Second, under Washington law, "evidence of historical, medical, and scientific knowledge about the dangers of asbestos . . . may be considered by the trier of fact" on both strict liability and negligence claims. Crittenden v. Fibreboard Corp., 794 P.2d 554, 559 (Wash. Ct. App. 1990). Because Plaintiffs bring both negligence and strict liability claims (see SAC ¶¶ 49-50), Dr. Castleman's testimony assists the jury in determining what any defendant knew or should have known based on the available literature, see Crittenden, 794 P.2d at 559.
Washington law recognizes only a single product liability cause of action under the WPLA which preempts common law claims based on injuries caused by allegedly harmful products. Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 855 n. 4, 774 P.2d 1199 (1989); Crittenden v. Fibreboard Corp., 58 Wn.App. 649, 656 n. 9, 794 P.2d 554 (1990). From the face of Plaintiff's First Amended Complaint, it appears Plaintiff is alleging a common law claim of negligence. In a Second Amended Complaint, Plaintiff shall plead his product liability claim pursuant to the specific provisions of the WPLA so that the Defendant knows under what particular provisions of the statute the Plaintiff is seeking to establish the Defendant's liability.
evidence, while only a factor to consider, is both necessary and probative on the issue of 'unreasonably dangerous'"); Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1174 (Colo. 1993) ("[s]tate-of-the-art evidence is clearly admissible and is a factor to consider in determining whether a product is defective and unreasonably dangerous due to a defective design"); Johnson v. Salem Corp., 97 N.J. 78, 88, 477 A.2d 1246 (1984) ("[s]tate-of-the-art is a relevant factor in considering the adequacy of the design of the product under the risk-utility analysis, including particularly design features relating to safety"); Lancaster Silo Block Co. v. Northern Propane Gas Co., 75 App. Div.2d 55, 66, 427 N.Y.S.2d 1009 (1980) (concluding that state-of-the-art evidence is relevant because "state of the art sets the parameters of feasibility"); Boatland of Houston, Inc. v. Bailey, supra, 609 S.W.2d 748 (finding state-of-the-art evidence "is important in determining whether a safer design was feasible"); Crittenden v. Fibreboard Corp., 58 Wash. App. 649, 658-59, 794 P.2d 554 (1990) (concluding state-of-the-art evidence is admissible in either risk-utility or consumer expectation analysis); see also 2 American Law of Products Liability 3d, supra, § 30:50, p. 30-79 ("[t]he majority of courts have found . . . that in design defect cases, state of the art evidence is relevant to show the reasonableness of the design or the fact that the product was dangerous beyond the expectations of the ordinary consumer").
Both Tisdale and APRO proposed instructions that were similar to the one that Division One found to be sufficient in Rollins, but the trial court did not give either instruction to the jury. See Crittenden v. Fibreboard Corp., 58 Wn.App. 649, 655, 794 P.2d 554 (1990). Instead, the trial court gave instruction 15, modeled on WPI 15.04, explaining that injuries can have multiple proximate causes and that the jury should find for APRO "if you find that the sole proximate cause of injury or damage to the plaintiff was the act of some other person who is not a party to this lawsuit."
¶40 Both Tisdale and APRO proposed instructions that were similar to the one that Division One found to be sufficient in Rollins , but the trial court did not give either instruction to the jury. See Crittenden v. Fibreboard Corp. , 58 Wash. App. 649, 655, 794 P.2d 554 (1990). Instead, the trial court gave instruction 15, modeled on WPI 15.04, explaining that injuries can have multiple proximate causes and that the jury should find for APRO "if you find that the sole proximate cause of injury or damage to the plaintiff was the act of some other person who is not a party to this lawsuit."
B. Washington Common–Law Negligence Claim—Second Claim for Relief. Defendants argue that Washington's Product Liability Act (WPLA) provides a “unified approach” that allows “only a single product liability cause of action,” preempting common law claims for injuries caused by allegedly harmful products, even if the claim is couched as a negligence claim. Manjares v. Taser Int'l, Inc., No. CV–12–3086–LRS, 2012 WL 5389688, at *3 (E.D.Wash. Nov. 2, 2012) (citing Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774 P.2d 1199 (1989); Crittenden v. Fibreboard Corp., 58 Wash.App. 649, 794 P.2d 554 (1990)). The WPLA defines a product liability claim as:
Washington law recognizes only a single product liability cause of action under the Washington Product Liability Act, ("WPLA"), RCW 7.72.010, which preempts common law claims based on injuries caused by allegedly harmful products. See, e.g., Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 656 n. 9 (1990) (stating that there is a "single product liability claim" in Washington); Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 855 n. 4 (1989) (holding that the "WPLA preempts the variety of common law causes of action for harm caused by product defects"). Because plaintiff's claims have been preempted and she failed to allege a WPLA claim, her claims should be dismissed.
Other courts have applied the doctrine similarly. See, e.g., Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 651, 794 P.2d 554, 555 n. 2 (1990); O'Brien, 94 N.J. at 183-84, 463 A.2d at 305. Still others suggest that government regulations may furnish a proper standard by which to measure feasibility.
State v. Gonzales, 90 Wn.App. 852, 855, 954 P.2d 360 (1998); see Crittenden v. Fibreboard Corp., 58 Wn.App. 649, 659, 794 P.2d 554 (1990).
We reverse and remand for a new trial. Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 659, 794 P.2d 554 (1990). Reversed.