Since the California Supreme Court recognized and applied the sophisticated user defense in Johnson v. American Standard, most other attempts to apply the defense have failed.

On July 1, a California Court of Appeal sitting in Sacramento declined to apply the sophisticated user defense despite evidence of likely knowledge on the part of the plaintiff-decedent.

In Collin v. CalPortland, the plaintiff-decedent claimed exposure to asbestos-containing cement pipe. The court described the evidence presented by defendants as to Loren Collin’s knowledge and sophistication thusly:

Here, J-MM and Formosa presented evidence that Loren worked in the construction trades beginning in 1954, and owned two construction businesses. Loren completed an apprenticeship in carpentry in 1963. He obtained a contractor’s license from the California Contractors’ State License Board in 1976. Loren received information from the contractors’ board beginning in 1976 that working with or around asbestos-containing materials could be hazardous to one’s health. During the 1976 to 1980 period, Loren saw notices specific to asbestos posted at jobsites.

However, the court found the sophisticated user defense inapplicable to defeat failure to warn claims as there was no evidence that Mr. Collin had specialized knowledge or training as to the particular products of the defendant.  It had not been shown that plaintiff knew the cement pipe in question contained asbestos, or that he had been provided training or documentation such as a material data safety sheet (MSDS) specific to the cement pipe. This distinguished the case from Johnson, said the Collin court, where there was an extensive record regarding the plaintiff’s specialized training and how he had received “and sometimes read” MSDS describing the hazards of the very chemical at issue.

The court did say that the standard remains an objective standard, rather than a subjective standard (so one looks at what Collin should have known, rather than what he actually knew), but it then held, “We cannot say from the evidence presented that the dangers of working with Transite were obvious at the time.”  Under Collin, it would not be obvious to someone who had been in the trades for 25 years, had owned and operated his own construction businesses, had been licensed by the state of California as a contractor, had been instructed about asbestos health hazards, and had seen notices posted at work sites about asbestos hazards, that working with asbestos-cement pipe (the common name for Transite) could be hazardous.  Perhaps in the next case, the moving defendants can succeed if they submit evidence that everyone in the trades knew that cement pipe frequently contained asbestos.

Another argument to be made, but not made in Collin, is that Mr. Collin and other employers are generally charged with maintaining a safe workplace for their employees. This includes the duty to be knowledgeable about the hazards in their workplace.  An employer who is legally obliged to be knowledgeable about workplace hazards, including asbestos, “should have known” about the hazards of asbestos-containing materials and which materials were, in fact, likely to contain asbestos.

Collin is, at least for now, an unpublished opinion.  Unpublished decisions cannot be cited to or by any California court.  They may nevertheless reflect current judicial thinking, like this decision, consistent with other recent decisions limiting the availability of the sophisticated user defense.  Further, unpublished California decisions are citable in most jurisdictions outside California.