Foster Wheeler LLC v. Superior Court of California, County of San Francisco

Case Updates

The California Supreme Court denied a petition for review asking the court to clarify whether the court’s recent decision that manufacturers do not have a duty to warn sophisticated purchasers extends to the purchaser’s employees.

NCLC filed three amicus briefs in this case.

In its first filing, NCLC urged the California Supreme Court to publish the California Court of Appeal’s decision requiring the trial court to vacate its consolidation of two unrelated asbestos cases. In its unpublished opinion, the appellate court adopted a multifactor test—articulated by the federal courts—for analyzing whether the subject cases should be consolidated. In its brief, NCLC argued that publication of the court’s clear rule for case consolidation would provide much-needed guidance to countless trial courts and litigants involved in mass tort cases. Unlike the current practice in federal courts, litigants may not cite to unpublished opinions in California courts.

The California Supreme Court denied NCLC’s request for publication. In its unpublished opinion, the appellate court adopted a multifactor test—articulated by the federal courts—for analyzing whether the subject cases should be consolidated.

In its second filing, NCLC urged the California Court of Appeal to adopt the balancing approach articulated in the Second Circuit case Malcolm v. National Gypsum to determine whether to consolidate asbestos cases for trial. In its brief, NCLC argued that efficiency interests should not override a defendant’s right to a fair trial. Trial consolidation, NCLC argued, “can be abusive of individual rights.” Moreover, the consolidation of asbestos trials does not result in lasting efficiency gains, but rather increases the demand for new cases to be filed and places more pressure on defendants to settle, regardless of the merits of the claims.

In its third filing, NCLC urged the California Supreme Court to clarify that manufacturers owe no duty to warn employees of a sophisticated purchaser - who already has particular knowledge of a product's dangers - about dangers generally known to the purchaser. Manufacturers often lack the ability to convey warnings directly to workers, and extending the “sophisticated user defense” to employees gives employers an incentive to take precautions to warn their own workers.