The NAM joined with 7 other business groups in an amicus letter 5/7/08 urging the California Supreme Court to review an appellate court ruling that (1) blamed the defendant company for 50% of the fault in an asbestos case where the plaintiff was only minimally exposed to the defendant's product, and (2) improperly applied a consumer expectation test to a product that the plaintiff knew little about. The lower court allowed a $2.15 million verdict by a plaintiff who was a passerby on a few occasions while work on the defendant's product was being done.
The court relied on the theory that "every exposure to asbestos fibers" was a substantial factor in causing the plaintiff's injury, despite evidence that exposure to asbestos from other products was much higher. Our letter brief argues that a particular exposure or series of exposures must be a substantial factor in bringing about an injury, to a reasonable degree of medical probability. De minimis or incidental exposure is not enough; instead, a court should assess the "length, frequency, proximity and intensity" of exposure. The California Supreme Court should review the case to clarify how this issue will be handled in product liability cases in that state.
The lower court also allowed the plaintiff to take advantage of the consumer expectations test, a legal principle that assesses liability if a consumer expects a product to perform a certain way but it doesn't. The NAM's amicus letter urges review of this ruling, pointing out that the test is difficult to apply, particularly with complex products, and tends to be unworkable for bystanders who do not have any expectations about product performance.
On June 25, the court declined to hear this appeal.