Nature of the Case
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Facts
D made and sold a product known as 'Kaylo' between 1948 and 1958. Kaylo was a calcium silicate insulation, made with 13 to 20 percent asbestos, which was sold in pipe-covering and block forms, and intended to be used for 'industrial high-temperature thermal insulation.' D never made asbestos-containing products other than Kaylo pipe covering and block. P joined the Navy in 1959 when he was 20 years old. Shortly after he was married, P was sent out on a six-month cruise aboard the heavy cruiser U.S.S. Bremerton. In January or February of 1960, the Bremerton was sent to Long Beach for a decommissioning overhaul, which lasted approximately six months. P's duty was to remove and inspect the valves in the various pipelines. The insulation had to be sawed or cut and removed from the pipes. A great deal of dust was generated. The boilers and other machinery were being overhauled by procedures that also generated dust to which P was exposed. Regular cleanup procedures involved the use of compressed air and fox-tail brooms, both of which generated a large amount of dust. Ps filed their complaint for personal injuries and loss of consortium on April 11, 1991. Ps alleged a number of causes of action, including negligence and strict liability. Ps alleged that prolonged exposure to Kaylo caused P to develop mesothelioma. A number of expert witnesses testified that P’s exposure was more than enough to cause mesothelioma. Both Ps and D submitted jury instructions specifying the 'consumer expectation test' for determining whether a given product was defectively designed. The jury was instructed that Ps have the burden of proving by a preponderance of the evidence that D's product failed to perform as safely as an ordinary consumer of that product would expect; that the defect in design existed when the product left D's possession; that the design of the product was a legal cause of P's injury; and that the product was used in a manner reasonably foreseeable. The jury held D 100 percent responsible and awarded damages. D appealed. D contends that the jury verdict must be reversed because there was no showing that Kaylo was a defective product. P argues that it was not required to make such a showing in this case, in which the jury was properly instructed to apply only the 'consumer expectation' test to determine whether appellant's product was defectively designed.
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