RECENT DEVELOPMENTS IN TOXIC TORTS AND ENVIRONMENTAL LAW

• Published in: Tort trial & insurance practice law journal Vol. 47; no. 1; pp. 527 - 559
• Main Authors: Kramer, Beth M., Trattles, Gloria Martinez, Schlosser, Jennifer E., Ross, April Nelson, Smith, Joel D., Spina, Providence, Mullins, Derek R.
• Format: Journal Article
• Language: English
• Published: Chicago Tort Trial and Insurance Practice Section, American Bar Association 22.09.2011; American Bar Association
• Subjects: Asbestos; Certification; Common law; Defendants; Employment discrimination; Environmental law; Environmental legislation; Federal circuit courts; Federal court decisions; Federal district courts; Jurisdiction; Manufacturers; Plaintiffs; State court decisions; Statutory law; Surveys; Testimony; Torts; Toxic torts
• ISSN: 1543-3234; 1943-118X

19 iii. duty to warn Since the Washington Supreme Court issued its Braaten and Simonetta decisions, 20 rejecting a manufacturer's duty to warn of the dangers of a third party's product, the intermediate appellate courts of Washington have consistently rejected efforts to limit the reach of that pair of decisions. 21 The Braaten decision specifically reserved the question of whether a duty to warn about the dangers of a third party's product might arise when the defendant manufacturer specifies the use of the third party's product in conjunction with the use of its own product. 22 In Wangen v. A.W. Chesterton Co ., the intermediate appellate court considered and rejected the so-called specification exception suggested by Braaten . 23 The plaintiff in Wangen argued that the defendant, a pump manufacturer, was not entitled to summary judgment because there was a genuine factual dispute about whether the defendant had specified the use of replacement asbestos-containing gaskets and gasket material for its pumps. 24 Putting aside the dispute about the state of the record evidence, the court considered whether the fact that a manufacturer had specified that its nonasbestos product be used in conjunction with asbestos products made and sold by a different manufacturer could give rise to a duty to warn about the hazards associated with the use of the other manufacturer's asbestos products. 25 The court determined that the underlying principle of Braaten and Simonetta -that "liability for unsafe products is limited to those who [manufacture] such products or are in their chain of distribution"- allowed no room for a specification exception. 26 The court further noted that the plaintiff had provided no "persuasive authority" to support his claim for an exception to the rule of Braaten and Simonetta . 27 Like the Washington courts, appellate courts in California are grappling with the scope of a manufacturer's duty to warn about the hazards of a third party's product.