Cal Biz Lit has been following the evolution of the Courts of Appeals' efforts to answer this question: if a manufacturer's product is not itself defective, but becomes defective when used in conjunction with a third-party's defective products (e.g., the defendant's valves were made of steel, but are used with asbestos gaskets and packing made by somebody else), can the manufacturer be held liable for failure to warn of the dangers posed by the component it neither manufactured nor sold?
The score had been 2 - 1 for the defense (based on the decisions in Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, -- "no" --, O'Neil v. Crane Co. (September 21, 2009) ___Cal.App.4th___ (B208225) -- "yes" -- and Merrill v. Leslie Controls, Inc. (Reh Granted, so not citeable: September 25, 2009) -- "no." The the Court of Appeal granted reconsideration on Merrill, depublishing the decision and making it unciteable.
Well, the Court of Appeal is done with its reconsideration, and today it came back with exactly the same decision and exactly the same language as before, (with no mention of September's contrary decision from the same district in O'Neil) . In the published part of the decision, the court rules that if you didn't manufacture or distribute the component, you have no duty to warn, and there's no failure to warn strict liability.
So it's now 2-1 in favor of the defense on this issue. And as readers of CBL know, every trial court in the the State can follow either Taylor and Merrill or O'Neill. Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal. 2d 450.
There is some other interesting language in the decision that I missed when it first came out in December. Those in the toxic tort defense world are used to the junk scientist argument that when it comes to toxins, every molecule of exposure is dangerous, every hit is cumulative, and blah blah blah. Well, on that subject, and in the published part of the decision, the Court of Appeal offers the following:
. . . to provide a basis for inferring that a product was a substantial factor in causing injury, a plaintiff must provide evidence of substantial exposure for a substantial period of time; minimal exposure is not sufficient . . . .
(Slip op. at p. 14.)
I don't think I've seen quite this a definitive statement in any California case. So much for the "one hit," "one fiber," "one molecule" sort of junk science nonsense.