Wash. SC rules shipyard worker can sue respirator makers

Jessica M. Karmasek Aug. 10, 2012, 12:00pm


OLYMPIA, Wash. (Legal Newsline) - The Washington State Supreme Court ruled this week that a shipyard worker whose job it was to clean respirators contaminated with asbestos could sue the manufacturers of the respirators.

In its 5-4 ruling Thursday, the Court reversed a decision of the state Court of Appeals.

Plaintiff Leo Macias worked as a tool keeper in a shipyard and his job required that he maintain respirators that other workers wore to filter out dangerous contaminants.

Macias and his wife, Patricia, later sued the respirator manufacturers, alleging that cleaning and maintaining them exposed him to asbestos and caused him to develop mesothelioma, a type of cancer.

The plaintiffs claimed the manufacturers owed a duty to warn Macias that he could be exposed to harmful asbestos dust when he cleaned and maintained the respirators.

In response, the respirator manufacturers moved for summary judgment on the ground that as a matter of law under Simonetta v. Viad Corporation and Braaten v. Saberhagen Holdings they owed no such duty to warn.

The state Supreme Court held in both decisions, issued in 2008, that manufacturers have no duty to warn of the dangers inherent in a product that it does not manufacture, sell or supply.

Even so, the trial court denied the manufacturers' motion.

The appeals court then reversed, holding that under Simonetta and Braaten the defendants did not owe a duty to warn because they did not manufacture the asbestos-containing products that were the source of the asbestos to which Macias was exposed.

The state's high court reversed that ruling.

In its opinion, the Court's majority explained that in Simonetta and Braaten it held that, generally, a manufacturer does not have a duty to warn of the dangers inherent in a product that it does not manufacture, sell or supply.

"However, Simonetta and Braaten do not control the present case because the duty at issue is to warn of the danger of asbestos exposure inherent in the use and maintenance of the defendant manufacturers' own products, the respirators," Chief Justice Barbara Madsen wrote for the majority.

The Pacific Legal Foundation, a self-described "legal watchdog" litigating for "limited government, property rights and free enterprise," authored an amicus brief in the case.

In a statement Thursday, the foundation said the Court's decision "bodes ill" for manufacturers of safety devices and marks a "sharp departure" from previous decisions.

"The decision today places a manufacturer of safety products in the position of having to speculate about the many risks that a user of its product may encounter -- risks that the manufacturer does not create and cannot control," said Deborah J. La Fetra, a principal attorney at PLF.

"After today's decision, safety device manufacturers better hope their crystal balls are accurate, because multimillion-dollar judgments may await their errors."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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