The Dangers of Products and the Removibility of Guards--When is a guard a guard?

by John C Cherundolo on Apr. 15, 2014

Accident & Injury Products Liability Accident & Injury  Personal Injury 

Summary: A review of cases involving the removal of guards on machines, and the dangers and liability of the removal of Asbestos Products.


        Plaintiff Established Legally Sufficient Evidence of Causation Where Plaintiff’s Expert Demonstrated There is no Threshold That has Been Determined to be Safe With Respect to Asbestos Exposure and Mesothelioma.


            Defendant Crane Co. moves to set aside the judgment in favor of the plaintiff and for judgment in its favor as a matter of law on the grounds that it is not liable for the mesothelioma plaintiff alleges he developed as a result of exposure to asbestos while serving in the United State Navy.

            Plaintiff asserts that asbestos containing products, including gaskets, packing and insulation at issue here, are dangerous, and therefore defective, and that Crane knew of the dangers and knew such products would be used with its valves.

            Plaintiff alleged and offered proof that as to some of the valves on the ships where plaintiff served, Crane supplied, although it did not manufacture, the original asbestos-containing gaskets and packing. Crane rebranded asbestos sheet gaskets as Cranite and supplied some of its valves to the Navy with such Cranite gaskets, and sold asbestos-containing gaskets and replacement parts for its valves. While plaintiff conceded he could not prove that he was exposed to original or replacement asbestos-containing products supplied or sold by Crane, he offered this evidence to establish that Crane knew that asbestos-containing products would be used with its valves.

            Plaintiff produced evidence through Crane’s corporate representative that Crane was aware routine maintenance of the valves required replacement of packing and gaskets, and that such maintenance would release asbestos which would be hazardous. Plaintiff also introduced evidence that Crane knew asbestos insulation would be used with its valves.

            The court finds that sufficient evidence was adduced at trial that Crane meant for its valves to be used, or knew or should have known that its valves would be used in conjunction with asbestos-containing gaskets, packing and insulation to warrant a determination that Crane was potentially liable under a failure to warn through in strict products liability and negligence. The duty is not based solely on foreseeability, or the possibility that manufacturer’s sound product may be used with a defective product so as to militate against a finding of a duty to warn. Rather, these circumstances show a connection between Crane’s product and the use of the defective products, and Crane’s knowledge of this connection, such that, under Berkowitz, Crane could be potentially liable based on a duty to warn theory as a manufacturer who meant for its product to be used with a defective product of another manufacturer, or knew or should have known of such use.

            Crane argues that plaintiff failed to produce sufficient evidence to establish that exposure to asbestos from Crane’s valves was a substantial factor in causing his mesothelioma such that it is entitled to judgment notwithstanding the verdict or in the alternative, the verdict should be set aside as against the weight of the evidence. Crane argues its motion to strike the testimony of plaintiff’s medical expert, Dr. Moline, should have been granted, as Dr. Moline failed to establish specific causation as required. Crane further argues that plaintiff’s expert industrial hygienist, Richard Hatfield, similarly failed to show which exposures could have been substantial contributing factors, based on his response to a single hypothetical question that “there could be some exposures there that could be substantial.”

            The court concludes that plaintiff established legally sufficient evidence of specific causation. Dr. Moline testified that there is no threshold that has been determined to be safe with respect to asbestos exposure and mesothelioma; even low doses of asbestos can cause mesothelioma; plaintiff’s cumulative exposures to asbestos were substantial contributing factors which caused his mesothelioma; each of the occupational exposures described contributed to causing the disease; and there’s no way of separating them (the individual exposures) out.

            Mr. Hatfield testified to the release of asbestos fibers into the air from the removal and replacement of gaskets, packing and insulation; the percentage of asbestos in gaskets and packing of, respectively, 60 to 85, and 15 percent; the existence of quadrillions of asbestos fibers in a standard gasket; and tests he performed showing that the removal of a gasket released from 2.3 fibers per cubic centimeter to 4.4 asbestos fibers per cubic centimeter, compared to the highest measured background level of .0005, and that the removal of packing released from .2 to .3 fibers per cubic centimeter.

            There is specific expression for the basis for the opinions. Moreover, when the testimony of Dr. Moline and Mr. Hatfield is considered together with evidence that the ships on which the plaintiff served contained hundreds of Crane’s valves, there is legally sufficient evidence that plaintiff was exposed to asbestos while supervising routine maintenance work on Crane’s valves so as to establish specific causation.

            Crane argues that the state of the art evidence with respect to the dangers of exposure to asbestos from gaskets, packing and lagging pads was insufficient to establish that it had a duty to warn and, thus, its valves were not defective nor was it negligent.

            Plaintiff’s state of the art expert, Dr. Castleman, testified that while articles with measurements and data on exposure from gaskets were published in the early 1990's, he pointed to prior publications, a book written in 1942 and an article in 1961, which list packing and gaskets as potential sources of asbestos exposure. Various studies and reports showed the dangers of asbestos exposure to workers where there was occupational exposure with similarities to the exposure plaintiff alleged. Moreover, Crane’s corporate representative testified that Crane knew of the dangers of exposure to asbestos in the early 1970's.

            While the republished table and 1992 articles were some evidence to be considered by the jury, the totality of the state of the art evidence and specific references to gaskets and packing were sufficient such that Crane’s motion for judgment as a matter of law and to set aside the verdict on these grounds is denied.

            Crane also appears to assert that it was not negligent because the state of the art evidence shows it did not violate custom and practice. Crane points to Lancaster Silo & Block Co. V Northern Propane Gas Co., for the proposition that if a given design is within the state of the art, the plaintiff can argue that a deviation from that standard is negligence. While Lancaster involves both design defect and failure to warn claims, plaintiff is correct that the foregoing proposition is applicable to the design defect claims. In any event, even if this proposition is applicable to failure to warn claims, Crane’s argument is unpersuasive for the same reasons the court rejected its argument that its valves were not defective based on the state of the art evidence.

            Crane also argues that the Navy was fully aware of the potential harm of asbestos and its failure to warn was a superseding and intervening cause of the plaintiff’s injuries sufficient to break the causal chain so that Crane is not liable as a matter of law.

            Here, the Navy’s failure to warn was not an intervening act, as the risk of the Navy’s conduct, that it, its failure to warn of the dangers of asbestos, is the same risk which renders Crane negligent. Moreover, the Navy’s failure to warn was neither extraordinary nor unforeseeable so as to break the causal nexus. Other courts have held that it was foreseeable in the absence of warnings by Crane, that the Navy as the employer would not warn plaintiff of the dangers of asbestos.

            Crane’s argument that the Navy was aware of the dangers of asbestos, even if true, does not relieve Crane of liability. The cases upon which Crane relies, McLaughlin v. Mine Safety Appliances, Co., and Billsborrow v. Dow Chemical USA, are both distinguishable on their facts. In those cases, defendants actually provided warnings, and the issue was whether the nature of the intervener’s conduct was so extraordinary that it was unforeseeable.

            Crane argument that the knowledgeable user doctrine shields it from liability is also without merit. Crane argues that since the Navy knew of the dangers of asbestos, Crane is not liable for failure to warn.

            Crane also argues that the Navy exercised its discretion and approved certain warnings based on Navy custom, practice and policies. Here, the issue is whether the evidence Crane presented as to its valves demonstrated that Navy specifications contained warnings or labeling requirements limiting information such that Crane established the Navy exercised its discretion and the specifications conflicted with state law.

            Crane did not introduce relevant contracts nor, with one exception, specifications applicable to Crane’s valves.

            The court concludes that Crane has not established it was entitled to this defense as it failed to establish that the Navy prescribed or proscribed any specific warnings with respect to its valves. Thus Crane has failed to establish that the Navy exercised its discretion as to warnings or that there was a conflict with state warning requirements. Nor has Crane shown entitlement under the law as articulated in Getz v. Boeing Co. Here, Crane does not assert nor does the evidence support a finding that the Navy exercised its discretion and selected a complete set of warnings as did the Army in Getz. Crane has not established that the Navy exercised its discretion as to warnings; at best, Crane established that the Navy was involved in labeling of the valves.

            Crane also argues that this court’s evidentiary ruling precluding its Navy witness from testifying that if Crane had attempted to place warnings on its valves, such warnings would have been rejected, prevented Crane from establishing that the Navy exercised its discretion. This evidence was properly excluded as it was undisputed that Crane never attempted to warn the Navy, and the opinion of the Navy witness was based on pure speculation, as Crane offered no specific Navy regulation or protocol to support this conclusion other than the witness’s generalized opinions of what the Navy would have done had Crane warned the Navy about the dangers of asbestos of which it knew but the Navy did not.

            Crane argues that plaintiff failed to establish proximate cause, as the Navy could not have permitted a warning on its valves. Crane also argues that there was no evidence that a warning would have made its way to the plaintiff since the Navy would not have permitted the warnings, was aware of the dangers of asbestos, and in certain instances used warning signs and distributed respiratory protection to shipyard workers, but did not provide the same protections to the plaintiff.

            Significantly, plaintiff explicitly and clearly testified that had he seen the warnings, he would have acted differently to protect himself. When plaintiff’s testimony is considered together with other evidence that went in before the jury, there is a valid line of reasoning, as well as permissible inferences for the jury to have concluded that Crane’s failure to warn was a proximate cause of the plaintiff’s developing mesothelioma.

            To the extent that Crane asserts that the Navy would not have permitted warnings, Crane’s assertion is based on speculation and is insufficient to grant judgment notwithstanding the verdict or to set aside the verdict. Finally, as to Crane’s argument that if it had provided warnings, plaintiff would have developed mesothelioma from the other “intense exposures,” such argument is without foundation in law and is an attempt to exempt Crane from liability based on the actions of others.


        Despite Removal of Blade Guard by Plaintiff, Defendant’s Claim That it is Not Liability Because of Substantial Modification Fails Where Issue of Facts Exists as to Whether Saw was Purposefully Designed to Permit Use Without Guard.


Carpenter sued project owner and table saw manufacturer, seeking damages for injuries sustained when his hand came into contact with a table saw blade. Plaintiff brings causes of action alleging common law negligence and a violation of Labor Law §200 against the project owner, and negligence and strict products liability based on design defect against the manufacturer. He alleges that the table saw was not equipped with a blade guard when he bought it from a co-worker, and that the failure to include a blade guard bolted to the table saw constitutes a design defect. Defendant manufacturer argues that the saw was distributed with a blade guard attached, and it could not be held liable for injuries resulting from a substantial modification of the saw.

The motion court denied defendants’ motion for summary judgment and manufacturer’s motion for leave to renew. Defendants appealed.

The appellate court held that while the manufacturer’s submissions established that the saw was distributed with a blade guard, there is also evidence that the blade guard was removable and that the table saw was operable without it. There, the appellate court held that the motion court was correct in finding triable issues of fact whether the table saw was purposefully designed to permit use without the guard, and thereby denying the defendant’s motion for summary judgment.


        Conflicting Opinions of the Parties’ Experts Regarding the Reasonableness of the Swing’s Design Presented Classic Credibility Issues That are a Matter for the Trier of Fact to Resolve


Plaintiff’s infant was 10 years old and was playing on a swing set on Birchwood Lodge’s property when he jumped off the swing and his fingers got caught between the links of the swing’s chain, amputating the tips of two of his fingers. Plaintiff commenced this action against defendants Birchwood Lodge, Miracle recreation and Pettinell Associates, the manufacturer and installer of the playground equipment involved in the accident. Miracle then initiated a third-party action against Peerless in its capacity as supplier of bulk chain used by Miracle in making the playground equipment. Miracle moved for summary judgment dismissing the complaint. Birchwood cross-moved to dismiss the complaint against it.

The motion court held that conflicting opinions of the parties’ experts regarding the reasonableness of the swing’s design presented classic credibility issues that were a matter for the trier of fact to resolve. Further, the defendants also contended that, as a matter of law, the plaintiff assumed the risk of his injury, thus barring recovery; however, primary assumption of the risk cannot constitute a defense to a strict products liability claim.


        New York Law is Clear That Failure of Exterior Building Products Bars Recovery of the Products and Consequential Damages to the Underlying Structure.


Plaintiff brought this action against the defendant for breach of warranty and breach of New York’s Deceptive Trade Practices Law, negligence and unjust enrichment, alleging that the composite wood trim, manufactured by the defendant, installed in the plaintiff’s facility was defective – that it was rotting, swelling, cracking and peeling. Plaintiff also alleged that there was water damage to the building as a result. The claim was brought 9 years after the composite wood trim’s installation.

Defendant filed a motion to dismiss, and plaintiff filed an amended complaint. The plaintiff argued that it was not the installer of the product, but a third-party beneficiary to the contract between the installer and the defendant manufacturer.

The motion court found that the plaintiff was not a third-party. Further, the court found that New York law was clear that failure of exterior building products bars recovery of the products and consequential damages to the underlying structure. The court also dismissed plaintiff’s unjust enrichment claim as the existence of a valid enforceable contract precluded recovery in quasi-contract, and the parties’ relationship was too attenuated. The court denied defendant’s motion to dismiss plaintiff’s New York’s Deceptive Trade Practices claim, pursuant to General Business Law § 349(a), finding a question of fact on the issue. However, the court did dismiss the plaintiff’s claim for punitive damages as the plaintiff failed to plead or prove egregious fraud aimed at the general public. 

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