This memorandum is a response to the analyzation of the facts in our client’s current
case. Closely examining their potential causes of action in strict product liability, negligence, and
negligent infliction of emotional distress, as well as also examining potential and available
defenses, we can see that a prima facie case can be established. We would be able to get past the
motion and therefore, should take this case on a contingent fee basis.
a. Causes of action against all parties
Strict product liability
The first cause of action that our clients have against the defendant BHC is for strict product
liability. Elements to prevailing on a strict liability claim are that: The plaintiff must plead and
prove that (1) the product was defective (2) the defect was an actual (factual) cause, (3) proximate
(legal) cause of plaintiff’s harm, and (4) that the product was defective when it left defendant’s
hands. In the current case the issue at hand is for a design defect.
Restatement 2nd states: A product is considered defective if (1) it is more dangerous than (2)
the ordinary consumer would expect. Restatement Section 402 states that the elements for design
defects are that: A product is (1) unreasonably dangerous to user or consumer and (2) More
dangerous than an ordinary consumer would expect (3) When used in an intended or reasonably
foreseeable manner. To be able to test the defectiveness in this our current case we need to consider
two tests: 1- the consumer expectation test and 2- the risk utility test.
Consumer expectations can be tested by (1) the Plaintiff’s testimony about their own
expectations, (2) the Jury’s knowledge about safety expectations and, (3) Expert testimony.
The purpose of the risk utility analysis is to determine whether the risk of injury might have
been reduced or avoided if the manufacturer had used a feasible alternative design. A plaintiff can
only establish a design defect exists when they prove there is hypothetical alternative design that
would be safer that the original design, as economically feasible as the original design, and as
practical as the original design, retaining the primary purpose behind the original design. In our
current case our plaintiffs would be able to establish all these elements by using a test run by
consumer report magazine First, they can establish that there is an alternative design that already
existed. The competition OEM Manufacturing Company sold asbestos free disc pads. These pads
were much safer because they didn’t involve any asbestos. Second, the alternative designs were
economically feasible because the difference in price was substantial, customers that bought one
product could have easily bought the other. Finally, the report also proved that the alternative
design was just as practical because Mechanics would state that the two brands of discs can be
interchangeable. The product could have therefore still retained its primary purpose thus proving
that the product they were using was defective.
The defect of BHC’s product was a factual cause of what occurred because if we use the
substantial factor test, we can see that the product played a significant role that led to Bob’s illness
which in this case was a harm. It was also a proximate cause of what occurred because it placed
the defendant directly under the danger that occurs when dealing with asbestos containing
products.
Finally, the product could have been proven to be defective when it left BHC hands because it
was shown that it did not met all the governmental safety standards, but it was still distributed
anyways.
Negligence
Another cause of action that our client potentially has against the defendant BHC, is for
negligence. The prima facie case for negligence is founded on fault-based liability. To prove that
negligence was present one must show that: (1) Defendant owed plaintiff a legal duty, (2)
Defendant behaved negligently and breached that duty, (3) The plaintiff suffered compensable
damage, (4) The Defendant’s negligence constituted causation in fact, and (5) That the Defendant’s
negligence was the proximate cause of damage.
First, BHC owed Bob a legal duty of care as a manufacturer of automobile products to its
customers, in this case Bob, the “standard of care” owed by all people is to exercise care that would
be exercised by a reasonable and prudent person under the same or similar circumstance. Second,
BHC breached that duty of care when it put Bob in risk of contracting an asbestos related disease.
When a breach of duty is involved, it is important to balance the risks and costs. Per Lenard hand,
liability occurs when the burden of the precaution is less than the probability of harm times its
magnitude. The key issue in this element becomes an unreasonable risk based on foreseeability.
BHC did not do that in this situation. BHC did not try to fully minimize the dangers because
although they installed a ventilation system at the facility to assist in the removal of asbestos dust,
and sometimes gave employees at the facility annual chest x-rays, they only eliminated some of
the environmental risks that come with the danger. They did not remove the direct risks of exposure
to the product which is something a reasonable person would have done. The probability of harm
exposing the workers to the asbestos filled products was far greater.
Third, the plaintiff’s suffered clear compensable damage because they endured both pain and
suffering and death occurred as a result. Out of the four elements the ones in contention in the
current case are elements four and five, causation in fact and proximate cause.
The Defendant’s conduct is the cause in fact of plaintiff’s injury if as a factual matter it directly
contributed to plaintiff’s injury. To able to determine this we must observe two particular tests the
but for test and the substantial factor test. “But for” test states that Plaintiff’s injury would not have
happened “but for” Defendant’s act. The substantial factor test states that a substantial factor is
one that contributes materially to the occurrence of an injury. An action contributes materially
when its causative effects are in operation until the moment of injury. In this particular case, it
would be important to apply the second test due to the fact that his time working with BHC was
not the only time Bob was exposed to asbestos and other players could also be considered
according to the facts. The test can be used to infer from our facts that BHC’s role in Bob’s illness
was in fact a substantial to him contracting the illness that only occurs from asbestos related
activities. It did not require that BHC was the only player that led to his harm.
When it comes to proximate cause, the issue for this element becomes about the scope of
risk unreasonably and foreseeably created by the Defendant. The test here becomes foreseeability
of the harm. Plaintiff is only liable for the harm within the risk of their activities. In the current
case, it was foreseeable that anybody that works near asbestos could contract the type of cancer
that Bob contracted. Mesothelioma was known to ONLY derive from asbestos exposure. A
reasonable person could conclude from those facts that the only probable cause for Bob’s death
had to be the situation that put him in the zone of danger.
Here by using the proof in the medical reports that show medical probability by analyzing
the frequency of asbestos exposure, duration of exposure, and proximity to the product, we would
be able to establish that negligence did in fact occur.
Negligent infliction of emotional distress
Mrs. Rhonda Miller also has a valid cause of action against BHC for negligent infliction.
of emotional distress. Tort Restatement 3rd states negligent infliction of emotional distress
requires: Outrageous conduct by the defendant (2) that the defendant should have anticipated
would produce (3) significant and reasonably foreseeable emotional injuries to a victim, (4) thus,
breaching a duty of reasonable care to avoid causing such emotional harm to, (5) a reasonably
foreseeable victim. As shown in Dillion v. Legg, if no impact or physical injury is present, the
plaintiff must show that plaintiff is a reasonably foreseeable bystander victim based on an
intimate familial relationship with a seriously injured victim of defendant’s negligence or that
plaintiff was a direct victim of defendant’s negligence because they were in the zone of danger of
the negligence in question. When the only injury is emotional, the plaintiff must show the
emotional distress is medically diagnosable and significant, and that it is so severe that no
reasonable person could be expected to endure it. If we apply the foreseeability test, it was
foreseeable that the defendant’s negligent conduct would have caused her emotional harm and
she met all the requirements. She had an intimate familial relationship with Bob because she was
his wife. Bob was seriously injured because the asbestos poisoning, he contracted while working
for defendant led to him contracting a serious illness that led to his death. She is able to show
emotional distress because she was medically diagnosed with severe depression and is being kept
in 24-hr suicide watch on account of having to watch her husband die a little at a time.
b. Legal positions of the defendant’s
Strict product liability
When it comes to the legal position in part of the defendant’s claim of strict product
liability, they may try to argue for contributory negligence or assumption of risk. They will argue
that Bob was remotely responsible for his own asbestos poisoning because he had previously
worked for other employers and willingly took jobs that also exposed him to asbestos. By
accepting the jobs, he assumed the risk that came with them. They can also try to argue that
asbestos is an inherently known danger. A reasonable person could infer that if they worked with
asbestos, they could foresee that they could get ill, but Bob proceeded to willingly take the
chance anyway. They can also argue that despite their product being defective, they made an
attempt to replace it and put an asbestos free brake in the market. At that point, it became Bob
assuming his own risk because instead of using the safer product BHC released, Bob continued
to use another companies’ product.
Negligence
When it comes to the legal position in part of the defendant’s claim of negligence, they
may try to argue for contributory negligence. They will argue that Bob was remotely responsible
for his own asbestos poisoning because he had previously worked for other employers and
willingly took jobs that also exposed him to asbestos. They can argue that a reasonably prudent
person could foresee that by taking those jobs it could led to that inherent harm.
Negligent infliction of emotional distress.
When it comes to the legal position in part of the defendant’s claim of negligent infliction of
emotional distress, that may try to argue that the plaintiff is not entitled to her claim if they apply
the zone of danger test. This test allows recovery for plaintiffs who sustain a physical impact as a
result of defendant’s negligent conduct or who placed an immediate risk of physical harm by that
conduct. In other words, only those in the zone of physical impact can recover. The defendant
will argue that plaintiff was not directly working with the asbestos and therefore, that there was
not at an immediate risk of physical harm to her, no fright available and thus, making her claim
invalid.
c. Prima facie case
In conclusion, because of the analyzation that I have made above by piecing together
the client’s facts with the relevant issues, we would be able to establish a prima facie case
in light of the situation and should proceed to go forward in taking it on a contingent fee
basis.