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"THE CONSUMER EXPECTATIONS TEST" IN MESOTHELIOMA LITIGATION

"THE CONSUMER EXPECTATIONS TEST" IN MESOTHELIOMA LITIGATION

This week, we have discussed a mesothelioma case involving a California oil refinery worker's family. The worker died after developing mesothelioma and his family filed a product liability lawsuit against the manufacturer of the asbestos-containing insulation that likely caused the worker's mesothelioma. In our last post, we discussed the consumer expectations test for design defect product liability cases and outlined some of the basic elements of this test.

The consumer expectations test has been applied to many asbestos cases in California, including one involving an asbestos-insulation product called Kaylo. This type of insulation had to be cut by sawing, thereby releasing dangerous asbestos fibers into the air and exposing workers to asbestos inhalation.

"The design failure was in Kaylo's emission of highly toxic, respirable fibers in the normal course of its intended use and maintenance as a high-temperature thermal insulation," one judge wrote in a product liability opinion involving Kaylo's manufacturers. "It is a reasonable inference from the evidence that this emission of respirable fibers, which were capable of causing a fatal lung disease after a long latency period, was a product failure beyond the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers."

The court went on to say that expert testimony was admissible concerning the fact that ordinary users of Kaylo during the 1950s and 1960s did not reasonably expect to develop mesothelioma from breathing in Kaylo fibers, which means that Kaylo did not meet the minimum safety expectations of its ordinary customers.

An experienced mesothelioma litigation firm can determine what legal theory is best for a plaintiff's particular mesothelioma case. The type of product liability in a mesothelioma case varies depending on the facts of case, which makes it important for families to obtain competent legal representation before they sue or enter into settlement negotiations with an asbestos product manufacturer.

Source: "Saller v. Crown Cork & Seal Co. Inc.," 187 Cal.App.4th 1220, Aug. 27, 2010

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