IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
BARBARA J. O'NEIL, individually and as successor in interest to PATRICK J. O'NEIL; et al., Plaintiffs and Appellants,
CO. and WARREN Defendants

PUMPS, LLC,

suPRE_iIE

cOUP, T

and Respondents.
Ft,eOeflek K. Ohlr\oh Olerk.
W_N PUMPS, LLC'S PETITION FOR REVIEW
Court of Appeal, Second Appellate District, Div. Five, No. B208225 Los Angeles County Superior Court, No. BC360274 The Honorable Elihu Berle, Judge Presiding
Laurie J. Hepler, No. 160884 James P. Cunningham, No. 121406 CARROLL, BURD:ICK & McDONOUGH LLP 44 Montgomery Street, Suite 400 San Francisco, CA 94104 Tel.: 415.989.5900; Fax: 415.989.0932 Email: lhepler@cbmlaw.com Attorneys for Petitioner WARREN PUMPS, LLC
BARBARA J. O'NEIL, individually and as successor in interest to PATRICK J. O'NEIL; et al.,
Plaintiffs and Appellants,
CRANE CO. and WARREN Defendants
WARREN PUMPS, LLC'S PETITION FOR RE,V-IEW
Court of Appeal, Second Appellate District, Div. Fi_ze, No. B208225 Los Angeles County Superior Court, No. BC360274 The Honorable Elihu Berle, Judge Presid_g
Laurie J. Hepler, No. 160884 James P. Cunni_:gham, No. 121406 CARROLL, BURD*ICK & McDONOUGH LLP 44 Montgomery Street, Suite 400 San Francisco, CA 94104 Tel.: 415.989.5900; Fax: 415.989.0932 Email: lhepler@cbmlaw.com Attorneys for Petitioner WARREN PUMPS, LLC
TABLE OF CONTENTS Page I II III ISSUE FOR REVIEW... INTRODUCTION... 1 1
THE KEY FACTS COMMON TO TAYLOR AND O'NEIL DO NOT MATERIALLY DIFFER..
THIS COURT SHOULD RESOLVE THE STARK CONFLICT IN PRODUCT LIABILITY LAW PRESENTED BY O'NEIL. 12 A. B. C. D. Strict Liability... Negligence... Component-Parts Defense... 18
O'Neil's Expansion of Tort Liability Is Not Sound Public Policy...
This Conflict In the Law Will Slow and Complicate Trial CoutCus' Work at a Time When They Can Least Afford It. 23... 24

CONCLUSION

APPENDIX

1: O'NEIL SLIP OPINION

O'NEIL DBF-ENSE TRIAL EXHIBIT
TABLE OF AUTHORITIES Page(s) CASES Auto Equity Sales, Inc. v. Superior Court (1962)oa57 Cal.2d 450... Braaten v. Saberha_en Holdings (2008) 165 Wasn.2d 373... Daly v. General Motors Corp. (1978) 20 Cal.3d 725... 4 15
13, 14, passim 17 14, passim
Elmore v. American Motors Corp. (1969) 70 Cal.2d 578... Garman v. Magic Chef Inc. (1981) 117 Cal.App.3d 634.. Jimenez v. Superior Court (2002) 29 Cal.4th 473... O'Neil v. Crane Co., (2009) 177 Cal.App.4th 1019..
Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456... Peterson v. Superior Court (1995) 10 o_val.4th 1185... Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59... Rowland v. Christian (I968) 69 Cal.2d 108.... Simonetta v. ViadCorp. (2008) 165 W-ash.2d 341 Taylor v. Etliott Turbomachinery Co., lnc. (2009) 171 Cal.App.#th 364... Tettez-Cordova-v. Campbetl-I4au_feld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577...

8, 9, 12, 13, 16

Thing v. La Chusa (1989)48 Cal.3d 644.... 16 Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256... 13, 15, 22
TABLE OF AUTHORITIES (continued)
Page(s) STATUTES California Rules of Court Rule 8-500.... OTHER Rest.3d Torts, Products Liability, AUTHORITIES 5.. 19-20 1
I ISSUE FOR REVIEW Under what circumstances, if any, is the manufacturer incorporates of a
product liable for harm caused when the purchaser replacement
parts, or affixes new parts, made and supplied by third parties? II INTRODUCTION Two published decisions this year create a sharp conflict over importance: the extent of an The
issues of statewide equipment

and indeed nationwide

manufacturer's
liability for allegedly defective products.
First District, following the teachings appellate precedents, manufacturer's
of this Court's decisions and multiple
decided the issues in a way that limited a it sold or distributed. The Second

liability to products

District panel in this case rejected the First District's

decision, and instead

relied on one of its own decisions to establish a far broader scope of liability. Thus, the decision here amply meets both of the primary criteria to secure of law.

more fully explained below, the facts in O'Neil do not differ materially from those on which Taylor was decided. Trial courts in California confront two precedents now have no clear direction. of law on manufacturers have They
that reach opposite conclusions Taylor holds that equipment
essentially the same facts:
no duty to warn of the asbestos hazards associated with other
very liberal review of the nonsuit record, effectively ignoring the defense evidence. (See Slip Op. at p. 2, fla. 1, citing Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583:)

manufacturers'

replacement

components

or exterior insulation

and flange

gaskets used with their equipment.
O'Neil holds that they do. The of product liability cases -
confusion sown by O'Neil affects thousands primarily but not exclusively
asbestos cases - now making their way court system from every comer of the nation.
through and to the California
The outcome in each Superior Court lawsuit depends on which precedent the particular law-and-motion Equity Sales, lne. v. Superior faced with conflicting or trial judge decides to follow. (See Auto
Court (1962) 57 Cal.2d 450, 456 [trial courts on point must choose which to follow].) This Court should grant review of

precedents

Such disarray is untenable. O'Neil to resolve it.
HI THE KEY FACTS COMMON TO TA YLOR AND O'NEIL DO NOT MATE' "RtALLY D_IFFER 0 'Nell is not reconcilable with Taylor - which it expressly rejects. The key overlapping facts are as follows: Both of these cases involved claims for personal injury or wrongful death arising out of a Navy veteran's exposure to asbestos. Plaintiffs Reginald Taylor and Patrick O'Neil each served during the 1960s aboard Navy aircraft carriers that were built during World War II. (Taylor, 171 Cal.App.4th atp. 570; O'Neil Slip Op. at p. 2.)

The defendants equipment

in both cases were manufacturers

that sold

- primarily pumps and valves - to the Navy during the 1940s for systems. (Taylor, 171 Cal.App.4th at
use in the ships' steam-propulsion
p. 570; O'Neil Slip Op. at p. 3.) The defendants "participate[] in the integration
in Taylor did not [i.e. their pump and system." (Taylor,

of their components

valve products] into the design of the [ship's] propulsion 171 Cal.App.4th (See Warren's at pp. 20-21.)2 The defendants' specifications. (Taylor, products
at p. 585.) Both sides' experts in O'Neil testified similarly. Petition for Rehearing in O'Neil at pp. 11-14, contra Slip Op.
were built to the Navy's precise atp. 585; O'Neil Slip Op. atp. 5, Petition for Rehearing. 3)

171 Cal.App.4th

and see portions of the record cited in Warren's
2 Moreover, Warren did not control what replacement product the Navy used once Warren delivered a pump to the shipyard - i.e. once it relinquished control of its own product. (See Petition for Rehearing at p. 9, fla. 3.) The Navy decided what to use as replacement parts (13 RT 2237; 15 RT 2695-2696, 2698-2699) - the only parts to which Plaintiffs claimed Mr. O'Neil was exposed. Aad as Plaintiffs' expert Captain Lowell conftrmed, rio Respondent supptied any of thos_ replacement parts. (7 RT 1017) The Navy installed replacement gaskets and packingmanufactured by other+companies+(11 RT 1-900+1-904-),-per-the-Navy'_s specifications. 3 See, e.g., 13 RT 2236-2237; 7 RT 93:8.arrd 1058-1.06.0 [-the Navy, through instructions to a shipyard and specifications, determined what tasks and level of performance each pump had to achieve]; 14 RT 2489-2491 [decision whether equipment components did or did not contain asbestos dictated by the Navy].) Plaintiffs' expert Captain Lowell explained that Warren Pumps had no role in the development of military specifications issued by the Navy (7 RT 1016; see also 7 RT 1040-1041) - but had to follow them strictly in building its pumps (7 RT 1032-1034); that some
Some (but not all) of the pumps and valves sold by the defendants cases came with internal asbestos-containing (Taylor, 171 Cal.App.4th performed

in these

gaskets and/or packing. Op. atp. 3.4) Certain
at pp. 570-571; O'NeilSlip on the defendants'

maintenance

pumps and valves required that ('l;aylor, 171 Cal.App.4th at
gaskets and packing be removed and replaced. p. 571; O'Neil Slip Op. at p. 3.) The plaintiffs
alleged that this maintenance
generated asbestos dust in their vicinity, to which they claimed exposure. (Taylor, 171 Cal.App.4th atp. 572; O'Neil Slip Op. atpp. 3-4.) about asbestos from
Neither plaintiff ever saw or heard warnings any source. (Cf. Taylor, 171 Cal.App.4th
at p. 575; el. O'Neil Slip Op. at contended the equipment and both decisions
pp. 4-5; see also 10 RT 1737.) The plaintiffs manufacturers
should have provided such warnings,
military specifications required the use of asbestos (7 RT 1035); and that Warren had to build what the Navy required (7 RT 1032-1034). Military specifications governed the design of pumps, the composition of internal pump components, and pumps' thermal insulation, and Warren followed them. (13 RT 2218-2219) Lowell conceded that those specifications prescribedthe ort[.yacceptable performance standards for the pumps. (7 RT 938-940 and 1058-1:060) During World War II, some pumps had components that contained asbestos in order to meet certain Naw criteria. Again according to.plaintiffs' exp_ert Captain Lowell, "virtually all of those World War II pumps had asbestos packing and asbestos gaskets." (7 RT 922) He testified repeatedly that asbestos was a necessary material in the 1940s for which there was no substitute feasible for use aboard the Oriskany. (7 RT 1052-1054) 4 By its repeated phrase "packing and insulation," it appears the appellate court meant "packing and gaskets," since early in the Slip Opinion it refers to something called "gasket insulation" (p. 3), which does not exist and the record nowhere mentions. -6-

As explained above_ the court inferred (illegitimately) evidence that defendants' pumps and valves were
from the plaintiffs' "designed
to be used with" such parts, and further concluded that because the foreseeable use of
the danger (friable asbestos fibers) arose "during. the [respondents'] respondents' products,"
the danger "was caused by the operation of

products."

(Slip Op. at pp. 14, 20, italics added.) that the danger to Mr. from the asbestos-
The O'Neil court never appreciated
O'Neil - if it could not be said to arise exclusively containing
parts made by others and affixed to or replaced into Warren's
pumps by the Navy - was caused by the operation of an entire Navy steampropulsion system. The boilers generated steam that flowed through the
whole system to "bake on" asbestos from whatever equipment the asbestoscontaining gaskets, packing or insulation happened to be used with. (See Petition for R ehear'mg at pp. 10-11.) The generation a defect on a steam-powered

supra, p. 10; Warren's

of steam, of course, can hardly,constitute Navy warship.
This Court should grant review to explain that the componentparts defense is fully appropriate O'Neil's in such a situation, and to disapprove or other
suggestion - contrary to Taylor - that "fungibility"
factors O'Neil listed are pre-requisites

to application

of the componentown product the

parts defense.

As long as no defect in the manufacturer's
caused the ultimate harm, and the manufacturer product or system that did, the component-parts D. O'Neil's Expansion Public Policy
had no role in designing defense should apply.
of Tort Liability Is Not Sound
The extension of liability contemplated manufacturers
by O'Neil makes and amounts to have no
into insurers of others' hazardous products,
absolute liability for conduct over which those manufacturers control.
This Court should accept review to clearly reject liability arising own durable
out of the use of another's products with a manufacturer's goods decades after sale, on any theory.
In order to warn users how to maintain their own products when incorporating future asbestos-containing

safely

parts onto or into them, or to

design around such risks, defendants impossible
such as Warren would have had an
task: to investigate the potential hazards of all future asbestosincluding how those products could safely be handled such as Mr. O'Neil. By reviewing O'Neil, the Court
containing products, by military personnel,
can consider the utility, practicality
and cost of imposing such liability.
More broadly, with respect to any strict liability theory: this Court created that doctrine for the "avowed purpose" of ensuring "that the costs of injuries resulting from defective products -21are borne by the
manufacturer that put suchproducts on the market. "(Daly, supra, 20
Cal.3d at p. 733.) This Court has since continued to shape the doctrine of strict liability based on the same policy concerns that led to its creation. The Court should step in here to ensure that while the strict liability theory "extend[s] liability for defective product design., beyond negligence," it
stops "short of absolute liability" (ibid.), where O'Neil takes it. Imposing liability on Warren for harms resulting from asbestoscontaining products manufactured by others, where there is no evidence does not serve the
that Warren manufactured core cost-spreading - today-
or supplied such products,
policy that animates strict liability. To require Warren it did not manufacture or
to absorb the social cost of products
supply would undermine the economic principles Vandermark
endorsed by this Court in
v. Ford Motor Co., supra, and Peterson v. Superior Court
(1995) l0 Cal.4th 1185, 1207, among other cases. Likewise, such liability would not serve the policy of preventing future harm. In the 1940s, Warren had limited, if any, ability to prevent future harm by warning about future use of products it did not manufacture, supply or control. 59, 66-67.) (S'ee Romito v. RedPlastic Co. (1995) 38 Cal.App.4th
Warren sold pumps to the United States Navy long before Mr.
O'Neil served or had any opportunity to become exposed to asbestos from any parts replaced into or affixed to them. The Navy was a highly
sophisticatedorganization with respectto maintenanceand repair of the equipment it selectedfor installation aboardits ships. After the pumps left Warren's control, the Navy governed all aspectsof the pumps' maintenance andrepair. Imposing tort liability on Warren now would do nothing to prevent injuries dueto alleged exposure from asbestos that took place decadesago.

E. This Conflict In the Law Will Slow and Complicate Trial Courts' Work at a Time When They Can Least Afford It The legal conflict now besett'mg California trial courts would warrant review solely on the basis of the huge asbestos caseload that it hamstrings. The trial court dockets in Los Angeles and San Francisco are
packed with asbestos product liability cases, and have been for years. After Taylor, many claims began to settle or fall away on dispositive where plaintiffs motions,
lacked evidence of exposure to asbestos from parts actually The decision in O'Neil, absent a grant of
supplied by the defendants.
review, guarantees endless legal duels over the same issues, resulting in different outcomes for different litigants - and even for the same defendants - on essentially conclude that California's similar facts. It is no great leap of faith to busiest trial courts are themselves earnestly
hoping this Court will step in sooner rather than later. But the conflict between O'Neil and Taylor will weigh heavily on other cases too, until resolved. Every manufacturer -23 of durable goods

that need replacement

parts, such as cars and airplanes, must now consider
itself tattooed with potential liability for any dangers posed by replacement parts it did not sell, for years or decades following an itemevery initial delivery of
unless a trial court judge happens to agree that Taylor and the line of authority. California
cases it relies on are the more persuasive courts should not host such a free-for-all. V
CONCLUSION Warren Pumps, LLC respectfully its Petition for Review. requests that the Court grant
This Court's guidance is sorely needed to resolve districts on issues controlling the
an express conflict between appellate outcome in countless Dated: cases.

October 27, 2009

Respectfully CARROLL,
submitted, BURDICK & McDONOUGH LLP
James P. Cunningham Attorneys for Petitioner W'_N PUMPS, LLC

CERTIFICATE

OF WORD COUNT program used to produce this
I certify that the word-processing
brief indicates that the brief contains 4,667 words. Dated: October 27, 2009

Laurie J. I-Iel_er

CBM-Sb'kSF460886.1

Appendix

O'Neil Slip Opinion
CERTIFIED IN THE COURT OF APPEAL SECOND
FOR PUBLICATION OF THE STATE OF CALIFORNIA DISTRICT
COURT OFAPPEAL- SECOND DIS"

APPELLATE DMSION

sgp 1/32009

JOSEPHA. LANE '

BARBARA I. O_NEIL at., et
B208225 (Los Angeles County Super. Ct. No. BC360274)

_'_'" Clerk,

packing, raising issues about the health hazards. A Warren representative nothingprevented

testified that

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 Appellants' process.
expert witness testified that a ship builder, building a ship for the Navy, and direct them to the "broad specifications" the
would turn to qualified manufacturers

Navy provided.

(For instance, the Navy might specify that pumps should deliver 600 of up to 600 Lowell
gallons a minute, be turbine, driven, and able to operate at temperatures degrees.) The manufacturer would take that information

and design the pumps.

testified that "the Navy didn't design pumps. The manufacturers
designed the pumps."

Appellants

also presented the deposition testimony of Roland Doktor, a manager about issues in this case. he answered, as far as
at Warren Pumps, designated as the person most knowledgeable
When asked "what does it mean to be built to a military specification?"
"There are a certain set of gni_delines that are put forward in the specifications materials and properties, the requirements
testing, things like that, to make sure that the pump will meet
as it needs to be on the ship." also called witnesses on this subject. process. Retired Admiral David Sargent

Respondents

testified about the ship-building manufacturers
This included the testimony that the Navy and
engaged in a design process, going back and forth between the Navy and in which the manufacturer produced drawings for the Navy. This

the manufacturer,

process resulted in Navy specifications. There was also-evidence con_emini g seienti-fic know-ledge of the.dangers of of
asbestos at.the relevant times, and of respondents',
and the Navy's, actual knowledge
the dangers of asbestos; 5 evidence about Patrick O_Neil's disease, damages evidence, and evidence relevant to causation. 976-977.) Crane moved for nonsuit on all causes of action on the ground that there was no (Rutherfordv. Owens-Illinois, Inc. (1997) 16 Cal.4th 953,

278, 291.)

"[T]he manufacturer
Discussion t. The component parts defense of a product component or ingredient is not liable for injuries itself was 'defective' Fetzger Co.
caused by the finished product unless it appears that the component when it left the manufacturer." (2004) 129 Cal.App.4th (Tellez-Cordova
v. Campbell-Hausfeld/Scott
577, 581.) That is the component parts defense, sometimes As we wrote in Tellez-Cordova, supra,
called the raw material or bulk supplier defense. "The policy reasons behind the component use component
parts doctrine are well established:

'"[M]ulti-

and raw material suppliers should not have to assure the safety of their First. that would require
materials as used in other companies' finished products.
suppliers 'to retain experts in a huge variety of areas in order to determine the possible risks associated with each potential use.'" 'finished product manufacturers [Citation,] A second, related rationale is that or
know exactly what they intend to do with a component
raw material and therefore are in a better position to guarantee that the component material is suitable for their particular applications. Motor Co. [(1998)] 60 Cal.App.4th Cal.App.4th at pp. 581-582.) [Citations.-]'" (Springmeyer supra, 129

or raw v. Ford

1541, 1554.)" (Tellez-Cordova,
The trial court found that this defense applied here. We do not. WvFltcerv. Stauffer Chemical Corp. (1971) 19 Cal.-App-.3d 669, which is perhaps the first California component parts case, is illustrative. That defendant sold bulk sulfuric
acid. One of its customers was a manufacturer the acid with the understanding
of drain cleaner, and the defendant sold
that its customer would subject it to processes which The customer combined the acid with
would render it suitable to be a household product. another product to make drain cleaner.
The holding of the case is that the bulk supplier 7
had no duty to the consumer injured when the drain cleaner exploded.
The Court found "We do
that the drain cleaner and the bulk acid were not the same product, and wrote: not believe it realistically themanufacturer acid, not'having feasible or necessary.to the protection

of the public to require

and supplier of a standard chemical ingredient such as bulk sulfuric control over the subsequent compounding, packaging or marketing of an for that
item eventually causing injury to the ultimate consumer, to bear the responsibility injury. The manufacturer
(seller) of the product causing the injury is so situated as to (ld. atpp. 673-674.) Conversely, manufacturers of a

afford the.necessary

protection."
defective product which is not altered when it is incorporated a duty to the consumer. Owens-CorningFiberglass (Jenkins v. T & NPLC Corp. (1998)63
into the final product have 1224; Arena v.

(1996) 45 Cal.App.4th

1178, 1187 [raw asbestos fibers
are not altered when they are incorporated Lee v. ElectricMotor
into insulation].) is the same, although "ordinary, off-the-shelf'
Division (1985) 169 Cal.App.3d375,
the defendant there did not sell bulk siapplies, but manufactured motors. Another manufacturer
bought some of those motors to put into its own product, Plaintiff was injured by the
a meat grinder which the defendant had no role in designing.
meat grinder, and the allegation was that the injury would have been minimized if the motor was designed to stop immediately when turned off. The Court found that the defendant was a component part manufacturer and could not be held liable for the
defective design of the finished product.
(Id. at p. 385.) Harvester Co. (1982) 127 Cal.App.3d
The defendant in Fierro v. International 862, made a product which was incomplete incorporated into another product.
in itself, and was necessarily going to be Harvester made skeleton trucks

That is, International

which consisted only of an engine, cab and chassis, and in that case, three fuel tanks. These skeleton trucks were made to be modified and could not be used -without the customers' modifications. One customer installed a refrigerator unit on the skeleton
truck. Five years later, when the modified truck was in an accident, the gas tanks caught fire. The injured plaintiff sought a jury instruction on International's duty to design a

crash-worthy

truck. The trial court refused to give the instruction and the Court of One basis of that holding was that skeleton trucks were designed to be in a manner outside International's control. It was the

Appeal agreed.

modified by another manufacturer, second manufacturer's superseding
design of the final product which was the cause of the injury, product. (Id. at pp. 867-868; see also 1055, 1062-1063 [Boeing,
any causation involving International's
In re Deep Vein Thrombosis which sold non-defective
(N.D.Cal. 2005) 356 F.Supp.2d

Taylor v. Elliott Turbomachinery
Co., Inc. (2009) 171 Cal.App.4th
which was decided after the judgment here, found that the component parts defense was
applicable to manufacturers misses the mark.
similarI-y situated to respondents,

but we think that Taylor

The plaintiff in Taylor, like Patrick O'Neil, worked on an Essex-class

aircraft Taylor In its

carrier, and was exposed to asbestos from pumps, valves and other equipment. found, inter alia, that the component parts defense shielded those defendants.
analysis, Taylor cited the fact that the plaintiff therein acknowledged
that the equipment Taylor
was intended to operate "as part of a larger 'marine steam propulsion system.'" then cited that plaintiffs manufactured
argument that the equipment was not multi-use, but was for a particular purpose, but found the
to the Navy's specifications

argument unpersuasive.

Citing Artiglio v. General Electric Co., supra, 61 Cal.App.4th followed Navy specifications
830, Taylor ruled that "The mere fact that respondents
when producing their products does not pree.lude them from invoking the component parts doctrine." (Taylor, supra, 171 Cal.App.4th atp. 585.)
We reach a different conclusion.
The defendant in Artiglio met all the criteria here do not. We
which define a component parts seller. As we have seen, respondents
also disagree with the finding that the entire steam system of an aircraft carrier (or, as respondents here argue, the ship itself) is a "finished product" as that term is used in the parts defense. Such a broad definition would make the analysis maker may be liable if it is (Springmeyer v. Ford Motor
context of the component unworkable. substantially
F-or instunee, under the defense, a component involved in the design of the finished product. at pp. 1551-1552.)
Co., supra, 60 Cal.App.4th the "finished product,"
I.fthe entire ship, or steam system were involved in the
evidence that respondents were substantially
design of their own pumps and valves, and in the integration
of that equipment into the unless appellants
rest of ship's systems through insulated flanges, would be inadequate 13
could also prove that respondents
were involved in the design of the entire steam

propulsion

system, or of the ship itse!f. That simply stretches the defense too far. by Taylor's reference to Artiglio, supra, and customer
Nor are we persuaded specifications.
Artiglio found that GE was not deprived of the component parts defense specifications. (Artiglio,
merely because it had formulated the silicone to its customer's supra, 61 Cal.App.4th at pp. 840-84_1.) To say that respondents

were not deprived of the

defense is not to say that they were entitled to it. Indeed, under California law,

do not contend otherwise.
they seek a different result because O'Neil was injured not by the original packing and insulation, but by replacement parts. In support, they cite cases which do not consider a of its products, or for replacement parts, or
liability for the components
the kind of interdependent
products (valves and pumps along with their insulation and We see nothing in these cases which would cut off
packing) which this case presents. respondents' responsibility
for failure to warn or design defect, at the point in time at and ordinary maintenance or repair. 357.,
which their products were subject to.predictable
For instance, in Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d the plaintiff used a Standard Brands product for a project, finished the project with another manufacturer's causing the plaintiffs not a reasonably product, then used an electric buffer.
The other product exploded,
injury. The Court held that the explosion of the other product was of Standard Brands' failure to warn, and that of the

foreseeable consequence

"the manufacturer's manufacturer's
duty is restricted to warnings based on the characteristics

own products."

(Id. at p. 364.) In BlackweU v. Phelps Dodge Corp.
(1984) 157 Cal.App.3d 372, a supplier of bulk sulfuric acid filled a customer!s tank car with that product, and the plaintiffs were injured in attempting to unload the tank car. 16
They sued the acid supplier on the theory that it should have instructed its customer Q concerning procedures. safe transportation of the acid, and provided warnings on safe unloading The Court of Appeal held that the acid supplier could not be held liable,
because the dangerous product was not the acid, but the tank car. (Id. at p. 378.) In re

Deep Vein Thrombosis,

supra, 356 F.Supp.2d
1055, the defendant supplied an incomplete
product, an airplane without seats, and the injury was alleged to have been caused by the seats, which the defendant did not design, manufacture, Cadlo v. Owens-Illinois, or even choose. 513 is even more remote.
lnc. (2004) 125 Cal.App.4th
That was an attempt to hold a manufacturer historic role in the design, manufacture manufacturer
of asbestos insulation liable based on its
and marketing of the product, even though the exposure, and there was or distribution, to
had sold the product line well before the plaintiffs
no evidence that it had any connection, whether design, manufacture the asbestos to which he was exposed. Respondents (Id. at p. 516.)

tools themselves that created the injury-causing
Mr. Taylor's "injuries were caused not by any action of respondents'
by the release of asbestos from products produced by others. This is a key difference,
9 Taylor also engaged ha an analysistmder-Rowlandv. Christian (1968) 69 Cal.2d 108, and determined that those defendants were not liable under a negligence theory because they did not owe the plaintiff a duty of care. Appltarrts make arguments about that point, but we need not consider it, beeanse respondents did not move for nonsuit on that ground. 10 Taylor also relied on foreign state authority, companion cases Braaten v. Saber'hagen Holdings (2008) !65 Wash.2d 373, 198 P.3d 493 and Simonetta v. Viad Corp. (2008) 165 Wash.2d 341, 197 P.3d 127. They suffer from the same flaws as does Taylor. 19
because before strict liability will attach, the defendant's product must 'cause or create theQ risk of harm.' [Citation.] Second, unlike the abrasive wheels and discs in Telleztools, the Cordova, which were not dangerous without the power of the defendants' asbestos-containing products at issue in our case were themselves not any feature of respondents'
inherently dangerous. that made
It was their asbestos contentthem hazardous." original.)

equipment-

(Taylor, supra, 171 Cal.App.4th-at
pp. 587-589, emphasis in the
This analysis misunderstands
the facts of Tellez-Cordova.

The allegation in that

case was that the defendant's products, although harmless (and useless) without the attachments,
were harmful when used as intended.
Thefact that the respirable dust The use of the
emanated from the attachments, defendant's
not the tools, was thus irrelevant.
"own product" created the harm. holds that a manufacturer is liable when its product is necessarily
Tellez-Cordova used in conjunction
with another product, and when_ danger results from the usa of the That is appellants' evidence here. Asbestos does of course have into (and

two products together.

inherent dangers, but appellants' onto) respondents'
evidence was that the asbestos incorporated
products caused injury when it was removed.

In fact, there was no

evidence that the asbestos packing or insulation was dangerous until it was baked on, and removed. Cal.App.4th (See.San.Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 The danger was caused by the In that case,
1318, 13,25 [danger is from friable asbestos].) products. Teltez-Cordova
operation of respondents'

cannot be distinguished.

we observed that the use of attachments with the tools was not mere. happenstance. (Tellez-Cordova, replacement supra, 129 Cal.App.4th at p. 584.) Here, too, the use of asbestos, and It was design. 336, by emphasizing role in the That
asbestos, was not happenstance.
Taylor sought to distinguish DeLeon, supra, 148 Cal.App.3d
that inthat case, there were disputed issues of fact concerning the defendant's design and location of its product. (Taylor, supra, 171 Cal.App.4th

at pp. 589-590.)

was an issue in DeLeon, but it is also an issue here. Appellants 20

presented evidence that

through the "back and forth" process of the Navy's design and procurement respondents integration substantially

system,

contributed to the design of their pumps and valves, and to the flanges, into the rest of the
of those pumps and valves, with asbestos-insulated
equipment on the Oriskany.
Taylor sees Wright v. Stang Manufacturing case about foreseeable defendant's
Co., supra, 54 Cal.App.4th

1218, as a

misuse of a product, or as a case about a design defect in the
own product, and thus as irrelevant to the facts of Taylor. But the design
defect in Wright concerned the product's fitness for use with another, necessary, product. The case is thus identical to this one. In sum, we believe that Taylor was wrongly decided, and that nonsuit here was wrongly granted.
3. Warren's Nonsuit Motion Warren also movedfor nonsuit on the theory that there was no evidence from
which a jury could conclude that Patrick O_Neil had been exposed to asbestos from its products. on appeal.ll That ivas not a ground for the trial court ruling, Warren again urges.the theory We fred sufficient evidence to defeat nonsuit. Appellants presented
evidence that Warren pumps were aboard the Oriskany, that the pumps used asbestos for insulation and packing, that removal of the asbestos and packing when the pumps were serviced created dust, and that O_Neil was in the machine rooms when the pumps were serviced. That is a circumstantial case that O'Neil was exposed to asbestos from Warren v. Plant Insulation Co. of
products, and a circumstantial (1995) 31 Cal.App.4th