT
[MIL #31]

Aae Ww NY

28

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

I. INTRODUCTION
I. ARGUMENT
A,
B.

Th. CONCLUSION

TABLE OF CONTENTS

Types OF STRICT LIABILITY ......

Limtrs ON THE APPLICATION OF THE CONSUMER EXPECTATION

IN Cases IN WHICH EXPERT TESTIMONY IS ESSENTIAL TO EXPLAIN
THE CORE ALLEGATIONS, THE CONSUMER EXPECTATION TEST
May Not Be APPLIED... sesseetsesaeessceseeseeeseereanecenceneeaneate

THE PRODUCT FAILURE ALLEGED BY PLAINTIFF LIES OUTSIDE THE
EVERYDAY EXPERIENCE OF ORDINARY CONSUMERS, IS NOT
Opvious, AND THEREFORE Dogs Not PERMIT APPLICATION OF
THE CONSUMER EXPECTATION TEST... scsecccessteeeeesreeee

Cask INVOLVING CONSUMER EXPECTATION IN THE CONTEXT OF
ASBESTOS INSULATION ARE INAPPLICABLE

AS IT PERTAINS TO CONSUMER EXPECTATION, BRESNAHAN ¥.
CHRYSLER IS BOTH DicT4 AND DISTINGUISHABLE

-i-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION TEST

‘TO PROVE A DESIGN DEPECT [MIL #31]28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT LAW

TABLE OF AUTHORITIES

CASES PAGE(S)

Akers v. Kelley Co.
(1985) 173 Cal.App.3d 633
[219 Cal Rptt. S13) ces csseresseescnnseneessnssssnerennesssatseneessemsssersenneeseessnnsennnesestsnsssesses Oy 25D

Anderson v. Owens-Corning Fiberglas Corp.
(1991) 53 Cal.3d 987
[281 Cal Rptr. 528) ooo esceesscescseesseereeeseecsresessneeanscenssnssnaresecsrsesneearsueeseeenaeeseeseseeaserspessaneses 2

Arena v. Owens-Corning Fiberglas Corp.
(1998) 63 Cal.App.4th 1178
[74 Cal. Rptr.2d 580} oe eseesssccssecsseeesssesssessssneesssessnesssnesseersusesssessstenseesssesaresseeess 105 EL

Barker v, Lull Eng’g Co.
(1978) 20 Cal.3d 413
[143 Cal. Rptr, 225] ice resect by 2,3, 4, 9, 13

Bates v. John Deere Co.
(1983) 148 Cal. App.3d 40

Bresnahan y. Chrysler Corp.
(1995) 32 Cal.App.4th 1559
[38 Cal. Rptr.2d 446] and/or
(1998) 65 Cal. App.4th 1149
[76 Cal. Rptr.2d 804] oo. ceecceecseseseeerserseseeesnessersesseecesieeerseeescnseaneeeseeeeretieesseseeanetaneess 12

Campbell v. General Motors Corp.
(1982) 32 Cal.3d 112
[184 Cal.Rptr. 891]

Cronin v. J.B.E. Olson Corp.
(1972) 8 Cal.3d 121
[104 Cal Rpte, 433] oecccccccccsccccssesssessesesansavescsssucessesseranancassssenuisasssssssssenssssassanecesscsansneese2

Lunghi v. Clark Equip. Co.
(1984) 153 Cal. App.3d 485
[200 Cal. Rptr. 387] c.ecccssecssssssseessessecstssseecsecssessessansessessessssnscsisensssesassesssanssnsesnsereenseeseesseeseD

Morson v, Superior Court
(2001) 90 Cal.App.4th 775
[109 Cal. Rptr.2d 343] 0c neeesesenesenenensn by 2, 3, 4, 5, 6,9, 10

Morton v. Owens-Corning Fiberglas Corp.
(1995) 33 Cal.App.4th 1529
[40 Cal. Rptr.2d 22] ..ccsscscsccsccesesssssesacasssssssnessessssersensaeesesseeqasestectsnsesssssasenenussseee 10, 11

Pruitt vy. General Motors Corp.

(1994) 72 Cal.App.4th 1480
[86 Cal. Rptr.2d 4] oecccccsscscesssssssesessessssssssessssseussssssessesssssssssesnasarssestsssenessssene 1,7, 10, 12

~li-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFE FROM UTILIZING THE CONSUMER EXPECTATION TEST
‘TO PROVE A DESIGN DEFECT [MIL #31}SC OD ew NY DH BF Bw HY

12

28

LANKFORD

CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

TABLE OF AUTHORITIES
(continued)

Soule vy, General Motors Corp.
(1994) 8 Cal.4th 548
[34 Cal.Rptr.2d 607] ...

Sparks v. Owens-Illinois, Inc.
(1995) 32 Cal. App.4th 461

[38 Cal Rptr.2d 739] ..cccsssscssseessescessessssecssesssneecereecetsesnssssssesnnessenssasseessneensse

OTHER AUTHORITIES

Jury Instructions

CACTI NO. 1203 wecccccssssessissseesssecrssessnrecceressseresneessscenneesuneerseesauenisnesneessnecesieesaneesneseaneasnessaseenses

Law Reviews & Journals

PAGE(S)

siseene L, 2, 3, 6, 7,9, 10, 12, 13

seers, 10, 11

13

Henderson and Twerski, Achieving Consensus on Defective Product Design

(1998) 83 Cornell L.Rev. 867, 899-900... cesecessnecsnes

~ tii -

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION TEST

TO PROVE A DESIGN DEFECT [MIL #3!}Ss 5D Om NR HB YW De

28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW.

L
INTRODUCTION

The above-named defendant (hereinafier “Defendant”) hereby moves this court for an
order in limine to prevent plaintiff from introducing evidence and requesting instructions applying
the consumer expectation test of design defect strict liability set forth in Barker v. Lull Eng’g Co.
(1978) 20 Cal.3d 413 [143 Cal.Rptr. 225]; Soule v. General Motors Corp. (1994) 8 Cal.4th 548
[34 Cal.Rptr.2d 607], and related cases. Plaintiff should be precluded from so proceeding.

Liability may be proven by applying the consumer expectation test where a product “may
perform so unsafely that the [design] defect is apparent to the common reason, experience and
understanding of its ordinary consumers.” Sou/e, 8 Cal.4th at 569. Application of the test must
be supported by the particular circumstances of the alleged product failure. fd. In determining
whether the test applies, the court should be guided by the complexity of the determinations
required, and in particular by “whether expert testimony is necessary to assist the trier of fact in
drawing appropriately focused conclusions.” Morson v. Superior Court (2001) 90 Cal.App.4th
775, 791 [109 Cal. Rptr.2d 343],

In the present case, the jury must inquire as to whether the dust generated during
automotive repair done by a particular mechanic utilizing friction products contained asbestos to
such a degree as to render the product defective. The determinations required and the extensive
expert testimony to be offered preclude application of the consumer expectation test. Plaintiff's
claims raise complex technical, scientific and medical issues far removed from the ordinary
consumer’s experience. Testimony from epidemiologists, industrial hygienists, pulmonologists,
oncologists and others concerning complex medical and technical facts and theories wil! be
essential to presentation of the case. Plaintiff will ask the jury to make inferences from those
facts and theories. In other words, plaintiff's case is the diametrical opposite of the “res ipsa-
like” fact situations to which the consumer expectation test is limited. See Pruitt v. General
Motors Corp. (1994) 72 Cal.App.4th 1480, 1484 [86 Cal.Rptr.2d 4].

Plaintiff may be able to proceed under an alternate theory or theories of strict liability.

However the enormous complexity of the present claims and their remoteness from everyday

DEFENDANT FORD MOTOR COMBANY’S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION TEST
TO PROVE A DESIGN DEFECT [MIL #31]28

McKENNa LONG &
ALpainge LLP
ATTORNEYS AT LAW
SAN FRANCISCO

consumer experience place them well outside the common understanding of the average
consumer, Therefore, plaintiff should not be permitted to offer evidence or to seek instructions
under the consumer expectation theory.

Il.
ARGUMENT

A. Types OF STRICT LIABILITY

California law generally recognizes three theories of product liability: failure to warn,
manufacturing defect, and design defect. Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 134
[104 Cal.Rptr. 433]; Anderson y. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995-96
[281 Cal. Rptr. 528].

When a design defect is alleged, two tests may be employed to prove liability: consumer
expectation or risk-utility. Barker, 20 Cal.3d at 418, 432. However, not every claim of design
defect permits the application of both tests, and the law places particularly strict limits on the
application of the consumer expectation test. The trial court must therefore determine as a
preliminary matter which theory (if either) is appropriate as indicated by the allegations in the
case. See e.g., Morson, 90 Cal App.4th 775.

B. LIMITS ON THE APPLICATION OF THE CONSUMER EXPECTATION TEST

In Soule, the California Supreme Court clarified the limits governing application of the

consumer expectation test. Soule, 8 Cal.4th at 568-70. Based on a review of three decades of

design defect jurisprudence, Soule set forth the limiting principles:

[T]he consumer expectations test is reserved for cases in which the
everyday experience of the product’s users permits a conclusion
that the product’s design violated minimum safety assumptions, and
is thus defective regardless of expert opinion about the merits of the
design. ...

Unless the facts actually permit an inference that the product’s
performance did not meet the minimum safety expectations of its
ordinary users, the jury must engage in the balancing of risks and
benefits required by the second prong of Barker.

... The crucial question in each individual case is whether the
circumstances of the product’s failure permit an inference that the
product’s design performed below the legitimate, commonly

-2-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [Mil #34}28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW.
SAN FRANCISCO

accepted minimum safety assumptions of its ordinary consumers.
Id. at 567-69 (emphasis omitted).

In other words, the court must determine, as a threshold matter, whether the alleged
product failure in question is reasonably subject to “legitimate, commonly accepted minimum
safety assumptions of ordinary consumers.” /d. at 569. The most significant factor in this
determination is the degree to which expert testimony is necessary to present the essential facts of
the case. Morson, 90 Cal.App.4th at 791. As discussed infra, where expert testimony is
necessary to present the essential facts of the case, the court should find the allegations outside
the purview of ordinary consumers’ safety assumptions and deny application of the consumer
expectation test. Id.

Moreover, the California Supreme Court emphasized that a “jury may not be left free to
find a violation of ordinary consumer expectations whenever it chooses.” Soule, 8 Cal.4th at 568.
Unless the facts actually permit an inference that the product’s performance did not meet the
minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks

and benefits required by the second prong of Barker, Id.

Cc. In Cases IN Wuicn Exrert Testimony Is ESSENTIAL TO EXPLAIN THE CORE
ALLEGATIONS, THE CONSUMER EXPECTATION TEST MAY Not BE APPLIED

The recent Court of Appeal opinion in Morson, addresses the proper analysis in applying
Soule. When a plaintiff seeks to proceed under the consumer expectation theory, the court must

address the following questions:

(1) whether the particular circumstances of the alleged product
failure would support application of the consumer expectations test
from a lay perspective, to infer or determine that (2) the product’s
design performed below legitimate, commonly accepted minimum
safety assumptions of its ordinary consumers. Is the alleged defect
readily apparent to the common reason, experience, and
understanding of the product's ordinary consumers? 90
Cal.App.4th at 791 (citing Soule, 8 Cal 4th at 569).

The proper focus in addressing both parts of the issue, Merson continues, is “the
complexity of the determinations required for each part, i.e., whether expert testimony is

necessary to assist the trier of fact in drawing appropriately focused conclusions.” /d. (emphasis
-3-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT (MIL #31)an vA Fw Ww

28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

added). Morson concerned a San Diego Superior Court general order restricting plaintiffs from
seeking jury instructions pursuant to the consumer expectations test in coordinated cases alleging
allergic reactions caused by latex gloves. /d at 778. The cases, brought by medical workers who
had utilized the gloves as protective barriers, alleged that the inherent qualities of latex rubber, in
combination with substances and processes used in the manufacture of the gloves, resulted in a
product that not only caused life-threatening allergic reactions itself, but that caused allergies to
other substances to develop. id. at 779-80. Plaintiffs in the cases sought to utilize the consumer
expectation test. The issue before the Court of Appeal in the writ proceeding was whether the
general order’s restriction was a proper application of the test as enunciated in Barker.

‘The court upheld the general order, resting largely on its finding that the claims would
require extensive expert testimony. The court found that expert testimony would be required to
address, among other issues, allergic sensitization, manufacturing processes, and the treatment of
raw materials, /d. at 792. The theory of design defect was “one of technical and mechanical
detail” involving “the precise behavior of several obscure components under the complex
circumstances of a particular [. . . plaintiff].” Jd. at 788 (internal quotations and citations
omitted). The court emphasized that the key factor was not the complexity or simplicity of the
product itself, but rather the complexity of the alleged circumstances of injury, pointing out that
“[U]nder Soule ... the consumer expectations test can be applied even to very complex products,
but only where the circumstances of the product’s failure are relatively straightforward.” Jd, at
792. The court pointed out that plaintiff’s claims about manufacturing processes and the
allergenicity of materials were anything but straightforward. Id.

Indeed, the court rejected the plaintiffs’ characterization of their case as being about the
simple failure of the product as a safety device, and focused instead on the type of evidence
necessary to support the allegations. /d. The court also rejected the plaintiff's argument that the
consumer expectation test was applicable simply because consumers would not expect to suffer
allergic reactions from the gloves. Rather, it focused on the typical user’s lack of legitimate,

commonly accepted minimum safety assumptions with respect to the particular circumstances of

-4-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #31]28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

the alleged product failure, as indicated by the extent and type of expert testimony anticipated.
Id.

The case now before the court resembles Morson in all these respects. In Morson, the
“circumstances of product failure’—i.e., the facts essential to the case—involved mechanical and
technical details concerning, among matters, the raw material of the gloves, the manufacturing
process and the physiology of the users’ reactions to the resulting product. In the present case
essential matters requiring complex expert testimony are likely to include:

1. the exposure levels associated with different types of mechanical work, using a
variety of products and performed in a variety of ways;

2. the different methodologies for the measurement of such levels;

3. the behavior and chemical alteration of asbestos fibers under use conditions in

automobile brake and clutch assemblies and during repair work;

4. the presence or absence of contaminants in the manufacture of automobile friction
products;
5. the strength or weakness of scientific evidence associating automobile repair work,

asbestos exposure levels, and the development of disease in human beings.

In essence, the components of brake linings are of a nature so complex that the average
consumer cannot be said to have a valid expectation as to the safety of their by-products.
Contrary to plaintiff's argument, knowledge that materials may contain asbestos does not equal
knowledge about the complex components of friction products and the relative safety of those
components as they decompose or are released during different conditions.

In the face of similar (or perhaps even less) complexity, Morson considered it an
“inevitable conclusion that before the issues of design defect can be adequately litigated and
resolved, expert testimony will be essential to assist the finder of fact in understanding the pros
and cons of Plaintiffs’ arguments.” Jd. at 793. On that basis, application of consumer expectation

was held improper. The facts of the present case, in which the testimony of epidemiologists,

-5-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT {MIL #31]co mW ND HR BR BW YD me

RY YN PN NR YD Dm em ee
SYD WD FF BH KF SS CG e RA A BB WH S| S

28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

industrial hygienists, pulmonologists, oncologists and other experts will be crucial, dictate the
same conclusion.

Plaintiff is expected to argue, incorrectly, that Morsen should be distinguished from the
present case on the basis of a single sentence characterizing asbestos cases such as Sparks v,
Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461 [38 Cal.Rptr.2d 739], as having “limited value”
due to “the problem of comparing apples and oranges in such fact-specific circumstances.”
Morson, 90 Cal.App.4th at 786. This sentence, found in dicta, speaks only to the comparison
between asbestos insulation and latex gloves wherein the Morson court declines to compare the
complexity of asbestos insulation with that of latex glove manufacturing. Jd. In addition, the
asbestos cases referred to in Morson address the consumer expectation test in the context of the
very different circumstances of asbestos insulation, not in the context of friction products. As
discussed infra (§ ILE.), these asbestos insulation cases are as unlike the present case (in
complexity and other aspects) as the Morson court apparently found them unlike latex glove
cases.

D. THE PRODUCT FAILURE ALLEGED BY PLAINTIFF Lies OUTSIDE THE EVERYDAY

EXPERIENCE OF ORDINARY CONSUMERS, IS NoT OBVIOUS, AND THEREFORE DOES
Not PERMIT APPLICATION OF THE CONSUMER EXPECTATION TEST

Preclusion of the consumer expectation test in this case is consistent with the cases and
hypotheticals in Soule and with cases decided since. Soule, 8 Cal.4th at 563-67. The Soule court
offered the following hypotheticals to show the kind of case in which the consumer expectation
test properly applies: cars that explode while idling at stoplights, that experience sudden steering
or brake failure as they leave the dealership, or that roll over and catch fire in a two-mile per hour
collision. /d. at 566-67 n.3. “[T]Jhe ordinary consumers of modern automobiles may and do
expect” that such vehicles will be designed to avoid such occurrences. fd. Soule notes with
approval Campbell v. General Motors Corp. (1982) 32 Cal.3d 112 [184 Cal.Rptr. 891], holding
that a bus lacking appropriately placed “grab bar[s]” properly engaged consumer expectation
because “‘public transportation is a matter of common experience [and] no expert testimony was

required to enable the jury to reach a decision.’” Soule, 8 Cal 4th at 563 (quoting Campbell, 32

-6-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #21)28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Cal.3d at 126), Soule also notes with approval the holding in Akers v. Kelley Co. (1985) 173
Cal.App.3d 633 [219 Cal.Rptr. 513] (concerning a spring-loaded dockboard that “flew apart”
hours after being hit by a forklift) that consumer expectation theory is proper in accidents “‘which
are so bizarre that the average juror, upon hearing the particulars, might reasonably think:
“Whatever the user may have expected from that contraption, it certainly wasn’t that.” Soule, 8
Cal.4th at 565 (quoting Akers, 173 Cal.App.3d at 651)).

‘These cases, in which the consumer expectation text is applicable, have been described
with judicial approval as “res ipsa-like,” in that the essentials of the product failure so obvious as
to be virtually self-evident:

California clearly limited the consumer expectations test to res
ipsa-like cases that do not require the application of a general
standard to determine defective design. For all the rest—what are
here referred to as classic design cases—risk-utility balancing is
mandated. Pruitt, 72 Cal.App.4th at 1484 (quoting Henderson and

Twerski, Achieving Consensus on Defective Product Design (1998)
83 Cornell L.Rev. 867, 899-900).

In the res ipsa-like cases described in Soule and other consumer expectation cases, the
product at issue has “failed” in a sudden and unexpected way and caused sudden and accidental
injuries to a user or bystander. Both the failure and the casual connection to the plaintiff's injury
are obvious. The ordinary consumer has a legitimate expectation that those accidents and injuries
would not occur precisely because the ordinary consumer through experience knows that most
products of the same type do not fail in such a manner and do not cause such injuries. Indeed, it
is safe to say that in most consumer exception situations the effect at issue could only be a
manufacturing defect (although the plaintiff is not required to prove what the defect was) because
even other units of the same product by same manufacturer do not ordinarily fail and cause injury
in that way - that is precisely why the failure defeats ordinary consumer expectations. Moreover,
because the vast majority of such products do not fail and cause injury in such a manner, it is
obvious that the products can be designed and built not to do so and usually are so designed and

built. Because of that fact, the risk/benefit test of design defect arguably becomes irrelevant

-7-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT {MIL #34}28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

because it is obviously possible to obtain the benefits of the product without encountering the risk
of such accidents or injuries.

The present case is anything but res ipsa-like. In the first place, there is no “product
failure” alleged as that term would be understood by an ordinary consumer. There is no
allegation that the product failed to perform its ordinary functions, or that it suddenly broke,
exploded, came apart or in any way caused sudden and accidental injuries. Indeed, there is no
claim that any particular product actually caused any injury to plaintiff. Instead, the claim is that
because of its incorporation of a particular substance—asbestos—the product contributed, along
with a lot of other products, to an overall exposure to that substance over the life of plaintiffs that
led to a very rare disease, Such an injury-causing mechanism—not caused by any particular
product but by the cumulative effect of many products—is obviously far outside the knowledge
or experience of the ordinary consumer.

Moreover, it is undisputed that every similar product during the relevant time period of
plaintiff's alleged exposure contained the same substance and, if plaintiff's causation theory has
any merit, could have contributed to a similar injury under the same circumstances. Thus, it is
not obvious, as in the consumer expectations/res ipsa-like situations that the benefits of the
product could have been obtained without such risks. In any event, unlike the consumer
expectation situation, the ordinary consumer could not have experience with similar products that
do not entail such risks. In this situation, whether the “tisk” of the product causing such a rare
injury outweighs the benefits provided by the product (essentially allowing motor vehicles to be
driven by providing a means of stopping them) is exactly the type of question that the risk/benefit
test is intended to answer.

This is particularly true with regard to brake pads and other automotive friction products.
The degree of risk from asbestos exposure from such products, and their casual contribution to
plaintiff s alleged injury is not obvious and involves complex technical, scientific, chemical, and
biological issues. Defendant will introduce evidence that the asbestos in such products

decomposes during the braking process and that any asbestos fibers released from Defendant’s

-8-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #31]28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

products are so small that they cannot cause injury. This evidence will be buttressed by
epidemiological studies demonstrating conclusively that any exposure received by persons
involved in changing brakes or working with friction products does not cause or increase the risk
of mesothelioma, lung cancer or other asbestos-related disease. The materials, wear,
decomposition, and repair procedures connected with complex automobile sub-assemblies like
brakes and clutches are remote from ordinary consumers’ knowledge. Even more remote are the

physiological processes which may have produced plaintiff's medical conditions (processes that

continue to challenge modern medical science) and the existence or non-existence of links

between conditions like plaintiff's and the type of products manufactured by each of the
defendants. Yet each of these matters will be the subject of conflicting scientific, technical and
medical expert testimony in this case.

Unlike Campbell, therefore, the present cases will indisputably require expert testimony to
assist the jury in reaching its decision about essential issues. Soude, 8 Cal.4th at 563 (citing
Campbell, 32 Cal.3d at 126). This expert testimony, unlike that in Akers, will not be restricted to
“establish[ing] that the manufacturer was responsible for the [alleged] flaw,” but will touch on
every essential allegation, including specific causation (exposure) and medical causation (the
alleged connection between the alleged exposure and plaintiffs condition). /d. at 565 (citing
Akers, 173 Cal. App.3d at 651).

On the other hand, the present cases do belong among the “many situations [in which] the
consumer would not know what to expect because he would have no idea how safe the product
could be made.” Barker, 20 Cal.3d at 430 (internal quotations and citation omitted). As in the
cases involving commercial cotton pickers or “Bobcat” loaders reviewed by the Soule court, “it is
difficult to conceive that an ordinary consumer would know what to expect concerning the safety
design” of brake and clutch parts aside from their efficacy in stopping vehicles, which is clearly
not at issue in these cases. Soule, 8 Cal.4th at 564 (discussing Bates v. John Deere Co. (1983)
148 Cal.App.3d 40 [195 Cal.Rptr. 637], and Lunghi v. Clark Equip. Co. (1984) 153 Cal.App.3d

-9-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PREGLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT (Mil #31]Bw NV

28

MCKENNA LONG &
ALpRipce LLP
ATTORNEYS AT LAW
SAN FRANCISCO

485 [200 Cal.Rptr. 387]). Moreover, as noted in Barker, 20 Cal.3d at 430, relied on in Morson,
90 Cal.App.4th at 792, and restated in Soule, 8 Cal.4th at 567:

a complex product, even when it is being used as intended, may

often cause injury in a way that does not engage its ordinary

consumers’ reasonable minimum assumptions about safe

performance. For example, the ordinary consumer of an

automobile simply has “no idea” how it should perform in all

foreseeable situations, or how safe it should be made against all
foreseeable hazards.

In the present case, plaintiffs claim that the injury occurred through mechanical and
biological processes and events far removed from the ordinary consumer’s assumptions about
automobiles or their subassemblies—through processes about which an ordinary consumer has
“no idea” and that could not possibly engage consumer assumptions about safe performance.

In this respect, the present cases far more closely resembles, in addition to Morson, the
post-Soule case of Pruitt, The claims in Pruitt concerned the deployment of an automobile air-
bag in a low-speed collision. The court held that this did not trigger ordinary consumer’s
minimum safety assumptions, despite users’ familiarity with automobiles themselves. 72
Cal.App.4th at 1483-85. Finally, the circumstances of the present case closely parallel those of
Soule itself, in which the failure of an automobile’s wheel sub-assembly was deemed beyond the
limits of ordinary consumers’ safety assumptions.

E. CASES INVOLVING CONSUMER EXPECTATION IN THE CONTEXT OF ASBESTOS
INSULATION ARE INAPPLICABLE

Plaintiff is expected to cite cases involving asbestos containing insulation for the
proposition that asbestos containing products are subject to the consumer expectation test.
Sparks, 32 Cal.App.4th 461; Morton v. Owens-Corning Fiberglas Corp. (1995) 33 Cal. App.4th
1529 [40 Cal.Rptr.2d 22]; Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178
{74 Cal.Rptr.2d 580}. However, even assuming those cases were correctly decided in light of
Soule, they are distinguishable. Sparks, Morton and Arena involved insulation products
composed of friable, asbestos-containing material which plaintiffs cut, applied, removed or

otherwise manipulated as part of their daily work. The courts applied the consumer expectation

-10-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING YHE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #31)28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

test because the product defect allegedly arose in the course of the product’s “normal use.”
Arena, 64 Cal.App.4th at 1187. The normal use of friction products is to stop cars and ordinary
consumers cannot be expected to have reasonable minimum safety assumptions with respect to
any other area of their performance.

A closer examination of the reported facts in Sparks illustrates the differences between
friction products and insulation materials. In Sparks, the plaintiff claimed an injury resulting
from the asbestos to which he was exposed while installing and removing insulation on a military
ship. This insulation was made of “friable material that had to be cut and shaped to perform its
insulating function on irregularly-shaped objects” which generated “large amounts of asbestos-
jaden dust during normal installation, inspection, removal, and replacement processes.” Sparks,
32 Cal.App.4th at 474-75. The plaintiff's expert estimated that “a single saw cut across [the
insulation] during removal could potentially release trillions of asbestos fibers.” Jd. at 468, In
this insulation case, the consumer expectation standard was applicable because the normal
consumer knew that the insulation materials contained asbestos and knew that multitudes of
asbestos fibers were released any time the materials were cut. Id. at 475. The Sparks plaintiff
could show the circumstances of the accident, that is, breathing clouds of dust known for a fact to
contain high quantities of asbestos. Campbell, 32 Cal.3d at 127. The Sparks plaintiff could also
show the “objective features of the product which are relevant to an evaluation of its safety,” that
is, that the insulation contained high levels of asbestos which were released into the air any time
the plaintiff cut the material. Id.

The circumstances of friction exposure significantly differ from those found in the
insulation cases. First, the asbestos contained in friction products is non-friable. Dust is not
created unless the packaged materials are subjected to a high degree of force or friction. Second,
allegations of exposure to asbestos fibers in the Sparks, Morton and Arena cases did not implicate
complex conflicting theories concerning changes to the material under high-temperature use
conditions, or any of the other highly technical issues that are central to causation in this case and

others involving friction products. In the insulation cases, it was beyond dispute that plaintiffs

-lt-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #31]28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

regularly worked in and around airborne dust containing asbestos fibers. Evidence of the airborne
dust was visible to the naked eye. No such certainty pertains in this case, and expert testimony is
required to ascertain the content of any dust generated by the defendants’ products. Third, the
circumstances of injury are quite complex. Expert testimony will be required to assist the jury in
determining the circumstances under which the alleged exposure occurred. Finally, the extent of
exposure alleged was thousands of times greater in the insulation cases than in friction product
cases, rendering issues of medical causation far less complex.

Unlike the courts’ determination in the insulation cases, the plaintiffs in these cases cannot
show that the injury and circumstances alleged are within the common experience of the average
jury member. Moreover, the circumstances of the accident and the objective features of the
product are not the kind for which the average person can create a reasonable expectation from a
simple viewing.

FE AS IT PERTAINS TO CONSUMER EXPECTATION, BRESNAHAN V. CHRYSLER IS BOTH
Dicta AND DISTINGUISHABLE

Plaintiff is also expected to cite Bresnahan v. Chrysler Corp. (1995) 32 Cal.App.4th 1559
(38 Cal.Rptr.2d 446] and/or Bresnahan vy. Chrysler Corp. (1998) 65 Cal.App.4th 1149 [76
Cal.Rptr.2d 804]. In the first place, Bresnahan must be ignored because its comments addressing
consumer expectation have been recognized as pure dicta and a misinterpretation of Soule.
Pruitt, 72 Cal. App.4th at 1485 (“The discussion of the consumer expectations test in both
Bresnahan opinions is clearly dicta. It also conflicts with our Supreme Court’s discussion of the
applicability of the test in Soule.”). Moreover, even if this were not the case, Bresnahan is easily
distinguished from the instant case, Bresnahan concerned the inflation of an automobile airbag,
and its comment in dicta that consumer expectation could have applied (had evidence not been
sufficient on other grounds as well) was predicated on the court’s finding that a consumer would
be capable of forming an expectation about the performance of the “by now commonplace
product of an airbag equipped automobile” in a collision. By no stretch of the imagination can a

brake assembly and its constituent parts be characterized as a “commonplace product,” nor does

-12-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT [MIL #31]28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

the fact that the friction product is part of a car change the fact that very few consumers ever
acquire any awareness of the constituent parts of a brake assembly. As dicta, and because it is

distinguishable on the facts, Bresnahan need not be taken into account by this court.

.
CONCLUSION

The limits on use of the consumer expectations test should be rigorously applied. As the
Soule court noted, if the test is expansively utilized, it will prove to be unworkable and unfair in
its application. Soule, 8 Cal. 4th at 569. With this in mind, following the cases set forth above,
Defendant requests an order:

1. precluding plaintiff from introducing evidence seeking to establish liability
according to the consumer expectation test for design defect;

2. precluding plaintiff from requesting CACI 1203 or any other jury instruction based

upon the consumer expectation theory set forth in Barker, Soule and related cases; and

3. precluding plaintiff from otherwise proceeding under the consumer expectation
prong of Barker.
Dated: December 2, 2010 LANKFORD CRAWFORD MORENO LLP

“AL Harn. a

PAUL V. LANKFORD
PAUL LANNUS

By:

Attorneys for Defendant
FORD MOTOR COMPANY

-13-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM UTILIZING THE CONSUMER EXPECTATION
TEST TO PROVE A DESIGN DEFECT (MIL #31]