CaliforniaProducts liability cases, including but not limited to asbestos claims, typically include an allegation that there was a failure to warn and that this failure was a cause of injury.  Where the plaintiff is someone with training and experience, the "sophisticate user" defense may be a way of defeating a failure to warn claim.

In general, a manufacturer has a duty to warn consumers about the hazards inherent in their products such that consumers can chose to refrain from using the product or evade the danger by careful use.  An exception to this general rule was recognized by the California Supreme Court in 2008 in the case of Johnson v. American Standard, Inc.  Since that time, the sophisticated user defense established in Johnson has been invoked to defend claims in a variety of settings, including that of the asbestos worker.

In Johnson, the plaintiff was an HVAC technician who claimed damages for injuries resulting from exposure to phosgene gas while repairing air conditioning units.  The plaintiff attended a year-long course on HVAC systems during which he learned to repair air conditioning units and was universally certified in his trade.  He then continued to work with HVAC systems for six years before filing his claim.  The Johnson Court ruled that the sophisticated user defense barred plaintiff's strict products liability and negligence claims because the plaintiff was a trained HVAC technician who knew or could reasonably be expected to have known the dangers of exposure to phosgene gas.  The Johnson case was recently affirmatively invoked in a San Francisco Superior Court asbestos case:  Millard v. Asbestos Defendants.

In Millard, a defendant filed a motion for summary judgment on the grounds that the plaintiff, a career insulator, was a sophisticated user.  Specifically, the defense presented evidence that plaintiff's union was aware of the potential health hazards of asbestos as early as 1952 through union periodicals.  The defense therefore argued that plaintiff, who was trained in his trade by his union in the 1960s, knew or should have known of the potential health hazards of asbestos.  The court granted the defendant summary judgment and dismissed plaintiff's claims.

Both Johnson and Millard illustrate that the sophisticated user defense can be an important tool in defending against asbestos cases.  However, failure to warn is only one of several theories advanced in most products cases, so defeating that claim does not necessarily mean that the case will be thrown out entirely.  WFBM currently has several pending motions seeking the dismissal of its clients based on the sophisticated user defense and is continuing to develop evidence of widespread knowledge within the trades and unions about the potential health hazards of asbestos.

Elizabeth N. BranhamElizabeth L. HuynhFeel free to contact the authors with any questions: 

Elizabeth N. Branham at This email address is being protected from spambots. You need JavaScript enabled to view it.

Senior Associate
Elizabeth L. Huynh at This email address is being protected from spambots. You need JavaScript enabled to view it.

Or any WFBM attorney with whom you are working.