## Facts

- Robert Morton worked as a wireman at a shipyard from 1959 to 1961 and was exposed at work to asbestos-containing insulation manufactured by Owens-Corning Fiberglas Corporation (OCF).
- Morton later developed mesothelioma and sued OCF (and others) under strict products liability, alleging a defective product design and related theories.
- The case proceeded in a bifurcated trial: damages were tried first to the court, and liability was tried to a jury.
- Morton died during trial before completion of the liability phase.
- Over OCF’s objection, Pamela Morton continued the action as special administrator of the estate and also pursued her individual claim under California survival procedures.
- The jury found OCF liable and apportioned 12% of plaintiffs’ damages to OCF.
- Judgment was entered awarding substantial damages to the estate and to Pamela Morton individually.
- OCF appealed, challenging the design-defect instructions, evidentiary rulings limiting “state-of-the-art” proof, post-death continuation of the trial, and portions of the damage awards.

## Issues

1. Whether the trial court properly submitted strict liability design defect to the jury under the consumer expectations test for asbestos-containing insulation.
2. Whether the trial court erred by excluding or limiting OCF’s “state-of-the-art” evidence concerning historical scientific and industry knowledge at the time of manufacture and sale.
3. Whether the action could properly continue after Robert Morton’s death and whether components of the damage awards were legally unsupported or excessive.

## Decision

- The Court of Appeal affirmed the judgment as to liability.
- The court held the consumer expectations test was properly given on the facts because ordinary users could form safety expectations about the product’s performance in foreseeable use without requiring technical risk-utility balancing.
- The court found no reversible error in limiting state-of-the-art evidence in the liability phase where the design-defect theory was tried under consumer expectations and strict liability did not depend on manufacturer knowledge or fault.
- The court rejected challenges to continuing the case after Morton’s death under California survival procedures.
- The court modified (reduced/adjusted) certain damages components and otherwise affirmed the judgment as modified.

## Legal Principles

- A product is defectively designed under the consumer expectations test if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
- Consumer expectations may be used in design-defect cases when the jury can assess the product’s safety based on ordinary experience and without technical balancing that would effectively require expert risk-utility analysis.
- In strict products liability tried under consumer expectations, liability focuses on the product’s condition and performance in foreseeable use rather than on the manufacturer’s conduct, fault, or what it knew or should have known at the time.
- “State-of-the-art” evidence is not a required defense to strict liability design defect under consumer expectations and may be limited when it primarily addresses historical knowledge rather than the product’s safety as experienced by users.
- Personal injury causes of action may survive the injured person’s death under California procedure, allowing substitution and continuation of trial subject to statutory limits and proper administration.

## Conclusion

The court sustained strict liability for asbestos-containing insulation by permitting the jury to apply consumer expectations and by upholding limits on state-of-the-art evidence tied to manufacturer knowledge, while ordering targeted modifications to portions of the damages and otherwise affirming the judgment.


Morton v. Owens-Corning Fiberglas Corp., 33 Cal. App. 4th 1529, 40 Cal. Rptr. 2d 22 (Cal. Ct. App. 1995)