Metropolitan News-Enterprise


Monday, November 2, 2015


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Court of Appeal Reverses Judgment in Toxics Exposure Case

Panel Says Defendant Failed to Show Its Product Not Inherently Dangerous




A lawsuit seeking to hold a distributor of mineral spirits liable as a result of the plaintiffs’ exposure to a solvent into which the spirits were incorporated has been reinstated by this district’s Court of Appeal.

Div. Eight Friday ordered publication of its Oct. 7 opinion, reversing Los Angeles Superior Court Judge John S. Wiley’s dismissal of a suit by Ernest Brady and by the widow and children of David Gibbs. The two men were diagnosed with leukemia, allegedly as a result of exposure to a solvent, Safety-Kleen 105, manufactured by Safety-Kleen Systems, Inc.

Among the defendants was Calsol, Inc., a distributor of mineral spirits it provided to Safety-Kleen. Wiley agreed with Calsol, which argued that the spirits constituted raw materials or component parts, shielding the company from liability unless the spirits themselves were defective and caused harm.

Appellate Ruling

But Los Angeles Superior Court Judge Sam Ohta, sitting on assignment in the Court of Appeal, said Calsol failed to prove that its mineral spirits were not inherently dangerous. The matter was thus not appropriately decided by summary judgment, he said.

Ohta cited Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, a suit against a supplier who sold silicone made to meet the purchaser’s specifications.  The purchaser then “cooked” the silicone to be used in breast implants, resulting in injuries to the plaintiffs.

The court held the supplier of silicone had no duty to warn ultimate consumers of the possible dangers of the implants, because “component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are not inherently dangerous, they sell goods or material in bulk to a sophisticated buyer, the material is substantially changed during the manufacturing process and the supplier has a limited role in developing and designing the end product.”

The court reasoned that “the social cost of imposing a duty to the ultimate consumers far exceeds any additional protection provided to consumers” under those circumstances. But the defendant in this case, Ohta said, did not prove a lack of inherent dangerousness.

Relevant Authority

“We are disinclined to create a conflict with Artiglio on this issue,” he wrote. “Artiglio conducted an exhaustive review of relevant authority, including an approved draft of the Restatement Third of Torts, in its analysis.  Artiglio has also been cited with approval for this proposition by other California courts          .”

He went on to say:

“We are not persuaded by Calsol’s interpretation of what is defective, particularly when its definition categorically excludes any product that is inherently dangerous.  Calsol’s position cannot be reconciled with the asbestos cases, which have consistently found asbestos fiber to be a defective raw material because it is inherently dangerous.”

Whether mineral spirits are inherently dangerous, he declared, is a triable issue of fact. The plaintiffs, he noted, presented expert testimony to the effect that benzene, a component of the spirits, causes “respiratory and dermal exposure” to a known carcinogen.

The case is Brady v. Calsol, Inc., B262028.

Attorneys on appeal were the Metzger Law Group’s Raphael Metzger, Kimberly A. Miller and Kathryn A. Saldana for the plaintiffs and Wood, Smith, Henning & Berman’s David F. Wood and Tracy M. Lewis for the defendant.  


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