Continuing an unbroken string of disappointing “sophisticated user” appellate decisions, a California appellate court recently decided in Scott v. Ford Motor Co. (A137975, 3/26/14) that the “sophisticated user” defense did not apply to a career service station owner and mechanic.
Five years ago, the California Supreme Court “adopt[ed] the ‘sophisticated user’ doctrine and defense to negate a manufacturer’s duty to warn of a product’s potential danger when the plaintiff has (or should have) advance knowledge of the product’s inherent hazards. The defense is specifically applied to [those] who knew or should have known of the product’s hazards, and it acts as an exception to manufacturer’s general duty to warn consumers.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th56, 61.) Since Johnson was issued, attempts by various California defendants to utilize the doctrine in asbestos cases have been universally unsuccessful at the appellate level. (E.g. Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th23; Rollin v. Foster Wheeler, LLC (2012) 2012 Cal.App. Unpub. LEXIS 579.)
Patrick Scott was a career service station owner and mechanic diagnosed with mesothelioma. The plaintiffs alleged that resulted from his exposure to asbestos while changing out brakes and clutches supplied by manufacturers including Ford Motor Company. Mr. Scott began working on cars as a teenager before opening his own service station in 1966, eventually owning four stations. He was a member of an automotive trade association and earned multiple certifications in the field. Ford argued that this qualified Mr. Scott as a “sophisticated user” of automotive parts who should be deemed to have been aware of the risks of asbestos exposure from repairing brakes and clutches, barring any liability to Ford. The trial court rejected this argument on Ford’s motion for judgment notwithstanding the verdict (JNOV), and the Court of Appeal affirmed.
The Scott decision found that Ford had “failed to prove the risks of automotive asbestos exposure should have been known by mechanics in the 1960’s and 1970’s.” “[T]here was no evidence that Scott, or others like him, were instructed in the claimed risks as part of their training.” Scott found it difficult to pinpoint “a scientific consensus regarding the dangers of automotive asbestos exposure” from the evidence at trial, given that even a defense expert testified that the conclusion of a major scientific conference in 1969 was that “brake linings are not a problem – or not a hazard.” Scott found that Ford itself did not place warnings about asbestos exposure on cartons of its own products until 1980, more than 14 years after Mr. Scott opened his first service station.
Ford suggested that if Mr. Scott was not a sophisticated user, then Ford itself had no duty to warn about the risks of asbestos exposure from its brakes. The court rejected this argument, both because the legal standards of constructive notice are different for product liability and the sophisticated user defense, and because as a factual matter what was “known or knowable” to Ford, a “large international business directly involved in the manufacture of the product,” is not the same as what was “known or knowable” to a local mechanic such as Mr. Scott. (Ford’s argument was not helped by being raised for the first time at oral argument.)
Takeaways from the Scott decision include:
- Defendants need to develop a strong record during discovery of either (a) a plaintiff’s individual skills and training that allow the jury to determine his level of sophistication or (b) clear evidence regarding the sophistication of the trade or class of workers at the time of exposure.
- Even where evidence of “sophisticated user” is not legally sufficient to bar liability completely, it may nevertheless support a finding of contributory negligence. In Scott, the jury found Mr. Scott 19 percent contributorily negligent (almost as big a percentage of liability as attributed to Ford, 22 percent).