CALIFORNIA — The plaintiff, Gary Farris, alleged that his lung cancer was caused by performing brake and clutch changes at an automotive shop in San Jose, California from 1960 to 1964, and while performing personal automotive work from the 1960s to the 1980s. He named several manufactures of automotive brakes. His theory of liability against those defendants was premised on a claim of market share liability. Honeywell moved to dismiss that count in the initial complaint and the motion was granted.

Upon amendment of the complaint, Honeywell again moved to dismiss the market share liability claim. California law allows market share liability when the products are fungible. As held by the California appellate court in Wheeler v. Raybestos-Manhattan, the plaintiffs alleging market share liability in friction cases must demonstrate: 1) they had been exposed to asbestos fibers in brake products; 2) they could not identify the makers of the products because the brake pads were usually worn down, with the brand name obfuscated, when the mechanics were exposed to them; 3) the brake pads were fungible because a pad of a given size could be used on a range of vehicles, regardless of who made it, and the pads made by the defendants were all comprised of the same asbestos fiber, and contained a similar percentage of asbestos by weight; and 4) a substantial share of the makers of the products were joined as the defendants.

Honeywell argued that the plaintiff failed to join the defendants comprising 51 percent of the market share of brakes at the relevant time frame, and also that the plaintiff failed to plausibly plead fungibility. The court found the 51 percent requirement unnecessary, and found that fungibility was properly pled. However, Honeywell also argued that the plaintiff’s failure to specify whether he was exposed to asbestos during the installation or removal of brakes was fatal to his complaint. The court agreed, finding that market share liability only applied to the removal of brakes due to their lack of identifying marks at that stage. Accordingly, the court granted Honeywell’s motion to dismiss the market share liability claim, without prejudice and with leave to amend.

Read the case decision here.