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.

California

• Norris v. Crane Company (2nd Appellate District, 5th Division, 2008). Under Rutherford's substantial factor test, exposure to asbestos from a defendant's product that adds to the cumulative dose can support causation. The consumer expectations test may be used for a design defect claim based on asbestos-containing valve gaskets and packing.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2007). A raw-asbestos supplier is not relieved of its duty to warn merely because the buyer-employer knew or should have known of asbestos hazards or was subject to OSHA rules. A noneconomic damages award that is grossly disproportionate to the evidence and was influenced by improper argument may be reduced or retried on appeal.
• Frastaci v. Vapor Corporation (1st Appellate District, 4th Division, 2007). The Locomotive Boiler Inspection Act preempts state tort claims against locomotive manufacturers over the design and materials of locomotives, including asbestos, whether or not the locomotive was "in use" or off line in a roundhouse or repair shop.
• Quarles v. Advocate Mines Limited (1st Appellate District, 2nd Division, 2006). A supplier of raw asbestos fiber that is used in a finished product can be liable for design defect under the consumer-expectations test, and substantial evidence supported the jury's findings on liability, exposure, causation and damages.
• Cadlo v. Owens-Illinois, Inc. (1st Appellate District, 5th Division, 2004). A former manufacturer that sold its product line before the plaintiff's exposure is not liable in fraud, concert of action or strict liability for the successor's later-made product absent any role in the design, manufacture, distribution or marketing of the product that exposed him.
• Arena v. Owens Corning Corp. (1st Appellate District, 1st Division, 1998). A supplier of raw asbestos is subject to strict products liability and the consumer expectations test of defect. Proposition 51 applies in a strict liability asbestos case where multiple products caused the injury and the evidence permits allocating noneconomic damages among the products, with defendants in the same product's chain of distribution jointly and severally liable for that product's share.
• Jenkins v. T & N Plc (2nd Appellate District, 7th Division, 1996). Raw asbestos fiber is a 'product' under the strict products liability doctrine, so a bulk supplier of raw asbestos fiber that is incorporated into a finished product can be strictly liable to a person made ill by exposure to that asbestos.
• Morton v. Owens-Corning Fiberglas Corp. (1st Appellate District, 2nd Division, 1995). The consumer expectations test for design defect can apply to asbestos insulation products. Evidence of what the scientific community knew about asbestos dangers is irrelevant under that test, which looks to ordinary consumers' expectations.
• Sparks v. Owens-Illinois, Inc. (1st Appellate District, 2nd Division, 1995). A product such as asbestos insulation that releases toxic dust in its ordinary use can be judged under the consumer expectation test without proof of a safer alternative design. A defendant claiming that other manufacturers or the plaintiff's employer share fault must prove it, and a defendant that did not try to prove it at trial waives the point.

Colorado

• Church v. Dana Kepner Company, Inc. (2012). Under Colorado's innocent seller statute, a plaintiff need only plead facts plausibly showing the seller had actual knowledge of a product defect to sue a non-manufacturer seller. Allegations of knowledge and distribution without adequate warnings also suffice to plead civil conspiracy.
• Fibreboard Corp. v. Fenton (1993). State-of-the-art evidence is admissible in strict liability failure-to-warn claims to show a product was not defective and unreasonably dangerous because the risk was not known or knowable. Under the pre-1986 set-off statute, settlement amounts must actually be collected before they can be set off against a joint judgment.
• Fenton v. Fibreboard Corp. (5th Division, 1991). In a strict liability case the focus is on the product, not the manufacturer's knowledge, so evidence of what the manufacturer knew bears only on punitive damages. A set-off for a settlement not yet paid may be handled by ordering any later payment applied to the judgment, with the defendants remaining liable if it is never collected.
• Rice v. Armstrong World Industries, Inc. (1987). Under the Colorado Products Liability Act, a seller who relabels a product is treated as a manufacturer if it had actual knowledge of a defect or did not disclose the actual manufacturer, and a seller's non-manufacturer status bars only strict liability claims, not negligence, warranty or gross negligence claims.

Connecticut

• Bagley v. Adel Wiggins Group (2017). When it is not conceded and not within lay jurors' common knowledge, a plaintiff must prove with competent expert testimony that a product emitted respirable asbestos fibers when used as it was, in order to show the product was dangerous and caused the disease. Without that proof, both strict liability and negligence claims fail, and this requirement existed under law predating the court's recent product liability decisions.
• Contois v. Able Industries Inc. (2007). A defendant may remove under the federal officer statute when it shows it acted under federal direction, with a causal link to the claim, and has a colorable military contractor defense. The 30-day removal period runs from when the defendant can intelligently ascertain removability from a pleading or other paper.

Delaware

• Gibbs v. 84 Lumber Company (2020). Under South Carolina law as applied by the court, a raw-material supplier of asbestos that did not control its customers' finished products could reasonably rely on sophisticated manufacturer-intermediaries to warn end users. It therefore owed no duty to warn Mr. Gibbs, and the adequacy of its warnings did not need to be assessed.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (2020). Under Vermont law, a plaintiff shows substantial factor causation with evidence of more than de minimis exposure, and a right to recover that vested through exposure before the 1967 enactment of the asbestos-related statute of repose is not barred by it.
• Pruitt v. Deere & Co. (In re Asbestos Litigation) (2020). Under maritime law a plaintiff must show exposure to each defendant's product and that it was a substantial factor in causing the injury. Georgia law requires proof that the product was a contributing factor and that the plaintiff was near its use. An unopposed motion still requires the court to find that the undisputed facts support judgment.
• Rogers v. Warren Pumps (In re Asbestos Litigation) (2019). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing injury; mere presence of a product at the workplace is insufficient. Under Delaware law, a plaintiff must show a product nexus, meaning proximity to the defendant's asbestos product when it was used.
• Robinson v. Union Carbide Corporation (2019). Under Ohio law, a bulk supplier has no duty to warn end users when it adequately warned a sophisticated intermediary and reasonably relied on it to pass the warning on. A plaintiff must offer evidence supporting a reasonable inference of a greater than fifty-percent chance of exposure to the defendant's product, and the opinion rejects a blanket rule that two or more suppliers to an intermediary defeats product identification.
• Thomas-Fish v. Avborne Accessory Group, Inc. (2019). Under federal pleading standards, a complaint that makes collective allegations against all defendants, without facts tying a particular defendant to the exposure or to successor liability, fails to state claims for strict liability, negligence, warranty, failure to warn, conspiracy, or punitive damages. Marketing an 'ultra-hazardous product' is not an independent cause of action under New Jersey law.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable for an independent contractor's negligence absent inherently dangerous work or control over the contractor's methods, and strict liability requires custody of the defective thing, which mere presence on the premises does not establish.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable to a contractor's worker without evidence that it knew of the asbestos risks, specified asbestos use, or had custody or control of the asbestos product. Strict liability also requires custody of the thing that caused the harm.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner owes no duty for hazards inherent in an independent contractor's work, and strict liability requires custody, meaning direction, control or ownership, of the defective thing. The plaintiff offered no record evidence of either.
• Evans v. Foster Wheeler Energy, Corporation (2016). Under the federal officer removal statute, a defendant need only identify facts that, viewed in its favor, would establish a colorable government contractor defense, not prove the defense by a preponderance; the statute is broadly construed.
• Dougherty v. AO Smith Corporation (2014). A complaint's jurisdictional disclaimer does not defeat federal officer removal, but a post-removal express disclaimer of the claims supporting removal can be given effect, and the court then must decline supplemental jurisdiction over the state-law claims absent affirmative justification, favoring remand.
• Davis v. Crane Co. (In re Asbestos Litigation) (2011). Under maritime law, a plaintiff must show substantial exposure to asbestos from the defendant's own product; a valve maker is not liable for third-party asbestos packing, gaskets or insulation absent evidence it specified or required them.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (2011). Under North Carolina law, a product's mere presence at a worksite does not show exposure, but a worker's testimony that he regularly used a brand's brakes, together with supporting context, can raise a triable issue of frequent, regular exposure over an extended period, without proof of specific instances.

Florida

• Dugas v. 3M Company (2016). A dust mask not designed or marketed to protect against asbestos is not defectively designed for failing to do so, but a jury may find the manufacturer's warnings about its limits inadequate. A Florida fraud claim is barred when the last act of concealment fell outside the 12-year repose period.
• Font v. Union Carbide Corp. (3rd District, 2016). Under the Florida Supreme Court's decision in Aubin II, the consumer expectations test remains available as an alternative to the risk utility test in design defect strict liability cases, so a plaintiff who meets the criteria is entitled to the standard instruction (PL 5) covering both tests.
• Aubin v. Union Carbide Corporation (2015). Florida keeps the consumer expectations test from the Second Restatement for strict liability design defect and does not require proof of a reasonable alternative design. Causation is judged by ordinary causation rules rather than by comparing the product with raw asbestos. A manufacturer may argue that it reasonably relied on a learned intermediary to warn end users, but it must request an accurate instruction on the defense.
• Dugas v. 3M Company (2015). Florida's heightened asbestos pleading requirement (Fla. Stat. 774.205) conflicts with Federal Rule 8 and does not apply in federal court. Fraudulent concealment claims must be pleaded with particularity under Rule 9(b), and lumping defendants together fails that standard.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts doctrine, adopted in this district, a component seller is liable for a design defect only if the defective design, not the raw material's natural dangers, caused the harm. Whether a bulk supplier could discharge its duty to warn by reasonably relying on intermediaries is a jury question, and an instruction omitting that was misleading.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts rule, which binds the Third District, a component supplier is liable for design defect only if the design, not the raw material's natural dangers, caused the harm. Whether a supplier discharged its duty to warn by reasonably relying on an intermediary is a jury question, and the jury must be told so.
• Baione v. Owens-Illinois, Inc. (2nd District, 1992). When facts support both negligence and strict liability, a plaintiff may proceed on either or both, so dismissing strict liability counts in an asbestos case was error. A claim for punitive damages cannot be struck as a matter of law only because the defendant was previously assessed punitive damages in other cases.

Georgia

• Davis v. John Crane, Inc. (2019). In Georgia a plaintiff must show exposure to asbestos-containing products for which the defendant is responsible, and a plaintiff's own testimony from personal knowledge can meet that burden. A pump manufacturer is not liable for design or failure to warn over asbestos-containing replacement parts made by others (bare metal defense).
• Certainteed Corporation v. Fletcher (2016). A manufacturer's design-defect liability is judged under the Banks risk-utility test, not the CSX v. Williams employer-duty rule, and a defendant seeking summary judgment must show an absence of any evidence of defect. A manufacturer owes no duty to warn third parties, such as family members laundering a worker's dusty clothes, because the scope and mechanism of such warnings would be endless.
• Thurmon v. Georgia Pacific, LLC (2016). Under Georgia law, negligent design and failure-to-warn claims both require proof that the defendant's own product, as originally sold, proximately caused the injury. Exposure to third-party asbestos gaskets used on the defendant's valves was not enough, and the court did not need to adopt a general 'bare metal defense'.
• Fletcher v. Water Applications Distribution (2015). A manufacturer's duty in a design defect case is judged by risk-utility analysis, which is not limited to particular classes of people, so a household-exposure plaintiff's design and failure-to-warn claims against the manufacturer can go to a jury. A distributor lacking knowledge of the hazard and never possessing the product has no continuing duty to warn.
• John Crane, Inc. v. Highsmith (2004). The court followed the Georgia Supreme Court's decision in John Crane v. Jones in rejecting the requested "substantial" contributing factor charge. It also held that a jury verdict stands if any evidence supports it, and that the evidence of defect and exposure was sufficient.

Hawaii

• Nobriga v. Raybestos-Manhattan, Inc. (1984). Adherence to government specifications is not an absolute defense to strict liability where the product is inherently dangerous because of the specified material. Under HRS § 663-14, multiple separate releases must be treated collectively, so the verdict is reduced by the total consideration paid or the releasees' total liability share, whichever is greater.

Illinois

• Pelton v. John Crane, Inc. (2024). Under maritime law, a plaintiff may show substantial-factor causation through admissible general expert testimony plus circumstantial evidence of substantial exposure over a substantial period, without expert testimony specific to the defendant's product. The Second Restatement's consumer-expectations test still governs maritime strict liability, and punitive damages remain available as a remedy even though willful and wanton conduct is not a separate cause of action.
• Johnson v. Orton (2021). Under Illinois negligence law, a manufacturer's duty to warn depends on what it knew or should have known, judged by industry knowledge. A pyrometric cone maker that used vermiculite only as packing filler is not a vermiculite manufacturer and is held to the knowledge standard of the ceramics industry.
• Kurrack v. American Dist. Telegraph Co. (1st District, 5th Division, 1993). A strict liability claim based on an inherent defect in an asbestos-containing product requires proof that the product left the defendant's control in an unreasonably dangerous condition, such as releasing friable asbestos; the presence of asbestos alone does not establish a defect. A failure-to-warn claim requires proof the defendant knew or should have known of the danger.
• Board of Education v. A, C & S, Inc. (1989). Friable asbestos-containing material contaminating a building can be pleaded as physical damage to other property, so tort claims are not barred by the economic loss doctrine. School districts suing to recover abatement costs assert a public right and are not subject to the statutes of limitations.
• Blazek v. Nicolet, Inc. (1st District, 1988). A statute of repose cannot be applied retroactively to end a cause of action unless the plaintiff had a reasonable time after its effective date to sue. A strict liability suit filed about seven years after the effective date, and over 32 years after exposure, was not filed within a reasonable time.
• Costello v. Unarco Industries, Inc. (1986). Where a cause of action was inchoate when the 1979 statute of repose took effect and accrued after that date, the plaintiff gets a reasonable time after the effective date to sue, and a suit filed within three years of that date and two years of discovery is timely.

Kansas

• Miller v. Johns-Manville Sales Corp. (1982). In a Kansas-law case, a federal court declined to apply nonmutual offensive collateral estoppel based on the Borel judgment, given the narrow reading of Borel by the Fifth Circuit, differences between Texas and Kansas law, and Kansas comparative fault, which meant the evidence would have to be presented anyway.

Kentucky

• Williams v. Schneider Electric USA, Inc. (2023). Duty turns on foreseeability, not on labels like bystander, and household members who regularly and repeatedly came into close contact with a worker's asbestos-contaminated clothes over an extended period are owed a duty where the take-home danger was foreseeable by the late 1960s. A brief, unrelated stint of employment does not make workers' compensation exclusivity bar the non-work-related claims.
• McGuire v. Lorillard Tobacco Company (2014). Negligent design and negligent failure-to-warn claims were subsumed in a strict liability instruction, so separate negligence instructions were unnecessary. Workers' compensation exclusivity covers only diseases arising out of employment. An erroneous instruction on that point was harmless because no reasonable possibility existed that it affected the verdict.