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.

Other federal courts

• Watkins v. Fibreboard Corp. (1993). Under Texas law as stated in Dartez, a plaintiff may recover for mental anguish caused by asbestos exposure even without a present asbestos disease, if the fear is reasonable. Apparently conflicting jury answers are reconciled where possible, and under Rule 49 an omitted causation issue is deemed found consistent with the judgment.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• O'banion v. Owens-Corning Fiberglas Corp. (1992). A court may exclude cancer evidence under Rule 403 in a non-cancer asbestos case when the plaintiff offers no expert testimony of a reasonable medical probability of cancer. Former testimony admitted without a finding of unavailability under Rule 804(b)(1) is error but is not reversible if the party shows no prejudice.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• In re Asbestos Litigation (1987). Common law decisions of a state's highest court are subject to equal protection review under the rational basis test, and New Jersey's denial of the state-of-the-art defense to asbestos manufacturers has a rational basis in risk-spreading, victim compensation and simplified trials.
• Kisor v. Johns-Manville Corp. (1986). Under Washington law, a manufacturer's ignorance of its product's danger, and evidence of industry standards and medical knowledge, are not a defense to a strict products liability claim based on failure to warn, and the jury must be told so.
• Lohrmann v. Pittsburgh Corning Corp. (1986). Under Maryland law, circumstantial proof of substantial-factor causation in a large workplace requires evidence of exposure to a specific product on a regular basis over some extended period in proximity to where the plaintiff worked (the frequency, regularity and proximity test). State-of-the-art evidence is relevant in a strict liability failure-to-warn claim.
• Dartez v. Fibreboard Corp. (1985). Under Texas law, a plaintiff without a medically probable cancer or mesothelioma may still recover for mental anguish from fear of those diseases, though not for their future costs. Evidence of what other asbestos makers knew is relevant to the state of the art, but hearsay and treatise rules still apply, and compliance with OSHA fiber limits can defeat liability for a low-emission product.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Adams v. Johns-Manville Sales Corp. (1984). Under Louisiana law, a cause of action for cancer does not arise from asbestos exposure until cancer manifests, so evidence of increased risk of future cancer is properly excluded. A court need not instruct on future damages for which there is no proof, and a jury's findings with a reasonable evidentiary basis need not be consistent across products.
• Halphen v. Johns-Manville Sales Corp. (1984). Under Louisiana strict products liability law, a manufacturer is presumed to know the defects in its product, so the state-of-the-art defense fails; foreseeability applies only to the injury, not to the defect.
• Migues v. Fibreboard Corp. (1981). Borel v. Fibreboard held only that the jury on that record could find asbestos products without adequate warnings unreasonably dangerous. It does not establish by stare decisis that all asbestos products are unreasonably dangerous as a matter of law.
• Porter v. American Optical Corp. (1981). A jury could find a respirator filter defective in design where it was never tested with asbestos dust and the plaintiff's experts showed asbestos passing through it, even though it met government and industry standards. For a progressive disease such as asbestosis, insurance liability is prorated among the insurers on the risk during the exposure period (the "injurious exposure" theory) rather than assigned to the insurer at the time symptoms first appeared.
• Karjala v. Johns-Manville Products Corp. (1975). Under Minnesota law a manufacturer is held to the knowledge of an expert and must warn of dangers it knew or could have discovered through reasonable care. The six-year limitations period for a product injury begins when some harm or impairment manifests itself that can be shown to have been caused by the defendant's product.
• Borel v. Fibreboard Paper Products Corporation (1973). Under Texas law and section 402A of the Restatement (Second) of Torts, a manufacturer of asbestos insulation can be strictly liable for failing to warn insulation workers of foreseeable dangers, and a warning given only to intermediary contractors does not by itself end that duty. Defendants whose products each caused some indivisible injury are jointly and severally liable, and assumption of risk is a defense only if the plaintiff's conduct was both voluntary and unreasonable.

Pennsylvania

• Gorton v. Warren Pumps, LLC (2023). The federal common-law government contractor defense from Boyle applies in a case governed by maritime law. It bars design and failure-to-warn claims where the Navy approved reasonably precise specifications, the equipment conformed, and the contractor did not know more about the hazard than the Navy did.
• Hilster v. Air & Liquid Systems Corporation (2022). Under either maritime or Connecticut law, a pump maker is not liable for asbestos in third-party external gaskets and insulation it did not require, and a plaintiff must offer non-speculative evidence of exposure to the defendant's own asbestos-containing product. The government contractor defense under Boyle also barred the design defect and failure-to-warn claims on this record.
• Roverano v. John Crane, Inc. (2017). The Fair Share Act applies to strict liability asbestos cases, so a fact-finder must allocate liability among strictly liable tortfeasors in proportion to their liability rather than per capita. Settlements with bankrupt entities may be considered in that allocation because the Act bars use of the allocation against them and so does not conflict with the Bankruptcy Code.
• Schwartz v. Abex Corp. (2015). Under Pennsylvania law, a product manufacturer is not strictly liable for aftermarket asbestos-containing component parts it neither made nor supplied. It can be liable in negligence for failing to warn only if it knew its product would be used with that type of asbestos component and knew when it sold the product that asbestos was hazardous.
• Stellar v. Allied Signal, Inc. (2015). A state-law claim against an employer for asbestos exposure is not completely preempted by LMRA § 301 where the duty arises from state common law independent of the collective bargaining agreements and resolving the claim does not require interpreting any CBA provision.
• Schott v. Viad Corp. (In re Asbestos Products Liability Litigation) (2014). Under maritime law a plaintiff must show exposure to asbestos in a product the defendant made or supplied, and expert speculation that the defendant probably supplied original or replacement parts is not enough. A manufacturer is not liable for asbestos parts it did not make or supply.
• Rost v. Ford Motor Company (2014). Betz v. Pneumo Abex does not bar all 'any exposure' expert opinion, and on review of a post-trial motion for judgment as a matter of law the record is viewed in the verdict winner's favor. Under Moore v. Ericsson, an asbestos-containing product may be treated as defective as a matter of law because it contains asbestos.
• Kurns v. Railroad Friction Products Corp. (2012). The Locomotive Inspection Act occupies the field of regulating locomotive equipment as defined in Napier, and state common-law design-defect and failure-to-warn claims directed at locomotive equipment fall within that preempted field.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2012). Under the Third Circuit's four-corners test, the 30-day removal period starts only when the pleading or other paper shows with substantial specificity that federal jurisdiction exists. Defendants who submit evidence of Navy control and a colorable government contractor defense satisfy the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• Estate of Hicks v. Dana Companies, LLC (2009). Under Gregg's flexible frequency, regularity and proximity test, forty years of direct exposure to a defendant's asbestos gaskets and packing, with expert testimony that cumulative low-dose exposure contributed to mesothelioma, was enough for the jury, and conflicting expert opinion on dose did not support JNOV. OSHA and EPA exposure standards are inadmissible in a Pennsylvania strict liability case to show lack of defect, or lack of causation, because they inject negligence concepts.
• Kummer v. Allied Signal, Inc. (2008). Under general maritime law, using the Pennsylvania-based "regularity, frequency and proximity" test, direct evidence that the decedent worked on a defendant's asbestos-insulated turbine is enough to create a fact question on causation, and a design defect theory can survive summary judgment where the product was specified to use asbestos insulation.
• Bugosh v. Allen Refractories Co. (2007). A plaintiff in asbestos litigation can show exposure to a defendant's product by direct evidence or by showing the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked for verification of the plaintiff's Manville Trust claim before trial has not preserved a request to reduce the verdict by Trust payments.
• Bugosh v. Allen Refractories Company (2007). A plaintiff proves product exposure through the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked the Manville Trust for verification under the Trust Distribution Process did not preserve a claim to reduce the verdict by Trust payments.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Chicano v. General Electric Company (2004). Under Pennsylvania law, a component manufacturer's duty to warn turns on factors including foreseeability and whether the part was designed for a particular finished product, so a turbine maker that knew its turbines would be insulated with asbestos may owe a duty to warn; the government contractor defense fails at summary judgment where a fact issue exists on conformity to specifications.

Rhode Island

• Day v. 3M Company Inc. (2024). Rhode Island's frequency, regularity and proximity test governs asbestos causation, and it is applied less strictly in mesothelioma cases. Removing an electrical panel is not a 'subsequent alteration or modification' of the product under G.L. 1956 § 9-1-32.
• Santos v. AC McLOON Oil Co. (2015). A nonmovant cannot rely on allegations to defeat a properly supported summary judgment motion, but because summary judgment is a drastic remedy, the court may stay the motion to allow further discovery where plaintiff says competent evidence is forthcoming.
• Santos v. AC McLOON Oil Co. (2013). A Rhode Island court may exercise specific personal jurisdiction over out-of-state buyers who voluntarily bought boats from a Rhode Island builder, and allegations that they specified asbestos products in those boats are enough at the pleading stage for negligence, failure to warn, strict liability, implied merchantability and wrongful death claims, though not for express or fitness warranty claims lacking reliance or particular-purpose allegations.
• Sweredoski v. Alfa Laval, Inc. (2013). A defendant asserting the government contractor defense must show, for design defect claims, that the government approved reasonably precise specifications, that the product conformed, and that the contractor warned the government of dangers it alone knew. Failure-to-warn claims require a parallel showing about government-approved warnings. Evidence on each element here raised triable issues of fact.
• Sweredoski v. Alfa Laval, Inc. (2013). A valve maker can face strict liability, failure-to-warn and implied warranty claims where evidence shows it designed valves with asbestos packing and gaskets, knew they would be replaced with similar products, and sold such replacements. A civil conspiracy claim requires a valid underlying intentional tort, here intentional misrepresentation with reliance, which was not shown.

South Carolina

• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.

Tennessee

• Nye v. Bayer Cropscience, Inc. (2011). A non-manufacturing seller may be sued in strict liability under Tenn. Code Ann. 29-28-106(b) when the manufacturers cannot be served because of bankruptcy stays or channeling injunctions. The learned intermediary doctrine does not apply to an employee's claim over asbestos products bought by his employer, and the employee, not the employer, is the consumer who must be warned.
• Nye v. Bayer Cropscience, Inc. (2009). Tennessee has not extended the learned intermediary or sophisticated buyer doctrine beyond medical products, so a jury may not be told that a seller cannot be liable for failure to warn because the employer already knew the danger. Combining that instruction with a proper sole-cause instruction confused the jury.
• Johnson County, Tenn. v. US Gypsum Co. (1984). The asbestos exception in Tennessee's ten-year products liability ceiling, T.C.A. § 29-28-103(b), covers any action resulting from exposure to asbestos, including a school's property damage and economic loss claims, and a county school system gets no sovereign exemption from limitations periods for such claims.
• Daniels v. Combustion Engineering, Inc. (Eastern Section, 1978). A court may exclude evidence of asbestos-related cancers where the plaintiff has only mild asbestosis and no cancer. Prior deposition testimony from different cases with different plaintiffs and no privity is not admissible. A charge on unavoidably unsafe products is proper where the plaintiff's own complaint put failure to warn in issue.

Texas

• Borg-Warner Corporation v. Flores (2007). A plaintiff claiming asbestosis from a defendant's product must show that the product was a substantial factor in causing the disease. Proof of frequency, regularity and proximity is necessary but not sufficient without defendant-specific evidence of the approximate dose of fibers and that the dose was sufficient to cause the disease.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.
• Keene Corp. v. Rogers (6th District, 1993). A judge need not be recused merely because his son-in-law, a salaried associate, joined the firm trying the case before him when there is no showing that the relative worked on the case or was substantially affected by its outcome. Erroneously admitted evidence that is merely cumulative of properly admitted evidence is harmless.
• Keene Corp. v. Gardner (5th District, 1992). A plaintiff's evidence of frequent, regular work near a defendant's asbestos product can support a finding of exposure, and a Texas court may not order mediation over a party's request for the statutory ten-day period to object.
• Carter v. Johns-Manville Sales Corp. (1983). Under Texas law, a strict liability failure-to-warn claim requires that the danger was reasonably foreseeable to a manufacturer held to the knowledge of an expert, so unforeseeability defeats it. Unforeseeability is irrelevant to a strict liability design defect claim, which weighs the product's dangers against its utility.
• Flatt v. Johns-Manville Sales Corp. (1980). Under federal law, offensive collateral estoppel based on Borel could bar defendants from relitigating whether asbestos-containing products are defective and unreasonably dangerous and whether asbestos dust can cause mesothelioma and asbestosis. State-of-the-art evidence is irrelevant in a strict liability action.
• Mooney v. Fibreboard Corp. (1980). Offensive collateral estoppel may be used in an asbestos case, so defendants who had a full and fair opportunity to litigate the defect issue in earlier federal judgments are barred from relitigating it; federal law governs the preclusive effect of a prior federal diversity judgment, and Texas law would give the same result. The court also treated Borel as establishing as a matter of law that asbestos products are unreasonably dangerous.