Motion,Ex Parte: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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ATTORNEYS AT LAW

Selman Breitman Lip

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227676.) 1O76.IRAIE

RICHARD D, DUMONT (SEN 107967)

rdumont@selmanbreitman.com

PAUL) eMae (SBN 146097) ELECTRONICALLY
pgamba@selmanbreitman.com FILED
TIMOTHY F. BARTEAU (SBN 236112) Superior Court of California,
tbarteau@selmanbreitman.com County of San Francisco
SELMAN BREITMAN LLP JUL 19 2011

33 New Montgomery, Sixth Floor Clerk of the Court
San Francisco, CA 94105 BY: WILLIAM TRUPEK
Telephone: (415) 979-0400 Deputy Clerk

Facsimile: (415) 979-2099

Attorneys for Defendant
SCOTT CO. OF CALIFORNIA

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

RODERICK BRECKLER and JOANN Case No. CGC-08-274566
BRECKLER,
DEFENDANT SCOTT CO. OF
Plaintiffs, CALIFORNIA'S MOTION IN LIMINE
CONCERNING PLAINTIFF'S
v. EMPLOYERS' CONDUCT AND

SUPERSEDING CAUSE EVIDENCE
ASBESTOS DEFENDANTS (BP), et al.,
MIL NO. 18
Defendants.
Complaint Filed : March 12, 2008
Trial Date 2 July 11, 2011

iL INTRODUCTION

Defendant SCOTT CO. OF CALIFORNIA (hereinafter "Scott Co."} anticipates that
plaintiffs’ counsel will seek a motion in limine to prevent Scott Co. from introducing evidence that
conduct by plaintiff's employers constituted a superseding cause of any injury plaintiff may have
sustained as a result of exposure to asbestos-containing products. This presents a narrow issue:
whether the negligence of plaintiffs employers in failing to warn him about the hazards of asbestos
or to provide him with proper equipment to work around asbestos constitutes a superseding cause
sufficient to relieve defendants of liability.

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Plaintiffs’ arguments that derelictions by plaintiff's employers or other third parties can never
amount to a superseding cause, or alternatively must arise from intentionally tortious conduct, are
without merit. The rule of law is that concurrent or superseding causation may be proven by
evidence of the negligence or strict liability of others. Vermeulen v. Superior Court (1988) 204
Cal.App.3d 1192, 1202.

il. ARGUMENT

A Contentions that Superseding Cause is No Defense to a Strict Liability Claim,
or that Negligent Conduct Will not Suffice as a Superseding Cause, are
Without Merit.

The Court of Appeal in Vermeulen v. Superior Court, supra, 204 Cal.App.3d 1192, which
dealt with the conduct of the plaintiff's employer, the U.S. Navy, stated at page 1202:

The phrase "strict liability" is somewhat of a misnomer. The doctrine of strict
liability, under California law, relieves the plaintiff from having to prove the
defendant's negligence in appropriate cases (Barker v. Lull Engineering Co.,
supra, 20 Cal. 3d at p. 431), but it does not eliminate the dectrme of concurrent
or superseding causation. [Citations.] The liability of concurrent tortfeasors is
not dependent upon intentional or criminal conduct __ mere negligence, or their
owa “strict liability,” is sufficient if their product or conduct proximately
contributes to the loss. [Citations.] (Emphasis added.)

Consequently, in the case where concurrent or superseding causation is properly at issue,
defendant should be permitted to prove such causation by evidence of the other tortfeasors'
ordinary negligence or strict liability.

The case of In Re Related Asbestos Cases 543 F.Supp. 1142 (N.D. Cal 1982) is exactly on
point. The court there rejected the argument that the defense of superseding cause does not apply
to sirict liability im tort. The court stated at 1150:

As an affirmative defense, defendants claim that the Navy was negligent in
failing to provide plaintiffs with a safe work place and that this negligence
constituted a superseding cause sufficient to relieve defendants of liability. As
plaintiffs concede, this is a viable defense to defendants’ alleged liability.
[Citations.] However, plaintiffs contend that the defense of superseding cause
does not apply to strict liability in tort. We are unable to agree. "Strict Hability
never has been, and is not now, absolute liability." (Daly v. General Motors
Corp, (1978) 20 Cal.3d 725, 733, emphasis in the original.) The plaintiff in a
strict liability case must still prove that a defect in the design or manufacture of a
product was a proximate cause of injury. [Citations.] In connection with the
issue of proximate cause, the defendant in a strict liability case may assert the
affirmative defense that the negligence of the plaintiff's employer constituted a
superseding cause which relieves the defendant of strict liability.

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227670.) 1076-28824

This holding in Jn re Related Asbestos Cases, supra, 543 F.Supp. 1142 is entirely
consistent with the California Supreme Court decision in Stuitz v. Benson Lumber Co. (1936)

6 Cal.2d 688 (1936), in which plaintiffs employers, the Newbys, who were building contractors,
purchased a piece of wood from defendant Benson Lumber Company for use on scaffolding.
Despite Benson's knowledge that the plank was unsuitable to be used for scaffolding, it sold the
lumber to the Newbys. Although the Newbys were also aware of the plank's unsuitability, they
used it on the scaffold anyway. Plaintiff was injured, and brought an action against Benson.

The Court found that the negligence of the plaintiff's employer, the Newbys, was a
superseding cause of injury which broke the chain of causation. The court held at 695:

[No precedent] would justify the imposition upon the defendant lumber company

of the burden of anticipating that the defendants Newby would be negligent, that

is, that those defendants, at least after they knew of the faulty nature of the

plank, would nevertheless use such a plank as a main support in the construction

of scaffolding with the defective plank, knowing it to be defective[S]uch

negligence in the construction of the scaffolding became their negligence and

their responsibility and terminated the responsibility of the Benson Lumber

Company as to the plaintiff.

Similarly, the court in the case of Fierro y. International Harvester Co. (1982) 127
Cal.App.3d 862, affirmed a defense verdict arising from the death of the driver of a truck which
had overturned and burned. Evidence showed that the plaintiff's employer had ordered the truck
from the manufacturer in a specific "stripped down” condition which the employer later modified
by negligently installing a refrigerator unit on the chassis with a cable from the unit to the truck’s
battery. The court held at 869:

[The employer's] failure to design the truck which i (emphasis in the original)

ultimately placed on the road was the cause (emphasis in the original) of the

injury and superseded any causative factor involving the [manufacturer's]

conduct.

These authorities clearly show that there is no requirement under California law that

superseding cause arise from intentionally tortuous, criminal, or extraordinary conduct.

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227676.) 1076,28824

B. The Negligence of Plaintiff's Employer in Failing to Warn Plaintiff
About the Hazards of Asbestos or to Provide Plaintiff with Proper
Equipment to Work Around Asbestos Constitutes a Superseding
Cause and an Affirmative Defense Sufficient to Absolve Scott Co. of
Liability.

A primary allegation of plaintiffs’ complaint is that Scott Co. failed to warn of the dangers
inherent in the use of asbestos-containing products. However, plaintiffs can prevail on this theory
only if they can show that Scott Co. had a duty to warn plaintiff's employer. Evidence will be
presented at trial that plaintiff's employers were sophisticated users of asbestos, well aware of any
dangers of which Scott Co. could have given a warning, that is, that the employer may be aware of
the dangers of asbestos, and misuse the products, thus absolving Scott Co.'s Hability for failure to
warn the employees. Therefore, Scott Co. had no such duty.

The doctrine of the sophisticated user was referred to in Fierro v. International Harvester

Ce., supra, 127 Cal.App.3d 862. There, the court noted at 866:

[T}here was nothing about the International unit which required any warning to
Luer [the employer]. A sophisticated organization like Luer does not have to be
told that gasoline is volatile and that sparks from an electrical connection or
friction can cause ignition.

In In Re Related Ashestos Cases, supra, 543 F Supp. 1142, the court accentuated the
related observations of Fierro v. International Harvester, supra, 127 Cal_App.3d 862, concerning
ihe “sophisticated user" doctrine. The court noted that various federal courts applying state law
had allowed the defense, and turned to California and the Fierro case:

The California courts have not yet clearly embraced the sophisticated user
doctrine. However, dictum in Fierro v. International Harvester Co., 127 Cal.
App. 3d 862, 179 Cal. Rptr. 923 (1982), a strict liability case, indicated that the
defense is taking hold in California. There, the court noted that Intemational, the
manufacturer of a truck, had no duty to warn plaintiff's deceased of the hazards
of the truck's fuel tank design where the truck's features were known to or
readily observable to Luer, employer of the deceased. ... [W]e believe the highest
California court would permit the defense [of sophisticated user], Accordingly,
we hereby deny plaintiffs’ motion to strike the affirmative defense that the Navy
was a sophisticated user of the asbestos products in question.

Inve Related Asbestos Cases, supra, 543 B.Supp at 1151.

Further support for application of the sophisticated user doctrine in this case is

found in cases finding no duty to warn the ultimate consumer where there is an intervening
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sophisticated user/purchaser. Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444 involved
an explosion caused by plaintiff's use of stove and lantern fuel to light a fire. Plaimtiff
brought a products liability action against the manufacturer of the fuel. The court in Grolf
briefly reviewed cases dealing with the responsibility of the manufacturer to warn the
ultimate consumer, and emphasized that, in general, no lability attaches to a lack of
warning by the manufacturer unless he packages a discrete product which reaches the
consumer intact. In explaining why these cases do not impose a duty to warn on the
manufacturer, the court in Groll stated, at page 449:

Appellant asks respondent to bear a tremendous burden if it is to be responsible

for warning the ultimate consumer. Cases which have imposed a duty on the

manufacturer to warn the ultimate consumer have typically involved tangible

items that could be labeled, or sent into the chain of commerce with the

manufacturer's instructions .. . [Clases have imposed such a duty when the

manufacturer controlled the means to communicate the warning to the consumer,

i.e., by packaging or labeling the ultimate product.

Certainly, ifa manufacturer has no duty to warn the ultimate consumer where there
is an intervening sophisticated user/purchaser, there can be no duty to warn employees of
intervening sophisticated user/purchasers. The employer-employee relationship, in most
cases, is a much more intimate one than the distributor/seller-consumer relationship. It
would be absurd to require a warning to an employee of an intervening sophisticated user,
who could, and should, receive such a warning from his employer, but not to require such
a warning be given to the ultimate consumer.

Other examples may serve to illustrate the point. In Littlehale v. EI. DuPont de
Nemours & Co. 268 F.Supp. 791 (8.D.N.Y. 1966), aff'd 300 F.2d 274 (2d Cir. 1967), two
government employees were injured in a shipboard explosion. Defendant DuPont supplied
government specified blasting caps pursuant to a contract with the United Stated Government.
Because the government was as well-informed of the potential hazards as defendant DuPont,
DuPont had no duty to warn the plaintiff, the government's employee. See also Bradco Oil & Gas
Co. v. Youngstown Sheet & Tube Co. 532 F.2d 501 (Sth Cir. 1976) (under Louisiana law, a

manufacturer is not compelled to warn a sophisticated purchaser of dangers of which the purchaser

knows or should be aware); Jacobson v. Colorado Fuel and Iron Corp. 409 F.2d 1263 (9th Cir.

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1969); in Re Related Asbestes Cases, supra, 543 F.Supp. 1142.

Also, under the Restatement Second of Torts, Section 388, a manufacturer has no duty to
warn the purchaser of a product who knows or should know of a potential product danger,
especially where the user is a professional. Strong v. E.2, DuPont de Nemours Ce., Inc. 667 F.2d
682, 686 (8th Cir. 1981) (citing section 388) (evidence established purchaser of manufacturer's
product and deceased employee of purchaser were fully aware of pipe fall-out hazard). It follows
that if there is no duty to warn the purchaser, there is no duty to warn the purchaser's employees.

Whether sued in negligence or strict products liability, a defendant need not warn a

sophisticated purchaser concerning dangers of which the purchaser knows or should know.
Defendants are entitled to show that the plaintiff's employers knew of the hazards of asbestos and
that the employers were as well-informed, if not better informed, of any potential hazards of
asbestos than Scott Co.

c. Plaintiffs’ Attempt to Exclude Any Proof or Argument About

Superseding Cause Would Deprive Scott Co. of Its Right to Have a
Jury Determine These Issues.

As demonstrated in Vermeulen v. Superior Court, supra, 204 Cal.App.3d 1192, plaintiff's
employers’ conduct may be critical to a fair determination of liability. The Vermeulen court
considered defendants’ contention that the Alameda County Superior Court General Order 7.09
erred in failing to specify that foreseeability of employer's or third party's conduct was for the jury
to determine. The court held: "[w]e do not interpret the order as removing the resolution of factual
issues from the jury. The clear import is to the contrary, and defendants’ fears are unfounded."

id. % 1202. Therefore, ihe effects of employer's conduct may only be determined by the jury.

The Califomia cases recognize that the question whether intervening negligence by an
employer constitutes a superseding case of a plaintiff's injuries is properly left to the jury. In
Southern Cal. Edison y. Harnischfeger Corp. (1981) 120 Cal.App.3d 842, the appellate court
reversed a summary judgment for a defendant on the ground that intervening or superseding cause
was a material fact question for the jury:

The conflicting contentions of the parties raise significant factual issues as to

[the contractor's] role in the cable break. “If there is room for reasonable men to
differ as to whether the intervening act was reasonably foreseeable, then the

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question is properly left to the jury. [Citations].” (Stevens v. Parke, Davis &

Company (1973) 9 Cal.3d 51, 69.) The preceding analysis may also be applied

to Edison's purported failure to inspect the crane and discover any alleged defect

prior to its operation. "The basic question is whether the court should pass on

superseding cause as matter of law or the jury should do so as matter of fact.

From our reading of the cases we conclude that the extent to which designers

and manufacturers of dangerous machinery are required to anticipate safety

neglect presents an issue of fact.” (Balido y. Improved Machinery, Inc. (1972)

29 Cal.App.3d 633, 645.) (Emphasis added.)
Jd. at 853-854.

Similarly, in DeLeon v. Commercial Manufacturing & Supply Co. (1983) 148 Cal.App.3d
336, the court reversed a summary judgment in favor of the manufacturer of a custom-made
holding bin installed in a fruit processing factory near an exposed rotating line shaft which caught
and severed plaintiff's arm while she was cleaning the bin. The court concluded that "whether [the
manufacturer] could rely on [the employer] to protect a worker from adjacent dangers during the
cleaning process, and even the duty of [the manufacturer] to anticipate safety neglect by [the
employer}, should be resolved by the trier of fact ..." /d. at 347.
I CONCLUSION

Based on the foregoing, there can be no basis for excluding evidence of plaintiff's

employers’ conduct with respect to either a superseding cause defense or simply an apportionment

of fault.
Dated: July 18, 2011 SELMAN BREITMAN LLP
By: ‘s/ Timothy F, Barteau
RICHARD D. DUMONT
PAUL J. GAMBA

TIMOTHY F. BARTEAU
Attorneys for Defendant
SCOTT CO. OF CALIFORNIA

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