In the first California case, the plaintiff was diagnosed with mesothelioma in 2014. He had previously worked as an auto mechanic in New York City and Los Angeles, during which he purchased an AMMCO machine equipped with a dust collection system. This machine was “an ‘arcing’ machine designed to grind drum brake linings for cars and light passenger trucks with standard sized brake shoes. From the early 1950’s to the 1980’s, the great majority of such drum brake linings contained asbestos. Because the AMMCO machines created dust when used, AMMCO equipped them with a dust collection system to collect dust from the linings being abraded. Asbestos-containing brake linings were so prevalent that in 1973, AMMCO began using a system that it called an ‘asbestos dust collector.’”
In the second case, an auto mechanic used the AMMCO arc machine from 1962 to 1977, during which time he carried asbestos dust from brake linings home and exposed his wife, who contracted mesothelioma and died. In both cases, the defendant Hennesey, as the alleged successor to AMMCO, moved to dismiss the claims on the ground that its predecessor neither manufactured nor sold any of the asbestos-containing products.
The lower court granted the motions. On appeal, the Court of Appeal of California applied a product harm exception to Hennesey’s position, which it described as follows: “The Tellez-Cordova exception, as expounded in O’Neil, requires a special relationship between the manufacturer’s product and the alleged harm. O’Neil provides no definition of that relationship, but identifies factors relevant to its existence. (O’Neil, supra, 53 Cal.4th at pp. 361-362.) Although the O’Neil court rejected the underlying appellate court’s imposition of strict liability on the defendant manufacturers, the O’Neil court appears to have agreed that at least two factors proposed by the underlying court are required for the relationship, namely, that the manufacturer’s product ‘is necessarily used in conjunction with another product,’ and that ‘danger results from the use of the two products together.’ (O’Neil, supra, at p. 361.)
“However, the O’Neil court explained the requisite relationship in more stringent terms, stating that a duty to warn was properly imposed in Tellez-Cordova because ‘the defendant’s product was intended to be used with another product for the very activity that created a hazardous situation.’ (Ibid.) Thus, such a duty is imposed when ‘the intended use of a product inevitably creates a hazardous situation,’ but not when that situation is merely foreseeable and is due solely to another product. (Id. at pp. 361-362, italics added.)” The court ultimately found that there was basis for applying the exception in this case: “In our view, the product-harm relationship involving the AMMCO machine satisfies the factors identified in O’Neil for application of the Tellez-Cordova exception. Petitioners’ evidence shows that the AMMCO machine was necessarily used with a certain type of lining, and that asbestos dust resulted from that joint use. Furthermore, the machine was intended to be used with drum brake linings ‘for the very activity’ that generated the asbestos dust, the creation of which was ‘inevitabl[e]’ — rather than merely foreseeable — due to the overwhelming prevalence of asbestos-containing linings. (Italics omitted.)”
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