Exhibit,Appendix: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
a

aRcHNOSAERONSIN0SSIv.E

ROGER M. MANSUKHANI (SBN: 164463)
STEVEN A. SOBEL (SBN: 177210}

KC. SWISHER (SBN: 245238)

GORDON & REES LLP

101 W. Broadway, Suite 2000

San Diego, CA 92101

Telephone: (619) 696-6700

Facsimile: (619) 696-7124

Attorneys for Defendant
HENNESSY INDUSTRIES, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 22 2010

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN
BRECKLER,

Plaintiff,
vs,
ASBESTOS DEFENDANTS (B“P) As

Reflected on Exhibits B, B-1, C, H, I; and
DOES 1-8500; and SEE ATTACHED LIST.

CASE NO. CGC-08-274566

EXHIBITS 1 AND 2 TO COMPENDIUM
OF FOREIGN AUTHORITY IN
SUPPORT OF HENNESSY
INDUSTRIES, INC.’S MOTION FOR
JUDGMENT ON THE PLEADINGS

[Filed and served concurrently with
Notice of Motion and Motion for
Judgment on the Pleadings;
Memorandum of Points and Authorities
Declaration of K.C. Swisher; Request for
Judicial Notice; and [Proposed] Order.]]

Date: September 21, 2010
Time: 9:30 a.m.

Judge: Hon. Harold E. Kahn
Dept: 220

Complaint Filed: March 12, 2008
Trial date: None set

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EXHIBITS | AND 2 TO COMPENDIUM OF FOREIGN AUTHORITY IN SUPPORT OF HENNESSY
INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGSEXHIBIT& . .
@ LexisNexis’

LEXSEE 780 F.2D 1131

Caution
As of: Apr 01, 2010

Ronnie K. Baughman, Appellant y. General Motors Corporation,
Appellee

No. 85-1579

UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT

780 F.2d 1131; 1986 U.S. App. LEXIS 21230; CCH Prod. Liab. Rep.
P10,874

November 7, 1985, Argued
January 7, 1986, Decided

PRIOR HISTORY: [**1] Appeal from the
United States District Court for the District of
South Carolina, at Columbia. Clyde H.
Hamilton, District Judge. (C/A 84-1520-15).

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff injured
party sought review of the judgment of the
United States District Court for the District of
South Carolina entering summary judgment for
defendant manufacturer in a diversity action
under S.C. Code Ann. § 15-73-10 et seq., on the
basis that the manufacturer did not design,
manufacture, or place into the stream of
commerce the wheel that exploded and caused
injuries.

OVERVIEW: The injured party was a tire
mechanic who was injured when he was
changing a tire on 4 1979 GMC truck. The tire
was mounted on a CR-2 multi-piece wheel.
After he replaced the tire, inflated it, and began
to remount the wheel, it exploded, causing him
injuries. The district court granted summary
judgment to the manufacturer on the grounds
that it did not design, manufacture, or place
into the stream of commerce the wheel in
question. The court affirmed. The court held
that because the manufacturer neither designed
nor manufactured the rim, if it was to be held
liable, it would have to be on the theory of
assembler’s liability. Where the manufacturer
did not incorporate the defective component
part into its finished product and did not place
the defective component into the stream of
commerce, there was no rationale for imposingliability. The manufacturer had not had an
opportunity to test, evaluate, and inspect the
component; it had derived no benefit from its
sale; and it had not represented to the public
that the component part was its own. The
manufacturer never had the opportunity to
evaluate CR-2 wheels. It did not supply the
replacement part and had no duty to warn.

OUTCOME: The court affirmed the district
court's grant of summary judgment for the
manufacturer. The court held that the district
court was correct in holding that the
manufacturer could not be held liable for
injuries caused by a wheel rim assembly which
it did not design, manufacture, or place into the
stream of commerce.

LexisNexis(R} Headnotes

Torts > Products Liability > Strict Liability
[HNi} A manufacturer or assembler who
incorporates a defective component part into its
finished product and places the finished
product into the stream of commerce is liable
for injuries caused by a defect in the
component part. The fact that the manufacturer
or assembler did not actually manufacture the
component part is irrelevant, as it has a duty to
test and inspect the component before
incorporating it into its product. As a necessary
corollary, the plaintiff must be able to show
that the defendant sold or exercised control
over the defective product.

Civil Procedure > Summary Judgment >
Standards > General Overview

[HN2] Summary judgment is appropriate where
the material facts are not in dispute and a party
is entitled to judgment as a matter of law. Fed.
R. Civ. P. S6(c}.

COUNSEL; Frederick A. Gertz (George A.
Kastanes; Cheryl A. Forest; Gertz, Kastanes &
Moore on brief) for Appellant.

Stephen G. Morrison (Richard H. Willis;
Nelson, Mullins, Grier & Scarborough on brief)
for Appellee.

JUDGES: Chapman and Sneeden, Circuit
Judges and Hilton, United States District Judge
for the Eastern District of Virginia, sitting by
designation.

OPINION BY: CHAPMAN

OPINION
[*1131] CHAPMAN, Circuit Judge:

This is an appeal from summary judgment
entered for the defendant General Motors
(GM), in a diversity action brought under S. C.
Code Ann. § 15-73-10 et seq. This statute is
Section 402A of the Second Restatement of the
Law of Torts, which the General Assembly of
South Carolina has enacted. The plaintiff,
Ronnie Baughman, sought to recover for
injuries received when a multi-piece wheel
from a 1979 GMC truck separated with
explosive force. GM was granted summary
judgment on the grounds that it did not design,
manofacture, or place into the stream of
commerce the wheel in question. From this
decision Baughman appeals. [**2] We affirm.

[#1132] 1

Baughman was a tire mechanic; he was
employed by Newton Truck Rentals, Inc. at the
time of his accident. On May 25, 1981,
Baughman was changing a tire on a 1979 GMC
truck. The tire was mounted on a CR-2 multi-
piece wheel. Baughman removed the left
outside rear wheel from the truck and
disassembled the tire, tube, rim base and side
ring. He then replaced the tire and tube and
reassembled the rim base and side ring.
Baughman put the wheel in a safety cage incase it separated during inflation. Once the tire
was inflated, Baughman removed it from the
cage and rolled it over to the truck. Baughman
began to remount the wheel and it exploded,
severely injuring him.

At the time of the accident, Baughman had
over two and one-half years of continuous
experience in servicing all types of multi-piece
wheels. By his own estimate, he had changed
over 10,000 tires before his accident.
Baughman had read literature on safety
procedures for mounting various types of
multi-piece wheel assemblies and twice before
he had seen multi-piece wheels explode.

GM only puts CR-3 wheels on its trucks,
and there is no question that the CR-2 wheel
which injured Baughman was not [**3]
marketed by GM. The CR-3 is also a multi-
piece wheel. The CR-3 and the CR-2 share the
same rim base, but the CR-2 has a one-piece
side ring and the CR-3 has a two-piece side
ring. Baughman's expert testified that the
locking mechanism which holds the wheels
together is identical on the CR-2 and the CR-3,
but he went on to testify that the CR-3 is less
likely to explode because of its two-piece side
ring design.

Baughman presented two theories of
liability. First, in designing the GMC truck in
question, GM selected a CR type wheel, and
Baughman argues that all CR type wheels are
unreasonably dangerous. Even though the
wheel which caused his injury is not the wheel
which GM put on the truck, Baughman would
base liability on the fact that it is a similar type
of wheel. Second, Baughman aiso argues that
GM failed to warn him that the wheel could
explode after the tire was fully inflated.

GM moved for summary judgment. The
district court granted the motion, holding that
GM could not be liable for an allegedly
defective wheel which it did not design,
manufacture, or place into the stream of
commerce, The district court also held that GM

had no duty to warn of possible dangers posed
by [**4] replacement parts that it did not
design, manufacture, or place into the stream of
commerce, The court went on to note that even
if GM had such a duty, its failure to warn could
not have been the proximate cause of
Baughman's injuries since Baughman was
already weil aware of the dangers inherent in
multi-piece truck wheels. Baughman appeals
from this decision.

i

As GM neither designed nor manufactured
the CR-2 rim, if GM is to be held liable then it
must be upon the theory of assembler's liability.
[HN1] A manufacturer or assembler who
incorporates a defective component part into its
finished product and places the finished
product into the stream of commerce is liable
for injuries caused by a defect in the
component part. The fact that the manufacturer
or assembler did not actually manufacture the
component part is irrelevant, as it has a duty to
test and inspect the component before
incorporating it into its product. Nelson v.
Coleman Company, 249 S.C. 652, 155 S.B.2d
917 (1967), AS a necessary corollary, the
plaintiff must be able to show that the
defendant sold or exercised control over the
defective product. See Ryan v. Eli Lilly &
Company, 514 F. Supp. 1004, 1006-07 (D.S.C.
1981). {®*5]

‘Where, as here, the defendant manufacturer
did not incorporate the defective [*1133]
component part into its finished product and
did not place the defective component into the
stream of commerce, the rationale for imposing
liability is no longer present. The manufacturer
has not had an opportunity to test, evaluate, and
inspect the component; it has derived no benefit
from its sale; and it has not represented to the
public that the component part is its own.

Baughman asserts that the GMC truck is
defective because it incorporates the CR type
wheel. His position is that GM selected a CRtype wheel for its truck, and should not escape
liability for injuries caused by a CR type wheel
simply because it is not the same wheel which
GM put on the truck. This argument must fail
for the reasons stated above. GM never had the
opportunity to test or evaluate CR-2 wheels
such as the one which injured Baughman,
therefore GM is not liable for his injuries.

Baughman also argues that the GMC truck
was defective because GM failed to adequately
warn of the dangers associated with multi-piece
wheel rims. Since the exploding rim in question
was a replacement component part and not
original [**6] equipment, Baughman's position
would require a manufacturer to test all
possible replacement parts made by any
manufacturer to determine their safety and to
warm against the use of certain replacement
parts. If the law were to impose such a duty, the
burden upon a manufacturer would be
excessive, While a manufacturer can be fairly
charged with testing and waming of dangers
associated with components it decides to
incorporate inte its own product, it cannot be
charged with testing and waming against any of
a myriad of replacement parts supplied by any
number of manufacturers. The duty to warn
must properly fall upon the manufacturer of the
replacement component part, See Spencer v.
Ford Motor Company, 141 Mich. App. 356,
367 N.W.2d 393 (1985). Since GM may not
properly be charged under the law with a duty
to wam against replacement component parts,
plaintiffs failure to warn theory of liability
cannot prevail.

[HN2] Summary judgment is appropriate
where the material facts are not in dispute and a
party is entitled to judgment as a matter of law.
Rule 56(c), Fed. R.Civ.P. In the instant case
there is no dispute as to the material facts and
GM is entitled to judgment. [**7] The district
court was correct in holding that GM cannot be
liable for injuries caused by a wheel rim
assembly which it did not design, manufacture,
or place into the stream of commerce.

AFFIRMED.Page 1

EXHIBIT

2Page 2

@ LexisNexis’

LEXSEE 198 P.3D 493

>

Positive
As of: Apr 01,2010

VERNON BRAATEN ET AL., Respondents, v. SABERHAGEN HOLDINGS ET
AL. Defendants, BUFFALO PUMPS, INC., ET AL., Petitioners, GENERAL
ELECTRIC COMPANY, Respondent.

No, 80251-3
SUPREME COURT OF WASHINGTON

163 Wn.2d 373; 198 P.3d 493; 2008 Wash. LEXIS 1223

March 11, 2008, Argued
December 11, 2008, FiledPRIOR HISTORY: [***1)

Appeal from King County Superior Court, 05-2-03249-9. Honorable Sharon S.
Armstrong.
Braaten vy. Saberhagen Holdings, 137 Wn. App. 32, 151 P.3d 1010, 2007 Wash. App.
LEXIS £28 (2007)

CASE SUMMARY:

PROCEDURAL POSTURE: The King County Superior Court, Washington, granted
summary judgment in favor of defendant manufacturers on respondent worker's
negligence suit against the manufacturers, alleging that they failed to warn him of the
danger of exposure to asbestos during routine maintenance of their equipment. The
Washington Court of Appeals reversed. The manufacturers appealed.

OVERVIEW: The manufacturers argued that they had no duty to warn of the dangers
associated with use of another manufacturer's products. The supreme court found that the
worker did not present sufficient evidence to withstand summary judgment as to whether
the manufacturers manufactured, sold, or were otherwise in the chain of distribution of
the asbestos-containing insulation applied to their products. The manufacturers were not
liable under the Restatement (Second) of Torts § 402A (1965) for failure to warn of the
danger of exposure during maintenance of their products to asbestos-containing
insulation that was manufactured and supplied by third parties. The manufacturers had no
duty to warn of the danger of exposure to asbestos in the insulation applied to their
products. The manufacturers had no duty under common law products liability principles
to warn of exposure to asbestos in the insulation applied to their products by the navy
because a manufacturer generally had no duty to warn of hazards associated with another
manufacturer's products. They had no duty to warn of the danger of exposure to asbestos
in packing and gaskets.

OUTCOME: The court of appeals was reversed and the trial court's orders of summary
jadgment were reinstated.

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review

Civil Procedure > Summary Judgment > Evidence

Civil Procedure > Summary Judgment > Standards > Genuine Disputes

Civil Procedure > Appeals > Standards of Review > De Nove Review

[HN1] Summary judgment is reviewed de novo. Summary judgment is appropriate where
there is no genuine issue as te any material fact and the moving party is entitled to
judgment as a matter of law, Wash. Super. Ct. Civ. R. 56(c). Evidence is construed in the
light most favorable to the nonmoving party.Torts > Products Liability > Duty to Warn

Torts > Products Liability > Strict Liability

|HN2] Common law product liability claims are governed by the Restatement (Second) of
Torts § 402A (1965). Section 402A is intended to apply to those in the chain of
distribution, i.¢., a manufacturer, dealer or distributor of the product.

Torts > Products Liability > Duty to Warn

Torts > Products Liability > Strict Liability

[HN3] The Restatement (Second) of Torts § 402A (1965) provides: (1) One who sells any
product in a defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused to the ultimate user or
consumer, of to his property, if (a) the seller is engaged in the business of selling such a
product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies
although (a) the seller has exercised all possible care in the preparation and sale of his
product, and (b)} the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

Torts > Products Liability > Duty to Warn

Torts > Products Liability > Strict Liabiliey

{HN4] Under the Restatement (Second) of Torts § 402A (1965), liability may be found in
the case of inadequate warnings because a product may be faultlessly manufactured and
designed, yet still not be reasonably safe when placed in the hands of the ultimate user
without first giving an adequate waming concerning the manner in which to safely use
the product. A manufacturer is not liable for failure to warn of the danger of exposure to
asbestos in insulation applied to its products if it did not manufacture the insulation and
was not in the chain of distribution of the insulation. It makes no difference whether the
manufacturer knew its products would be used in conjunction with asbestos insulation.

Torts > Products Liability > Duty to Warn

Torts > Products Liability > Strict Liability

[HN5] A manufacturer's duty to wam is restricted to warnings based on the
characteristics of the manufacturer's own products; the law generally does not require a
manufacturer to study and analyze the products of others and warn users of the risks of
those products. Courts reason, among other things, that in general a manufacturer has no
obligation to become expert in another manufacturer's product and that the policy
underpinnings for strict liability (where this is the rule in the jurisdiction, as in
Washington) do not apply when a manufacturer has not placed the product in stream of
commerce.

Torts > Products Liability > Duty to WarnTorts > Products Liability > Strict Liability

[HIN6] The general rule does not apply to a manufacturer who incorporates a defective
component into its finished product, The finished product manufacturer is not relieved of
the duty to warn merely because the defective component was manufactured by another.
The justification for this liability, sometimes referred to as "assembler's liability,” is that
the assembler derives an economic benefit from the sale of the product incorporating the
defective component, has the ability to test and inspect the component when it is within
the assemblers possession, and by including the component in its finished product
Tepresents to the consumer and ultimate user that the component is safe. In addition, there
are some cases where the combination of two sound products creates a dangerous
condition, and both manufacturers have a duty to warn.

Torts > Products Liability > Duty to Warn

{HN7?7] A manufacturer's duty to exercise ordinary care and wam of dangers associated
with its product is governed by the Restatement (Second) of Torts § 388 (1965). Under §
388, the manufacturer has the duty to wam of the hazards involved in the use of the
product that are or should be known to the manufacturer. But Washington case law does
not support extending the duty to warm to another manufacturer's product. Rather,
Washington state cases generally limit § 388 liability to those in the chain of distribution
of the product, such as manufacturers, suppliers, or sellers, and this accords with the case
law from other jurisdictions,

Torts > Products Liability > Duty to Warn

[HIN8] The Restatement (Second) of Torts § 388 (1965) provides: One who supplies
directly or through a third person a chattel for another to use is subject to liability to those
whom the supplier should expect to use the chattel with the consent of the other or to be
endangered by its probable use, for physical harm caused by the use of the chattel in the
manner for which and by a person for whose use it is supplied, if the supplier (a) knows
or has reason to know that the chattel is or is likely to be dangerous for the use for which
it is supplied, and (b) has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to
inform them of its dangerous condition or of the facts which make it likely to be
dangerous.

Torts > Products Liability > Strict Liability

[HN9] The theory underlying strict liability under the Restatement (Second) of Torts §
402A (1965) is that, the seller, by marketing his product for use and consumption, has
undertaken and assumed a special responsibility toward any member of the consuming
public who may be injured by it; that the public has the right to and does expect, in the
case of products which it needs and for which it is forced to rely upon the seller, that
reputable sellers will stand behind their goods; that public policy demands that the burden
of accidental injuries caused by products intended for consumption be placed upon those
who market them, and be treated as a cost of production against which liability insurancecan be obtained; and that the consumer of such products is entitled to the maximum of
protection at the hands of someone, and the proper persons to afford it are those who
market the products.

Torts > Products Liability > Strict Liability
{FHIN10] Under traditional product liability theory, the plaintiff mmst establish a
reasonable connection between the injury, the product causing the injury, and the
manufacturer of that product. In order to have a cause of action, the plaintiff must
identify the particular manufacturer of the product that caused the injury.

Torts > Products Liability > Duty te Warn

[HN11] The Washington Supreme Court has generally limited liability under the
Restatement (Second) of Torts § 388 (1965) to manufacturers that are in the chain of
distribution.

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: A former pipefitter who frequently was exposed to asbestos in the
course of working on Navy ships and who was later diagnosed with mesothelioma, a
disease caused by the inhalation of asbestos dust, sought damages from several valve and
pump manufacturers for failure to warn about the danger of asbestos inhalation during
routine maintenance of the valves and pumps. The valves and pumps manufactured by
the defendants were installed on the Navy ships and the Navy applied asbestos-containing
thermal insulation to them. None of the defendants manufactured, sold, or otherwise
supplied the asbestos insulation applied to their products. Some of the defendants'
products originally contained packing and gaskets with asbestos in them, but the
defendants did not manufacture these products themselves; rather, the packing and
gaskets were manufactured by other companies and installed on the defendants’ products.
Although the plaintiff claimed he was exposed to asbestos in these products supplied by
the defendants, the evidence showed [***2] only that the packing and gaskets in the
pumps and valves were replaced several times over their life with new packing and
gaskets manufactured and sold by other companies. It was not known how many times
the packing and gaskets had been replaced in the defendants‘ pumps and valves before the
plaintiff worked on them. Also, the plaintiff never installed or worked on new pumps or
valves. The plaintiff initially filed an action in a Texas court but, after the court entered a
summary judgment in favor of one of the defendants, the plaintiff took a nonsuit against
the remaining defendants and filed a new action in Washington.

Superier Court: The Superior Court for King County, No. 05-2-03249-9, Sharon S.
Ammstrong, J., on September 26, 2005, entered summary judgments in favor of the
defendants, ruling that they had no duty to warm the plaintiff about the dangers of
exposure to asbestos in products manufactured by others to which the plaintiff was
exposed in the course of maintaining the defendanis' products.Court of Appeals: The court reversed the judgments at 137 Wn. App. 32 (2007),
holding that the defendants had a duty to warn of the danger of asbestos in the insulation
installed on the pumps and valves because they knew that their equipment would be
insulated with material containing asbestos and that maintenance of their equipment
would result in exposure to the asbestos.

[***3] Supreme Court: Holding that the defendants did not have a duty under either
common law products liability or common law negligence principles to warn the plaintiff
about the asbestos hazards of the insulation that was wrapped around the valves and
pumps or of the replacement packings and gaskets where the defendants were not in the
chain of distribution of such products, the court reverses the decision of the Court of
Appeals and reinstates the judgments.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Judgment — Summary Judgment — Review — Standard of Review. An appellate
court reviews a summary judgment de novo, applying the standard of CR S6(c} and
viewing the facts submitted in the light most favorable to the nonmoving party.

{2} Products Liability - Product Liability Act - Applicability -- Harm Predating
Act - Governing Law ~ Common Law. A product liability claim based on an injurious
exposure predating the enactment of the product Hability act (chapter 7.72 RCW,
effective July 26, 1981) is governed by the common law.

[3] Products Liability ~ Warnings - Duty To Warn -- Chain of Distribution —
Scope. The common law duty to warn of hazards involved in the use of a product is
intended to apply to those in the chain of distribution, such as the product's manufacturer
or a dealer or distributor of the product.

[4] Products Liability - Warnings -- Failure To Warn — Faultless Product - Not
Reasonably Safe Without Warning. A person within the chain of distribution of a
product can be liable for failing to provide an adequate warning about the product if the
product, although faultlessly manufactured and designed, may not be reasonably safe
when placed in the hands of the ultimate user without first giving an adequate warning
concerning the manner in which to safely use the product.

(5] Products Liability - Warnings -~ Manufacturer - Failure To Warn ~
Independently Attached Product Not Produced, Sold, or Supplied by Manufacturer.
{***4] The common law does not impose liability on a product manufacturer for a failure
to warn of the hazards of or dangers inherent in some other product that another entity
attaches to the manufacturer's product if the manufacturer did not also produce, sell, or
supply the added product, even if the manufacturer knew its product would be used in
conjunction with the added product. A manufacturer's duty to wam is restricted to
warnings based on the characteristics of the manufacturer's own products; the lawgenerally does not require a manufacturer to study and analyze the products of others or
to warn users of the risks of those products.

[6] Products Liability — Asbestos -- Failure To Warn -- Strict Liability —
Independently Attached Asbestos Product Not Produced, Sold, or Supplied by
Manufacturer. The common law does not impose liability on a product manufacturer for
a failure to warn persons about the hazards of inhaling asbestos fibers or about
maintenance procedures that would release dangerous asbestos fibers into the air arising
from asbestos insulation or some other asbestos-containing product attached to the
product by some other entity if the asbestos containing product was not produced, sold, or
supplied by the manufacturer.

[7] [***5] Products Liability - Warnings - Manufacturer -- Test. A manufacturer's
duty to exercise ordinary care and warn of dangers associated with its product, breach of
which is actionable in negligence, is governed by the rule that one who supplies directly
or through a third person a chattel for another to use is subject to liability to those whom
the supplier should expect to use the chattel with the consent of the other or to be
endangered by its probable use, for physical harm caused by the use of the chattel in the
manner for which and by a person for whose use it is supplied, if the supplier (1) knows
or has reason to know that the chattel is or is likely to be dangerous for the use for which
it is supplied, (2) has no reason to believe that those for whose use the chattel is supplied
will realize its dangerous condition, and (3) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts which make it likely to be dangerous.
Under this nule, the manufacturer has the duty to warn of the hazards involved in the use
of the product that are or should be known to the manufacturer.

[8] [***6] Products Liability - Warnings ~ Manufacturer -- Duty To Warn ~
Chain of Distribution -- Necessity. The common law does not impose a duty on a
product manufacturer to warn of the hazards of another manufacturer's product. The duty
to warn about a product, breach of which is actionable in negligence, is limited to those in
the chain of distribution of the product, such as the product's manufacturer and suppliers
and sellers of the product.

[9] Products Liability ~ Warnings ~ Manufacturer ~ Duty To Warn ~
Independently Attached Preduct Not Produced, Seld, or Supplied by Manufacturer.
The common law does not impose on a product manufacturer a duty to warn of the
hazards of some other product that a different entity attaches to the manufacturer's
product that the manufacturer did not also produce, sell, or supply.

[10] [***7] Products Liability ~ Asbestos -- Duty To Warn ~ Negligence Liability —
Independently Attached Asbestos Product Not Produced, Sold, or Supplied by
Manufacturer. The common law does not impose on a product manufacturer a duty to
warn persons who use or maintain the product about the hazards of inhaling asbestos
fibers or about maintenance procedures that would release dangerous asbestos fibers into
the air if the source of the asbestos fibers is asbestos insulation or some other asbestos-containing product that some other entity attached to the product and that was not
produced, sold, or supplied by the manufacturer.

{11} Products Liability -- Warnings —- Manufacturer -- Failure To Warn — Strict
Liability — Purpose. [***8] The theory underlying strict liability for a failure to wam of
a product's dangerous propensities is that the seller, by marketing the product for use and
consumption, has undertaken and assumed a special responsibility toward any member of
the consuming public who may be injured by it; that the public has the right to and does
expect, in the case of products which it needs and for which it is forced to rely upon the
seller, that reputable sellers will stand behind their goods; that public policy demands that
the burden of accidental injuries caused by products intended for consumption be placed
upon those who market them and be treated as a cost of production against which liability
insurance can be obtained; and that the consumer of such products is entitled to the
maximum of protection at the hands of someone, and the proper persons to afford it are
those who market the products.

[12] Products Liability - Warnings -~ Manufacturer — Failure To Warn —~
Replacement Part -- Manufacturer Not in Chain of Distribution. When a product
contains a part that must periodically be replaced as a matter of routine maintenance, the
common law does not impose liability on the manufacturer of the produet for a failure to
warn those who use or maintain the product about the hazards of a replacement part if the
manufacturer is not in the chain of distribution of the replacement part, even if the
replacement part is virtually the same as the original part and even if the manufacturer
knows that there could or might be a hazard associated with the replacement part.

(13) [***9] Products Liability — Asbestos — Failure To Warn -- Strict Liability --
Replacement Part -- Manufacturer Not in Chain of Distribution. When a product
contains a part that must periodically be replaced as a matter of routine maintenance, the
common law does not impose liability on the manufacturer of the product for a failure to
wam those who use or maintain the product about the asbestos hazard of a replacement
part if the manufacturer is not in the chain of distribution of the replacement part, even if
the replacement part is virtually the same as the original part and even if the manufacturer
knows that there could or might be an asbestos hazard associated with the replacement
part.

[14] Products Liability ~ "Manufacturer" - Identification -- Necessity. Under
traditional product liability theory, a product liability plaintiff must establish a reasonable
connection between the injury, the product causing the injury, and the manufacturer of
the product. In order to have a cause of action, the plaintiff must identify the particular
manufacturer of the product that caused the injury.

[15] Products Liability ~ Warnings - Manufacturer — Duty Te Warn ~
Replacement Part — [***10] Manufacturer Not in Chain of Distribution. When a
product contains a part that must periodically be replaced as a matter of routine
maintenance, the common law does not impose a duty on the manufacturer of the product
to warn those who use or maintain the product about the dangers of a replacement part,breach of which is actionable in negligence, if the manufacturer is not in the chain of
distribution of the replacement part.

[16] Products Liability - Asbestos -- Duty To Warn -- Negligence Liability —
Replacement Part -- Manufacturer Not in Chain of Distribution, When a product
contains a part that must periodically be replaced as a matter of routine maintenance, the
common law does not impose a duty on the manufacturer of the product to warn those
who use or maintain the product about the asbestos hazard of a replacement part, breach
of which is actionable in negligence, if the manufacturer is not in the chain of
distribution of the replacement part.STEPHENS, SANDERS, and CHAMBERS, JJ., dissent by

separate opinion.

COUNSEL; [***11] Barry N. Mesher, Brian D. Zeringer, and Andrew G. Yates (of
Lane Powell, PC}, Paul J, Lawrence (of K&L Gates, LLP), Katherine M. Steele (of
Stafford Frey Coopery, Ronald C. Gardner (of Gardner Bond Trabolsi, PLLC); Michaet
B. King (of Carney Badley Spellman, PS); and James E. Horne and Michael E. Ricketts
(of Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, LLP) (Brett Schuman
and Mortimer H. Hartwell of Morgan Lewis & Bockius, LLP, of counsel), for petitioners.

Christopher S, Marks (of Williams Kastner & Gibbs, PLLC); Matthew P. Bergman,
David S, Frockt, and Brian F. Ladenburg (of Bergman & Frockt), and John W. Phillips
and John M. Geyman (of Phillips Law Group, PLLC) (Charles 5. Siegel and Loren
Jacobson ot Waters & Kraus, LLP, of counsel), for respondents.

James O. Neet, Jr., and Donald Evans on behalf of American Chemistry Council, amicus
curiae.

Lynda Mounts, Kenneth Stoller, and James O. Neet, Jr., on behalf of American Insurance
Association, amicus curiae.

James O. Neet, Jr., on behalf of United States Chamber of Commerce, amicus curiae.

James O. Neet, Jr. Mark Behrens, Victor E. Schwartz, and Paul Kalish on behalf of
Coalition for Litigation Justice, amicus curiae.

Jeanne F. Loftis, Erich Gleber, Steven Rosenblatt, Amy Fenno, and Allen E. Eraut on
behaif of Flowserve Corporation, amicus curiae.

Mark B. Tuvim on behalf of Ingersoll-Rand Company and Leslie Controls, amici curiae.

James O. Neet, Jr., Jan Amundson, and Quentin Riegel on behalf of National Association
of Manufacturers, amicus curiae.

James O. Neet, Jr., and Gregg Dykstra on behalf of National Association of Mutual
Insurance Companies, amicus curiae.Robin S. Conrad and Amar Sarwal on behalf of National Chamber Litigation Center,
Inc., amicus curiae.

James O, Neet, Jv., Karen Harned, and Elizabeth Gaudio on behalf of National
Federation of Independent Business Legal Foundation, amicus curiae.

[***12] Howard M. Goodfriend and David W. Hoiman on behalf of O-1, Inc., amicus
curiae.

Diana M. Kirchheim, Deborah J. La Fetra, Timothy Sandefur, Alissa J. Strong, and
Elizabeth A. Yi on behalf of Pacific Legal Foundation, amicus curiae.

Jon P. Ferguson, Ann Spragens, aud Robert Hurns on behalf of Property Casualty
Insurers Association of America, amicus curiae.

William J. Rutzick on behalf of Schroeter Goldmark & Bender, amicus curiae.

Stewart A. Estes and Aaron V. Rocke on behalf of Washington Defense Trial Lawyers,
amicus curiae.

JUDGES: AUTHOR: Justice Barbara A. Madsen. WE CONCUR: Chief Justice Gerry L.
Alexander, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst,
Justice James M. Johnson. AUTHOR: Justice Debra L. Stephens (dissenting). WE
CONCUR: Justice Richard B. Sanders, Justice Tom Chambers.

OPINION BY: Barbara A. Madsen

OPINION
En Bane

[*379] [**495] {1 Mansen, J. -- The defendants are manufacturers of valves and
pumps sold to the navy and used aboard ships. After the valves and pumps were installed
on the [***13] ships, the navy applied asbestos-containing insulation to them, None of
the defendants manufactured, sold, or otherwise supplied the asbestos insulation applied
to their products. Vernon Braaten, who worked as a pipefitter on navy ships, developed
mesothelioma and brought suit against the defendants, alleging that they failed to warn
him of the danger of exposure to asbestos during routine maintenance of their equipment.
The trial court granted summary judgment in favor of the defendants. The Court of
Appeals reversed.

[*380] {2 The first issues raised by this case are whether under common law
products liability or negligence principles the defendant-manufacturers had a duty to
warn of the danger of exposure during maintenance of their products to asbestos in
insulation that the navy would foreseeably apply to their equipment. These questions are
answered by our decision in the companion case, Simonetta v. Viad Corp., 165 Wadd
341, 197 P.3d 127 (2008), where we held that a manufacturer may not be held liable in
common law products lability or negligence for failure to warm of the dangers ofasbestos exposure resulting from another manufacturer's insulation applied to its products
after sale of [***14] the products to the navy.

43 Some of the defendant-manufacturers’ products originally contained packing and
gaskets with asbestos in them, but the defendants did not manufacture these products
themselves. Rather, the packing and gaskets were manufactured by other companics and
installed in the defendants’ products. According to Mr. Braaten’s uncontroverted
testimony, however, it was not possible to tell at the time he worked on the pumps and
valves how many times gaskets and packing had been replaced with packing and gaskets
manufactured and sold by other companies. The second issue is thus whether the
defendant-manufacturers had a duty to warn of the danger of exposure to asbestos in
replacement packing and gaskets that the defendants did not manufacture, sell, or
otherwise supply, which replaced asbestos-containing packing and gaskets in their
products as originally sold. We hold that the general mule that there is no duty under
common law products liability or negligence principles to wam of the dangers of
exposure to asbestos in other manufacturers’ products applies with regard to replacement
packing and gaskets. The defendants did not sell or supply the replacement packing or
gaskets [***15] or otherwise place them in the stream of commerce, did not specify
asbestos-containing [**496] packing and gaskets for use with their valves and pumps,
and other types of materials could have been used. In addition, the evidence is
insufficient [*381] to show that Mr. Braaten was exposed to the original packing and
gaskets supplied by these defendants. Accordingly, we reverse the Court of Appeals and.
reinstate the trial court's orders of summary judgment in favor of the defendants.

FACTS

{4 Defendants Buffalo Pumps, Inc., IMO Industries, Inc., Crane Company, and
Yarway Corporation manufactured pumps and valves that were sold to the navy and used
aboard ships. The navy insulated these products with asbestos-containing thermal
insulation. None of the defendants manufactured the asbestos insulation that was applied
by the navy, and although some of the defendants’ products originally contained packing
and gaskets with asbestos, they did not manufacture the packing and gaskets themselves.

45 Mr. Braaten worked as a pipefitter aboard navy ships from 1967 until 2002. | In
2003, he was diagnosed with mesothelioma, which he alleged resulted from exposure to
asbestos when he performed regular maintenance on equipment [***16] aboard navy
ships, including pump and valves manufactured by the defendants. Mr. Braaten changed
packing on the pumps, which required removal of the exterior asbestos-containing
insulation, removing the old packing, replacing the packing, and reapplying asbestos
insulation to the pumps. Mr. Braaten also worked on valves. He removed asbestos-
containing insulation from the exterior of the valves, removed asbestos-containing
packing from the valves, repacked the valves, and reapplied insulation. He testified that
asbestos gaskets and packing usually had to be ground, scraped, or chipped off, resulting
in the release of respirable asbestos.

1 Evidence showed that he was allegedly exposed to asbestos from 1967 until the
early 1980s when measures were taken to avoid workers’ exposure to asbestos on
the ships.6 He also testified, however, that it was not possible to tell how many times the
original packing and gaskets in [*382] valves and pumps had been replaced with
packing and gaskets manufactured by other companies. In addition, according to Mr.
Braaten's testimony, he never installed or worked on the pumps when they were new and
was not exposed to asbestos when others installed new pumps.

7 In January [***17] 2005, Mr. Braaten brought the present suit in King County. *
The defendant-manufacturers filed motions for summary judgment, arguing that they had
no duty te warn of the dangers of products that they did not manufacture. The trial court
granted summary judgment in favor of the manufacturers and dismissed Mr. Braaten's
strict product liability and negligence claims on the basis that the defendants had no duty
to warn of dangers of exposure to asbestos in products manufactured by others to which
the plaintiff was exposed during maintenance of the defendants’ products. >

2 Mr. Braaten originally brought suit in Texas. After one of the defendants in the
action brought in Brazoria County, Texas, was granted summary judgment,
Braaten nonsuited his case and brought the present action in King County. Mr.
Braaten passed away in October 2007. The personal representative of his estate has
been substituted.

3 The dissent is incorrect about the bases for the grants of summary judgment in
favor of the four manufacturers. As to each of the defendant-manufacturers (IMO,
Buffalo Pumps, and Yarway), the trial court entered summary judgment orders that
stated that the court concluded (1) that there was no [***18] evidence that the
plaintiff was exposed to any asbestos-containing product that was manufactured,
sold, or delivered by the manufacturer and (2) that the manufacturer owed no duty
to wam of the dangers of products that it did not manufacture or otherwise place
inte the stream of commerce. Having found no genuine issue as to any material fact
in each case, the court entered summary judgment in favor of each defendant and
dismissed plaintiffs' claims in their entirety with prejudice, Cierk’s Papers (CP) at
7269 (IMO); CP at 5562-63 (Buffalo Pumps); CP at 7284-85 (Yarway).

As to defendant-manufacturer Crane, the court first granted Crane's motion for
partial summary judgment on the issue whether Crane had any duty to wam of
dangers of asbestos-containing products that were manufactured, sold, or
distributed by others. CP at 5565-67. In a separate order, the court granted
summary judgment on the plaintiff's remaining claims because Mr. Braaten had not
shown exposure to any asbestos-containing components (including packing and
gaskets) that were actually supplied by Crane. CP at 7271-72.

[**497] 8 Mr. Braaten appealed. The Court of Appeals reversed, reasoning that the
manufacturers had a duty to [***19] warn of the danger of asbestos in insulation because
they knew that their equipment would be insulated with material containing [*383]
asbestos and that maintenance of their equipment would result in exposure to this
asbestos. The court said that “when a product's design utilizes a hazardous substance, and
there is a danger of that substance being released from the product during normal use, the
seller of the product containing the substance" has a duty to warn foresecable users of the
product. Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 46, 151 P.3d 1010 (2007),
The court said that a jury “could determine that the pumps and valves were unreasonablydangerous when used as intended, without warnings about how to safely avoid asbestos
exposure.” /d. at 47. We granted discretionary review. Braaten v. Saberhagen Holdings,
162 Wn.2d 1011 (2008).

ANALYSIS

[1] (9 [HN1] Summary judgment is reviewed de novo. Osborn v. Mason County, 157
Wn.2d 18, 22, 134 P_3d 197 (2006). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. CR S6/c). Evidence is construed in the light most favorable to the
nonmoving party. Osborn, 157 Wn.2d at 22.

1. [***20] Products liability--exterior insulation

{10 The manufacturers maintain that they have no duty to warn of the dangers
associated with use of another manufacturer's products. They contend that product
liability law limits the duty to warn to those within the chain of distribution of the product
and to those who manufacture a product that, when used with another product,
synergistically creates a hazardous condition.

[2, 3] 91 As we explained in Simonetta, 165 Wn2d 341, [HN2] common law
product liability claims like those here ‘ are [*384] governed by the Restatement
(Second) of Torts § 402A (1965), * adopted in Ulmer v. Ford Motor Co., 75 Wn.2d 522,
531-32, 452 P.2d 729 (1969). Section 402A is intended to apply to “those in the chain of
distribution,” i.¢,, a "manufacturer, ... dealer or distributor” of the product. Seatile-First
Nat'l Bank v. Tabert, 86 Wn.2d 145, 148, 542 P.2d 774 (1975) (emphasis omitted), see
Zamora v. Mobil Oil Corp., 104 Wn.2d 199, 206, 704 P.2d 584 (1985) (§ 402A is broadly
interpreted beyond manufacturers to apply "to all others in the chain of distribution"); of
Haysom v. Coleman Lantern Co., 89 Wn.ad 474, 478-79, 573 P.2d 785 (1978)
(Washington has adopted § 4024, under which a manufacturer may “incur liability for
failure to adequately warn of dangerous propensities of a product which it places in the
stream of commerce"), superseded on other grounds by statute as [**498] stated in Van
Hout v. Celotex Corp., 121 Wn.2d 697, 853 P.2d 908 (1992) [***21].

4 Mr. Braaten's exposure to asbestos substantially occurred before the enactment
of Washington's product liability act, chapter 7.72 RCW (WPLA). Accordingly, the
Court of Appeals applied common law to resolve his product liability claim. See
RCW 4.22.920(1) (the tort reform act of 1981, which includes the WPLA, applies
to claims "arising on or after July 26, 1981"); Viereck v. Fibreboard Corp., 81 Wn,
App. 579, 915 P.2d 581 (1996); Krivanek v. Fibreboard Corp., 72 Wn. App. 632,
865 P.2d 527 (1993).

5 [HN3] Section 402A provides:

(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if(a) the seller is engaged in the business of selling such a product,
and

{b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) [***22] applies although

(a) the seller has exercised all possible care in the preparation and
sale of his product, and

(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.

Restatement (Third) of Torts--Products Liability § 2 (1998) now addresses
categories of product defects, including failure te warn. The parties do not ask the
court to adopt this section in lieu of § 402A. Insofar as failure to warn is concerned,
§ 2 of Restatement (Third) of Torts--Products Liability, which embodies a
negligence or negligence-type standard, is not consistent with Washington's
common law, as reflected in the cases. Rather, our precedent imposes strict liability
for failure to warn.

[4-6] 912 [HN4] Under § 4024, liability may be found in the case of inadequate
warnings because "[a] product may be faultlessly manufactured and designed, yet still not
be reasonably safe when placed in the hands of the ultimate [*385] user without first
giving an adequate warning concerning the manner in which to safely use the product."
Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 155, 570 P.2d 438 (1977), see also Van
Hout, 121 Wn.2d at 704. « We held in Simonetta that a manufacturer is [***23] not liable
for failure to warn of the danger of exposure to asbestos in insulation applied to its
products if it did not manufacture the insulation and was not in the chain of distribution
of the insulation. It makes no difference whether the manufacturer knew its products
would be used in conjunction with asbestos insulation. Simonetta, 165 Wn.2d at 361.

6 The Court of Appeals said that foreseeability of the harm is not an element of a
strict liability failure to warn claim, citing Ayers v. Johnson & Johnson Baby
Products Co., 117 Wn.2d 747, 762-63, 818 P.2d 1337 (1991). Braaten, 137 Wn.
App. at 4i nJ5, Ayers was addressing a provision in the WPLA, but the court's
conclusion is borne out by Washington cases, nonetheless, because Washington
applies a strict liability approach to failure to war