APPEAL from a judgment of the Superior Court of Los Angeles County. Elihu Berle, Judge. Reversed. (Los Angeles County Super. Ct. No. BC360274)
The opinion of the court was delivered by: Armstrong, Acting P. J.
CERTIFIED FOR PUBLICATION
Patrick O'Neil died of mesothelioma. His widow, appellant Barbara O'Neil (individually and as successor in interest to Patrick O'Neil), and his children, appellants Michael O'Neil and Regan Schneider, sued respondents Crane Co. and Warren Pumps LLC for negligence, negligent failure to warn, strict liability for failure to warn, and strict liability for design defect on the consumer expectation theory. After 15 days of jury trial, the court granted respondents' motion for non-suit and judgment was entered in their favor. We reverse.
Patrick O'Neil died of mesothelioma in 2005, when he was 62 years old. The jury heard evidence connecting his disease to his exposure to asbestos during the period between June of 1965 and August of 1966, when he served as an officer on the USS Oriskany, an Essex class aircraft carrier built between 1944 or 1945 and 1950.*fn2
On the Oriskany, O'Neil was first a Main Engine Junior Officer, then a Boiler Division Officer. In both assignments, he stood watch in the machinery spaces, that is, in the boiler rooms and engine rooms and machine room, where he was responsible for supervising repairs and maintenance of equipment in those rooms. He also supervised repairs when the Oriskany was in dry dock for a period of about three months, after a fire.
Through testimony from an expert witness, retired Navy Captain William Lowell, from former Crane and Warren employees, and from other witnesses, appellants produced evidence about the Oriskany and about respondents' products:
The main power source on the Oriskany was steam, produced by eight boilers in four rooms. The steam system operated at very high temperatures, and all valves, flanges, and fittings were necessarily covered in insulation. When the Oriskany was built, the primary type of insulation for that purpose was made of 18 percent magnesium and 15 percent asbestos. Asbestos was also used in the packing which was found in pumps and valves.
There were thousands of valves on the Oriskany. Most of the valves in the machinery spaces were made by Crane. All of the Crane valves contained asbestos-containing packing, and Crane itself specified that material. Most of the valves had asbestos-containing insulation. The valves had flange connections, and most of the flange connections required the use of asbestos gaskets.*fn3
There were several hundred pumps on the Oriskany. Fifty-two of them were made by Warren Pumps, including reciprocating steam engine pumps and 6-foot tall bilge pumps. All but 4 or 5 of the 52 pumps were located in the machinery spaces. The pumps had asbestos-containing insulation and asbestos-containing packing and were designed to be used with asbestos-containing gasket insulation. At least in some instances, asbestos-containing packing and insulation were supplied by Warren and were on the pumps when they were delivered. Warren knew that work on the pumps would require removal of asbestos gaskets.
Packing and insulation had to be replaced or removed during the ordinary course of maintenance. The heat involved in steam power meant that the packing and insulation would bake onto the equipment, and could only be removed by being scraped off with a chisel or knife or wire brush. This work created asbestos dust.*fn4
Douglas Deetjen, a shipmate of Patrick O'Neil's, worked in the Oriskany's boiler and engine rooms. He described the process of re-packing valves and pumps, and of removing insulation from the equipment in the course of repair or maintenance. This would be done with a knife, scraper, grinder or wire brush, and produced a lot of dust. Deetjen saw O'Neil in the machinery spaces while this work was going on and dust was created. He testified that during these repairs, the dust floated all over the room, so that there was no way to avoid breathing the dust.
Lowell testified similarly, and also testified about dust-producing work undertaken by ship personnel during the repair of the Oriskany.
Deetjen testified specifically that work on Crane valves created dust and that Patrick O'Neil was in the room when that happened. He testified that work on Warren pumps created dust, and that he saw Patrick O'Neil in the room when work was being done on Warren pumps.
The Navy required manufacturers of equipment such as pumps and valves to provide manuals containing information about installation, operation, and maintenance. Manufacturers were required to include information about expected repairs and about safety cautions and requirements. Manuals also identified replacement parts. These manuals were living documents which could be changed during subsequent years.
None of the respondents' manuals included a warning about asbestos dust, or any recommendation concerning use of respirators or dust-reduction methods such as wetting friable asbestos. In the 1980s, Warren questioned Navy specifications on asbestos packing, raising issues about the health hazards. A Warren representative testified that nothing prevented it from doing so sooner, or from including warnings in the manuals.
Deetjen testified that his orders included an order to look at the manuals supplied by manufacturers.
The jury also heard evidence on the Navy's design and procurement process. Appellants' expert witness testified that a ship builder, building a ship for the Navy, would turn to qualified manufacturers and direct them to the "broad specifications" the Navy provided. (For instance, the Navy might specify that pumps should deliver 600 gallons a minute, be turbine driven, and able to operate at temperatures of up to 600 degrees.) The manufacturer would take that information and design the pumps. Lowell testified that "the Navy didn't design pumps. The manufacturers designed the pumps."
Appellants also presented the deposition testimony of Roland Doktor, a manager at Warren Pumps, designated as the person most knowledgeable about issues in this case. When asked "what does it mean to be built to a military specification?" he answered, "There are a certain set of guidelines that are put forward in the specifications as far as materials and properties, testing, things like that, to make sure that the pump will meet the requirements as it needs to be on the ship."
Respondents also called witnesses on this subject. Retired Admiral David Sargent testified about the ship-building process. This included the testimony that the Navy and manufacturers engaged in a design process, going back and forth between the Navy and the manufacturer, in which the manufacturer produced drawings for the Navy. This process resulted in Navy specifications.
There was also evidence concerning scientific knowledge of the dangers of asbestos at the relevant times, and of respondents', and the Navy's, actual knowledge of the dangers of asbestos;*fn5 evidence about Patrick O'Neil's disease, damages evidence, and evidence relevant to ...