Court Ruling in Pharma Case Calls into Question Consumer Expectations Test’s Use in Asbestos Suits

Featured Expert Contributor, Mass Torts—Asbestos

RobertWright

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

A recent appellate decision rejecting the consumer expectations test for strict liability in a pharmaceutical case calls into question the use of that same test in cases involving low-dose exposures to asbestos.  Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 117 (2017), petition for review filed, (Aug. 8, 2017) (No. S243672).

Much like in pharmaceutical cases, the trials in low-dose asbestos cases invariably center on competing expert-opinion testimony regarding scientific matters beyond the everyday experience of ordinary consumers.  As a result, such cases should proceed not under a consumer expectations theory, but instead under the alternative risk-benefit theory, which is recognized in many states and has long been applied to hold that a product is defectively designed if “‘the benefits of the challenged design outweigh the risk of danger inherent in such design.’”  Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1310 (Haw. 1997), quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 455-56 (1978); see, e.g., Lamkin v. Towner, 563 N.E.2d 449, 457 (1990) (applying Barker). Continue reading