Featured Expert Contributor, Mass Torts—Asbestos


Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

A recent appellate decision rejecting the consumer expectations test for strict liability in a pharmaceutical case calls into question the use of that same test in cases involving low-dose exposures to asbestos.  Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 117 (2017), petition for review filed, (Aug. 8, 2017) (No. S243672).

Much like in pharmaceutical cases, the trials in low-dose asbestos cases invariably center on competing expert-opinion testimony regarding scientific matters beyond the everyday experience of ordinary consumers.  As a result, such cases should proceed not under a consumer expectations theory, but instead under the alternative risk-benefit theory, which is recognized in many states and has long been applied to hold that a product is defectively designed if “‘the benefits of the challenged design outweigh the risk of danger inherent in such design.’”  Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1310 (Haw. 1997), quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 455-56 (1978); see, e.g., Lamkin v. Towner, 563 N.E.2d 449, 457 (1990) (applying Barker).

The consumer expectations test applies when a product fails to perform as the ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  E.g., Aubin v. Union Carbide Corp., 177 So. 3d 489, 503  (Fla. 2015); Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 560 (1994).  The test should not apply to low-dose asbestos claims because a jury evaluating whether asbestos fibers from a particular product contributed to the cause of plaintiff’s disease must consider extensive evidence in such fields as epidemiology, pathology, pulmonology, industrial hygiene, and risk assessment—all of which are beyond the everyday experience of ordinary consumers.

Nonetheless, courts have repeatedly applied the consumer expectations test in such cases.  E.g., Aubin, 177 So. 3d  at 493-94; Falk v. Keene Corp., 782 P.2d 974, 978 (Wash. 1989); Saller v. Crown Cork & Seal Co., 187 Cal. App. 4th 1220, 1233-37 (2010); Jones v. John Crane, Inc., 132 Cal. App. 4th 990, 1001-04 (2005); In re Hawaii Fed. Asbestos Cases, 665 F. Supp. 1454, 1455 (D. Haw. 1986) (“a reasonable juror with no previous experience with asbestos could conclude that asbestos used in the shipyards failed to meet the consumer expectation test because an ordinary consumer would not expect a disease to result from its use”).

Earlier this year, the Trejo Court of Appeal reversed a judgment for the plaintiff in a design-defect case because it was based on an improper use of the consumer expectations test.  The court held that the consumer expectations test does not apply in cases involving “complex questions of feasibility, practicality, risk, and benefit beyond the common knowledge of jurors.”  Trejo, 13 Cal. App. 5th at 117.

The decision calls into question the consumer expectations test in claims alleging low-dose exposures given the complex questions inherent in such claims.  Moreover, the decision is notable because it is from the Second Appellate District, Division Four, which is hearing all asbestos appeals in Southern California.  As a result, that same division is likely to be called upon to apply similar analysis in a future asbestos appeal.

The Trejo case involved a claim that Motrin is defective because it should be manufactured using a safer ingredient.  After taking Motrin, the plaintiff suffered a severe reaction.  He sued the product’s manufacturer and alleged strict-liability design defect based on the manufacturer’s failure to use dexibuprofen, which is an isomer or component of ibuprofen, rather than ibuoprofen (dexibuprofen allegedly would have been safer).  The jury found liability on a consumer expectations theory, but not on a risk-benefit theory.  Id. at 116-17.

Echoing arguments often heard in asbestos cases, the plaintiff argued that the consumer expectations test should apply because the ordinary consumer does not expect an allergic reaction from Motrin.  The Court of Appeal rejected that argument as circular.  The Court of Appeal held “it could be said that any injury from the intended or foreseeable use of a product is not expected by the ordinary consumer.

If this were the end of the inquiry, the consumer expectation test always would apply and every product would be found to have a design defect.”  Id. at 158-59; see also id. at 159 (stating that “the consumer expectation test does not apply merely because the consumer states that he or she did not expect to be injured by the product”).

The Trejo Court of Appeal held that the consumer expectations test did not apply to plaintiff’s design-defect claim because it involved “technical and mechanical detail … and testimony regarding the medical aspects of an individual’s …  reactions to various substances.”  Id. at 159 (internal quotation marks and citation omitted.)  “Because ‘the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit,’ the consumer expectation test does not apply here.”  Id. (quoting Soule, 8 Cal. 4th at 562).

The effect of Trejo, including the pending petition for review to the California Supreme Court, is worth monitoring.  The decision may encourage courts to reconsider the application of the consumer expectations test in low-dose asbestos cases such as those involving encapsulated asbestos-containing products.  As noted, the trials in such cases focus on expert opinion regarding epidemiology, pathology, pulmonology, industrial hygiene, and risk assessment.

If those matters were really within the everyday experience of ordinary consumers, as would seem to be contemplated by the use of the consumer expectations theory, then the experts would be unnecessary.