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Marilyn Davis et al v. Foster Wheeler Energy Corporation

April 26, 2012

MARILYN DAVIS ET AL., PLAINTIFFS AND APPELLANTS,
v.
FOSTER WHEELER ENERGY CORPORATION, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Richard L. Fruin, Jr., Judge. Super. Ct. No. BC409196

The opinion of the court was delivered by: Armstrong, J.

CERTIFIED FOR PUBLICATION

Los Angeles County

Affirmed.

Plaintiffs and appellants Marilyn Davis, John Davis, Tim Davis, and Jeff Davis appeal from the judgment entered in favor of defendant and respondent Foster Wheeler Energy Corporation, after Foster Wheeler's motion for summary judgment was granted. We affirm.

Background

In the 1960's, Ronald Davis (husband to Marilyn and father to the other plaintiffs) worked at the Shell Chemical plant in Torrance as an instrument technician. Foster Wheeler designs and manufactures steam generating equipment. There were three Foster Wheeler boilers at the Shell Plant while Ronald Davis worked there, and Davis at times worked near those boilers.

Ronald Davis was diagnosed with mesothelioma in 2008, and died in 2009.

Plaintiffs sued Foster Wheeler and many others, bringing causes of action for negligence, strict liability, breach of warranty, and loss of consortium,*fn1 on factual allegations that Davis was exposed to defendants' asbestos and asbestos-containing products and that defendants failed to warn of the dangers of those products.

Foster Wheeler moved for summary judgment on the ground that it did not manufacture, sell, or distribute any asbestos containing product, that Davis was not exposed to asbestos dust emanating from any Foster Wheeler product, and raising other defenses. Plaintiffs' response was that Foster Wheeler was liable because its boilers contained asbestos insulation and because it failed to warn Davis of the dangers of working around that insulation, and that Foster Wheeler was liable because it had itself exposed Davis to asbestos by removing asbestos-containing insulation from the boilers to perform routine maintenance.

Foster Wheeler's motion was granted, judgment was entered, and this appeal was filed. Subsequently, our Supreme Court decided O'Neil v. Crane Co. (2012) 53 Cal.4th 335, which concerned the liability of a manufacturer of pumps and other equipment for injury caused when third-party asbestos was released when the equipment was serviced. O'Neil held that "a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product," (id. at p. 362) finding that a manufacturer's duty does not extend to "preventing injuries caused by other products that might foreseeably be used in conjunction with a defendant's product," and that manufacturers do not have a duty "to warn about the dangerous propensities of products they do not design, make, or sell." (Id. at pp. 342-343.)

We invited the parties to file supplemental briefs on the effect of that case on this one. In response, plaintiffs argued that there are still two grounds for reversal.

First, plaintiffs contend that O'Neil, supra, does not affect their theory that Foster Wheeler is liable because its employees exposed Davis to asbestos dust by stripping old insulation from Foster Wheeler boilers in order to perform routine maintenance on the boilers. They contend that there is a triable issue on the facts, and that Foster Wheeler "cannot articulate anything that would immunize it from liability if its employees actually engaged in that conduct."

Next, plaintiffs have an argument that concerns discovery. They contend that there may be evidence that Foster Wheeler directed the use of asbestos on the boilers, but that Foster Wheeler had not ...


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