Anderson v. Owens-Corning Fiberglas Corp.

BROUSSARD, J.,

Concurring.—I concur in the majority opinion, but write separately simply to emphasize the narrow scope of the opinion’s holding. As the majority opinion properly recognizes, the issue presented by this case is whether so-called “state-of-the-art” evidence is admissible in a strict products liability action when the plaintiff contends that a product is defective because it failed to contain an adequate warning of the risk that caused the injury. I agree with the majority that when the plaintiff proceeds on an absence-of-warning theory, the defendant is entitled to present evidence that the risk in question was scientifically unknown at the time the product was manufactured and distributed. A warning, by its nature, presupposes that the risk to be warned against is capable of being known, and a rule which permits the trier of fact to find a product defective simply because it lacked a warning of a scientifically unknown risk would go a long way to making a manufacturer an insurer of any injuries caused by its product.

The majority’s holding in this case, however, does not mean that state-of-the-art evidence is admissible in all strict products liability cases. Although the majority finds no need to reach the issue here (see maj. opn., ante, p. 992, fn. 2), in my view it is both prudent and appropriate to make it clear that state-of-the-art evidence would not necessarily be relevant when, for example, a plaintiff in a strict products liability action relies solely on the so-*1005called “consumer expectation” prong of the design defect standard. (See, e.g., Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429-430 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d l].)

As Barker explained, the consumer expectation prong is “somewhat analogous to the Uniform Commercial Code’s warranty of fitness and merchantability . . . [and] reflects the warranty heritage upon which California product liability doctrine in part rests. As we noted in Greenman [v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 (27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049)], ‘implicit in [a product’s] presence on the market . . . [is] a representation that it [will] safely do the jobs for which it was built.’ (59 Cal. 2d at p. 64.) When a product fails to satisfy such ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries. (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 429-430, italics added.)

Under the consumer expectation standard, when a product proves to be unexpectedly unsafe when used as intended by the manufacturer, an injured plaintiff is entitled to recover for the resulting injuries, as he or she would recover in a warranty action, without regard to whether the manufacturer knew or could have known at the time of manufacture or distribution of the specific safety problem that was inherent in its product. (See, e.g., West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 852-858, 863-867 [220 Cal.Rptr. 437] [in a strict products liability action brought by a plaintiff who developed toxic shock syndrome from the ordinary use of a tampon, because the plaintiff proceeded only under the consumer expectation theory the trial court did not err in refusing to give an instruction, requested by the defendant, which would have informed the jury that the defendant had no duty to warn of unknown or unknowable dangers]. See also Johnson v. Raybestos-Manhattan, Inc. (1987) 69 Hawaii 287 [740 P.2d 548, 549]; Ontai v. Straub Clinic and Hosp. Inc. (1983) 66 Hawaii 237 [659 P.2d 734, 744-745].) Thus, when the plaintiff in a strict products liability action relies solely on a consumer expectation theory, state-of-the-art evidence may not be relevant or admissible.

In this case, however, plaintiff sought to rely, inter alia, on the absence of a warning to prove that the product was defective. Under these circumstances, I agree with the majority that state-of-the-art evidence was admissible.