Warning Cases: Caution About Causation

Originally published in CAOC's Forum, Volume 44, Number 3

Forum Editor's Note: Deborah Rosenthal and Craig Peters both worked on the Webb case, referenced in this article, at the trial level. The Veen Firm handled the Corbo case, also referenced in this article.

Deborah R. Rosenthal is an attorney at Simmons Browder Gianaris An- gelides & Barnerd, LLC, where she practices primarily asbestos and other toxic tort litigation in both the San Fran- cisco and Los Angeles offices. www.simmonsfirm.com

Craig M. Peters is a trial attorney and the team leader of the Peters Trial Team at The Veen Firm. Mr. Peters is a member of ABOTA and was a finalist in both 2013 and 2014 for SFTLA Trial Lawyer of the Year. www.veenfirm.com

Although California courts have issued several decisions in product defect cases in recent years which have helped refine the contours of a defendant's duty to warn, the courts have only recently started looking more closely at the issue of causation. Attorneys advancing warnings-defect claims should be aware of unresolved evidentiary questions with regard to proof of causation in a warnings case, and stay alert for guidance that may come from the appellate courts in the months ahead.

Warnings theories under California law

Warning defects are one of three types of product defects recognized by California law. Under the warning-defect theory of liability, all entities who participate in the marketing enterprise that brings a product into the hands of a consumer may be held liable for injuries caused by foreseeable use of the product, even if the product is "faultlessly made," "if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning...." (Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 53; Cavers v. Cushman Motor Sales Inc. (1979) 95 Cal.App.3d 338, 343.)

The Second District Court of Appeal recently held that the following allegations sufficiently pleaded a "defective warn- ing" claim: Defendant "knew, or should have known, of hazards arising from their products when used as intended"; users such as plaintiff "were unlikely to dis- cover those hazards on their own"; and defendant failed to warn of one of those hazards which plaintiff then suffered injury from. (Ramos v. Brenntag Specialties, Inc. (2014) 224 Cal.App.4th 1239, 1254.)

Warning-defect cases proceed under strict liability or negligence theories, or both, and may consist of failure-to-warn allegations, where no warning is given, or failure-to-adequately-warn allegations where a warning is given, but the plaintiff contends that the warning given was not sufficient to inform a reasonable person: 1) of how the product can cause harm (e.g., ingestion or skin contact) and 2) the type of harm the product can cause (e.g., liver failure or burns).

Strict liability requires a showing that the defendant "did not adequately warn of a particular risk that was known or know- able in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manu- facture and distribution." (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002.) "Knowable," in this context, refers to "knowledge which is ob- tainable 'by the application of reasonable, developed human skill and foresight.'" (Id. at pp. 995-996, 1002 -1003, fn 13 (citing to Rest. 2d of Torts § 402A com. j).) In strict liability cases, the reasonableness of the defendant's failure to warn is immaterial.

Negligent failure-to-warn cases require proof that a defendant did not warn about a particular danger that the product's con- sumers were foreseeably likely to encoun- ter through ordinary use of the product, if a reasonably prudent manufacturer or distributor would have known and warned about such a risk. (Anderson, supra, 53 Cal.3d at p. 1002.)

Failure to recall and failure to retrofit are subsets of negligent failure to warn, in the sense that these theories impose a post-sale duty on manufacturers and sellers to act reasonably with respect to nonobvi- ous risks inherent in their products that the defendant discovers after the product has been distributed. In such circumstances, the defendant has a duty to recall, retrofit, or warn consumers, if a reasonable manufacturer or seller under the same or similar circumstances would undertake such measures, in order to protect those likely to encounter the product from the potential harm. (Oxford v. Foster Wheeler (2009) 177 Cal.App.4th 700, 721; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1562-1563; see also Rest. 3d Torts, Prod. Liab., § 10.)

Whether the absence of a warning makes a product defective involves several fac- tors, including a consumer's normal ex- pectations of how a product will perform; degrees of simplicity or complexity in its operation or use; the nature and magnitude of the danger to which the user is exposed; the likelihood of injury; and the feasibility and potential beneficial effect of a warning. (Jackson v. Deft (1990) 223 Cal.App.3d 1305, 1320.)

The adequacy of a warning also is a question of fact and may depend on fea- tures of the warning such as conspicuous- ness and a lack of ambiguity. (Ibid.) In these ways, the "warning defect" relates to a failure distinct from the propensity of the product to cause harm. This is use- ful to keep in mind when considering the elements of duty and causation in failure- to-warn cases.

Limitations on duty

So far, the approach of the California courts to product liability law in the 21st Century seems to be about curtailing the rights of consumers with respect to what previously was an expansive view to- ward consumer protection with respect to injurious products. In the context of warning-defect cases, these limitations have carved out categories of plaintiffs to whom no duty is owed and defendants who owe no duty.

Sophisticated user doctrine

In 2008, the California Supreme Court held that a manufacturer has no duty to warn "sophisticated users" about prod- uct risks of which these consumers "are already aware or should be aware" by virtue of their presumptive knowledge derived from membership in a class of specially skilled or trained people. (John- son v. American Standard, Inc. (2008) 43 Cal.4th 56, 65, 71, 73-74.)

Relying on the Restatement Second of Torts, § 388, com. k,1 and the body of existing California law that recognized "the obvious danger rule, which provides that there is no need to warn of known risks under either a negligence or strict liability theory,"2 the court concluded that the public policy interest of promoting user safety is not jeopardized by a lack of warn- ings "when the expected user population is generally aware of the risk at issue," (id. at p. 74) while requiring warnings "in all instances would place an onerous burden on [manufacturers] and would 'invite mass consumer disregard and ultimate contempt for the warning process,'" thus reducing the efficacy of warnings generally. (Id. at p. 70.) Thus, public policy weighs in favor of finding no duty to warn "sophisticated" users. Although Johnson negates a product maker's duty, its rationale is closely tied to causation, because if a risk is "universally known" that risk cannot be the legal cause of harm. (Id. at p. 67.)

In 2009, the Second District Court of Appeal held that a manufacturer owes no duty to warn sophisticated users, even if a statute requires such a warning. (Johnson v. Honeywell International, Inc.(2009) 179 Cal.App.4th 549, 556.)

Sophisticated intermediary doctrine

Since Johnson, the appellate courts have elaborated on the limiting principle associ- ated with a purchaser's sophistication.3 In 2010, the Second District Court of Appeal held that the sophisticated user doctrine does not apply where the sophisticated person is an intermediary, such as an em- ployer or retailer, rather than the end user. (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 29-30.) In cases involving sophisticated intermediaries, a defendant manufacturer has no duty to warn the end user if it gave adequate warnings to the intermediary and reasonably relied on the intermediary to pass those warnings on to the product user. (Id. at p. 30.) Conversely, if the manufacturer did not warn the intermediary, the manufacturer cannot extinguish its duty to the end user, even if the intermediary actually knew and failed to warn of the hazard that ultimately harmed the product's user. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1297-1298.)

In Pfeifer, defendant was a valve manu- facturer who sold asbestos-containing products to the U.S. Navy, and plaintiff was a boiler technician who was exposed to asbestos while repairing defendant's valves during the course of his Navy ser- vice. Defendant introduced evidence that the Navy knew about the propensity of asbestos to cause cancer and argued that this knowledge negated the defendant's duty to warn of this risk. The Second District agreed with the Stewart court that an intermediary's sophistication about a particular risk could not be imputed to an unsophisticated user of the product.

In Ramos v. Brenntag Specialties, Inc. (2014) 224 Cal.App.4th 1239, the Second District added that the sophisticated intermediary doctrine requires a showing both (1) that the intermediary employer was sophisticated, and (2) that the defendant had some reason to believe the intermediary passed on its knowledge to the plaintiff: "That showing may be made in numerous ways, including the presentation of evidence that the specific dangers were so readily apparent to the employer that it would be expected to protect its workers." (Id. at 1258.)

Component parts doctrine

In addition to circumscribing duty based on the actual and constructive knowledge of the purchasers and users of products, recently the courts have also considered a defendant's duty in light of the defendant's role in creating the hazard with respect to components, finished products, and prod- ucts used in conjunction with each other. In 2012, the California Supreme Court resolved a split in appellate authority on the issue of whether plaintiffs suffering from asbestos-related injuries could re- cover from the manufacturer of finished products that included asbestos-containing parts made by other manufacturers. Issuing a ruling that reaches well beyond the scope of asbestos litigation, the court held that a product manufacturer has no duty to warn of dangers inherent in other manufacturers' products unless the defendant's own prod- uct "contributed substantially to the harm, or the defendant participated substantially

in creating a harmful combined use of the products." (O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 362.) Subsequently, the Second District held (outside the asbestos context) that even if a defendant manufac- turer had warned of a danger caused by another manufacturer's product, used in conjunction with the defendant's product, no liability could attach for an injury aris- ing out of the other product's dangerous propensities because the defendant had no duty to warn of that other product's inher- ent risks. (Sanchez v. Hitachi Koki, Co., Ltd. (2013) 217 Cal.App.4th 948, 958.)

In contrast, when a defendant's own product creates a hazard when put to the use intended or specified by the defendant, the defendant has a duty to warn the end user regardless of whether the defendant's prod- uct poses a harm as a component in another manufacturer's product (Ramos, supra, 224 Cal.App.4th at 1260), or when used in conjunction with another manufacturer's product. (Olivares v. Morehouse-Cowles, 2014 W.L. 1571766 (unpublished).)


A failure to adequately warn can be ad- dressed on both sides through warnings experts, who offer human factors analysis of warnings given and their impact on people's conduct.4 But proof of causation in failure-to-warn cases has been largely unaddressed by California courts. The question of how to prove that a nonexistent warning substantially contributed to an actual injury is so esoteric that it has been referred to as "nonjusticiable."5

A plaintiff must prove not only that a product's design caused the plaintiff's injury, but also that the absence of warn- ings or instructions was a substantial factor in causing plaintiff's harm. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968; Conte v. Wyeth (2008) 168 Cal. App.4th 89, 112; CACI 1205 and 1222.) This requires a showing that the plaintiff would have used the product in a man- ner that did not cause injury or would have chosen a different product entirely if the defendant had warned consumers about the danger that ultimately caused the plaintiff's injury.6 As the First Appel- late District explained in Conte v. Wyeth, Inc. (2009) 168 Cal.App.4th 89, 112, a pharmaceutical case, "There can be no proximate cause where, as in this case, the prescribing physician did not read or rely upon the allegedly inadequate warnings promulgated by a defendant about a product. [Citation.]" (Id., at p. 112.)

Reliance on "common sense and com- mon experience to convince the jury that if a warning had been issued, the accident would have been avoided," is insufficient because it does not include the necessary fact "that any warning issued would have reached plaintiffs." (Huitt v. Southern Cali- fornia Gas Co. (2011) 188 Cal.App.4th 1586, 1601-1602.)

The problem with this standard of proof is obvious: Testimony that a plaintiff would have read and heeded a warning, if it were given, is purely speculative, and the self-serving nature of such testimony adds to its unreliability. In an unpublished opinion issued in March, the First District Court of Appeal attempted to avoid this conundrum by explaining that "direct evidence of causation is neither required nor necessary to establish the causation el- ement of a strict product liability failure to warn claim. (Corbo v. Taylor-Dunn Manu- facturing Company, A135393 (2/14/14) (citing to Dimond, supra, 65 Cal.App.3d at 184).) The Corbo court said that causation properly could be inferred from circumstantial evidence, such as evidence that "the individuals involved in the accident are careful people, or that they looked for, were concerned by, or followed warnings" or safety rules with regard to other hazards. The court neglected to address how such evidence could escape the evidentiary bar of Evidence Code section 1101, sub- division a, which prevents a litigant from introducing character evidence to prove what someone's conduct would be on a specified occasion.

Although in many jurisdictions, the burden of proof of causation in failure- to-warn cases is shifted to the defendant through imposition of a "heeding presumption" - the idea that an adequate warning, by definition, can be presumed to be a warning that would be read and followed - California has yet to adopt this rule.7 Furthermore, from an evidentiary stand- point, this standard suffers from the same problem as a direct evidence standard: In order to overcome such a presumption, the defendant would have to introduce testimony that the plaintiff in a particular case would not have read and heeded a warning that the manufacturer would have (again, hypothetically) given. Twerski and Cohen sum up this problem well in their law review article, Resolving the Dilemma of Nonjusticiable Causation in Failure-to- Warn Litigation: "The number of variables that affect whether a particular plaintiff would or would not have read or heeded a warning is so substantial that it is sheer folly to predict whether in any given set- ting a warning or an alternative warning would have been efficacious." 8

How to protect your client

Absent a clear directive from the court as to what California law will be on this issue, the most reliable way to assure that the plaintiff's burden is met with respect to causation in a failure-to-warn context is to introduce both circumstantial evidence (typically considered inadmissible under Evid. Code § 1101, subd. a), and direct evidence (asking the plaintiff, "Would you have read and followed this warning had it been given?"). Additionally, bring these issues to the attention of the court before the trial starts, so that the court must rule on what type of evidence of causation will be allowed, and the defendant must com- mit to a position with regard to how the plaintiff can establish causation, thereby preventing the defendant from taking a contrary position on appeal, if the plaintiff prevails at trial.

A court could reasonably conclude that both of these types of evidence are inad- missible and prevent the plaintiff from presenting any evidence on this matter outside of human factors and warnings experts regarding the necessity and ef- ficacy of warnings.

Also request jury instructions that allow the jury to evaluate the causation issue in a failure to warn case.9 This inserts an objectively reasonable person test, which is what the Court of Appeal seemed to suggest was the proper standard in Webb v. Special Electric Company, Inc. (2013) 153 Cal.Rptr.3d 882, 898, review granted and opinion superseded by Webb v. Special Electric Company, Inc. (2013) 157 Cal. Rptr.3d 569.

Is an answer on the way?

In Webb v. Special Electric Company, Inc., Cal. Supreme Court Case No. S209927, plaintiff worked from the 1960s through the 1980s for a retail store called Pyramid Pipe & Supply, which bought transite pipe manufactured by Johns-Manville from a supplier called Familian, and then resold it. Plaintiff's job was to unload the asbestos-containing pipe, and then retrieve it for customers. These activities generated asbestos-containing dust, which plaintiff breathed in. He later developed mesothelioma, an asbestos-caused cancer, and went to trial against Special Electric Company, the corporation that supplied the asbestos to Johns Manville for use in the manufacture of the pipe. One of Special Electric's arguments was that sophisticated users need not be warned of dangers that they are sophisticated about, and Johns Manville was one of the most sophisticated companies in the U.S. with regard to asbestos and asbestos products.

Plaintiff proceeded to trial on strict li- ability failure to warn, negligent failure to warn, and negligent design theories. After a jury verdict in plaintiffs' favor, the trial court transmuted a nonsuit motion, which defendant had filed at the outset of trial, but the court had not ruled on, into a motion for judgment notwithstanding the verdict, and overturned the jury's verdict.

On appeal, the Second District followed Johnson and Stewart in concluding that a duty to warn the ultimate user exists. With regard to causation, the appellate court found that plaintiff proved this ele- ment of his case with evidence that he was exposed to defendant's asbestos when handling Johns Manville pipe, and that this exposure caused his mesothelioma. (Webb v. Special Electric Co. (2013) 214 Cal. App.4th 595, 615.) As the court viewed the issue: "Having found that Special Electric failed to provide adequate warnings of that danger, the jury was entitled to conclude also that adequate warnings would have led to a better outcome for Webb, and therefore that Special Electric's failure to warn (as well as its general negligence in supplying and marketing asbestos) was a substantial factor leading to that result." (Id. at p. 624.)

The California Supreme Court certi- fied two issues for review: "Was the trial court's decision to treat defendant's pre- trial motions for nonsuit and for a directed verdict as a post-trial motion for judgment notwithstanding the verdict procedurally improper, and if so, was it sufficiently prej- udicial to warrant reversal?" and "Should a defendant that supplied raw asbestos to a manufacturer of products be found liable to the plaintiffs on a failure to warn theory?"

With respect to failure to warn, the issue before the court in Webb is essentially the same as the issue raised in Stewart and Pfeifer: Does an intermediary's knowl- edge about asbestos hazards negate the defendant's duty to ensure that adequate warnings reach a dangerous product's end-user? While the causation issue is not directly before the court, given the dearth of California authority on the issue of ad- equate proof of causation, the court may elect to comment on the matter in order to afford some guidance in an otherwise unsettled area.

Oral argument in Webb has not yet been set, but an opinion is expected by the end of this year.

1 Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 66.

2 Johnson v. American Standard, Inc. (2008) 43 Cal.4th at p. 67.

3 It is important to note that the limitations on a defendant's duty under the sophisticated user and sophisticated intermediary exceptions apply only to negligence, failure to warn, and strict liability design defect on the consumer expectations theory. Sophisticated user is not a defense to strict liability design defect on a risk-benefit theory. (Johnson v. Honeywell, 179 Cal.App.4th 549, 556-558 & fn. 4.)

4 See, e.g., Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 178-179 (plain- tiffs' expert opinion that an ambiguous and misleading warning caused the harm was sufficient circumstantial evidence of causa- tion).

5 Twerski, Aaron D., and Cohen, Neil B., Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation, 84 So. Cal. L. Rev. 125.

6 See, e.g., Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 109-110.

7 See Huitt v. Southern California Gas Co. (2011) 188 Cal.App.4th at p. 1603; Dimond v. Caterpillar Tractor Co. (1976) 65 Cal. App.3d at p. 185 and fn. 8; and Motus v Pfizer (CD Cal 2001) 196 F.Supp.2d 984, 992, fn 5).

8 Twerski, Aaron D., and Cohen, Neil B., Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation, 84 So. Cal. L. Rev. 125 at 132

9 CACI 1205 on Failure To Warn, element 4, and CACI 430 on Causation both seem to embody a reasonable person standard that make such an instruction justified.