The Washington Court of Appeals recently published a product liability opinion that clarifies how a court should decide whether a product-seller defendant is subject to Washington’s common law or the Washington Product Liability Act (WPLA). Which law applies is significant for product sellers because they are subject to strict liability under Washington’s common law, but are generally immune from liability under the WPLA absent limited exceptions. In Fagg v. Bartells Asbestos Settlement Trust (Dec. 8, 2014), the court held that in cases involving a plaintiff’s exposure to injury-causing products both before and after the WPLA’s effective date of July 26, 1981, a defendant-specific exposure analysis is proper to determine which law applies to a particular defendant. The court concluded that unless substantially all of the plaintiff’s exposure to a particular defendant’s product occurred before July 26, 1981, the WPLA, and its general immunization for product-seller defendants, applies.
In Fagg, the plaintiff alleged injurious-exposure to various asbestos-containing products manufactured and sold by separate defendants from the 1950s to the 1990s. The plaintiff also claimed he was exposed to asbestos while enlisted in the Navy in the 1960s, and from living and vacationing near the Libby, Montana superfund site from the early 1980s to 2007. The Court of Appeals considered how to determine whether WPLA applies to a plaintiff alleging prolonged exposure to injury-causing products – should a court aggregate a plaintiff’s exposure to all injury-causing products regardless of source, or should the court evaluate a plaintiff’s exposure on a defendant-specific basis. Prior to the Fagg opinion, Washington law was undecided on this issue.
The Fagg court held that a defendant-specific exposure analysis is the proper measure to determine if the WPLA applies to a plaintiff’s claim. To determine if the WPLA applies to a plaintiff’s claims against a particular defendant, a court must look at the plaintiff’s allegations of injurious-exposure to only that defendant’s product.
Underlying the Fagg court’s holding was the Washington Supreme Court decisions in Simonetta v. Viad Corp., Braaten v. Saberhagen Holdings, and Macias v. Saberhagen Holdings, Inc., which concluded that injuries from products outside a defendant’s “chain of distribution” are not actionable. Accordingly, the Fagg court held that in determining what law applies to a plaintiff’s claim against a particular defendant – common law or the WPLA – a court must examine the plaintiff’s alleged injurious-exposure to only that defendant’s product.
In reaching its holding, the Fagg court affirmed the calculus used to decide if the WPLA applies to claims against a particular defendant: “the WPLA applies unless ‘substantially all’ of the exposure occurred before” the WPLA’s effective date, July 26, 1981. Thus, to bring a common law claim, an asbestos-plaintiff must show that substantially all of his injury-causing exposure to that defendant’s product occurred before 1981.
The Fagg court’s holding is significant for product sellers because of the different liability standards under the common law and the WPLA for product sellers. If the Fagg court had concluded that an aggregate-exposure analysis should be used to determine whether the WPLA applied, this could impose the common law (and thus strict liability) on a product seller if substantially all of a plaintiff’s aggregate asbestos exposure occurred before 1981, even though the plaintiff’s exposure to the particular seller’s product occurred only after 1981. This would thwart the Legislature’s intent when it enacted the WPLA to insulate product sellers from liability. Instead, the Fagg court’s holding ensures that a product seller is held to the proper liability standard – common law or WPLA – based upon when a plaintiff was allegedly exposed to the specific seller’s product.
The Fagg court also discussed the meaning of “substantially all.” The court noted with approval cases and Washington law that define substantially all as “‘nearly all,’” all except “‘a negligible minority’ or when a ‘practically negligible’ amount remains,” and “‘essentially all.’” The Fagg court also cited positively cases which have quantified “substantially all” to mean “85 percent or more.” Although the court declined to adopt a definition of “substantially all,” practitioners, and particularly product-seller defendants, should be able to use the Fagg court’s language and cited cases to better argue that the protections afforded by the WPLA apply to a given case.