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NAW Joins in Amicus Brief in Washington Product Liability Appeal

Washington, DC (November 21, 2007) … The National Association of Wholesaler-Distributors (NAW) has joined in an amicus curiae (“friend of the court”) brief asking the Washington Supreme Court to review a lower appellate court’s decision in Lunsford v. Saberhagen Holdings, Inc. At issue is the lower court’s retroactive application of the doctrine of strict liability (liability based on the condition of the manufacturer’s product rather than the conduct of the defendant). In this case, the plaintiff was made ill by a household exposure to asbestos years before strict liability was recognized by the courts in the state of Washington.

The Washington Supreme Court adopted strict liability for manufacturers in 1969 [Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969)]. Recognition of non-manufacturer product sellers’ strict liability came six years later [Seattle-First Nat’l. Bank v Tabert, 86 Wn2d 145, 542 P.2d 774 (1975)].

“This case bears some resemblance to the Ohio appeal in which NAW recently joined in an amicus brief (DiCenzo v. A-Best Products Co., Inc.),” explained NAW General Counsel George Keeley, senior partner in the Chicago law firm Keeley, Kuenn & Reid. “If the decision of the lower courts in these cases stand, wholesaler-distributors will be subject to product liability exposure and costs they could not have anticipated and for which they could not have planned,” Keeley said.

The consequences of both Lunsford and DiCenzo are made more acute because the product liability claim involves asbestos exposure. “If strict liability is applied in product liability cases involving asbestos exposures that occurred when negligence-based rules were routinely recognized and applied by courts, the economic effects on wholesaler-distributors of asbestos-containing products may be devastating. This is so particularly in light of the current absence due to bankruptcy of nearly all manufacturers of asbestos products in business at that time,” observed Jim Anderson, NAW Vice President-Government Relations. “Manufacturers and sellers of other products with the potential for latent illness must also be watching Lunsford with keen interest and considerable apprehension,” Anderson said.

“As is the case with DiCenzo, the Lunsford case is one of immeasurable importance to every product-driven business, their customers, and the civil justice system itself,” Anderson continued. “For decades we have witnessed the unpredictable expansion of manufacturer and seller product liability and its effects. If we are now at the threshold of holding wholesaler-distributors and other product liability defendants liable on the basis of an expansive liability theory unimagined at the time these products were made, sold and consumed, then our system of ‘jackpot’ justice will become the ultimate lottery in which wealthy trial lawyers win while everyone else loses,” Anderson concluded.

To view a copy of the amicus brief click here,