Wednesday, September 2, 2015
Court of Appeal Revives Suit Over Alleged Cancer-Causing Compound
Panel Says U.S. Steel Properly Raised ‘Bulk Supplier’ Defense, but Didn’t Prove It Applied Under Facts
By KENNETH OFGANG, Staff Writer
The First District Court of Appeal yesterday revived a suit charging United States Steel Corporation with causing an auto mechanic’s cancer by supplying a raw component of a solvent containing benzene.
Justice Stuart Pollak, writing for Div. Three, agreed with the defendant that it cannot be held liable unless the raw material itself contained a “design defect.” But Alameda Superior Court Judge Wynne Carvill erred in granting summary judgment, because U.S. Steel’s evidence did not negate the possibility of such a defect, Pollak said.
David Johnson sued U.S. Steel and others in 2013, months after being diagnosed with acute myeloid leukemia. The defendants all supplied, made, or sold paints, solvents, or other products containing benzene.
Johnson alleged that the cancer was caused by exposure to these products while working as a service station attendant or auto mechanic, throughout the 1970s and from 1994 until he received his cancer diagnosis. U.S. Steel acknowledged that at one time, it sold coal raffinate—a byproduct of the conversion of coal to coke for use in steel production—containing benzene to Radiator Specialty Company, the formulator of the solvent Liquid Wrench.
Johnson testified in his deposition that he used Liquid Wrench on a regular basis to loosen rusted belts and machine parts; at times, he said, it would get “all over” him while he worked under cars. U.S. Steel said it sold raffinate to Radiator between 1960 and 1978, but presented evidence that Radiator also sold a petroleum-based formulation of Liquid Wrench, not containing benzene, during that time and continues to sell it today.
In moving for summary judgment, the defendant argued that there was insufficient evidence that the Liquid Wrench used by Johnson was the formulation containing raffinate. It also contended that whatever duty it had to warn of the dangers of its product was discharged when it provided detailed warnings to Radiator.
In a reply brief, U.S. Steel raised an additional argument, that as a “bulk supplier” of a raw material that was added to other ingredients, packaged and sold by an intermediary, it could not be held liable.
Failure to Warn
Carvill, in granting the motion, agreed with U.S. Steel regarding the failure to warn, and that aspect of his ruling was not appealed. With regard to the claim of strict liability based on design defect, he explained that in contrast to asbestos, which “is an inherently defective product,” Johnson “ha[d] not cited any decisional authority for the proposition that benzene is inherently defective, or that raffinate is inherently defective because it contains benzene.”
The judge further declared:
“The potentially hazardous nature of a substance does not equate to an inherent defect.”
Pollak, in his opinion for the Court of Appeal, explained:
“Under the component parts doctrine, U.S. Steel bears no responsibility for damages caused by Liquid Wrench if the raffinate was not itself defective when delivered to Radiator for incorporation into the finished product. But U.S. Steel is liable if the raffinate was defective and its defect caused Johnson’s injuries.”
The resolution of the question, the justice elaborated, turns on the reasonable expectations of the consumer.
He cited cases involving raw asbestos.
“Raw asbestos has been deemed defective under the consumer expectations test because factually it has been shown to be inherently injurious, whether or not incorporated into another product, and because, without a change in its composition, it causes products into which it is incorporated to perform less safely than ordinary consumers would expect,” he wrote.
Those cases, he went on to say, stand in contrast with Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, a case cited by U.S. Steel. In that case, the physical composition of the bulk sulfuric acid claimed to be defective was “substantially altered” in the process of manufacturing the drain cleaning product into which it was incorporated, the court explained, so the ultimate product Clear-All and the sulfuric acid had to be considered different products and the sulfuric acid could not be considered a defective product for purposes of strict liability.
But while Walker is good law, it does not establish that the raffinate in Liquid Wrench is not a defective product, Pollak concluded.
“The record contains no evidence tending to disprove the toxicity of raffinate or of the products into which it is incorporated in ways that would not be apparent to most people, no evidence showing that the composition of the raffinate was altered in the process of formulating Liquid Wrench, and no evidence showing that it was possible to incorporate the raffinate into Liquid Wrench or any other product without rendering that product less safe than ordinary consumers would expect,” the justice explained.
“Raffinate may well be a substance with which ordinary consumers are unfamiliar and have no expectations concerning its properties or effects. Nonetheless, should the evidence show that its incorporation into Liquid Wrench, and indeed into any finished product, without change in its chemical structure causes that product to be less safe than ordinary consumers would expect, the raffinate will have been shown to contain a design defect under the consumer expectation test.”
As the party moving for summary judgment, U.S. Steel had the burden of negating the existence of a design defect in the raffinate, and failed to carry it, Pollak said.
The case is Johnson v. United States Steel Corporation, A142485.
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