Metropolitan News-Enterprise


Tuesday, September 29, 2009


Page 1


C.A.: No Liability for Failing to Warn About Asbestos


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal has thrown out a $1.2 million verdict in favor of a 20-year U.S. Navy veteran suffering from malignant mesothelioma, ruling that the defendant was not responsible for exposure to asbestos-containing products supplied by other manufacturers.

Div. Three held Friday that Leslie Controls Inc. could not be held strictly liable for failing to warn about hazards posed by asbestos-containing products which it did not manufacture, supply, or place in the chain of distribution.

Richard Merrill served in the Navy from 1959 to 1979 and worked onboard four vessels which were equipped with valves manufactured by Leslie Controls. He estimated that he personally worked on 100 Leslie Controls valves during his military tenure.

The valves controlled the movement and pressure of steam to turbines and other steam-powered equipment and required frequent maintenance, Merrill claimed.

At trial, Merrill introduced evidence that Leslie Controls sold valves to the Navy in the late 1940s which incorporated internal asbestos-containing gaskets and packing that had been purchased from another supplier.

Leslie Controls also sold asbestos-containing internal gaskets and packing as replacement parts, which it obtained from outside vendors.

Purchasers of Leslie Controls’ valves were instructed to insulate all pipe around the valves in order to minimize condensation. Leslie Controls, however, did not provide that insulation.

During his naval career, Merrill said he frequently disassembled Leslie Controls-manufactured valves, which required him to remove the asbestos-containing internal gaskets and packing and exposed him to airborne asbestos.

He also claimed exposure from his work removing flange gaskets attached to the exterior of the Leslie Controls valves and from the insulation pads which covered the body of the valves and surrounding pipes.

Merrill alleged causes of action for strict liability and negligence and sought exemplary damages from Leslie Controls and over 30 other defendants. Several defendants subsequently reached a settlement with Merrill, agreeing to pay a total of $5,518,000. 

After a trial, the jury by special verdict found in favor of three remaining defendants, but against Leslie Controls. 

The jury found that there was a defect in Leslie Controls valves because of a failure to warn of potential risks from asbestos exposure. The jury also found that Leslie Controls was negligent. 

Concluding that Merrill had suffered total damages amounting to $5,691,124, the jury allocated 15 percent of the total fault to Leslie Controls and on March 23, 2007 awarded Merrill $1,218,565 from the company.

However, Justice Patti S. Kitching wrote on appeal that Leslie Controls could not be liable for failing to warn of hazards associated with the handling of the asbestos-containing exterior flange gaskets or insulation absent any evidence that the company manufactured or supplied those products.

As for the internal gaskets contained in the Leslie Controls valves, Kitching said Merrill did not satisfy his burden of linking the injury-producing product with Leslie Controls in the chain of distribution since he did not produce any evidence that Leslie Controls supplied the packing and gaskets which he removed or the new packing he installed.

Kitching emphasized that a manufacturer’s duty to warn is limited to its own products and that Leslie Controls could have no duty to warn of dangers posed by products made or supplied by other manufacturers and used in conjunction with Leslie Controls valves.

Even if the use of asbestos-containing materials with Leslie Controls valves was foreseeable and Leslie Controls anticipated the use of such materials as Merrill claimed, Kitching said foreseeability alone was insufficient to justify the imposition of a duty to warn on the manufacturer of a component part.

Joined by Justices H. Walter Croskey and Richard D. Aldrich, Kitching also concluded that Leslie Controls could not be held liable for injury caused by a design defect since Merrill could not show his exposure to asbestos was caused by a product manufactured, supplied, distributed, or placed in the chain of commerce by Leslie Controls.

In an unpublished portion of the opinion, the panel declined to hold Leslie Controls negligent for its failure to warn against the dangers of asbestos-containing products used in association with or as replacement parts for its products.

Brian P. Barrow of Simon, Eddins & Greenstone represented Merrill while James G. Scadden and Don Willenburg of Gordon & Rees, joined by Mark H. Epstein, Paul J. Watford and Julie D. Cantor of Munger, Tolles & Olson represented Leslie Controls.

The case is Merrill v. Leslie Controls, Inc., 09 S.O.S. 5797.


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