Design Defect in Asbestos Cases

Decisions in our library in which the court ruled on design defect: 279 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

A design-defect claim says the product was defective as designed, not only that it lacked a warning. States use different tests:

• the consumer-expectations test: the product was more dangerous than an ordinary consumer would expect;
• the risk-utility test: the risks of the design outweighed its benefits. Some states require proof of a safer alternative design that was feasible when the product was sold and would have reduced the risk without substantially impairing the product's usefulness; others treat an alternative design as one factor among several.

In asbestos cases, design-defect claims usually argue that a product did not need asbestos, or that non-asbestos substitutes were available at the time. A design claim can be difficult where no reasonable safer design existed, as with raw asbestos fiber, but the inherent hazard of asbestos does not by itself turn a design claim into a warning claim or bar it. As with any product claim, the plaintiff must also prove exposure to the defendant's product and that it contributed to the disease.

Alabama

• Morgan v. Bill Vann Company, Inc. (2013). Predicting Alabama law, a pump manufacturer is not liable, and has no duty to warn, for asbestos-containing packing and gaskets made by others and used with its pump unless it manufactured, sold or distributed them or is sued for a defect in its own product.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 are time-barred. The court predicted Alabama would adopt the bare metal defense, under which a pump maker is not liable for third-party asbestos gaskets and packing it did not make, sell or distribute.
• Kite v. Bill Vann Company, Inc. (2011). A plaintiff's disclaimer of claims arising on a 'federal enclave' or under color of federal office is circular and ineffective to bar federal officer removal. Removal is proper if one claim qualifies under 28 U.S.C. § 1442(a), where the defendant shows it acted under direct federal control and has a colorable government contractor defense.
• General Motors Corp. v. Kilgore (2002). The Federal Locomotive Inspection Act occupies the field of locomotive equipment and safety, so state-law tort claims against locomotive manufacturers over asbestos-containing components are preempted, even absent a specific federal asbestos regulation.

Arizona

• Perez v. Southern Pacific Transp. Co. (2nd Division, Dept. A, 1993). Strict liability for abnormally dangerous activity must be decided under the Restatement (Second) of Torts § 520 factors as of the time the defendant engaged in the activity, not under the products-liability "hindsight" test of Dart v. Wiebe. The statute of repose, A.R.S. § 12-551, is unconstitutional and cannot bar the products claim.

Arkansas

• Thomas v. Borg-Warner Morse Tec LLC (2018). Under Arkansas law, a plaintiff must show frequent exposure to a defendant's asbestos product and causation, and market share liability is not allowed. A non-buyer warranty claimant must give the defendant pre-suit notice, and a design defect claim does not require proof of a safer alternative design.
• Thomas v. Borg-Warner Morse Tec LLC (2018). A maker of a brake grinder that contains no asbestos is not liable in strict liability or negligence for mesothelioma from asbestos in brake pads ground on its machine, because the grinder itself was not unsafe under Arkansas's definition of 'defective condition'.

California

• Brooks v. Mission Stucco Company (2nd Appellate District, 3rd Division, 2024). A special verdict that finds a single design defect both was and was not a substantial factor in causing harm is irreconcilably inconsistent, and the reviewing court cannot choose between the answers. A new trial may be limited to liability on that theory and fault allocation, leaving the total damages intact.
• Smargisso v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs must show actual exposure to the defendant's asbestos products and that the exposure was a substantial contributing factor; circumstantial shipmate and records evidence can meet this. Non-pecuniary damages are not recoverable in a maritime wrongful death action based on negligence and strict liability absent historical support.
• Williams v. JM Manufacturing Company, Inc. (1st Appellate District, 2nd Division, 2024). The limit in Kesner on the duty of care for take-home asbestos exposure, which reaches only household members, applies to negligence and premises claims. It does not bar a strict liability claim, which requires no proof of duty, by a non-household family member against a product supplier.
• Marcus v. Air & Liquid Systems Corporation (2023). A defendant removing under the federal officer removal statute must show by a preponderance of the evidence that it acted under a federal officer's direction and has a colorable government contractor defense; it need not prove the defense is meritorious. Defendants' evidence of Navy specifications, control over warnings and Navy knowledge of asbestos hazards met that standard.
• Wilgenbusch v. Metalclad Insulation LLC (1st Appellate District, 3rd Division, 2023). Under Proposition 51, noneconomic damages are apportioned between separate products, but defendants in the same chain of distribution of a single product remain jointly and severally liable for the harm that product caused. A judgment may be entered consistent with an ambiguous special verdict as read with the instructions and evidence.
• Putt v. Ford Motor Co. (In re Laosd Asbestos Cases) (2nd Appellate District, 2nd Division, 2021). Where the jury found Ford's brake pads defective and a substantial factor in causing mesothelioma, and it was undisputed that other makers' brake pads were identical and also exposed the plaintiff, the evidence compelled apportioning some nonzero fault to those others, and a defendant need not prove precise percentages to overturn a 100 percent apportionment.
• Estes v. Eaton Corporation (1st Appellate District, 2nd Division, 2020). An order granting a new trial for insufficient evidence must briefly identify the evidence or record that convinced the court the jury should have decided differently, not just restate ultimate facts. If the stated reasons are inadequate, the order is reversed and the judgment reinstated. A losing plaintiff challenging a defense verdict must show the evidence compelled a verdict in his favor as a matter of law.
• Trapp v. CertainTEED Corporation (6th Appellate District, 2018). A defendant moving for summary judgment must produce admissible evidence negating an element of the claim, and an expert opinion built on case-specific data that is not in the record has no evidentiary value. Strict products liability can reach defendants in the stream of commerce when bystander injury is reasonably foreseeable.
• Johnson v. ArvinMeritor, Inc. (1st Appellate District, 5th Division, 2017). A plaintiff must offer evidence that makes it probable, not just possible, that he was exposed to asbestos from the defendant's product. Evidence that a defendant was one of several suppliers of replacement brake linings does not meet that standard. Under O'Neil, a manufacturer is not strictly liable for a design defect merely because its product was used with, or specified, another maker's asbestos-containing parts.
• Petitpas v. Ford Motor Company (2nd Appellate District, 4th Division, 2017). An employer's or premises owner's duty to prevent take-home asbestos exposure extends only to members of the worker's household, and a vehicle maker is not liable in design defect for asbestos in other makers' replacement brakes merely because its vehicles were compatible with them. A service provider that does not sell the asbestos parts it installs is not within the stream of commerce for strict liability.
• Saller v. Crown Cork & Seal Company, Inc. (2nd Appellate District, 1st Division, 2017). A supplier asserting the sophisticated intermediary defense must present evidence that it actually and reasonably relied on the intermediary to warn end users. A punitive damages award requires evidence of the liable defendant's own financial condition, and evidence about its corporate parent does not suffice.
• Sandoval v. American Appliance Manufacturing Corp. (2nd Appellate District, 4th Division, 2017). Under Kesner, employers and property owners owe a duty to prevent take-home asbestos exposure to household members, and a defendant seeking summary judgment for lack of exposure evidence must show the plaintiff cannot obtain it. A dissolved corporation is not shielded from punitive damages claims, and a strict liability claim can rest on a bystander theory for defective components of the defendant's own product.
• Baeza v. Special Electric Company, Inc. (2nd Appellate District, 4th Division, 2016). Under the consumer expectation test, the jury may consider the circumstances of a product's use, including the warnings, safety equipment and information given to the workers who were its ordinary users, and defense counsel may argue that evidence.
• Kordestani v. ExxonMOBIL Oil Corporation (2nd Appellate District, 4th Division, 2016). Summary adjudication of one claim or one issue of duty (premises liability, strict product liability) does not preclude other negligence theories based on different duties, such as a special relationship arising from contract or an undertaking to give technical advice. A party not aggrieved by an appealable order lacks standing to cross-appeal.
• Lund v. 3M Company (2016). Under the Ninth Circuit's McIndoe decision, Navy warships are not 'products' for strict liability, so a shipbuilder cannot be strictly liable for building the ship. A shipbuilder can still be strictly liable for a specific asbestos-containing product it actually manufactured.
• Rondon v. Hennessy Industries, Inc. (1st Appellate District, 4th Division, 2016). A manufacturer of a product that releases asbestos dust from another maker's component may be liable if its intended use would inevitably expose the user to asbestos dust; the test is "inevitable use," not "exclusive use."
• Greenberg v. Superior Court of Los Angeles County (2nd Appellate District, 4th Division, 2015). A manufacturer can be strictly liable for asbestos dust from another maker's product under the Tellez-Cordova exception if its product was intended to be used with that product for the very activity that inevitably created the hazard, even if the product could also be used with non-asbestos materials.
• Hernandezcueva v. EF Brady Company, Inc. (2nd Appellate District, 4th Division, 2015). A subcontractor that both supplies and installs a defective product can be held strictly liable if it took part in the product's stream of commerce and the product sale was not merely incidental to its services; this is a fact-sensitive question. A claim of judicial misconduct is forfeited if no timely objection was made and no showing of futility is made.
• Marteney v. Union Carbide Corp. (2nd Appellate District, 4th Division, 2015). Under Rutherford, a plaintiff shows causation by evidence that exposure to the defendant's asbestos was a substantial factor contributing to the risk of cancer, and the whole trial record, including defense experts' testimony, can supply that proof. Findings that warnings were adequate do not bar a consumer-expectations design-defect claim against a raw asbestos supplier.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2014). Evidence that asbestos products routinely emitted respirable fibers in ordinary use supports a design defect under the consumer expectations test, and evidence that each exposure increased the risk of mesothelioma supports substantial-factor causation. A judgment is final and appealable even if settlement credits have not yet been applied.
• Olds v. 3M Company (2014). Summary judgment is warranted where the plaintiff has no evidence of exposure to asbestos from a product made, sold or distributed by the defendant; without it, negligence, strict liability, warranty and punitive damages claims fail.
• Whalen v. General Electric Corporation (2014). Under maritime law, a complaint alleging that a defendant designed and manufactured asbestos-containing ships need not identify specific vessels at the pleading stage, and the Mack rule that a Navy ship is not a product was left open for the summary judgment or trial stage.
• Barker v. Hennessy Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A manufacturer of a non-asbestos machine owes no duty to warn, in strict liability or negligence, about asbestos hazards from another maker's products used with it, where the machine's use with asbestos parts was only foreseeable and not necessary or inevitable.
• Bettencourt v. Hennessy Industries, Inc. (1st Appellate District, 5th Division, 2012). A manufacturer is generally not liable for harm caused by another manufacturer's product, but it can be liable when its own product contributes substantially to the harm. A machine whose sole intended use is to grind asbestos-containing brake linings, and which releases the fibers, falls within that exception.
• Brantley v. Borg-Warner Morse Tec, Inc. (2012). A defendant may remove under the federal officer removal statute if it is a person, acted under a federal officer's direction, has a causal nexus to the claims, and raises a colorable federal defense. A plaintiff's disclaimer of claims arising from acts at a federal officer's direction does not defeat removal.
• Brewer v. Crane Co. (2nd Appellate District, 2nd Division, 2012). Under O'Neil, a manufacturer is not liable in strict liability for harm from asbestos-containing replacement gaskets and packing it did not make or supply, unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use; mere compatibility with asbestos parts is not a defect.
• Nolen v. Foster Wheeler Energy Corp. (2nd Appellate District, 2nd Division, 2012). Under O'Neil v. Crane Co., a product manufacturer is not liable in strict liability or negligence for harm from another manufacturer's asbestos products unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use. Here there was no evidence Foster Wheeler made or supplied the asbestos insulation or replacement parts, or specified asbestos use at the relevant sites in 1976-1979.
• O'neil v. Crane Co. (2012). A product manufacturer is not strictly liable or negligent for harm caused by another manufacturer's product or replacement parts used with its product, unless its own product contributed substantially to the harm or it participated substantially in creating a harmful combined use. Foreseeability alone does not create a duty to warn.
• Shields v. Hennessy Industries, Inc. (1st Appellate District, 1st Division, 2012). Under O'Neil v. Crane Co., a manufacturer can be liable for harm involving another maker's asbestos product if its own product contributed substantially to the harm. Allegations that a machine's only intended use was grinding asbestos brake linings, and that this released the fibers, meet that test at the pleading stage.
• Saffold v. Bondex International, Inc. (2nd Appellate District, 7th Division, 2011). A defendant that uses a special verdict form omitting liability findings for nonparty tortfeasors, and does not object or argue their fault to the jury, forfeits a later challenge to the jury's allocation of fault among them.
• Woodard v. Crane Co. (2nd Appellate District, 4th Division, 2011). Following Taylor v. Elliott Turbomachinery, a valve manufacturer whose own product was not defective is not strictly liable for failing to warn of hazards of asbestos-containing gaskets, packing and insulation made and supplied by third parties. The component part doctrine and foreseeable-modification arguments did not change this.
• Davis v. Leslie Controls, Inc. (2nd Appellate District, 7th Division, 2010). A party who does not request an instruction defining the ordinary consumers for the consumer expectations test forfeits that claim. A design defect finding independently supports the judgment, so the court did not decide whether the sophisticated user defense applies when the employer is the sophisticated user. A non-economic damages award that is excessive as a matter of law requires remittitur or a new trial.
• Hall v. Warren Pumps LLC (2nd Appellate District, 2nd Division, 2010). A manufacturer of pumps and valves is not strictly liable or negligent for failing to warn of asbestos hazards from third-party asbestos insulation, gaskets and packing used with its equipment, where it did not make or supply those products and its own equipment did not cause or create the risk.
• Johnson v. Certainteed Corporation (1st Appellate District, 2nd Division, 2010). A purchaser of asbestos fiber that did not control its packaging, warnings or shipping owed no negligence duty to a longshoreman, and a purchaser is strictly liable only if the plaintiff presents evidence that it could influence how the product is distributed and marketed.
• Russell v. Ford Motor Company (2nd Appellate District, 8th Division, 2010). Substantial evidence can support a finding that a failure to warn caused a plaintiff's disease. A non-settling defendant must be allowed to review the evidence supporting a contested post-trial settlement offset, and the trial court may not review it only in camera.
• Saller v. Crown Cork & Seal Company, Inc. (2nd Appellate District, 1st Division, 2010). The consumer expectations test for design defect applies to asbestos-containing pipe insulation, and a worker's testimony about his exposure can support giving the instruction. Strict liability failure to warn is distinct from negligent failure to warn, so a verdict on the negligence claim does not make omitting the strict liability instruction harmless.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A manufacturer is not strictly liable for failure to warn or design defect from asbestos products it did not make, supply or place in the chain of distribution, even if their use with its product was foreseeable. The component parts doctrine also bars liability absent proof that the defendant's own component caused the injury.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A valve manufacturer that did not make or supply the asbestos-containing packing, gaskets or insulation that caused the plaintiff's exposure is not in the chain of distribution of those products and has no strict liability duty to warn of their hazards. The same reasoning bars the design defect claim, and the component parts doctrine supports it.
• O'neil v. Crane Co. (2nd Appellate District, 5th Division, 2009). Makers of pumps and valves designed to be used with asbestos insulation and packing are not shielded by the component parts defense. They can be strictly liable for failure to warn and design defect when a user is injured by replacement asbestos used with their products during ordinary maintenance.
• Short v. Sequoia Ventures, Inc. (1st Appellate District, 3rd Division, 2009). A plaintiff claiming negligent design or construction of a complex facility generally must offer expert evidence of the standard of care and the defendant's deviation from it, and a declaration that does not address the standard of care does not suffice.
• Walmach v. Wheeler (2nd Appellate District, 3rd Division, 2009). A judgment stands if an independent ground, here the unchallenged design defect verdict, supports it, so the sophisticated intermediary defense to the failure to warn claims did not need to be reached. Substantial evidence supported the apportionment of fault, and due process did not bar punitive damages for conduct that was directed at the decedent and occurred partly outside California.
• Cunningham v. Buffalo Pumps, Inc. (2nd Appellate District, 7th Division, 2008). The consumer expectations test for design defect can apply to asbestos gaskets and packing in pumps and valves, and failure to warn is a distinct strict liability theory that cannot be made to depend on first finding a risk/benefit design defect. A maker of a finished product cannot escape liability by pointing to a component made by another.
• Garza v. Asbestos Corp., Ltd. (1st Appellate District, 3rd Division, 2008). A supplier of raw asbestos can be held strictly liable for design defect and failure to warn, because incorporating raw asbestos into an insulation product does not substantially alter it. The bulk-supplier defense did not apply where the supplier gave no adequate warnings and the purchaser was not shown to know the dangers.