Big Blue & The Sophisticated User and Intermediary Defenses

Two particularly perfidious myths perpetrated by the asbestos litigation industry is that crocidolite was not used in the United States, and that chrysotile is as potent in causing mesothelioma as is crocidolite. Both myths are untrue, but they have become current articles of faith among the “The Lobby.” SeeSelikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010).

Because of the flagrant falsehoods imbedded in the Lobby’s mythology, I am always fascinated to see incontrovertible evidence of the use of crocidolite. Crocidolite is a blue fiber, and Johns-Manville (JM) was the “Big Blue” of the North American asbestos industry. JM used crocidolite in several products, but perhaps best known is its incorporation of blue fiber into asbestos cement products, known as Transite. One of JM’s manufacturing facilities, where crocidolite was used, was in Stockton, California, a.k.a. Fat City.

The JM Stockton plant was the situs of a recent sophisticated intermediary case, which is set for argument soon before the California Supreme Court. Webb v. Special Electric Company, Inc., 214 Cal. App. 4th 595, 153 Cal. Rptr. 3d 882, 888 (2013). See Monica Williams Monroe “Is There a Duty to Warn Even the Most Sophisticated User?”(July 23, 2014); “California Supreme Court Set To Untangle Webb” (July 7, 2013). The JM Stockton facility was, at one time, the largest consumer of asbestos in California, for use in making Transite (asbestos-cement) pipe products. See Asbestos:  The Magic Mineral (JM Brochure). In 1982, JM sold the Stockton facility to the J-M Manufacturing Co., and the J-M A/C Pipe Corp., which were unaffiliated with JM. “Johns-Manville Sells Pipe Unit” N.Y. Times (Dec. 21, 1982)[1].

Back in April 2001, the Kazan firm obtained a substantial jury verdict against J-M A/C Pipe Company, on behalf an employer who had worked there since 1959. Hardcastle v. J-M A/C Pipe Corp., Alameda County Superior Court No. 830058-2 (Jury verdict, April 21, 2001). The employer claimed untruthfully that it had never been sued, and had to confront allegations that it had cheated on air quality testing. The jury found J-M A/C Pipe Co. liable for negligence, with actual malice.

Given the actual knowledge and sophistication of the employer, one would expect that there was no need for an outside vendor of asbestos to warn the employer of its hazards, especially not after the early 1960s. Such a defense appears to have been interposed in one unreported California case. Ransom v. Calaveras Asbestos Ltd., No. B207018 (Cal. App. 2d Dist., Div. 5) (Mar. 4, 2009) (unpublished). Plaintiff claimed that his lung cancer was related to occupational exposure at the Stockton plant. Dr. Samuel Hammar, a pathologist, testified conclusorily that “each and every occupational exposure to asbestos” was a substantial factor. Dr. B.S. Levy offered testimony on epidemiology of asbestos fiber types. Somehow the court got the idea that “there were no distinctions in the effect of the types of asbestos to which plaintiff was exposed.” Id. Mistakes were made, and not much seems to have come of the sophisticated intermediary defense.

The sophisticated user defense seems to have gone better in a jury trial that ended with a defense verdict last month. Plaintiffs sued Special Electric for having brokered South African crocidolite fiber to the Stockton facility, and for having caused plaintiff’s mesothelioma. SeeSpecial Electric Secures Defense Verdict In San Francisco Asbestos Trial” (Sept. 24, 2014). Plaintiffs called a physician, Barry Horn, M.D., and an industrial hygienist, William Ewing, CIH, as expert witnesses, to support their consumer expectations test for design defect. The defense called no witness, but defended on theory that the plaintiff, Mr. Dennis Hill, had been trained in, and aware of, the hazards of asbestos by the mid-1970s. Martha Joan Hill v. A.C.& S. Inc., et al., San Francisco County Superior Court (trial Sept. 2 through 10, with verdict returned Sept. 10, 2014) (Hon. Richard B. Ulmer, Dept. 624, and a jury).

It is a safe bet that Mr. Hill, and his union, had known about asbestos hazards for much longer than acknowledged. Mr. Hill’s demise is sad outcome to the crocidolite tragedy, for which his employer was and should have responsible. Almost as sad is forcing a remote supplier of crocidolite to defend itself for having brokered asbestos to the one of the world’s most knowledgeable users of the natural material.

[1] The Stockton plant was organized by the Machinists District Lodge 115, Local Lodge 1549, from 1958, on. Johns-Manville Sales Corp. v. National Labor Relations Board, 906 F.2d 1428 (10th Cir. 1990). The sale of the facility took place on the heels of a violent strike, in which the union showed it, too, could act maliciously and violently.

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