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					                 DIVISION I, COURT OF APPEALS 

                 OF THE STATE OF WASHINGTON 


                         VERNON BRAATEN, 

                             Plaintiff-Appellant 

                                     v.
                    BUFFALO PUMPS, INC., et al.,
                        Defendants-Respondents

      ON APPEAL FROM KING COUNTY SUPERIOR COURT
                 (Hon. Sharon S. Armstrong)

         RESPONDENT CRANE CO.'S ANSWERING BRIEF


Barry N. Mesher                           Robert L. Byer




                                                                                    iJ
  WSBA No. 07845                            Pro Hac Vice
Michael B. King                           Nicholas P. Vari
  WSBANo. 14405                                                    --          7



Brian D. Zeringer
  WSBA No. 15566
Brett N. Anderson
  WSBA No. 3 1587
                                            Pro Hac Vice
                                          KIRKPATRICK & LOCKHART -.;-
                                          NICHOLSON GRAHAM LLP
                                          Attorneys for Defendant-
                                          Respondent Crane Co. 

                                                                   -.          ri
                                                                               -
                                                                               -
                                                                                    -
LANE POWELL PC
Attorneys for Defendant- 

Respondent Crane Co. 


Lane Powell PC                            Kirkpatrick & Lockhart Nicholson 

1420 FiRh Avenue, Suite 4100              Graham LLP 

Seattle, Washington 98 101                Henry W. Oliver Building 

Telephone: (206) 223-7000                 535 Smithfield Street 

Facsimile: (206) 223-7107                 Pittsburgh, Pennsylvania 15222 

                                          Telephone: (412) 355-6500
                                          Facsimile: (412) 355-6501
                                TABLE OF CONTENTS




TABLE OF AUTHORITIES................................................................... iv 


I. 	     SUMMARY INTRODUCTION..................................... ........... 1 


11.	     COUNTERSTATEMENT OF THE ISSUES................................ 2 


         1. 	    Failure to Warn .................................................................3 


         2. 	    Evidence of Exposure to Original Parts ......... .................... 3 


111.	    COUNTERSTATEMENT OF THE CASE .................................. 3 


        A. 	      The Parties ........................................................................ 3 


                  1. 	      Plaintiff Vernon Braaten........................................ 3 


                 2. 	       Defendant Crane Co. .................... . ................... ..... 4 


        B. 	     Braaten's Prior Texas Lawsuits ......................................... 4 


        C. 	     Braaten's Present Lawsuit, and His 

                 Admission That There Is No Evidence He 

                 Worked With or Around Original Packing or 

                 Gaskets on Crane Co. Valves ............................................ 5 


        D. 	     The Trial Court Grants Crane Co.'s Motion
                 for Partial Summary Judgment Regarding
                 No Duty to Warn and Then Grants Crane
                 Co.'s Motion for Summary Judgment
                 Regarding Original Bonnet Gaskets and
                 Packing.. ............................................................

                  1. 	      Motion for Partial Summary 

                            Judgment Regarding No Duty to 

                            Warn ..................................................................... 7 


                            a. 	       The Crane Co. Catalog........................ ....... 9 

                           b. 	      Crane Co.'s Discovery 

                                     Responses .................................................. 9 


                           c. 	      Deposition Testimony of 

                                     Admiral MacKinnon and 

                                     Jerry Lauderdale ...................................... 10 


                           d. 	      Medical Literature ................................... 10 


                           e. 	      Hearing and Trial Court's 

                                     Ruling...................................................... 11 


                 2. 	      Motion for Summary Judgment 

                           Regarding Exposure to Original 

                           Bonnet Gaskets or Packing.................................. 12 


IV. 	   STANDARD OF REVIEW.. ...................................................... 14 


V. 	    ARGUMENT ............................................................................. 15 


        A. 	     Crane Co. Has No Duty to Warn of Dangers 

                 Posed by Another Manufacturer's Asbestos- 

                 Containing Products Applied on or Around 

                 Crane Co.'s Equipment ................................................... 15 


                  1. 	     The Existence of a Legal Duty Is a 

                           Question of Law for the Court and 

                           Depends on Mixed Considerations of 

                           Logic, Common Sense, Justice, 

                           Policy, and Precedent .......................................... 15 


                 2. 	      There Is No Duty to Warn of 

                           Another Manufacturer's Products 

                           Under Negligence Principles ............................... 18 


                 3. 	      In Washington, There Is No Duty to 

                           Warn of Another Manufacturer's 

                           Product Under Strict Liability 

                           Principles .......................................................... 32 


                 4. 	      Courts Nationwide Have Refused to 

                           Hold One Manufacture Liable for 

                           Products Manufactured, Sold, or 

                           Distributed by Another ........................................ 40 

                 5. 	      Policy Considerations Are Better
                           Served by Declining Plaintiff's
                           Invitation to Expand Tort Law............................. 46

        B. 	     Appellant Did Not Brief Any issues
                 Concerning the Order Granting Crane Co.'s
                 Motion for Summary Judgment Re Relating
                 to Original Bonnet Gaskets and Packing and
                 Therefore Has Waived Any Challenge to
                 That Order ...................................................................... 49

VI. 	   CONCLUSION.......................................................................... 50 

                                TABLE OF AUTHORITIES




                                               CASES

Atherton Condominium Apartment-Owners Ass'n
       Board of Directors v. Blurne Development
    , . 115 Wn.2d 506, 799 P.2d 250 (1990) ....................................15 

       Co

Avers v. Johnson & Johnson Baby Products Co., 

       117 Wn.2d 747, 818 P.2d 1337 (1992) ................................... 26, 37 

Baughman v. General Motors Corn., 780 F.2d 1131 

     (4th Cir. 1986).......................................................,......................44 

                                                                                     .
Berkowitz v. AC&S, Inc., 733 N.Y .S.2d 410,288 

      A.D.2d 148 (N.Y. Sup. Ct. 2001) ................................................. 27 


Bich v. General Electric Co., 27 Wn. App. 25,614 

       P.2d 1323 (1980) ........................................................................... 37 

Bombardi v. Pochel's Appliance & TV Co., 9 Wn. 

     App. 797, 515 P.2d 540, modified, 10 Wn. 

     App. 243 (1973), rev. denied, 83 Wn.2d 

      1009 (1974) .............................................................,.....,..............-33 


Burg v. Shannon & Wilson, Inc., 110 Wn. App. 

       798, 43 P.3d 526 (2002).........................................................15, 21 

Cargill, Inc. v. City of Buffalo, 388 F.2d 821 (2d
        Cir. 1968) ...............................................................,...................,.-24
Christensen v. Royal School Dist. No. 160, 156 

       Wn.2d 62, 70, 124 P.3d 283 (2005) ......................................... 1 8                        

                                        1
Cowiche Canyon Conservancy v. Bosle~, 18 

      Wn.2d 801, 828 P.2d 549 (1992) .................................................. 49 

Dalton v. Pioneer Sand & Gravel Co., 37 Wn.2d 

       946, 227 P.2d 173 (1951).............................................................. 5 

                                                                                            2
Davis v. Globe Machine Manufacturing Co., Inc., 

       102 Wn.2d 68, 684 P.2d 692 (1 984) .......................................18, 26 

Estate of Temuleton v. Daffern, 98 Wn. App. 677, 

        990 P.2d 968 (2000) .............................................................19, 22 


Falk v. Keene Coru., 113 Wn.2d 645, 782 P.2d 974 

        (1989) ................................................................................... 33 


Folsom v. Burger King, 135 Wn.2d 658, 958 P.2d 

      301 (1998).............................................................................. 16 


Ford Motor Co. v. Wood, 119 Md. App. 1, 703 

      A.2d 1315 (Md. Spec. App. 1998), 

      abrogated not in relevant part, John Crane, 

      Inc. v. Scribner, 369 Md. 369, 800 A.2d 727 

      (2002) ..................................................................................... 


Freeman v. Navarre, 47 Wn.2d 760, 289 P.2d 1015 

      (1955) ................................................................................ 2 , 26 


Fricke v. Owens-Corning Fiberglas Corp., 6 18 So. 

       2d 473 (La. App. 1993) ............................................................. 44 


Garman v. Magic Chef, Inc., 117 Cal. App. 3d 634, 

      173 Cal. Rptr. 2d (1 98 1)............................................................44 


Guile v. Ballard Community Hospital, 70 Wn. App. 

        18, 851 P.2d 689, rev. denied, 122 Wn.2d 

        1010 (1993) .......................................................................... 14, 15 


Halleran v. Nu West, Inc., 123 Wn. App. 70 1, 98 

       P.3d 52 (2004). .......................................................................... 20 


Holdampf v. AC&S. Inc., 5 N.Y.3d 486, 806 

      N.Y.S.2d 146, 840N.E.2d 115 (2005) ............................ 16, 24, 27 


Hutchins v. 1001 Fourth Avenue Associates, 116 

      Wn.2d 217, 802 P.2d 1360 (1991) ............................................. 16 


Joyce v. State Department of Corrections, 155 

       Wn.2d 306, 119 P.3d 825 (2005). .............................................. 25 


King v. Seattle, 84 Wn.2d 239, 525 P.2d 228 (1974) ....................... .23, 24 

Koker v. Armstrona Cork. Inc., 60 Wn. App. 466, 

       804 P.2d 659, rev. denied, 117 Wn.2d 1006 

       (199 1) .................................................................................2 5 26 


Kuster v. Gould National Batteries. Inc., 7 1 Wn.2d 

       474, 429 P.2d 220 (1967) .......................................................... 34 


Lake Washington School District No. 414 v. 

      Schuck's Auto Supply. Inc., 26 Wn. App. 

      618, 613 P.2d 561 (1980) .......................................................... 16 


Lindstrom v. A-C Product Liabilitv Trust, 424 F.3d 

       488 (6th Cir. 2005) ............................................................... 40, 41 


Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 

       N.Y.S.2d 764,700 N.E.2d 303 (N.Y. App. 

        1998)................................................................................... .44, 45 


Lockwood v. AC&S. Inc., 109 Wn.2d 235,744 

     P.2d 605 (1987) ......................................................................... 34 


Lunsford v. Saberhaaen Holdings. Inc., 125 Wn. 

      App. 784, 106 P.3d 808 (2005) .............................................36, 37 


Mitchell v. Sky Climber. Inc., 396 Mass. 629,487 

      N.E.2d 1374 (1986) .................................................................. 44 


Molino v. B.F. Goodrich Co., 261 N.J. Super. 85, 

      617 A.2d 1235 (App. Div. 1992) ......................................... .44, 46 


Niemann v. McDonnel Douglas Corp., 72 1 F. Supp. 

      1019 (S.D. Ill. 1989).................................................................. 41 


Nivens v. 7-1 1 Hoanv's Corner, 83 Wn. App. 33, 

       920 P.2d 241 (1996),              a,
                                      133 Wn.2d 192, 

       943 P.2d 286 (1997) .............................................................. .2, 18 


Overton v. Consolidated Insurance Co., 145 Wn.2d 

      417, 38 P.3d 322 (2002) ........................................................... 14 


Palsnraf v. Long Island Railroad Co., 248 N.Y. 339, 

       162 N.E. 99 (1928) ............................................................. 2 3 24 

Parkins v. Van Doren Sales, Inc., 45 Wn. App. 19, 

       724 P.2d 389 (1986) .................................................................. 8 

                                                                                            3

Patrick v. Union State Bank, 681 So. 2d 1364 (Ala. 

        1995)...................................................................................... 21 


Peterick v. State, 22 Wn. App. 163, 589 P.2d 250 

       (1978) ............................................................................... 34, 35 


Powell v. Standard Brands Paint Co., 166 Cal. App. 

       3d 357, 212 Cal. Rptr. 395 (1985) ..................................42, 44, 48 


Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 

        289, 582 N.Y.S.2d 373, 591 N.E.2d 222 

        (1992) ........................................................................... .42, 43, 44 


Robinson v. Reed-Prentice Division of Package 

      Machinery Co., 49 N.Y.2d 471,426 

      N.Y.S.2d 717, 403 N.E.2d 440 (1980) ....................................... 45 


Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 

      468, 95 1 P.2d 749 (1998) .................:................................... 7, 18 

                                                                                    1

Seattle-First National Bank v. Tabert, 86 Wn.2d 

        145, 542 P.2d 774 (1975) ..................................................... 33, 35 


Sepulveda-Esauivel v. Central Machine Works, 

      Inc 120 Wn. App. 12, 84 P.3d 895 (2004)........................... 35, 36 

          -7




Shepard v. Mielke, 75 Wn. App. 201, 877 P.2d 220 

      (1994) ................................................................................... 17 


Snyder v. Medical Service Corn. of Eastern 

      Washington, 145 Wn.2d 233, 35 P.3d 1158 

       (2001) ................................................................................. 


Spencer v. Ford Motor Co., 141 Mich. App. 356, 

      367 N.W.2d 393 (Mich. App. 1985) .......................................... 44 


Stenberg v. Pacific Power & Light Co.. Inc., 104 

      Wn.2d 710, 709 P.2d 793 (1985) ............................................... 34 


Tavlor v. Stevens Countv, 111 Wn.2d 159,759 P.2d 

       447 (1988).............................................................................. 18 





                                                   vii 

Toth v. Economy Forms Corp., 391 Pa. Super. 383, 

        571 A.2d 420 (1990) .........................................................4 3 44 


Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. 

                                                                                                4
      App. 1990) ................................................................................ 4 


Whaley v. Department of Social & Health Services, 

      90 Wn. App. 658, 956 P.2d 1100 (1998).................................... 19 


Wright v. st an^ Manufacturing Co., 54 Cal. App. 

       4th 1218, 63 Cal. Rptr. 2d 422 (1997). ............................26, 27, 44, 

                                                                              45,46 


Young v. Key Pharmaceuticals. Inc., 112 Wn.2d 

      216, 770P.2d 182 (1989) ........................................................... 15 


Young v. Key Pharmaceuticals. Inc., 130 Wn.2d 

      160, 922 P.2d 59 (1996) ................................................. 19, 25, 26 


Zabka v. Bank of America Corp., -           Wn. App. 

              127 P.3d 722,2005 WL 3721905 

       (Div. I, Nov. 21, 2005) .........................................................20, 21 


Zambrana v. Standard Oil Co., 26 Cal. App. 3d 209, 

      102 Cal. Rptr. 699 (1972). ....................................................... 44 


                          STATUTES AND COURT RULES

RCW ch. 7.72 (Washington Product Liability Act) ............................... 33 




                                    MISCELLANEOUS

Restatement (Second) of Torts 5 402A....................................... 33, 34, 47 


Restatement (Second) of Torts 5 402A cmt. c ....................................... 33 


Tracking the Next Killer Flu, National Geographic 

       2-3 1 (Vol. 208, No. 4, Oct. 2005) .............................................. 32 





                                                 ...
                                               Vlll
                                       I. 


                      SUMMARY INTRODUCTION 


        This appeal involves the assertion by Plaintiff and Appellant

Vernon Braaten ("Braaten") of a novel theory of liability, which would

hold a valve manufacturer responsible for failing to warn about asbestos-

containing products that the valve manufacturer did not manufacture, sell

or distribute, and which was subsequently applied to the valve by others.

        Defendant and Respondent Crane Co. is a valve manufacturer. It sold

its valves to the United States Navy, and certain of its valves were installed

about U.S. Navy vessels on which Vernon Braaten worked at the Puget

Sound Naval Shipyard. Manufactured from iron, steel or other metal, valves

may contain internal packing or gaskets, some of which may have contained

asbestos. There being no proof that he was exposed to asbestos fiom such

materials, Braaten sought to hold Crane Co. liable for asbestos-containing

insulation that was applied to its valves after they were incorporated within

the ship's machinery or piping systems. This asbestos-containing insulation

was manufactured by others, sold to the Navy by others, and applied by

others to the Crane Co. valves after they had left Crane Co.'s control.

        Crane Co. moved for summary judgment, contending it did not

owe a duty to warn about the dangers of asbestos-containing insulation (or

other asbestos-containing products) that it did not make, sell or install.

The trial court agreed and granted summary judgment.
         As he did before the trial court, Braaten belabors the concept of

foreseeability, and thereby misses the true issue of this appeal. Before

foreseeability becomes pertinent to the analysis, Braaten must establish

that Crane Co. owed him a legal duty. Whether Crane Co. owed such a

 duty is for the court, not the jury, to decide. When deciding to impose a

 duty, courts consider policy, precedent, logic, common sense, and the

 consequences of creating a duty, including the potential for limitless

 liability. While a defendant may argue that an established duty does not

 run to a given plaintiff because the harm to that plaintiff was not

 foreseeable, that is not the issue in this case.

         The duty question "is to be answered generally, without reference to

 the facts or parties in a particular case."        u, v. 7- 11 Hoam's
                                                     Nivens

 Comer 83 Wn. App. 33,41,920 P.2d 241 (1996),
>-                                                    e,Wn.2d 192,943
                                                       133

 P.2d 286 (1997). Whether to impose a duty to warn on Crane Co. has

 implications that transcend this case. As Crane Co. will show, prior case

 law, sound legal reasoning, due regard to the precedential effects of the

 court's ruling, logic and common sense, and policy considerations all militate

 in favor of affirming the trial court's summary judgment orders of dismissal.

                                        11.

                 COUNTERSTATEMENT OF THE ISSUES

         Braaten's assignment of error presents only two issues pertaining to

 Crane Co. :
       1.     Failure to Warn.       Whether the trial court erred in

dismissing Braaten's failure to warn claim against Crane Co. when:

(1) there is no duty to warn of the dangers associated with products that

are manufactured, sold, and distributed by others; and (2) Crane Co.

neither manufactured, sold, nor distributed the asbestos-containing

insulation to which Braaten was exposed, nor installed such insulation on

or around valves it manufactured.

       2.     Evidence of Exposure to Original Parts. Whether the trial

court erred in dismissing Braaten's claims against Crane Co., when there is

no evidence he was exposed to original, asbestos-containing bonnet

gaskets or packing on Crane Co. valves.



               COUNTERSTATEMENT OF THE CASE

A.     The Parties.

       1.     Plaintiff Vernon Braaten. Plaintiff and Appellant Vernon

Braaten ("Braaten"), alleges he worked as a pipefitter at the Puget Sound

Naval Shipyard ("PSNS"), from November 1967 to June 2002.' Braaten

alleges he was exposed to asbestos-containing products in connection with

his work as a pipefitter, and that he contracted mesothelioma as a


        '~raaten  supports his assertion about his work history solely by a
citation to a motion for priority scheduling, CP 9-10.            Brief of
Appellant at 3. For purposes of this proceeding, Crane Co. assumes the
accuracy of this assertion.
consequence of that and other asbestos exposure. See CP 333 (Plaintiffs

First Amended Complaint at 2, tj 111); CP 517 & 527-28 (Plaintiffs

Responses to Style Interrogatory No. 11 & Appendix A).

        2.      Defendant Crane Co. Crane Co. is a valve manufacturer.

CP 1299 (Crane Co.'s Objections and Responses to Plaintiffs Requests for

Disclosure, First Set of Interrogatories, and Requests for Production,       id.
at 8). A valve itself is made of steel, iron, bronze or other metal. Packing

material is inserted to the internal spaces of the valve, and gasket material is

used to seal the connection between the valve's cover (or bonnet) and the

rest of the valve.   Id. The internal packing and the bonnet gasket, both of
which were routinely and periodically replaced as part of a valve's regular

maintenance, sometimes contained asbestos.      Id. The valve may be affixed
to a piping system or machinery by means of a flange connection, which

also commonly use gaskets.        Id.   The piping system and machinery,

including the valves incorporated into that system and machinery, were

sometimes insulated on the exterior at the discretion of the premises/vessel

owner, and such insulation sometimes contained asbestos.     Id.
B.     Braaten's Prior Texas Lawsuits.

       This lawsuit is Braaten's third asbestos action. On August 12,

2003, Braaten filed two lawsuits in Texas: Braaten v. Certainteed Corn.,

No. 25489 (Brazoria County Dist. Ct.) ("Brazoria Action") and Braaten v.

Buffalo Pumps. Inc., No. 0308127 (Dallas County Dist. Ct.) ("Dallas
Action"). See CP 337-52, 354-65 (Brazoria Action and Dallas Action

complaints, respectively). Braaten named Crane Co. as a defendant in the

Brazoria Action.     See CP 337 (Brazoria Action complaint). In the
Brazoria Action, Braaten alleged the defendants failed to warn him of the

dangers associated with asbestos-containing products that the end user

may have applied to the equipment or machinery the defendants had

manufactured, and which were installed aboard Navy vessels.          See
CP 345-46 (Brazoria Action complaint,      47-48.)

         Goulds Pumps, Inc. ("Goulds") was a defendant in the Brazoria

Action. CP 337 (Brazoria Action caption). Goulds filed a motion for

summary judgment seeking a ruling that a defendant has no duty to warn of

dangers associated with asbestos-containing products that may have been

applied to that defendant's product by an end user. CP 375-83 (Defendant

Goulds' Amended No-Evidence Motion for Summary Judgment). The trial

court granted Goulds' motion. CP 385 (Brazoria Action Order of Nov. 19,

2004).    Braaten then dismissed the Brazoria and Dallas Actions. See

CP 387-88 (Plaintiffs Notice of Non-Suit in Brazoria Action); CP 393

(Docket in Dallas Action at 4, noting Order of Dismissal).

C. 	     Braaten's Present Lawsuit. and His Admission That There Is No
         Evidence He Worked With or Around Original Packing or Gaskets
         on Crane Co. Valves.

         Following dismissal of his Texas actions, Braaten reasserted his

asbestos-related claims by filing a lawsuit in King County Superior Court
on January 24, 2005, against Crane Co. and other defendants named in

either the Brazoria or Dallas Actions. See CP 3-6 (Plaintiffs Complaint).

As to Crane Co., Braaten based his theory of liability on his work with

valves allegedly made by Crane Co. See CP 334-35 (Plaintiffs First

Amended Complaint, 7 IV).

       At depositions taken in the two Texas cases and in this case,

Braaten testified that he repacked, removed, and replaced valves made by

Crane C O . ~and other manufacturers. See CP 369-73 (09105103 Braaten

Dep. at 66, 1. 17-70> 1. 7, 159, 1. 4-164, 1. 22 & 346, 1. 7-347, 1. 25).

Braaten admitted he was unable to establish that he worked on or around

any gaskets supplied originally with any Crane Co. valves, testifying that

the gasket material with which he worked was manufactured by entities

other than Crane Co. :

               Q.    Sir, what kind of gasketing material did you use at
       the shipyard?

               A.        Garlock was a big one. Sepco. And John ~ r a n e . ~

CP 5778 (09105103 Braaten Dep. at 25,ll. 9-1 1). Braaten also admitted his

inability to identify the manufacturer of the packing he removed:

       2
        Crane Co. does not contest that Braaten may have worked with
Crane Co. valves. Crane Co. does not admit, however, that asbestos-
containing insulation was applied on or around valves it manufactured, or
that Braaten was ever exposed to such insulation.
       3
        Braaten does not dispute that John Crane is a wholly separate,
unrelated, and distinct entity from Crane Co.
                 Q.     Did you know the manufacturers of any of that
          packing material?

                   A. 	   None other than what I stated. I can't recall.

                 Q.       I'm not sure whether or not that specific question
          was asked. So unless we want to take a break and look back at
          deposition testimony, could you try to answer that question?

                   A.     It would be Garlock, Sepco or John Crane or one of
          those.

CP 5684 (08/01/05 Braaten Dep. at 124, 11. 14-22). Moreover, Braaten

was unable to state whether any bonnet gasket he removed was an original

gasket:

                  Q.    When you took apart a valve and removed a gasket,
          is there any way of knowing whether or not that gasket you are
          removing was the original gasket?

                   A. 	   No way of knowing.

Id.
- (123, 11. 15-18). Finally, Braaten admitted he had no way of knowing

whether any packing he removed from a valve was original packing:

                 Q.      And is there any way of knowing when you
          removed packing from a valve whether or not that was the original
          packing installed on the new valve?

                   A. 	   No.



D. 	      The Trial Court Grants Crane Co.'s Motion for Partial Summary
          Judgment Regarding No Duty to Warn and Then Grants Crane
          Co.'s Motion for Summary Judgment Regarding Original Bonnet
          Gaskets and Packing.

          1.       Motion for Partial Summary Judgment Regarding No Duty

to Warn.       On July 27, 2005, Crane Co. moved for partial summary
judgment, arguing that Crane Co. did not owe a duty to Braaten to warn

him of the dangers of asbestos-containing products with which he worked

that were manufactured, sold, or distributed by other companies. See

CP 459-80 (Crane Co.'s Motion for Partial Summary Judgment Re:

Failure to Warn of Asbestos-Containing Products). Braaten opposed by

relying on facts purporting to address the concept of foreseeability and

Crane Co.'s alleged knowledge regarding the hazards of asbestos

exposure. See CP 2035-36, 2040-46 (Plaintiffs Response to Crane Co.'s

Motion for Partial Summary Judgment at 14-15 & 19-25). Regarding

Crane Co.'s alleged awareness of the dangers of asbestos, Braaten

submitted the following in his opposition: (1) a Crane Co. catalog,

CP 1273-90; (2) Crane Co. discovery responses, CP 1292-13 16; (3) the

depositions of retired Rear Admiral Malcolm MacKinnon 111, CP 1425-31,

and Mr. Jerry Lauderdale, CP 1434-38; and (4) 392 pages of various and

sundry articles regarding the growing body of scientific knowledge of

asbestos-related diseases. CP 1442-1834.4




       4
         On appeal, Braaten also discusses Crane Co.'s alleged awareness
of asbestos hazards based on Crane Co.'s placement of an advertisement in
Southern Power and Industry, a trade magazine. See Brief of Appellant
at 16-17. A copy of the Southern Power and Industry magazine was
submitted in opposition to Yarway's motion for summary judgment, but
not in opposition to Crane Co.'s motion. Compare CP 5866-6383
(Plaintiff's exhibits in opposition to Yarway)             CP 1270-2015
(Plaintips exhibits in opposition to Crane Co.).
               a.      The Crane Co. Catalog. The Crane Co. catalog lists

various kinds of replacement gaskets and packing material that may be

used for its valves, including asbestos-containing and non-asbestos-

containing material.       CP 1276 & 1277 (discussing Teflon packing);

CP 1278-79 & 1283 (discussing Teflon gaskets, cormgated metal gaskets,

rubber gaskets, and rings for ring joints which were appropriate for

saturation by high pressure steam).      Braaten offered no evidence to

suggest that Crane Co. had recommended use of asbestos-containing

insulation materials as the preferred means for insulating Crane Co.

valves.

               b.      Crane Co.'s Discovery Responses.        Crane Co.'s

discovery responses state that "[clertain of the valves had enclosed within

their metal structure asbestos-containing gaskets, packing, or discs[,]" but

that "Crane Co. did not manufacture the asbestos-containing components

that mav have been encapsulated within the valves. but purchased them

from other companies." CP 1299 (Crane Co.'s Objections and Responses

to Plaintifl's Request for Disclosure, First Set of Interrogatories and

Requests for Production to Defendants, at 8) (emphasis added). There is

          5
         Braaten argues that Crane Co. sold Johns-Manville products. See
Brief of Appellant at 16. There is no evidence in the record that Crane Co.
sold Johns-Manville products to Braaten's employer or that Braaten was
exposed to Johns-Manville products sold by Crane Co. See CP 1266-2015
(Declaration of L. McDonald and exhibits submitted in opposition to
Crane Co.'s motion).
no evidence that Crane Co. manufactured asbestos-containing gaskets or

packing, or that it required asbestos-containing products to be used with its

valves.

               c.     Devosition Testimony of Rear Admiral MacKinnon

and Jerry Lauderdale. Rear Admiral MacKinnon testified that asbestos

insulation was used on pumps to prevent people from getting burned and

to maintain the internal temperature of the pump, "so that the pump runs

the way it was designed." See CP 1428-29 (MacKinnon Dep. at 29,

1. 10-30, 1. 4). Jerry Lauderdale similarly testified about insulation on

pumps.        CP 1435 (Lauderdale Dep. at 32,ll. 4-35,l. 8). Neither Rear

Admiral MacKinnon nor Mr. Lauderdale testified that asbestos insulation

was the only insulation available for insulating valves, such as those

manufactured by Crane C O . ~

               d.      Medical Literature. Braaten submitted 392 pages of

various scientific and medical articles regarding the general dangers of

asbestos. See CP 1443-1834 (collection of scientific and medical journal

articles). Braaten also referred to Crane Co.'s alleged membership in trade
          6
         Braaten also discusses the testimony of Everett Cooper. In
footnote 6 of his brief, Braaten states that "Everett Cooper's declaration
was submitted to the trial court as part of the record in this case . . . and
the trial court considered it[,]" citing CP 7272. See Brief of Appellant
at 10. In fact, the Cooper declaration was not hrnished to the trial court in
opposition to Crane Co.'s motion for partial summary judgment regarding
no duty to warn, and it was not listed amongst the evidence considered by
the trial court in ruling on Crane Co.'s duty to warn motion. See
CP 5565-67 (Sept. 6,2005 order, listing evidence considered).
industries. See CP 2044 (Plaintiffs Response to Crane Co.'s Motion for

Partial Summary Judgment at 23) (discussing membership in the

American Petroleum Institute and the Industrial Hygiene Foundation).

               e.      Hearing and Trial Court's Ruling. Oral argument on

the motion for summary judgment was heard on September 2, 2005.

During oral argument, Braaten's counsel all but conceded that the duty to

warn claim lacked merit in the strict liability context:

       And I agree -- we don't at all concede the question of strict
       liability, but I agree that the considerations about whether to
       impose strict liability on a defendant, on these kinds of defendants
       in this situation are different than whether they have a common-
       law negligence duty.



       Should they be strictly liable? Maybe not.



       Is it fair to confer liability in these circumstances? Absolutely it is.
       Maybe not strict liability, but negligence liability, I believe so.

VRP (Sept. 2,2005) 41, 51-53 (Transcript of Oral Argument).

       After oral argument, the trial court entered an order granting Crane

Co.'s motion for partial summary judgment. See CP 5565-67 (Sept. 6,

2005 Order Granting Defendant Crane Co.'s Motion for Partial Summary

Judgment). The trial court dismissed Braaten's claims that related in any

way to asbestos-containing products (e.g., external insulation, flange

gaskets), manufactured, sold, or supplied by another company.             See
CP 5566 (Order at 2). The order did not affect Braaten's claims relating to

exposure to original, asbestos-containing bonnet gaskets and packing.

       2.     Motion for Summary Judgment Regarding Exposure to

Original Bonnet Gaskets or Packing. Following the trial court's summary

judgment dismissal of Braaten's duty to warn claims, Crane Co. moved for

summary judgment dismissal of Braaten's remaining claims based on the

lack of evidence regarding exposure to asbestos-containing bonnet gaskets

or packing that Crane Co. may have incorporated within its valves. Crane

Co. relied on Braaten's deposition admissions, establishing that he could

not show he was exposed to asbestos from original bonnet gaskets or

packing. See CP 5743-48 (Crane Co.'s Motion for Summary Judgment on

Original Bonnet Gaskets and Packing at 2-3);     see 8 III.C,   supra, at 6-7

(citing and quoting admissions).

       In opposition, Braaten relied on the declaration of Everett Cooper,

CP 7326-30, and excerpts from the deposition of Gene Barlow,

CP 5838-50 (the latter attached as the only exhibit to the L. McDonald

Declaration). See CP 5832 (Plaintiffs Response to Crane Co.'s Motion for

Summary Judgment Re: Original Bonnet Gaskets and Packing at 2).

Everett Cooper opined that Crane Co. valves required repacking, and the

repacking created dust.      See CP 5833 (Plaintiff's Response at 3);
CP 7328-29 (Cooper Decl., 77 7-9). Gene Barlow's deposition testimony
purports to corroborate Mr. Cooper's statement.        CP 5833 (Plaintiffs

Response at 3).

       In reply, Crane Co. noted Braaten's admission that ". . . it is

impossible to determine whether or not the asbestos packing that

Mr. Braaten removed from Crane [Co.] valves was present at the time the

valves left Crane's factory." CP 6391-92 (Crane Co.'s Reply in Support of

Summary Judgment at 1-2);      see   CP 5832 (Plaintiffs Response at 2).

Crane Co. also highlighted Braaten's concession that "it is more likely that

the valve packing to which Mr. Braaten was exposed while working on

Crane valves was not original equipment." CP 6391-92 (Crane Co.'s

Reply at 1-2). Finally, Crane Co. pointed out that Braaten's own exhibits

showed that equipment on naval vessels utilized nonasbestos-containing as

well as asbestos-containing packing and gasket material.7

       7
       For example, exhibit WK CC 5002, Naval Machinery 1946 $ 2-8,
and exhibit WK CC 5003, Naval Auxiliary Machinery [I9491 $ 2-8,
showed that not all packing approved for naval service contained asbestos:

       The original packing material which gave the best performance
       were in the form of hemp rope and leather. Later, to those were
       added textile fibers and fabrics, asbestos fibers; then rubber, a
       combination of rubber and textiles; and later, metals. Today, we
       may choose our packing from almost endless variations of these
       basic materials.

       At one time there were more than 60 different types of packing
       approved for naval service use.

CP 6409- 10 (Naval Machinery 1946, $2-8, "Packing") & CP 64 17-18
(Naval Auxiliary Machinery [1949], $ 2-8, "Packing").
        The trial court granted Crane Co.'s motion for summary judgment

regarding exposure to asbestos from original bonnet gaskets and packing.

The trial court also struck the declaration of LeAnn McDonald.

CP 7271-72 (September 23, 2005 Order Granting Crane Co.'s Motion for

Summary Judgment Re: Original Asbestos Containing Bonnet Gaskets or

packing).*

                                    IV.

                        STANDARD OF REVIEW

        Motions for summary judgment are reviewed de novo on appeal.

Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322 (2002).

The appellate court engages in the same inquiry as the trial court and

views the facts and the reasonable inferences from those facts in the light

most favorable to the nonmoving party.         Id.   Summary judgment is

appropriate where "there is no genuine issue as to any material fact and

...   the moving party is entitled to a judgment as a matter of law."

CR 56(c).

        A party may seek summary judgment by setting out material facts

and demonstrating there is no genuine issue as to those facts. See Guile v.
        8
         In footnote 7 of his Brief, Braaten states that "the orders appealed
from in this case were based solely on the issue of duty to warn, that is the
only issue raised here on appeal." See Brief of Appellant at 20. As
evidenced by the September 23, 2005 order granting Crane Co.'s second
motion for summary judgment regarding exposure to original, asbestos-
containing bonnet gaskets or packing, Braaten has incorrectly described
the basis and subject matter of the dispositive orders in this case.
Ballard Community Hosp., 70 Wn. App. 18, 21, 851 P.2d 689, rev. denied,

122 Wn.2d 1010 (1993). Alternatively, a party moving for summary

judgment may show that the nonmoving party lacks sufficient evidence to

support its case. See Guile, 70 Wn. App. at 21. If the nonmoving party

fails to meet its burden under either of these two methods, the moving

party is entitled to judgment as a matter of law. Atherton Condominium

Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d

506, 5 16, 799 P.2d 250 (1990); Young v. Key Pharmaceuticals, Inc., 112

Wn.2d 216, 225, 770 P.2d 182 (1989) (citing Celotex Cop. v. Catrett, 477

U.S. 317, 323, 106 S. Ct. 2548 (1986)). When a plaintiff fails to make a

showing sufficient to establish the existence of an essential element of his

or her case, there is no genuine issue as to any material fact and summary

judgment is appropriate. See Young, 112 Wn.2d at 225.

                                    v.
                              ARGUMENT

A. 	   Crane Co. Has No Duty to Warn of Dangers Posed by Another
       Manufacturer's Asbestos-Containing Products Applied on or
       Around Crane Co.'s Eauiument.

       1.     The Existence of a Legal Dutv Is a Question of Law for the

Court and Depends on Mixed Considerations of Logic, Common Sense,

Justice, Policy. and Precedent. "The existence of a duty is a threshold

question." Burg v. Shannon & Wilson, Inc., 110 Wn. App. 798, 804, 43

P.3d 526 (2002). If there is no duty, the plaintiff has no claim.
Folsom v. Burner King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). The

plaintiff has the burden of establishing the existence of a duty. Lake

Washington Sch. Dist. No. 414 v. Schuck's Auto Supply, Inc., 26 Wn.

App. 618, 621, 613 P.2d 561 (1980).

       "The existence of duty is a question of law," Hutchins v. 1001

Fourth Ave. Associates, 116 Wn.2d 217, 220, 802 P.2d 1360 (1991), and

"depends on mixed considerations of logic, common sense, justice, policy,

and precedent." Snyder v. Medical Service C o q . of Eastern Washington,

145 Wn.2d 233, 243, 35 P.3d 1158 (2001) (internal quotation omitted).

Moreover, the Washington Supreme Court has declared that "actions

predicated on products liability or medical malpractice, must be subject to

limitations imposed by the courts." Snyder, 145 Wn.2d at 245.'



       9
         See also Holdarnpf v. AC&S. Inc., 5 N.Y.3d 486, 806 N.Y.S.2d
146, 840 N.E.2d 115 (2005). The New York Court of Appeals discussed
the relevant considerations in the duty analysis as follows:

       Courts traditionally fix the duty point by balancing factors,
       including the reasonable expectations of the parties and society
       generally, the proliferation of claims, the likelihood of unlimited or
       insurer-like liability, disproportionate risk and reparation
       allocation, and public policies affecting the expansion or limitation
       of new channels of liability. Thus, in determining whether a duty
       exists, courts must be mindful of the precedential, and
       consequential, future effects of their rulings, and limit the legal
       consequences of wrongs to a controllable degree.

840 N.E.2d at 119 (citing and quoting Hamilton v. Beretta U.S.A. Corp.,
96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001)). (For fbrther
discussion of Holdampf, see infra at 24.)
       Plaintiff quotes some of the relevant considerations in determining

whether a duty exists, i.e., logic, common sense, justice, policy, and

precedent, but then, as if it were a talisman to defeat summary judgment,

focuses wholly on foreseeability. Foreseeability, however, is a concept

better used to determine the scope or reach of an established duty, not a

concept to be relied upon to create the duty in the first place.

       Once a duty is established, a jury may be called on to determine

the reach of that duty or whether the defendant performed (or otherwise

breached) its duty. &, Shepard v. Mielke, 75 Wn. App. 201, 205, 877

P.2d 220 (1994). In such cases, foreseeability (whether the harm was

reasonably perceived) may be part of the analysis whether a breach of an

established duty occurred.    Id.   But as the Washington Supreme Court

                    v.
explained in Schoole~ Pinch's Deli Market, Inc., 134 Wn.2d 468, 951

P.2d 749 (1998), courts do not reach the issue of foreseeability unless a

duty has been found owing to the plaintiff:

       The Court of Appeals erroneously states that the protected class is
       defined by foreseeability.         Noting that the question of
       foreseeability is a question of fact for the jury, the court leR the
       issue of whether Schooley falls within the protected class to the
       jury. The problem with this analysis is that the question of
       whether a particular individual is part of a statute's protected class
       is a question of law for the court, not the jury. Thus, the court
       must first determine those persons protected by the statute. Only
        after the court defines the protected class will the jury then
        determine whether the injury to the plaintiff was foreseeable.
Schooley, 134 Wn.2d at 475, n.3.1°

       In short, whether a duty exists is a threshold determination that

must be made by the court, not by a jury. And as Crane Co. will show,

there is no good basis for the judicial creation of a duty to warn of

another's products, regardless of whether such an alleged duty is asserted

as the basis for a negligence or a strict products liability claim.

       2.       There Is No Duty to Warn of Another Manufacturer's

Products Under Negligence Principles. "In order to show negligence,

there must be evidence of the existence of a duty, breach of that duty,

proximate cause between the breach and injury, and resulting damage."

Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 73, 684 P.2d 692

(1984) (citation omitted). "The threshold determination in a negligence

action is whether a duty of care is owed by the defendant to the plaintiff"

Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988).

Moreover, the duty question "is to be answered generally, without

reference to the facts or parties in a particular case." Nivens v. 7-1 1

Hoasg's Corner, 83 Wn. App. 33, 41, 920 P.2d 241 (1996),              aff'd,   133

Wn.2d 192, 943 P.2d 286 (1997).




        10
          See also Christensen v. Royal School Dist. No. 160, 156 Wn.2d
62, 70, 124 P.3d 283 (2005) (for public policy reasons, the court refuses to
impose a duty on a minor to protect herself fiom sexual assault by a
teacher).
       In an action alleging negligent failure to warn, the "duty to warn

arises when a manufacturer becomes aware or should have become aware

of dangerous aspects of one of its products."                Youna v. Key

Pharmaceuticals. Inc., 130 Wn.2d 160, 178, 922 P.2d 59 (1996). In

determining when a manufacturer becomes or should have become aware

of the dangers of its products, "the focus is on the conduct of the

manufacturer. . . ."   Id. While this is the general rule regarding allegations
that a manufacturer negligently failed to warn about its own products, it is

not dispositive of the issue before this Court -- whether a manufacturer has

a duty to warn about another manufacturer's products. Nor was this issue

addressed in Young.

        In determining whether a duty exists in the first place, courts

"tak[e] notice of 'legislative facts' -- social, economic, and scientific facts

that 'simply supply premises in the process of legal reasoning,"' and

consider "logic, common sense, justice, policy, and precedent; earlier

constitutional, legislative, and judicial expressions of public policy" and a

"balancing of interests." Estate of Templeton v. Daffern, 98 Wn. App.

677, 687, 990 P.2d 968 (2000) (footnotes omitted). As this Court has

stated, "[rlecognition of a duty generally depends on policy considerations

and the balancing of interests." Whaley v. Dev't of Social & Health

Services, 90 Wn. App. 658, 672,956 P.2d 1100 (1998).
       The principle that foreseeability alone does not give rise to a duty

is exemplified by this Court's decision in Halleran v. Nu West, Inc., 123

Wn. App. 701, 98 P.3d 52 (2004). In that case, investors sued the

Securities Division of the Washington State Department of Financial

Institutions, for losses caused by an investment company's fraudulent

practices. 123 Wn. App. at 704. In addition to arguing they were owed a

duty under the public duty doctrine, the plaintiffs argued that the

Securities Division had a duty to protect investors from losses based on

the common law concepts of duty and foreseeability.      Id. at 717.   This

Court rejected the plaintiffs' claim that the Securities Division could be

liable to the plaintiffs, merely because. it should have foreseen the

investment company's fraudulent acts:

       [Plaintiffs] contentions that the harm suffered . . . was reasonably
       foreseeable and that the [defendant] had a duty to prevent the harm
       conflate the concepts of duty and foreseeability. Foreseeability
       limits the scope of a duty, but it does not independently create a
       duty.

Id.
-(citation omitted).

       Even more recently, in Zabka v. Bank of America Corp.,          Wn.

APP.         127 P.3d 722, 2005 WL 3721005 (Div. I, Nov. 21, 2005)

(motion to publish granted Jan. 23, 2006), this Court again rejected the

assertion that mere foreseeability should give rise to liability. In Zabka,

the plaintiffs sued Bank of America for losses arising out of a number of

fraudulent banking transactions.    The plaintiffs asserted a variety of
negligence claims, alleging Bank of America failed to follow procedures

with regard to the opening of accounts and to the handling of the transfers.

This Court refused to hold that the bank owed a duty to the noncustomer

plaintiffs, despite evidence that the bank failed to follow procedures. See

127 P.3d at 724. In doing so, the Court declined to follow Patrick v.

Union State Bank, 681 So. 2d 1364 (Ala. 1995), in which the Alabama

Supreme Court found a duty because the injury was foreseeable and could

have been detected and prevented by the bank. See 127 P.3d at 124.

        To the same effect is this Court's decision Burn v. Shannon &

Wilson, Inc., 110 Wn. App. 798, 43 P.3d 526 (2002), in which the plaintiff

sued an engineering firm for damage to the plaintiffs home from a

mudslide that was caused by a defect in the land above the plaintiffs

property. It was undisputed that the engineering firm was aware of the

dangerous condition of the land that led to the mudslide. Indeed, the

engineering firm had been hired by the City of Seattle to evaluate the

land's stability. 110 Wn. App. at 801. The engineering firm issued a letter

and a final report about recommended remedial steps to prevent M h e r

instability.   Id. at 801-02.   The final report specifically mentioned the

home of the plaintiff and the land instability near his home.    Id.at 802.
After the plaintiffs home was damaged beyond repair by a storm, the

plaintiff brought suit against the engineering firm for negligent failure to

warn of the remedial measures that might have preserved his property.
Despite the undeniable foreseeability of the risks posed and the remedial

measures that could have been taken, this Court upheld the grant of

summary judgment in favor of the engineering firm, holding that the

engineering firm owed no duty to the plaintiff

       While the preceding cases did not involve personal injury, Estate

of Templeton v. Daffern, 98 Wn. App. 677, 990 P.2d 968 (2000), did.

Travis Templeton left a teenage drinking party in a borrowed car, crashed

into a tree, and died. 98 Wn. App. at 680. Templeton's estate argued that

the social host was aware of the party and the teenage drinking, and that

the host was therefore liable under a common law negligence theory.     Id.
The Court of Appeals rejected plaintiffs theory, and held there is no

common law duty of reasonable care to a minor whom the host did not

hrnish with alcohol, even if the host permitted the minor to consume it.

Id.at 690.   In doing so, the court addressed the ramifications of imposing

such a duty, including the fact that social hosts are not as capable as

monitoring guests as commercial hosts.   Id.at 689.
       This case should be governed by the same principles. Just as the

defendants in the cases just discussed had no duty to warn of the

foreseeable conduct of entities over which they had no control or to warn

of a known dangerous condition that they did not create, Crane Co. has no

duty to warn of the dangers associated with the asbestos-containing

products used with its valves -- which products it did not manufacture or
sell and over which it had no control. Whether Crane Co. owed a duty to

warn is the threshold and dispositive point. Foreseeability concepts come

into play only after a duty is established. In such instances, foreseeability

may set the boundaries of an established duty. But where, as here, no duty

should be imposed, foreseeability is not the determining factor.

       Despite the clarity of the case law on this issue, Braaten proffers

sweeping statements, such as "[ulltimately, the existence of a duty turns

upon the foreseeability of the risk of harm." See. e.g, Brief of Appellant

at 21. Braaten also cites Palsgraf v. Long Island R.R. Co., 248 N.Y. 339,

162 N.E. 99 (1928), and King v. Seattle, 84 Wn.2d 239, 525 P.2d 228

(1974), in an attempt to bootstrap foreseeability into the threshold duty

question. Plaintiffs broad assertions mischaracterize the fundamental

issue in both cases.

       The Washington Supreme Court's explanation of the relationship

between duty and foreseeability in King v. Seattle actually undercuts

Braaten's position. The Supreme Court first acknowledged that, as to the

tort at issue (interference with prospective economic advantage,      see   84

Wn.2d at 247), the "city was under a duty to act fairly and reasonably in

its dealings with the plaintiffs."     Id. at 247-48.   Even though the facts

showed the "city's patent breach of duty," the city argued "that it could not

have foreseen the risk of harm which occurred" and therefore should not

be held liable.        Id.   at 248.   The Supreme Court did state "that
foreseeability of the risk of harm to the plaintiff is an element of the duty

question."   Id. But, as the court further explained, foreseeability does not
create the duty in the first place, it can only operate to limit the scope of

the duty owed:

       [i]f the risk of harm which befell the plaintiff as a result of the
       defendant's act was not reasonably foreseeable, our cases have
       held, then, as to that plaintiff, no duty respecting that act was
       owed. Thus, no duty was breached, and no legal liability attached
       to the defendant for that plaintiffs loss.

Id.
-

       As New York's highest court commented on its famous decision in

Palsgraf v. Lona Island R.R. Co., "Foreseeability should not be confused

with duty. The principle expressed in Palsnraf v. Lona Is. R.R. Co., . . . is

applicable to determine the scope of duty -- only after it has been

determined that there is a duty." Holdamuf, 840 N.E.2d at 119 (citations

and brackets omitted).      It is when the concept of foreseeability is

understood correctly that the language in cases like ~alsmaf"comes into


         "1n Palsm-af. an employee of the defendant was attempting to
assist a traveler board the train, when he dislodged a package of fireworks
from the grasp of a traveler. Palsgraf. 162 N.E. at 99. The plaintiff was
injured by a scale that fell on her as a result of the exploding fireworks.
Id.
- The court rejected plaintiffs negligence claim (the right to be
protected against interference with one's bodily security), stating that, "by
concession, there was nothing in the situation to suggest to the most
cautious mind that the parcel . . . would spread wreckage through the
station." Id.at 101; see also Cargill. Inc. v. City of Buffalo, 388 F.2d 821,
824 (2d Cir. 1968) (discussing foreseeability and liability for damages
arising out of flooding caused by a barge that drifted downstream and into
another barge and a bridge).
proper focus.    Indeed, parties often contend that despite a duty, the

consequences of their actions were not foreseeable (e.g., the perceived risk

was too remote); thus, there should be no liability. &,x,Joyce v.

State Dep't of Corrections, 155 Wn.2d 306, 3 15, 119 P.3d 825 (2005)

("Once the theoretical duty exists, the question remains whether the injury

was reasonably foreseeable"). A jury may be called upon to make that

determination about remoteness. Crane Co., however, has not interposed

argument about the remoteness of a perceived risk; rather, Crane Co. has

argued, and is arguing, that the relevant considerations, when evaluated by

the Court, do not support the imposition of a duty in the first place to warn

about the dangers of another manufacturer's product.

       Braaten also relies on Dalton v. Pioneer Sand & Gravel Co., 37

Wn.2d 946, 227 P.2d 173 (1951), Koker v. Armstrong Cork. Inc., 60 Wn.

App. 466, 804 P.2d 659, rev. denied, 117 Wn.2d 1006 (1991), the

Supreme Court's second decision in Young v. Key Pharmaceuticals, and

Freeman v. Navarre, 47 Wn.2d 760, 289 P.2d 1015 (1955), to support his

argument that a product manufacturer's failure to warn of foreseeable

hazards may constitute common law negligence. However, in all of these

cases, the product allegedly giving rise to liability was actually

manufactured by the defendant. In Dalton, the plaintiff sought to recover

damages for a defective ready-mix cement which was manufactured and

sold by defendant Pioneer Sand & Gravel Co.             Dalton, 37 Wn.2d
at 946-47.       Likewise, in Koker, defendants Celotex and Raymark

Industries actually manufactured and sold the asbestos-containing

products alleged to have caused the plaintiffs injuries. Koker, 60 Wn.

App. at 495-96. Similarly, in Young, the defendant, Key Pharmaceuticals,

Inc., manufactured the prescription drug theophylline, which was alleged

to have caused the plaintiffs injuries. Young, 130 Wn.2d at 162. Finally,

in Freeman, the plaintiff sought to recover damages for an allegedly

defective underground steam heat distribution system manufactured by the

defendant. Freeman, 47 Wn.2d at 761; see also Ayers v. Johnson &

Johnson Baby Products Co., 117 Wn.2d 747, 750, 818 P.2d 1337 (1992)

(plaintiff sued a manufacturer of baby oil for negligence after a small child

aspirated that manufacturer's baby oil); Davis v. Globe Mach. Mfg. Co.,

Inc
L     3   102 Wn.2d 68, 70, 73, 684 P.2d 692 (1984) (plaintiff sued the

manufacturer of a glue-spreading machine for negligence regarding the

sufficiency of warnings and guarding). In this case, Crane Co. is neither

the manufacturer nor the seller of any of the asbestos-containing insulation

products alleged to have actually caused Braaten's injuries.

           Braaten's out-of-state authorities prove either equally inapposite or

decidedly unpersuasive. Wright v. Stang Mfg. Co., 54 Cal. App. 4th 1218,

63 Cal. Rptr. 2d 422 (1997), does not advance Braaten's negligent failure

to warn theory. As discussed more hlly in the strict liability portion of

Crane Co.'s brief    (infra, at 44-45), the court in Wright v. Stang; addressed
strict liability of a manufacturer when the use of its product with another

product results in a combination that is dangerous.    Id.at 1228.   Moreover,

here two products did not combine to produce the alleged injury, as they did

in Wright v. Stang (see infra, at 44-45) (discussing the combination of water

cannon and steel riser pipe that gave rise to the plaintiffs injury in Wright).

       Plaintiffs reliance on Berkowitz v. AC&S. Inc., 733 N.Y.S.2d 4 10,

288 A.D.2d 148 (N.Y. Sup. Ct. 2001), proves equally misplaced, especially

given the subsequent clear pronouncement of the relationship between duty

and foreseeability by New York's highest court in Holdampf v. AC&S. Inc.

(previously discussed, supra, at 24). Berkowitz involved a motion for

summary judgment by Worthington, a pump manufacturer, based on the

lack of evidence that it made the pumps which contained asbestos.

Berkowitz, 733 N.Y.S.2d at 149. Finding an issue of fact on the central

question before it, the court also noted, in passing and without analysis, that

pumps might require asbestos insulation to operate safely; thus, the court

would not say that Worthington did not have a duty to warn.''         Here, the

record establishes no such requirement, and the overwhelming weight of
        12
          Judge Helen Freedman, who denied defendant's motion for
summary judgment at the trial level in Berkowitz, issued a subsequent
ruling in Renow v. A.W. Chesterton Co., No. 0106444103 (N.Y. Sup. Ct.
Jan. 22, 2004), in which she dismissed claims against Ford and Chrysler
based on decedent's exposure to asbestos from replacement brakes: "Here,
while Ford and Chrysler may have known that the various brake
replacement parts were likely to contain asbestos, the duty to warn that
such parts would or might contain asbestos is too remote and too
attenuated." CP 4927 (Order at 2).
authority actually to have analyzed the issue concludes that no duty to

warn should extend to manufacturers who do not supply the actually

defective product.

       Finally, Braaten refers the Court to trial court orders in several

cases in which the court denied a summary judgment motion similar to

Crane Co.'s motion. See Brodnax v. Anco Corn., No. BC 327773 (Los

Angeles County Super. Ct.) (Oct. 6, 2005 order denying summary

judgment); Williams v. Carver Pump, N. BC 309034 (Los Angeles County

Superior Ct.) (notice of ruling denying motion for summary judgment, in

which the court observed that Foster Wheeler did not properly raise the

duty to warn issue in its motion); Walraven v. A.W. Chesterton Co.,

No. 04-3940 (Suffolk County Super. Ct.) (denying motion in limine

regarding duty to warn "at this time"); Simkins v. General Motors Cop.,

No. CC-03-02935-B (Dallas County Dist. Ct.) (May 25, 2005 order

denying Yamay's motion for partial summary judgment); Hassall v. Alfa

Laval. Inc., No. 24366*BH03 (Brazoria County Dist. Ct.) (Jan. 26, 2004

order denying Buffalo Pumps, Inc.'s motion for summary judgment); and

Landinnin v. A.W. Chesterton Co., No. 437009 (San Francisco County

Super. Ct.) (Nov. 1, 2005 order denying Ingersoll-Rand's motion for

summary judgment). Crane Co. submits that a trial court decision, holding

that no duty to warn is owed, should be given greater weight than one
which merely denies summary judgment, as the denial of such a motion

does not necessarily mean that a duty was determined to exist.

       In Landinain v. A.W. Chesterton Co., for example, the court

simply held the defendant, Ingersoll-Rand, failed to shift the burden to

prevail on summary judgment. What Braaten fails to mention is that the

same court that denied Ingersoll-Rand's motion also granted Crane Co.'s

motion on the duty to warn issue.          Landingin v. A.W. Chesterton Co.,

No. 437009 (San Francisco County Super. Ct.) (Oct. 3 1, 2005 order

granting Crane Co.'s motion for summary judgment)).13 Like Braaten, the

plaintiff in Landingin claimed he was exposed to asbestos fi-om his work

with Crane Co. valves, yet the Landingin court rejected his claim as a

matter of law. See id. at 6-7 (Issue 5).

       Braaten's counsel admitted to the trial court that, as to their success

with this novel theory, "we win it sometimes, we lose it sometimes." VRP

(Sept. 2, 2005) 44, 11. 24-25 (Transcript of Oral Argument). In fact,

numerous trial courts have held that there is no duty to warn of hazards

posed by another manufacturer's products.          See CP 385 (Braaten v.
Certainteed Cop., No. 25489 (Brazoria County Dist. Ct., Nov. 2004)

(Order at 6) ("motion [for summary judgment] is GRANTED as to any
       13
          The Landinain orders were entered after Crane Co.'s motions had
been filed and adjudicated. Consequently, a copy of the order granting
Crane Co.'s motion for summary judgment in Landinain could not have
been provided to the trial court in this case. A copy of the Landinain order
is attached as Exhibit A of the Appendix to this Brief
alleged duty of Goulds Pumps, Inc. to warn of the dangers associated with

asbestos solely because asbestos was installed on or around pumps

manufactured by Goulds Pumps, Inc.")); CP 446 (Simkins v. Alfa Laval,

Inc No. CC-03-02935-B (Tex. Dist. Dallas County May 5, 2004) (same
-7




for valves)); CP 4944-57 (Bartel v. Foster Wheeler Co., No. 1:94CV12030

(N.D. Ohio Mar. 11, 2004) (no duty to warn) (Memorandum of Opinion &

Order)); CP 4839-44, (Burns v. Bondes, No. 02-L-2 (Shelby County Cir.

Ct. Dec. 2003) (same) (Record Sheet)); CP 4889-94 (Davp v. AC&S. Inc.,

No. 24x03-000353 (Cir. Ct. Baltimore City, Jan. 12, 2004) (same)

(Volume    Two     of   Pretrial Hearing));    CP 4926-27     (Renow v,

A.W. Chesterton, No. 0106444103 (N.Y. County Sup. Ct. Jan. 22, 2004)

(same) (Order Dismissing)); CP 4788-4801 (LaChappelle v. American

Standard. Inc., No. BC 303899 (Los Angeles County Super. Ct.

Apr. 20 & 26,    2004) (granting Crane Co.'s and           another pump

manufacturer's motions for summary judgment) (Judgment on Order

Granting Summary Judgment)); CP 4803-08 (Escamilla v. American

Standard. Inc., No. BC 303900 (Los Angeles County Super. Ct. May 11,

2004) (no duty to warn) (Judgment and Order Granting Motion for

Summary Judgment)).

       In sum, Braaten's case authorities fail to offer persuasive support

for his attempt to conflate the distinct issues of duty and foreseeability.

Nor do Braaten's factual submissions transform what is otherwise a fatally
flawed claim into one that Braaten should be allowed to take to a jury.

The product line offered in the Crane Co. catalog included numerous non-

asbestos-containing gaskets and packing materials, as acknowledged by

Braaten in his deposition.    CP 1276-79 & 1283 (pages from Crane Co.

catalog); CP 6408-18 (Braaten's exhibits).    The Crane Co. discovery

responses proffered by Braaten unambiguously state that Crane Co. does

not manufacturer the asbestos-containing gaskets or packing that may be

incorporated into Crane Co. valves. CP 1299 (Crane Co.'s Objections and

Responses at 8). Neither Rear Admiral MacKinnon nor Mr. Lauderdale

testified that asbestos-containing insulation had to be used on valves. At

most, this evidence would support a finding that Crane Co. would know

that the end user miaht use asbestos-containing insulation. This sort of

foreseeability, however, does not support imposing a duty to warn on

Crane Co.

       Braaten asserts Crane Co. "required" that asbestos-containing

products be used with its valves. There is no evidence whatsoever of such

a requirement. Braaten also attempts to buttress his foreseeability claim

by submitting scientific and medical articles concerning the dangers of

asbestos, then trying to impute awareness of this body of knowledge to

Crane Co. by asserting that Crane Co. or one of its employees may have

been a member of organizations (the American Petroleum Institute; the

Industrial Hygiene Foundation) that at some point in their history
considered asbestos issues. Such knowledge, however, whether actual or

constructive, simply does not establish a duty to warn of asbestos-

containing products that Crane Co. did not manufacture or distribute.

        Finally, in his brief to this Court, though not in his response to

Crane Co.'s motion before the trial court, Braaten relies on an issue of the

Southern Power and Industry magazine, in which Crane Co. placed an

advertisement. The magazine was not before the trial court as pertaining

to Crane Co., and the logic of Braaten's argument from the fact of the

advertisement is patently flawed, in any event. General Motors recently

placed an advertisement in an issue of National Geographic which

contained an article on bird flu.       See Tracking the Next Killer Flu,

National Geographic 2-3 1 (Vol. 208, No. 4, Oct. 2005). Certainly, the

placement of this advertisement does not make GM actually or

constructively knowledgeable about the science surrounding bird flu. In

fact, Braaten's advertisement evidence is just another attempt by Braaten

to establish what Crane Co. arguably should have foreseen, which is

legally insufficient for the imposition of a duty to warn.

        3.     In Washington. There Is No Duty to Warn of Another

Manufacturer's Product Under Strict Liability Principles.               Under

longstanding principles of public policy underlying Washington's product

liability law, responsibility for a product's dangers rests with companies in

the chain of distribution of that product, and responsibility for the safety of
the workplace rests with the employer. Section 402A of the Restatement

(Second) of Torts explains the rationale behind strict liability; namely, that

the costs associated with a defective product "be placed upon those who

market them, and be treated as a cost of production." See Restatement

(Second) of Torts 9 402A comment c; see also Seattle-First Nat'l Bank v.

Tabert, 86 Wn.2d 145, 147, 542 P.2d 774 (1975) ("[ a] manufacturer is

strictly liable in tort when an article he places on the market . . .")

(emphasis added).

       The Supreme Court in Seattle-First National Bank v. Tabert

delineated the outer limits of strict products liability when it held that

liability would be imposed on any manufacturer, dealer or distributor

engaged in the business of selling the defective product.          The court

specifically limited the extension of liability to those in the chain of

distribution. 86 Wn.2d at 148-49; see also Falk v. Keene Corp., 113

Wn.2d 645, 651, 782 P.2d 974 (1989) (emphasizing that the Tabert

approach was endorsed when the Legislature enacted the Washington

Product Liability Act). This result was justified given the policy "to

ensure that the costs of injuries resulting from defective products are borne

by the makers of the products who put them in the channels of trade[.]"

Bombardi v. Pochel's Auuliance & TV Co., 9 Wn. App. 797, 806, 515

P.2d 540, modified, 10 Wn. App. 243 (1973), rev. denied, 83 Wn.2d 1009

(1974). But in the case of parties such as Crane Co., who did not
manufacture, sell, or distribute the asbestos-containing products that

allegedly injured Braaten, these policies are not served by the imposition

of strict liability.

        To serve the policies underlying section 4 0 2 4 it is kndamental

that a plaintiff must prove that a defendant manufactured or distributed the

very product or products alleged to have caused his injury. In Kuster v.

Gould Nat'l Batteries. Inc., 71 Wn.2d 474, 429 P.2d 220 (1967), the court

explained:

        It is the law that the plaintiff must establish with reasonable
        certainty a manufacturing defect as a cause of the accident in order
        for him to recover damages from the defendant.

Kuster at 485. To the same effect, the Supreme Court in Lockwoodv.
7
-




AC&S, Inc., 109 Wn.2d 235, 744 P.2d 605 (1987), stated:

        Generally, under traditional product liability theory, the plaintiff
        must establish a reasonable connection between the injury, the
        product causing the injury, and the manufacturer of that product.
        In order to have a cause of action, the plaintiff must identify the
        particular manufacturer of the product that caused the injury.

Lockwood, 109 Wn.2d at 245 (citations omitted).

        These principles were applied in Peterick v. State, 22 Wn. App.

163, 589 P.2d 250 (1978).14 There, plaintiffs were employees of the

EXCOA company, whose parent company was Rocket Research

("Rocket"). Plaintiffs were killed in an explosion caused by a liquid

        14
         Peterick v. State was overruled on other grounds by Stenbern v.
Pacific Power & Light Co.. Inc., 104 Wn.2d 710, 709 P.2d 793 (1985).
explosive at a test facility, and their estates sued. Rocket had developed

the liquid explosive but had assigned the patent to EXCOA in exchange

for stock. EXCOA designed, built and operated the test facility where the

explosion occurred. Plaintiffs' estates claimed that Rocket was strictly

liable under a product liability theory because it had failed to give

adequate warnings regarding the explosive. 22 Wn. App. at 192. This

Court rejected plaintiffs' claim and afirmed the trial court's dismissal.

Citing Tabert, the Court reasoned that plaintiff had failed to show that

Rocket had manufactured the explosive, and therefore that Rocket had any

duty to warn:

       The initial limitation of all such actions requires the common
       denominator of a manufacturer or seller. . . . The facts alleged by
       plaintiffs fail to establish either that Rocket was the manufacturer,
       or that Rocket had any duty to warn plaintiffs' decedents of
       dangers that officials in EXCOA were aware of. The plaintiffs
       have failed to show any causal link between the explosion and acts
       or omissions of Rocket. The plaintiffs did not produce evidence to
       rebut the defendant Rocket's denial of control in the manufacturing
       process or its denial of any duty to warn plaintiffs' decedents, and
       the claim properly was dismissed.

Id.at 192-93 (citation omitted).
       The recent decision in Sepulveda-Esauivel v. Central Machine

Works. Inc., 120 Wn. App. 12, 84 P.3d 895 (2004), reinforces the

conclusion that Washington law does not impose a duty on Crane Co. to

warn of a product it did not manufacture. In Sepulveda-Esquivel, the

plaintiff sued the seller and manufacturer of an industrial hook for injuries

sustained when he was injured by a load that fell from the hook. Plaintiffs
employer attached a "mouse" to the hook, the purpose of which was to

close the opening of the hook when moving the load. The court concluded

that the seller and manufacturer of the hook had no duty with respect to

the finished hook assembly with the mouse. This was because they did

not manufacture, supply or sell the finished assembly. 120 Wn. App.

at 19. Rather, they made and sold the hook, a component of the assembly,

and this component did not fail. Further, even if the relevant product for

the purpose of analysis was the completed hook assembly with the mouse,

the hook seller and manufacturer had no liability, because the hook

component of the finished product did not produce the injury.    Id.
       The present case is analogous to Sepulveda-Es~uivel. Even

assuming the valve was a "component," and the valve and the asbestos-

containing product (someone else's "component") collectively constitute

the relevant "product," Crane Co. still has no liability because its

"component" did not cause the injury.            The other manufacturer's

component did. As in Sepulveda-Es~uivel,Crane Co. did not make the

"component" that is alleged to have injured plaintiff, did not place it in the

stream of commerce, and did not profit from its sale.

       Braaten relies on Lunsford v. Saberhaaen Holdin~s.Inc., 125 Wn.

App. 784, 106 P.3d 808 (2005), in an attempt to show that foreseeability

considerations raise questions of fact or somehow dominate the inquiry

regarding the existence of a duty. Whether a duty existed was not at issue
in Lunsford, however. At issue was "whether a bystander or a person in

                                                                  and
Lunsford's position is a user for the purposes of section 402A[,IM that

issue was resolved on the premise that a duty was owed to users by the

manufacturer of the product that had caused injury to the bystander

plaintiff. @ 125 Wn. App. at 786 & 789-90.             Here, the threshold

question is whether one manufacturer owes a duty to warn of dangers by

another manufacturer's products.15

       Braaten also relies on Bich v. General Electric Co., 27 Wn. App.

25, 614 P.2d 1323 (1980), in an attempt to show that one manufacturer can

be liable for the defective products manufactured by another company. In

m,the plaintiff replaced a fuse in a General Electric ("GEM)
                                                           transformer

with a fuse manufactured by Westinghouse. 27 Wn. App. at 28. The

plaintiff was injured when the transformer manufactured by GE exploded.

Id.
- The plaintiff asserted claims based on a defective product theory (the

transformer was defective) and on failure to warn of fuse substitution in

the transformer. Regarding the failure to warn claim, the court found there

was a question of fact whether "the transformer was unreasonably

dangerous" because GE did not issue a warning not to substitute fuses.   Id.
       15
          The foreseeability of the use of the allegedly defective product in
conjunction with defendant's product should be largely irrelevant to the
threshold question of whether a duty exists. "Foreseeability is not an
element of strict liability, which focuses not on the conduct of the
manufacturer but upon the product and the consumer's expectation."
Ayers v. Johnson & Johnson Baby Products Co., 117 Wn.2d at 762
(citations omitted).
at 33. The injury in Bich was the result of the combination of a GE

transformer and a Westinghouse hse, which caused the transformer to fail

catastrophically and injure the plaintiff in the process.          Here, the

conjunction of an asbestos-containing product with a steel valve did not

cause the valve to fail and thereby injure Braaten, nor has Braaten ever

claimed to have been injured in such a fashion.

       Plaintiffs reliance on Parkins v. Van Doren Sales. Inc., 45 Wn.

App. 19, 724 P.2d 389 (1986), is equally misplaced. Parkins was injured

by a nip point on a conveyor system. 45 Wn. App. at 20-21. She sued

Van Doren Sales, Inc. ("Van Doren"), which designs and manufactures

conveyor systems component parts.      Id. at 22.   Van Doren argued that it

had no knowledge about how its parts would be used, e.g., as replacement

parts or as new assembly, but the Court of Appeals stated that Van Doren

"design[ed] and manufacture[d] the component parts used and installed

without substantial modification in assembling the conveyor[,]" and it was

"the design, and subsequent injury because of that design, which form the

basis of Ms. Parkins' claim."   Id.at 25.   Thus, as in the other cases relied

on by Braaten, it was the defendant's product that caused the injury, not

the product of some third party.

       In sum, Braaten's focus on foreseeability ignores what should be

the dispositive facts for determining whether Crane Co. owed Braaten a

duty to warn. Crane Co. did not make the asbestos-containing products
that allegedly caused Braaten's injuries.        Crane Co. is not the

manufacturer, distributor, seller or installer of asbestos-containing

products to which Braaten was exposed. The manufacturers and sellers of

such products are appropriately obligated to warn of the dangers of their

own products, but there is no good policy justification for extending the

bounds of products liability to require a party to provide warnings about

another manufacturer's product.

       The duty to warn against product defects is appropriately limited to

those who manufacture the product or who otherwise are in the product's

chain of distribution. Such persons or entities are best presumed to know

of the dangers associated with their own products, and the risks that said

products might be defective is most fairly assigned to them. A duty to

warn of the defects of another's products is not imposed even if it is

"foreseeable" that such third parties' products may cause injury. By

seeking damages from Crane Co. under this theory, Braaten is seeking to

extend product liability law to include a duty to warn of products

manufactured or supplied by other entities.       Under such a rule, a

manufacturer would become an insurer not only of its own product, but of

every product with which it might conceivably have some connection.

       Washington law does not support this novel extension of liability,

nor should it. Under Braaten's theory, any manufacturer could be liable if

products from other manufacturers caused injury. The manufacturer of
books of matches, who knows and intends that its product will be used to

light cigarettes, would be required to post warnings about cigarettes on

their matchbooks. A talking doll manufacturer would be required to place

a warning on dolls about the dangers of mercury or other hazardous

materials found in some alkaline batteries. The possibilities are endless;

yet, these are precisely the implications of the legal theory by which

Braaten seeks to hold Crane Co. liable for his injuries.

       4.      Courts    Nationwide     Have     Refbsed    to   Hold    One

Manufacture Liable for Products Manufactured. Sold. or Distributed by

Another. Braaten's proposed extension of well established tort law has

been rejected routinely by courts nationwide. Recently the Sixth Circuit

Court of Appeals reached the very same conclusion as the one advanced

by Crane Co. and endorsed by the trial court in this case. In Lindstrom v.

A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005), the plaintiff,

Rolf Lindstrom, filed suit against numerous valve, pump, and equipment

manufacturers alleging that exposure to asbestos from their equipment

caused mesothelioma.       The plaintiff testified he worked with the

defendants' equipment on many occasions, replacing gaskets and packing.

Nevertheless, the Sixth Circuit aflirmed the district court's dismissal of his

claims against the equipment manufacturers. Discussing the dismissal of a

valve defendant, the Sixth Circuit noted:

       Lindstrom almost certainly could not have handled the original
       packing or gasket material, and this fact compels the conclusion
       that any asbestos that he may have been exposed to in connection
       with a Henry Vogt [valve] would be attributable to some other
       manufacturer. . . . Henry Vogt cannot be held responsible for
       material "attached or connected" to its product. . . .

Lindstrom, 424 F.3d at 495 (citation omitted) (emphasis added). The

court applied the same reasoning to claims against the pump and

compressor defendants. See id. at 496-97 (stating "Coffin Turbo [pumps]

cannot be held responsible for the asbestos contained in another product"

and "Ingersoll Rand cannot be held responsible for asbestos containing

material that was incorporated into its product post-manufacture").'6

       Similarly, in Niemann v. McDonnel Douglas Corp., 721 F. Supp.

1019 (S.D. Ill. 1989), the United States District Court for the Southern

District of Illinois reaffirmed the hndamental principle that a defendant

may not be held responsible for injuries caused by others' products, even

where those products are used with the defendant's products. Niemann

involved a claim against a miliary aircraft manufacturer for alleged design

defects and inadequate warning regarding the asbestos chafing strips used

inside of the aircraft's engine cowling. These strips were replaced before

plaintiffs worked on the aircraft. The court granted summary judgment in

favor of the defendant because it did not manufacturer, design or supply

the replacement strips. See 721 F. Supp. at 1029-30; see also Ford Motor
       16
         Braaten characterized the Lindstrom decision as one that focused
only on the "substantial factor" causation issue. See Brief of Appellant
at 52-53, n.15 ("Further, the issue of duty was never analyzed in
Lindstrom"). Plainly, this reading is not supported by the opinion itself
Co. v. Wood, 119 Md. App. 1, 703 A.2d 1315 (Md. Spec. App. 1998),

abrogated not in relevant part, John Crane, Inc. v. Scribner, 369 Md. 369,

800 A.2d 727 (2002) (car manufacturer not liable for asbestos brakes used

on car but manufactured, supplied and designed by others).

          Outside the asbestos context, the same logic is consistently

followed. In Powell v. Standard Brands Paint Co., 166 Cal. App. 3d 357,

212 Cal. Rptr. 395 (1985), the plaintiff was injured when lacquer thinner

manufactured by Grow Chemical exploded. The day before, he had used

lacquer thinner made by Standard Brands. He sued Standard Brands

because their lacquer thinner contained no warnings, asserting he would

not have used any lacquer thinner had Standard Brands warned him. The

California Court of Appeal held that a manufacturer has no duty to warn

of another's product. The court reasoned that the duty to warn is restricted

to the characteristics of the manufacturer's own product, and that the law

does not require a manufacturer to study and analyze the products of

others:

          [I]t is clear the manufacturer's duty is restricted to warnings based
          on the characteristics of the manufacturer's own product. . . .
          Understandably, the law does not require a manufacturer to study
          and analyze the products of others and to warn users of risks of
          those products.

P
- owell 212 Cal. Rptr. at 398 (emphasis in original) (citations omitted).
,
          Likewise, in Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d

289, 582 N.Y.S.2d 373, 591 N.E.2d 222 (1992), an employee was killed
while inflating a Goodyear tire when the multipiece rim, which was not

manufactured by Goodyear, exploded. The employee's estate filed suit,

alleging that Goodyear negligently failed to warn the employee of the

inherent dangers of using its tire with multipiece rims. In dismissing the

claim, the New York Court of Appeals reasoned that Goodyear had no

duty to warn regarding another's product:

       [W]e decline to hold that one manufacturer has a duty to warn
       about another manufacturer's product when the first manufacturer
       produces a sound product which is compatible for use with a
       defective product of the other manufacturer. Goodyear had no
       control over the production of the subject multipiece rim, had no
       role in placing that rim in the stream of commerce, and derived no
       benefit from its sale. Goodyear's tire did not create the alleged
       defect in the rim that caused the rim to explode.



       Finally, in Toth v. Economy Forms Corp., 3 9 1 Pa. Super. 3 83, 57 1

A.2d 420 (1990), the decedent was killed in a construction accident when

he stepped on a wooden plank that broke away from the scaffolding. The

plaintiff sued the manufacturer of the scaffolding arguing, among other

things, that the defendant failed to warn about inherent dangers associated

with its product. Rejecting the plaintiffs argument, the court observed

that "[alppellants' theory would have us impose liability on the supplier of

metal forming equipment to warn of dangers inherent in wood planking

that it did not supply. Pennsylvania law does not permit such a result."
       The weight of the case law rejecting Braaten's theory is truly

                         '~
o ~ e n v h e l m i n ~ .In attempting to build a countervailing legal edifice,

Braaten relies principally on Wright v. Stann Mfn. Co., 54 Cal. App. 4th

1218, 63 Cal. Rptr. 2d 422 (1997); Liriano v. Hobart Corp., 92 N.Y.2d

232, 677 N.Y.S.2d 764, 700 N.E.2d 303 (N.Y. App. 1998); and Molino v.

B.F. Goodrich Co., 261 N.J. Super. 85, 617 A.2d 1235 (App. Div. 1992).

In Wright, the plaintiff was injured when a deck gun mounted to a rise

pipe broke loose due to the water pressure. 63 Cal. Rptr. 2d at 424.

        17
          In addition to the decisions in Powell, Rastelli, and Toth just
discussed, Crane Co. refers the Court to the following decisions rejecting
Braaten's approach: Garman v. Manic CheE. Inc., 117 Cal. App. 3d 634,
638-39, 173 Cal. Rptr. 2d (1981) (defendant "was under no duty to warn
of the possible defect in the product of another and is not liable for failure
to do so"); Zambrana v. Standard Oil Co., 26 Cal. App. 3d 209, 102 Cal.
Rptr. 699 (1972) (j.n.0.v. for manufacturer affirmed, where the plaintiff
was injured by a defective valve stem attached to the defendant
manufacturer's tire after it left the manufacturer's control); Fricke v.
Owens-Corning Fiberglas Corp., 618 So. 2d 473 (La. App. 1993)
(manufacturer has no duty to warn about vinegar it neither manufactured
nor sold); Mitchell v. Sky Climber. Inc., 396 Mass. 629, 487 N.E.2d 1374,
1376 (1986) (manufacturer of an electrically powered lift motor had no
duty to give instructions regarding safe and proper rigging to use with
scaffolding where manufacturer did not supply, design or assemble
scaffolding); Spencer v. Ford Motor Co., 141 Mich. App. 356, 367
N.W.2d 393, 396 (Mtch. App. 1985) (vehicle manufacturer not liable for
defective wheel rim component added after sale); Baunhman v. General
Motors Corp., 780 F.2d 1131, 1133 (4th Cir. 1986) (applying South
Carolina law) (truck manufacturer had no duty to warn of possible dangers
posed by replacement parts that it did not design, manufacturer, or place
into the stream of commerce: "The duty to warn must properly fall upon
the manufacturer of the replacement component part"); Walton v.
Harnischfener, 796 S.W.2d 225 (Tex. App. 1990) (crane manufacturer had
no duty to warn a plaintiff about the potential damages associated with
defective rigging strips manufactured by another).
Addressing the plaintiffs strict products liability failure to warn claim, the

court held that, based on the evidence provided, there were triable issues

of fact regarding allegations that

       the manufacturer of the deck gun did not provide an adequate, or
       any, warning against the potential dangerous and foreseeable
       "mismatch" of the deck gun and riser pipe attachments which did
       not have adequate strength or design to withstand the water
       pressures generated with the use of the deck gun, and the alleged
       foreseeable danger that the deck gun or its attachments may
       become separated from the fire truck under such pressures.

Id.at 433 (emphasis added).
       Wright is plainly inapposite, as a mismatch between two products

that resulted in an injury is not the issue here. The asbestos-containing

insulation applied to the outside of the valve was dangerous by itself, and

nothing about the Crane Co. valve enhanced or increased the danger the

insulation posed. Braaten's reference to Liriano v. Hobart Corp. (supra),

(see also Brief of Appellant at 45, 5 9 , proves equally unavailing. In that

case, the issue was "whether a plaintiff, whose design claim is barred by

the substantial modification defense stated in Robinson, may nevertheless

maintain a claim for failure to warn of the consequences of such

modification." 700 N.E.2d at 304.18 The defendant in Liriano was sued

for injuries the plaintiff sustained while feeding meat into a commercial

        181n Robinson v. Reed-Prentice Div. of Package Mach. Co., 49
N.Y.2d 471,426 N.Y.S.2d 717,403 N.E.2d 440,441 (1980), referred to in
Liriano, the court held that a manufacturer is not responsible for injuries
resulting from substantial alterations of modifications of a product by a
third party that render the product defective or otherwise unsafe.
meat grinder, the safety guard of which had been removed. When the

grinder was manufactured by the defendant the safety guard was in place;

however, there were no warnings about operating the grinder without a

guard. Here, there is no evidence that the valve or some modification to

the valve somehow injured Braaten.

       Finally, Braaten cites Molino v. B.F. Goodrich Co. (supra), in

which a New Jersey appellate court found there to be a jury question as to

Uniroyal's "duty to provide an adequate warning of hidden dangers to

reasonably foreseeable users." 617 A.2d at 1240. The case, like Wright,

involves a combination of products that together created a hazard. The

plaintiff in Molino was injured when a Uniroyal tire and Firestone rim

assembly exploded.     Id. at 1237.   As the Molino plaintiff argued, "the

danger evolves from the 'entire pressured assembly and not in the

individual parts."'   Id. at 1239.    Here, as previously discussed in the

context of Wright, the dangers associated with asbestos emanate only from

the individual asbestos-containing materials, and not the employment of

such materials in association with valves.

       5.      Policv Considerations Are Better Served bv Declining

Plaintiffs Invitation to Expand Tort Law. In declining to hold Crane Co.

liable for Braaten's exposure to products that Crane Co. did not introduce

into the chain of commerce, this Court will not undermine public policy or

leave claimants without a legal remedy. On the contrary, such a ruling
would place responsibility for such asbestos-containing products where it

belongs and where it traditionally has rested -- with the parties who

participated in the manufacture and design of those products and with the

employer who selected, purchased, specified and installed the products.

To hold otherwise would dilute those parties' responsibilities under the

law and reduce their incentive to manufacture and distribute a safe product

and to provide a safe workplace. Accordingly, fundamental principles of

public policy require that Braaten's novel and far-fetched theory of

liability be rejected.

        Moreover, in declining to extend the duty to warn as Braaten

proposes, the Court avoids the inevitable legal and business chaos which

would ensue.      Every equipment manufacturer would be obligated to

anticipate the potential dangers posed by a myriad of other products that

would be used in conjunction with or around its product, and vice versa.

The proliferation of warnings that would necessarily accompany each

product would be conhsing, and would render warnings virtually

meaningless if not unintelligible. The policy underlying section 402A is

to free a plaintiff from the burden of establishing fault on the part of the

manufacturer or seller of a product that is defective at the time that the

product leaves that manufacturer's possession or control. That policy

would not be hrthered but instead unreasonably stretched beyond

recognition, by imposing strict liability on a manufacturer or seller of a
product that is not defective at the time it leaves the manufacturer's

possession or control -- particularly where, as here, the product is sold to a

sophisticated user who then renders the product defective by adding an

insulation material chosen solely by that sophisticated user.

          Crane Co. did not create the risk of harm to Braaten. There is no

evidence that it had any role in the manufacture, distribution or application

of the asbestos-containing products that were allegedly applied on or

around its equipment, to which Braaten was exposed. Crane Co. was not

in position to evaluate the hazards associated with the asbestos-containing

product applied by the end user to its equipment and, thus, it is not the

appropriate entity to bear the costs of injuries arising therefrom. Crane

Co. has no duty to warn about asbestos-containing products manufactured

by others, and to hold otherwise would, in the words of the Powell court,

"place on each manufacturer an untoward duty[.]"                212 Cal. Rptr.

at 398.

          Braaten provides no compelling reason why this Court should

deviate from prior rulings of other courts or why it should impose on

product manufacturers an overbroad and unwieldy duty to warn against

dangers posed by countless other manufacturers' products. Here, there is

no evidence that Crane Co. valves caused Braaten's injuries. The product

that allegedly caused the injury to Braaten was the asbestos to which he

was exposed, and the manufacturers and sellers of such products are
appropriately obligated to warn of the dangers of their own products.

There is no good basis, however, for imposing liability on Crane Co. for

injuries caused by products manufactured by others and applied to Crane

Co. equipment by others.

B. 	    Appellant Did Not Brief Any issues Concerning the Order
        Granting; Crane Co.'s Motion for Summary Judgment Re Relating
        to Original Bonnet Gaskets and Packing and Therefore Has
        Waived Any Challenge to That Order.

        Braaten initially stated he was appealing the September 6, 2005

Order of the Superior Court Granting Crane Co.'s Motion for Partial

Summary Judgment and the September 23, 2005 Order Granting Crane

Co.'s Motion for Summary Judgment Re Original Bonnet Gaskets and

Packing. But Braaten did not brief the September 23, 2005 Order in his

opening brief, focusing exclusively on the duty to warn issues based on

common law negligence and strict products liability. Braaten therefore

has waived his appeal of the September 23, 2005 Order, and any attempt

to brief the issue in his reply should be deemed too late to raise a

challenge to that order. &, Cowiche Canyon Conservancv v. Bosley,

118 Wn.2d 801,809, 828 P.2d 549 (1992) (citing In re Marriage of Sacco,

114 Wn.2d 1, 5, 784 P.2d 1266 (1990)) ("An issue raised and argued for

the first time in a reply brief is too late to warrant consideration").
                                   VI. 

                             CONCLUSION

       The trial court properly determined that there is no duty to warn of

the dangers of products that were manufactured, sold, or delivered by

another entity. The trial court also properly determined that there is no

evidence of exposure to original bonnet gaskets or packing attributable to

Crane Co. The orders dismissing Braaten's claims against Crane Co. with

prejudice should be affirmed.

       RESPECTFULLY SUBMITTED this &Jday                     of February,



LANE POWELL PC 	                     KIRKPATRICK & LOCKHART
                                     NICHOLSON GRAHAM LLP


BY l
   r	
  Barry N. Mesher
                                     By rl   B447iAc
                                       Robert L. Byer 

  WSBA No. 07845                       Pro Hac Vice V 

  Michael B. King                      Nicholas P. Vari 

  WSBA No. 14405                       Pro Hac Vice 

  Brian D. Zeringer                  Attorneys for Defendant- 

  WSBA No. 15566
  Brett N. Anderson                  Respondent Crane Co.
  WSBA No. 3 1587
Attorneys for Defendant-
Respondent Crane Co.
                                 CERTIFICATE OF SERVICE

       I, Kathryn Savaria, declare under penalty of perjury as follows:

        1.     I am now and at all times herein mentioned, a citizen of the United States and
resident of the State of Washington, over the age of eighteen years, not a party to the above-
captioned action, and competent to testify as a witness.

       2.     I am employed with the law fr of Lane Powell PC, 1420 Fifth Avenue,
                                          im
Suite 4100, Seattle, Washington.

       3.     On February 22, 2006, I caused to be served a true and correct copy of the
following document:

       RESPONDENT CRANE CO.'S ANSWERING BRIEF

on the following parties as indicated below:

       Matthew P. Bergman, Esq.                          Legal Messenger
       David S. Frockt, Esq.                             U.S. Mail
       Bergman & Frockt                                  Facsimile
       705 SecondAvenue, Suite 1601                      E-mail
       Seattle, Washington 98104                         FedEx

       Timothy K. Thorson, Esq.                          Legal Messenger
       Neal J. Philip, Esq.                          IXI U.S. Mail
       Carney Badley Spellman,P.S.                       Facsimile
       700 Fifth Avenue, Suite 5800                      E-mail
       Seattle, Washington 98104-5017                    FedEx

       Kenneth E. Petty, Esq.                            Legal Messenger
       Sheryl J. Willert, Esq.                       IXI U.S. Mail
       David A. Shaw, Esq.                               Facsimile
       Williams Kastner & Gibbs                          E-mail
       601 Union Street, Suite4100                       FedEx
       Seattle, Washington 98101

       James E. Home, Esq.                               Legal Messenger
       Michael E. Ricketts, Esq.                     IXI U.S. Mail
       Robert H. Fulton, 11, Esq.                        Facsimile
       Kingman Peabody Fitzhanis & Ringer, P.S.          E-mail
       505 Madison Street, Suite 300                     FedEx
       Seattle,Washington 98104
      Katherine M. Steele, Esq.                         Legal Messenger
      William F. Ashbaugh, Esq.                         U.S. Mail
      Stafford Frey Cooper                              Facsimile
      601 Union Street, Suite 3 100                     E-mail
      Seattle, Washington 98101                         FedEx

       Ronald C. Gardner, Esq.                          Legal Messenger
       Gardner, Bond, Trabolsi, McDonald &          (XI U.S. Mail
       Clement                                          Facsimile
       Denny Building, Suite 600                        E-mail
       2200 Sixth Avenue                                FedEx
       Seattle, Washington 98121

       MargaretA. SundbergEsq.                          Legal Messenger
       Williams, Kastner & Gibbs PLLC                   U.S. Mail
       Two Union Square                                 Facsimile
       601 Union Street, Suite 4100                     E-mail
       Seattle,WA 98 101                                FedEx

       Charles S. Siege1Esq.                            Legal Messenger
       Waters & Kraus, LLP                          IXI U.S. Mail
       3219 McKinney Avenue, Suite 3000                 Facsimile
       Dallas, TX 75204                                 E-mail
                                                        FedEx


      The foregoing statements are made under penalty of perjury under the laws of the State of
Washington and are true and correct.

       Signed at Seattle, Washington, this 22nd day of February, 2006.



                                      Kathryn sakiria
               APPENDIX 


EXHIBIT A 	   Order Granting Defendant Crane Co.'s Motion for
              Summary Judgment and Summary Adjudication, dated
              October 31,2005
     I


       GABRIEL A JACKSON,State Bar No. 98119
       CJ MANOLT, Statc BaNo. I47342
        ..
       MICHELE C. BARNES, State Bar No. 187239                 S U ~tanciac~    s
                                                                          courtly
       BRIGITTA HERST, State BarNo. 224231
       JACKSON 4 WALLACE lJ.P 

       55 Fcatlcisco Street. 6th Floor 

       San Fmcisco, CA -94133 

       Tek 415.982.6300 
                                      BY: 

     , Fax: 415.982.6700 '
                                         .
6
7   I    Attorneys for Defendant
         CIUNEC.0.


    I                                                   OF THE STATE OF CALIFORNIA


    I
         '

                               INAND FOR THE

         AW3                                                     o
                                                           Case N . 437Q09
                            Plaintiff,                                     ORDER GRANTING
                                                           DEFENDANT CRANE CO.'S MOTXON
                  v.   '                                   IFOR SUhlMARY JUDGMENT AND
                                                           SUMMARY ADJUDXCATXON
                                                           Date:       October 31,2005
                                                            ie
                                                           Tm:
 9 9 0 m 

                                                           Dcpt:  Dcpt. 301
                                                           Judge: Hon James L Warren
                                                           Trinl:       October 31,2005
                                                           ~ttioa:      Dectmbcr 10,2004


                                                                               came on rigularly for
         hearingon October 27,2005 in Department 301 of the San Francisco Supnior Court, the
                                                                                                              I
         Ho~roablt ames L Warn, presidiag. Defendant and movingparty Crane Co. was represented
                 J      .
    I by Jmcs J. O'Brien and Richard Dumont of the &m Jackson& Watlacc ur. Plaintiffwas                       1
    I    representedby P ~ U C Cook of the Waters k Kraus law firm.
                             I
                                                                                                              I
    I
                                                                                                              II
                  At full considexationof the separate statement of undisputedmaterial facts, thE
                   fa
    Iaatl~oriti~ by
              submitted            counsel, tho evidemcc submittedby the parties, the objections lodged by

         Dtfhrdant and raised at tbe hearing, Pad counsel's oral argument, this Court finds that under
         C a l i f d a Code ofCivil Procedore437c that no triable issue of mafuial fact exists to establish
         that plahfi~lbert Landmgin was exposed to asbcstos-contahhgpmducts for which Crsne Co.
         CNSrPorrb~m~JOlWbl79
         C-


                       O
             [I~ROPOSES] RDER C R A h 4 0
    --                                                                                     .     .---_
                                                .-           . ..
-

-   -   _   _   I   -   -   -   -   .   -   -   .    -




    10/24/2005 14,{4b       PAX 415 982 6700




                    is IegNyliable.
                                ISSUE 1.                 Cnne caps MdentiaG Objections to the Deposition of Wglam
                                                                 E
                                                         Loweu rre Sustained
                                Defmdant's tvidentiary objections raised t r r their papers snd oral argument lhat the
                                                                         bol a
                    deposition testimony of WilSiamLowell tacks foundation a sustained. Specifidly
                                                                            m
                                    = 	 M .Xlowell's testirnbnythst thtce w m Crane Co. valves on the &ips onwhich
                                         r
                                            Plaintiff smtd lacks fmdationbecause there is no evidencc that tha ships on
                                            which Mr. LawcU saw Crans Co. valves were of the e or class of shipsor that
                                                                                              n
                                            they were built at the same shipyard. SEEEVIDENCE IS
                                                                                               SUPPORTOFPLA~TVF'S

                                            SEPARATE              m     ~ NO.
                                                         OF DISPUTED n mFACTS 41.
                                                  STATEMENT
                                            M .Lowcll's t a b m y thrt Crane Co. was a major supplierof v d v a usedon
                                             r
                                            US N v ships lacks fbmdationbecause he concedes 'that's men to debate."
                                             .. a y
                                                                                                                m
                                            (Plaintiffs opposition,Exhibit B,page 50, lines 18-25,) SEI; EvUIE~CE



                                            Mr. Lowell's testimonythat any packing, gaskets or Mation associated with
                                            Ckane Co. valves on the ships on which Plaintiffsmcdlacb foundationbecause
                                                                                          ..
                                            there is no evidence that Mr. Lowell knows how to ideate the asbestos or non-
                                            asbestos cantent of my of t h e products.     SEEEVIDENCECJ MORT         OF     .

                                I S S U 2.	
                                        ~                C m e Co, bas shlfted the burden of proof to plaiutiffs to create a
                                                         triable issue of fact
                                                                                                                      #


                                A defmdant moving for sunmaxyjudgmentladjudication h met thispn'majhde
                                                                                    a
                    showing by cstabEshing that the plaintiffcannot estabIIsh one or more elementsof the plaintiffs
                    causes of action. McGonneIlv. Kalscr @sum Company,In&, er al. (2002) 98 Cal.App.4th
                    1098,1103-1 1& Once a defdant s b m that one or mom of plaintiffs causes of action or
                    claims cannot be established, the plaintiff (hmbears the burdm of setting forth specific fkts
                    showing that a triableissue ofmaterial fact                    as one or more causes of action or claim for



                        [MtOPOSEDJ ORDER -0                         CMN& W.'SMOnON FOR SUhSURY JUDG.MENT & AD#DTCATIO?II
    damages. CCP gU7c(p)(2). h         e DO.has successfir1ly sw     the burden by showing plaintiis       1
    f m d devoid discoverynsponscs and depositiontmtim&y. See Union &n& u Sqwrior Corn
    (199!i), 31 Cd.App.4th 573 and Hunter v. P U Q ~ CMechanfcal Cop. (1995). 37 CdAppAth
    1282.                                                 -
            SEESEPARATB 	 A ~ O F ~ P I ~ D M A PACXNOS. 23,27,28,29 rad30.
                     S T                         ~ E R U5 L
            The essential clakcnts of rctionab1cproducts liability arc: (I) the dcfmdant r d e
                                                                                         n md              I
    or supplied aq d c l t that was defective; (2) the defect misted when the article left thedefendads
                                                                                                           I
    possession; (3) the aticle was used by plaintiffina mannerreasonably foreseeableby defmdan1;
                                                                                                           I
    (4) the defect proximately caused the hjvny; and ( the plaintiffwas injuredthenby. Cranin v,
                                                      9                                                    I
    JAR Olsen Cop (1972) 8 Cd3d 121,128-129;k e v. BIectric MotorDMsion (1985) 169
    CaI.App3d 375,383. Plahtiffbss failed to set forth specific facts showing a tiable issue of
                                                                                                           I
                           ~
    makcrial h t c o n c the first, second and fouxth elements to their claims for products liability.
            ISSUE 3 	
                  .        PIahtiEf has failed to set forth specific facts showrbg that C m s Co.
                           mnnufactrrrcd or supplied an article that was defective. '

            Defendant Crane Co. mu@ from PlaintUfall facts showing Crane Co. rnanufa~turtd 

                                                                                         or
    suppliad an article that was defective. SEESEPAIU'IS STAW            OF U~PISPUTEDMA~ERLAL 

    F~crNos.
          5,9,10,15,17,19,22,23,27,28,29             and 30. Plhtiff s initialdiscovay responses do

    not i d c n l Crane Co. as a manufhchaa or suppfin of any asbestos-containingproduct. SEE 

                  ~
    SEP.WTESTATEMENT OPfnYOmmM C L ~ WP A ~ N O5 .8. Aa-BhMmUd
                                      L        S                    -

                                                                             m i g a SEE
                                                                                       SEPARATE


    to Ckanc Co.'s	 First Set of Spcc1*allyPnparedIntemgatories, Plaintiffstates that based on

    infbnnation and belief he claims that he removed d replaced gaskets and packing in association
    witliirqlves, including Cnrnt Co. valves.   SEESEPAUIES~ATEMENT
                                                                 OPU~XSPUT@D 

                                                                          MARRUU.

    F~czNos.11,12. Plaintiff provides support for this contention. SEESEPARATB
 

                                                                            STA-OF
    UVDISPUTED
           MATERULPA~NOS.
                      13 23.
               -
            D u b g oral argument, Plaintiff's couosel admitted that the sols basis for this information
I
    4belief was the dcpositfontestimony of Wlim Lowclt. Specifically, Plaintiffkofferthe
                                            ila
' testimony of Mr. lLowell that states: "it is more likely than not that Plaintiff was exposed to
    m.~al~cVJOlo46179                                3
     ~ROPOSED]O R D ~ R G ~WECO.'S M O O NFOR SWKAUY
                           ~ O                                            mmmA A          D ~ I C A T ~ ~
                      . - 1
                       1 - -                                  -
                               -­ ...-.--... --....--. . ...-..-   -..       _..      .._.-_-___..._ . . _ .._ . _. ....
                                                                                                   ..         _ .
10/$8/4005   16:50     FAX   415 982 6700                          U C	
                                                        JACKSON h U A B                                        Q005/00@


             I



                  asbm.tsos in the come ofmainthing C m e Co. valves." SEE Ps
                                                                            -                      SEPARA~ 

             1    S ~ A I ~ O Y D MAW P ~PACTSo 41. As set f a above, M .Lowell ladu
                                  I S        N.                        r
                                                                                                                          I

             1
   foundation that he knows how to identi&the asbestos maon-asbestos content of any of these
                                                                                                                          I
                                       m
                  products. SEE EVIDENCE SUPPOR~OF
                                                 ~                 P     ' SEPARAT~
                                                                             S    SlATEMmrOPDZSPVreD
                                                                                                                          I
                          NO.41.
                  MATBRULFAC~~ Since the only specificfacts upon whichPlaintifD rely to show that 

                                                                                                                          I
                  C m e Co. ruauufa-
                  inadmiss~iIe,
                                             or suppliedan article that was defective, i.c,antaiued asbestos, arc
                              Plsintlff carmot mato a triable issae of fact, Therefore, summary judgment i s 

                                                                                                                          I

                  ~1rrsFarveD. 

                         ISSUE 4.	        Plaintiffhas fdtd to set forth sptcifrc facts showbgthat the alleged
                                          dcfect existed when the product left the Crane defendantsvpossession;
                                          a mnuhcturtr is not liable under any theory for othtrsvproducts It
                                          neither design* recommended, suppIicd nor disfributed,
                         A manufachwr is not liable fbr defects in the &a1 product w n which it bad no controt 

                  B q Summit Cbmmunl& Am. v. S e n Oil Co. (1996) 51 CslApp.4tb 762,772, citingLee v. 

                  EfetfrlcMotor DfvLrioa(1985) 169 Cal. App. 36 375,385-387; R ~ Z Q v. Ftrestone lPre & 

                  Rubber G (1979) 95 hL App. 34 621.629; and Walker v. Stavfer ~ e m t c aCop. (1197) 19
                          x                                                               f                               1

                  CaL App. 3d 669,674. ~ k ~ ~ n ~ : ~ ~ ~ l i 2 ~ b t e ~ & ~ c r B ' ~ b y t h
                                                                                                                          I
             1    EIecMc Motor N t o n 8s u p , 169       & App. 3d at p 3         e &mingmeyer v. Ford Motor C .
                                                                                                               o
                                                                                                                          I


                                                             k     ~     ~             w  a

                                                                                   t nwam&at4h&pmd~
                                                                                                  wmheipg
                              %: Futiher. hi Bmghman v. GmeraI Motors Corporotlon(4&~ i r1985) 780 P.2d
                                                                                          ,
             1	   1131, the cowt njcclcd tho plaintiffs' wgment that a ma nu fact^ shouldbc Jiable for a                  I

             1	 the
                  defativt componentincorporated into its finished product whcre the manufachner did not p l w 

                                                                                                                        I
             1        &fective component iato the smof commerce since the manufacturer has not had the
                                                   t
                                                   z
                                                                                                                         1

              1   opporhmity to test, emlto, and inspect the component; it has derived no b            d h n its a&;

                  md it h u not otrrpnrented to the public mdtbo componat part asits own. Likewise,in the           cun
                                                                                                                        II 

                  -.(PROPOSED)ORDER     GRANTING CRANE C : MOTION FOR SUbMARY NDGMENT & ADNDICATION
                                                        OS
of Lfndrtrom V. AC ProdudsIJobiti@h s t W.D. Oh 2003) 264 F.Supp.2d 583, the court
dismissedplaintiffif strict liability a negligence claimsagainstnumerousproduct
                                      d
men-s,           including a valve manufachucr, bbccaudc plaintiffs exposurewas Wted to
asbcstos.containiag component parts suppliedby oQm. Id. at 589,591 and 595.
         Defmdant CraDo Co. sought Born Plaintiff all facts supporting its claim of liability against
C m Co. SE@SEPARATE
                 STATEMENT ND v e M~ERTALFACXNOS.
                        OF U l m r p           5,9,10,15,17,19,
                                                        d
22,23,27,28,29 and 30. Plaintiffs initial diswvcxy~spomts onot allege that Crane Co.
designad,ncommmde4 supplied ordistributedany asbestos-con~lningroduct. SEBSEPARA~
                                                              p
STA-OFU~,ISPUTA)              MAT-                    -
                                         FACTXOS. 8. At deposition, Plaintiff could not
                                               5
associatethe name Crane Co. wt any product, service of alleged asbcstos-con~g
                             ih                                                                         I
component SEESEPARATE T A ~ OWISPU~W
                   S          P   MA~~R~LPACT~*OS.
                                             23,27,28,29 and
30. PlPintiff s responses to Crane Co.3 First Set of Specially PreparedInttmgatorics, Plaintiff
dax not ancia that Crane CO.dedgacd, ncommmded,.rmppliedo distributed mry asbestos-
                                                         r
                                                   motion for summary
=~~n~ajning~rod&t. in PlainWs oppositiunto Qamc Caps
               fadeed,
jdpmt, PIaintiaCdotsnot wen attempt to argue that C h c Co. desigucd, rcunnmcndcd,
supplied or distn'buted any asbestos-cmtahhg produd. Since Plaintiff does not offix any
specific facts upon which hc relies rely to show that Crane Co. designed, recommadad, supplied
or distiiutcd any asbestos-containingproduct, Plaintiff cannot create r triable issue of fact.
~ e r c f o r esummaryjudgment is tW&m GRANTED.
               ,
         ISSUE 5. 	     Platatiff h failed to set forth sptclfic facts showing that the alleged
                                   u
                        defect proximately caused PIaSntllPz injury.

         Any plaintiffin an asbestos pcmrnal injury action has the burdtn of establishing exposure
to a dcfadant's ubestos-antaiaingproducts.Rurheord v, hens-lllinois, Inc. (1997) 16
CdAth 953,968; In Linebweuvcr v. Plant Jmukarion Company(1995) 31 Cal.App.4th 1409, the
Coiut held that a two-prong test was necessary in ordo to maks its detmnination as to whether
exposure had caused plaintifi's harm: First, a plaintiff must prove that hdshe was exposedto a
pnicular defendant's product or activity (vil evidence of time, place, and chmnstanccs of               I
cx~osure), order to establish that such exposure is a gossible" factor in causing the plaintiffs
        in
c!w&~h~~a~woaown                              5
  [PROPOSED] ORDER GRANTWOCRAN6 CO.'S MMION FOR SUMMARY JODOMENr & ADJLVICAIOY
                  1 
 alleged asbestos-related wary. Second, if and on& IfplaintiRhaspzovcn~11th'~o~sibfc"
                                                                                                       Ciao.
                  2       threshold] exposore,docs the court evaluata whether here is a nasoaablamedieat probability that
                  3                                   fiWin causingplabtiff's Wury (i.c. cancer). Id at 1416.
                          the mposum was a "esubstantid
                  4                                               m      facts
                                   Dalmdant Crane Co. sought e ~ ~ldmiaall showing                                  expored &
                                                                                              tb.1~ l a i n t i f f w
                  5   1 r Crane co. product, SEs Smun                                           F A
                                                                           ~ P ~ ~ D ~ ~ ~ A c5,910. ~ N o s .
                                                                                                                                I
                  6
                      I   15,17,19,2,23,27,28,29 ;md 3 .PlSintWsinitial dIscowryresponsesdo allege th+Plahtiff
                                                      0
                                                                                                                                I
                  7
                  8   I   was c x p o d to any b
                            r           -
                                                    e Ca. p m b t SBE
                          PACNos. 5 8. At deposition,Plaintiff
                                                                                      UN
                                                                    SEPARATE S T A ~ O F               DISPV~P)~~L
                                                             couldnot identit;/ Crane Co. asihe m d o h of any


              10
                I FACTNOS. 27,28,29oad30. Thereafter, basedon to Crane andbelief he claimsthat he I
                                      2,
                                       j

              11 ReparedTntarogatorics, Plaintiff that
                                                       in rtsponse
                                                             statu
                                                                           First of Speddly
                                                                                infiiatian
                                                                                            Co.'s      Set


              12. removed and replaced gaskets andpackingi associadonwith valves, inchding Ckana Co.
                                                          n
              13                                                             11,12.
                          valves. SEESEPARATESTAT EM^ O F U ~ D X MATERIALFACTNOS.PIaintiff
                                                                  SP~
              14                                                       S           OF W
                          provides support fbr this mtentioa SEESEPARAZE T A T ~ ~ ~ E N T             mW~ERXALFACT
              15          NOS.13-23.
                                   h 6 a g oral argument, Pl~intifi'scounsel admittedthat the solebasis for this Wonnation
                          and belief was the dqposition testimonyof W Ua Lowell. Spedficplly, Plaintiffi offa the
                                                                     1 im
              I8
              19
                      I   testimony of Mr. Lm that states: "Crane Co. valves were rued 'on vMWlly all of tht Navy
                                            oU
                          ship' that Capt. UweU has btm on,and that they were a majar supplierof valves used on US
                                                                                                                                I
              20
              21
              22
                      I   Navy ships, and thudore it ismore likely than not thatPta'itiffwas exposed to ~sbesteos the
                          course of mhtainiug CraneCo. valves." S E PUNIIFF'S SWAUTE STAT^^^ O F D I S ~
                                                                 E
                                                                                                                in


                          MA~IEU FACTS 41. As set forth above, Mr. Lowell lacks foundatim to state that Crane Ca.
                                     NO.
              U           was a major supplier ofvalves use mUS Nay ships.       Mr. Loarc11lacks foundation to state that
              24          b      e Co. valves were on any of tho ships on whichPlaintiffs~~ed. Mr. Lowell lacks
                                                                                             And
              25
                      I   foundatioa that he knowshow to identify the asbestos or non-asbestoscontent of any of theso
                                                                                                                                I
              27      I MA~ E R M LFACTSNO.41. Since the only specific facts upon which Pl&iffs relyto show that I
              28          Plaintiffwasexposed to n crane CO.rnarmf-d          or suppied m article that was dcftttive, i.
                                                                                                                        c,
[   JA-~WAUA~
        Ur
     saw )wusco
                          -
                          ~p~aW#dJO1046379
                              [I'ROPOSED] ORDER G - 4 0
                                                                          6
                                                          CRIl! CO.'S MOIIOX FOR W          Y NDGMEYT&ADlUDICAl'lON
    ''D&@n*@-rijt     j&pB$29di@t%$Sf$di6 ~         ~       ~    ~     b     ~ WBpIIent part
                                                                                 n e Y             L       ~   ~   ~   ~
    p e w                 lb~s"&kj ~ ~ ~ ' ~ ~ 1 I s6bZy .arbsj#~l wQ. 
 ~
                                 ~                  t i t 4 l i W
    r n r n ~ ~ % ~ m ~Lee v.EIemEmcMotor ? 
 (1985) 169 Cd.App. 3d
                         @ ~ d ~ !    Divfsion


    than foreseeability. DCtCQn,~ p m148 CalApp.3d at 3 3 PlainWs' reliance *on GonzaIesv. 

                                      ,                4.
    CbrmertluFord TruckSaIm, Inc. (1987) 192 CalAppJd 1143, at 1 : - 4 is also misplaced 

                                                                1l1,
    h   e G d ~ a I s pecifidly dealt with defendant1.
                    u                                    Bihm to provide adequatew a d g for later 

    made adjustmentsto I& ownproduct r t uthan a pduct manufacturedby another entity. The 

                                     ah
    case of Wriggtv, Stung Manufacturing Co. (1997)54 Cal. App. 4th 1218 i s distinguishablefioa!

I   thismatter u its d p i r patlhP1 to the liability of r component part m a n u f a c ~not the
                                                                                          ,
                                                                                                       I
I Ebb'ity of a pndsct r a n u f a c componentpats m d r m r r d by another. In f'act, t l ~ court I
                                    ~                                                       e
    spedfically acknwvlcdgedthat a product m d a d hasnoIiaVJity for its componentpaxts.
    Id. ut 1234. l:uxthennorc, Putensen v. CIqyAdams, I' (1970) 12CatApp.3d 1062. i s also
    inapplicable and distinguishable because it conccrnedmodificationsto products actually sold by




           ISSUE 7, 	     Pllfnfiff bas failed to set forth rpednc frets shorvSng tbat Crams Co. is 

                          liable as thesuccesson-in-tnteMt to Cbrprnm VaIvu, Inc. since there 

                          15 no widemre that Chapman mannfactundor mppUed an arffcle that 

                          was defectivr, there,is no cvfdtnce the alleged defect existed when the 

                                                          p
                          product left the ChrprnmVs ossusioa, a rmnof~ctarer not liable 

                                                                                     is
                          for others*products it neither dcrigatd, recommc~ded,      supplied nor 

                          distributed; and there Ss no evidence the tUcged defect prolslmately

                          caused ]t!laintlfPsinjury. 



I	         Cnne Co. is named in this action individually snd as successor-in-Interest to Chapman
                                                                                                       I
--.--....._ _._.....- ..- -. .   .--              ..     - ..-.--..-------.--..---.                . .. .. . - .
 10/28/20OJ l6:LO     PAX   415 982 6700               JACKSOH .Y WALLACE                            81009/009




               Valves, Inc.   Def-t        Cnoe Co. sou@ h m Plaintiff all factJ uponwhfch they allege Crime
               Co. Is liables. SEBSEPARATE T A ~ O P ~ ~ O M A ~ P A,C1~1N1 O S .
                                        S                            , , , ,
                                                                   59 0 5 7
               19,22,23,27,28,29 a d 0 Plaintiffs initial dis#wsryruponses do allege that Plahtiff was
                                  a3.
               exposed to any Chapman Valves, fnc. product.       SEESEPARATES T A ~OFT N D L S P ~
                                                                                      U
                                       -
               blrmi~r~~F~mNos. deposition, Plaintiff did not identify Chapman Valves, h .as the
                           5 8. At                                                      c
               man-            of anyproduct to which Plaintiff was exposed SEE        S       ~
                                                                               SEPARATE T A T OF ~
                         P~
               U N D I S MA?ER!AL FACTNOS.
                                        23,27,28,29 and30. Thereafter, i response to Crane Co.'r
                                                                        n
               ] i s Set of SpeciallyPrepared htmgatorits,Plaintiff does not id*
                Frt                                                                     ChspmanVslvu as a
                                               SEPARAZB T
               pmduct ho worked with or mund SEB     S                               ~      MATERIAL PA^
                                                                                A OF UNDBPVIED
               Nos. 11,12. Plaintiff @dcs suppart for thiscmteation. SEES ~ P A R STATEMENT
                                                                                  A~      OF
               UNDISPUTED M ~ ; ~ P A C T N O S 13-a.
                                                .
                                                                                    um
                                                      address Crime Co.'s motionfor sm w adjudication
                       PIaindfPs opposition docs notwek
                                        succtssor-H-iatcrcst to Chapman Valves, Lnc. Furthermore, PlaiuUff
               of tbc olnimt agaiast it & i

               presats no specific facts upon which be willrely to show that Cranb Co. is liable for my reason
               related to a Chapmanv h . Thertfore, summary adjudication of these claims is GRAN'IZD.
                     I IS 'ZIIERBFOREORDERED tbat Crane Co.3 Motion for Smmnary Judgment be and
                      T
                                                                            asi,
               henby is GRANTED and thatjudgopept, Hcludimg costs o f this l w u t shall be enteredin favor
               of dofmdant Crdilc Co. and agahst plaid&

                                 3
               ~ a t 0ctoberd ZOOS
                      d

                                                         BY: 


				
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posted:10/1/2011
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