Anderson v. Owens-Corning Fiberglas Corp.

• Citation: 53 Cal.3d 987,810 P.2d 549,281 Cal.Rptr. 528
• Decision Date: 30 May 1991
• Docket Number: No. S014500,OWENS-CORNING,S014500
• Court: California Supreme Court
• Parties: , 810 P.2d 549, 59 USLW 2751, Prod.Liab.Rep. (CCH) P 12,844 Carl ANDERSON, Plaintiff and Respondent, v.FIBERGLAS CORPORATION, et al., Defendants and Appellants.

Page 528

281 Cal.Rptr. 528

53 Cal.3d 987, 810 P.2d 549, 59 USLW 2751,

Prod.Liab.Rep. (CCH) P 12,844

Carl ANDERSON, Plaintiff and Respondent, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Defendants and Appellants.

No. S014500.

Supreme Court of California In Bank.

May 30, 1991.

Bogan, Jones & Klausen, Mary K. Jones, Kathleen A. Calaway, Marina Del Rey, Howarth & Smith, Don Howarth, Suzelle M. Smith, Barbara Gregg Glenn, Brian D. Bubb, Los Angeles, Brobeck, Phleger & Harrison, George A. Cumming, Jr., Thomas M. Peterson, Meredith A. Nelson, San Francisco, Yusim, Stein & Hanger, Stein, Hanger, Levine & Young, Encino, and Roger Bentley, Sherman Oaks, for defendants and appellants.

McCuthen, Doyle, Brown & Enerson, David M. Heilbron, Leslie G. Landau and Fred J. Hiestand, San Francisco, as amici curiae on behalf of defendants and appellants.

Stemple & Boyajian, David Kupfer, Peter Kunstler, Los Angeles, and Gerald H.B. Kane, Jr., Hermosa Beach, for plaintiff and respondent.

Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Leonard Sacks, Encino, Bruce Broillett, David Harney, Los Angeles,, Laurence Drivon, Stockton, Robert B. Steinberg, Los Angeles, Roland Wrinkle, North Hollywood, Harvey R. Levine, San Diego, Leonard Esquina, Sacramento, Rose, Klein & Marias, David A. Rosen, Los Angeles, and Arlyn M. Egers, Studio City, as amici curiae on behalf of plaintiff and respondent.

PANELLI, Associate Justice.

In this case we consider the issue "whether a defendant in a products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution." (Order on grant of review, May 3, 1990.) As will appear, resolution of this evidentiary issue requires an examination of the failure-to-warn theory as an alternate and independent basis for imposing strict liability and a determination of whether knowledge, actual or constructive, is a component of strict liability on the failure-to-warn theory. It is manifest that, if knowledge or knowability is a component, state-of-the-art evidence is relevant and, subject to the normal rules of evidence, admissible.

We granted review to resolve a conflict between decisions of the Court of Appeal. The Second District held that state-of-the-art evidence is not admissible in this case, a strict liability case based on the manufacturer's failure to warn. The First District, in Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 251 Cal.Rptr. 805, reached a contrary result. The court in each case recognized that resolution of the issue was dependent on the nature of the failure-to-warn theory and that a conflict existed among the jurisdictions as to whether knowledge or knowability was a necessary factor in the imposition of liability.

We conclude that Vermeulen v. Superior Court, supra, 204 Cal.App.3d 1192, 251 Cal.Rptr. 805, states the correct rule. The California courts, either expressly or by implication, have to date required knowledge, actual or constructive, of potential risk or danger before imposing strict liability for a failure to warn. The state of the art may be relevant to the question of knowability and, for that reason, should be admissible in that context. Exclusion of state-of-the-art evidence, when the basis of liability is a failure to warn, would make a manufacturer the virtual insurer of its product's safe use, a result that is not consonant with established principles underlying strict liability.

BACKGROUND

Defendants ¹ are or were manufacturers of products containing asbestos. Plaintiff Carl Anderson filed suit in 1984, alleging that he contracted asbestosis and other lung ailments through exposure to asbestos and asbestos products (i.e., preformed blocks, cloth and cloth tape, cement, and floor tiles) while working as an electrician at the Long Beach Naval Shipyard from 1941 to 1976. Plaintiff allegedly encountered asbestos while working in the vicinity of others who were removing and installing insulation products aboard ships. The complaint stated causes of action for negligence, breach of warranty, and strict liability and, inter alia, prayed for punitive damages. Pursuant to stipulation entered at the time of trial, plaintiff proceeded only on his cause of action for strict liability and did not seek punitive damages.

Plaintiff's amended complaint alleged a cause of action in strict liability for the manufacture and distribution of "asbestos, and other products containing said substance, which substance contained design and manufacturing defects" which caused injury to users and consumers, including plaintiff, while being used in a reasonably foreseeable manner. A fourth cause of action, entitled "Strict Liability Punitive Damages," focused on punitive damages but also included allegations of failure to warn: Plaintiff alleged that defendants marketed their products with specific prior knowledge, from scientific studies and medical data, that there was a high risk of injury and death from exposure to asbestos or asbestos-containing products; that defendants knew consumers and members of the general public had no knowledge of the potentially injurious nature of asbestos; and that defendants failed to warn users of the risk of danger. Defendants' pleadings raised the state-of-the-art defense, i.e., that even those at the vanguard of scientific knowledge at the time the products were sold could not have known that asbestos was dangerous to users in the concentrations associated with defendants' products.

Plaintiff moved before trial to prevent defendants from presenting state-of-the-art evidence. By that time, plaintiff had indicated that he was proceeding, as to defective design, only on the "consumer expectation" prong of the design defect test set out in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426, 143 Cal.Rptr. 225, 573 P.2d 443 (hereafter Barker ). Accordingly, the argument on plaintiff's motion was directed primarily to the applicability of the state-of-the-art defense to that theory of strict liability. ² The trial court granted the motion, citing the "Hawaii cases," ³ which held that state-of-the-art evidence is irrelevant to any theory of strict liability. The defendants then moved to prevent plaintiff from proceeding on the failure-to-warn theory on grounds of waiver ⁴ and fairness. In response to the court's request for an offer of proof on the alleged failure to warn, plaintiff referred to catalogs and other literature depicting workers without respirators or protective devices and offered to prove that, until the mid-1960's, defendants had given no warnings of the dangers associated with asbestos, that various warnings given by some of the defendants after 1965 were inadequate, and, finally, that defendants removed the products from the market entirely in the early 1970's. Defendants argued in turn that the state of the art, i.e., what was scientifically knowable in the period 1943-1974, was their obvious and only defense to any cause of action for failure to warn, and that, in view of the court's decision to exclude state-of-the-art evidence, fairness dictated that plaintiff be precluded from proceeding on that theory. With no statement of reasons, the trial court granted defendants' motion and, at trial, refused plaintiff's request that the jury be instructed pursuant to BAJI No. 9.00.7. ⁵ After a four-week trial, the jury returned a verdict for defendants, finding in a special verdict that defendants' products had no design defects.

Plaintiff moved for a new trial, asserting that the court erred in precluding proof of liability on a failure-to-warn theory. Plaintiff also claimed that substantial evidence did not support the jury's special finding or the defense verdict. The court granted the motion on both grounds. As to the first ground, the parties reargued the issue of waiver. Plaintiff also urged that knowledge or knowability, and thus state-of-the-art evidence, was irrelevant in strict liability for failure to warn. Plaintiff's main concern, however, was his right to proceed on the theory: "The fact of the matter is, with or without state of the art of the medical literature, I was entitled to put on [failure to warn]." The trial court agreed.

The Court of Appeal, in a two-to-one decision, upheld the order granting a new trial on both grounds. The appellate court added that, "in strict liability asbestos cases, including those prosecuted on a failure to warn theory, state of the art evidence is not admissible since it focuses on the reasonableness of the defendant's conduct, which is irrelevant in strict liability." The dissenting justice urged that the majority had imposed "absolute liability," contrary to the tenets of the strict liability doctrine, and that the manufacturers' right to a fair trial included the right to litigate all relevant issues, including the state of the art of scientific knowledge at the relevant time. We granted review. ⁶

The parties repeat the claims made before the Court of Appeal. Defendants contend that, if knowledge or knowability is irrelevant in a failure-to-warn case, then a manufacturer's potential liability is absolute, rendering it the virtual insurer of the product's safe use. Plaintiff, on the other hand, argues that to impose the requirement of knowledge or knowability improperly infuses a negligence standard into strict liability in contravention of the principles set out in our decisions from Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 to Brown v. Superior Court (1988) 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470. Plaintiff also urges that, although some courts have assumed that knowledge or knowability is a condition of strict liability for failure to warn, the issue has not been...