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.

Utah

• Riggs v. Asbestos Corp. Ltd. (2013). A tort claim for asbestos disease accrues when the disease is diagnosed, not at exposure, so the law in force at diagnosis governs. A raw-material supplier can obtain JNOV under the bulk supplier rule only if the evidence shows as a matter of law that it met its duty to warn.

Washington

• Sorrentino v. Ammco Tools, Inc. (1st Division, 2024). In a pre-WPLA failure-to-warn claim, a jury may infer a plaintiff would have heeded an asbestos warning from evidence he read manufacturer materials and would have heeded intermediary warnings. The substantial factor causation test applies in asbestos cases where it is hard to identify the exact source of harm, and personal jurisdiction over a foreign manufacturer was proper given its importer agreement requiring marketing in Washington.
• Budd v. Kaiser Gypsum Company, Inc. (1st Division, 2022). Washington courts apply a more lenient standard of proof to product identification in asbestos cases, given the long latency period. In a failure-to-warn case, evidence that the plaintiff would have heeded a warning can establish cause in fact.
• Roemmich v. 3M Company (1st Division, 2022). Where a plaintiff's mesothelioma results from cumulative asbestos exposure from multiple sources, the substantial factor test governs proximate cause and a combined but-for and substantial factor instruction is error. A superseding cause instruction is unsupported when the intervening employer negligence was foreseeable and no evidence showed the employer had specific knowledge of the defect.
• Behrmann v. Abb, Inc. (2021). A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.
• Clayton v. Air & Liquid Systems Corporation (2019). Strict liability under Restatement (Second) of Torts § 402A requires that the defendant be a seller or manufacturer, and a subcontractor that fabricated insulation pads only for immediate installation is neither. The government contractor defense failed because the cited military standards govern sellers' and manufacturers' shipping labels, not an installer's duty to warn, and Syd Carpenter did not show it provided the required warnings.
• Jack v. Dco, LLC (2019). Under Washington law a manufacturer of asbestos products can have a continuing post-sale duty to warn, but a claim based on it fails where there is no evidence the plaintiff would have acted on a warning in a way that materially reduced his exposure, because that causal chain is speculative.
• Rublee v. Carrier Corporation (1st Division, 2017). Under Restatement (Second) of Torts § 400, assumed to be adopted in Washington, a defendant is liable as an apparent manufacturer only if the evidence satisfies a reliance or enterprise test. Under the objective reliance test, a reasonable purchaser in the position of the actual (industrial) purchaser is the relevant viewpoint.
• McCROSSIN v. Imo Industries, Inc. (2015). A defendant asserting that a third party's negligence was a superseding cause bears the burden of showing it, and the Navy's negligence must have been shown and unforeseeable. The government contractor defense in a failure-to-warn case requires that the government approved reasonably precise specifications limiting the contractor's ability to warn.
• Ehlert v. Brand Insulations, Inc. (1st Division, 2014). A contractor that installs insulation chosen from the general contractor's list and is merely reimbursed for materials is not a seller engaged in the business of selling under Restatement § 402A, so strict liability does not apply. A trial court does not abuse its discretion by giving a general negligence instruction or excluding newspaper articles not shown to be relevant to the defendant's knowledge.
• Macias v. Saberhagen Holdings, Inc. (2012). The general rule that a manufacturer must be in the chain of distribution of the asbestos-containing product (Simonetta, Braaten) does not bar a failure-to-warn claim against respirator makers, because their own products, used and cleaned as intended, inherently involve asbestos exposure. The WPLA applies when substantially all exposure occurred on or after July 26, 1981.
• Macias v. Mine Safety Appliances Co. (2nd Division, 2010). A manufacturer outside the chain of distribution of the hazardous product (asbestos) has no duty to warn under negligence (Restatement § 388), common law strict liability (§ 402A), or the Washington Products Liability Act, even if its product is a respirator designed to protect against hazardous substances.
• Braaten v. Saberhagen Holdings (2008). Under Washington common law strict liability and negligence, a manufacturer has no duty to warn of asbestos hazards in other manufacturers' products (insulation or replacement packing and gaskets) that it did not make or supply and was not in the chain of distribution of. The plaintiff also failed to show exposure to the original packing and gaskets supplied with the defendants' products.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2007). Once Washington courts applied strict product liability under Restatement § 402A to the parties in earlier asbestos exposure cases, it applies retroactively to all later litigants whose exposure predates its adoption; selective prospective application and the Chevron Oil test are unavailable under Robinson.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2005). Strict liability under Restatement (Second) of Torts § 402A can extend to a household family member of a user of an asbestos-containing product if it was reasonably foreseeable that household members would be exposed that way; this is a jury question.
• Viereck v. Fibreboard Corp. (1st Division, 1996). The 1981 Washington products liability act does not apply to a mesothelioma claim where substantially all the injury-producing asbestos exposure occurred before the act's effective date, even if the disease was diagnosed afterward. The applicable law is the law in effect when the exposure causing the harm occurred.
• Krivanek v. Fibreboard Corp. (1st Division, 1993). The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.
• Bowers v. Fibreboard Corporation (2nd Division, 1992). Jury instructions are not erroneous if they let each party argue its theory, are not misleading, and properly inform the jury of the law when read as a whole. A surviving spouse's wrongful death damages may be shown with evidence of the pre-illness relationship, and a government-published ship history over 20 years old may be admitted as an ancient document.
• Falk v. Keene Corp. (1989). A design defect claim under Washington's 1981 tort reform act (RCW 7.72.030) remains a strict liability claim judged by risk-utility balancing and consumer expectations, not ordinary common law negligence; instructions letting the jury apply general negligence instructions to it are reversible error.
• Falk v. Keene Corporation (1st Division, 1989). Design defect claims under Washington's product liability act are governed by the strict liability test of Seattle-First National Bank v. Tabert, not a negligence standard, so a design defect instruction that uses the word "negligence" alongside standard negligence instructions is misleading and prejudicial.
• IN the Matter of Estate OF Foster (1st Division, 1989). Willful violation of a discovery order justifies excluding evidence only if it substantially prejudices the opponent's preparation for trial. RCW 7.72.050(2) gives an absolute defense for compliance with a specific mandatory government contract specification, and that defense is not lost merely because the government consulted the manufacturer about the specification.

Wisconsin

• Kilty v. Weyerhaeuser Company (2018). Under Wis. Stat. § 895.047(3)(b), federal agency certification of a product creates a rebuttable presumption that it is not defective, and plaintiffs can rebut it with evidence that the product did not meet its certified specifications. The same evidence also supports a negligence claim.
• Carroll v. Abb, Inc. (2017). Under Wisconsin law as applied here, a manufacturer is not liable for asbestos products it did not make or distribute unless it specified asbestos replacement parts, and a plaintiff must offer evidence from which a jury could infer without speculation that the defendant's asbestos products were a substantial factor in the injury.
• Spychalla v. Boeing Aerospace Operations Inc. (2015). The court did not decide whether Wisconsin recognizes the bare metal defense. Even assuming it does, it would not apply to makers of completed aircraft and engines when unrebutted expert evidence showed they specified asbestos-containing replacement parts. Issues already decided by the MDL court on product identification and causation would not be reopened.
• Boyer v. Weyerhaeuser Company (2014). Wisconsin's Workers' Compensation Act is the exclusive remedy against an employer for asbestos injury arising from employment, including exposure carried home on clothing. A mere patent licensor owes no negligence duty and is not a seller for strict liability based only on licensing a technology.
• Singer v. Pneumo Abex, LLC. (1st District, 2012). In negligence and strict products liability claims, a plaintiff must offer credible evidence from which a reasonable person could infer exposure to the defendant's product; a mere possibility of causation, resting on piled-up inferences, does not defeat summary judgment.
• Tatera v. FMC Corp. (2010). A principal employer is not liable in tort for injuries to an independent contractor's employee doing the contracted work unless it committed an affirmative act of negligence or the work was extrahazardous. A failure to warn is an omission, and machining asbestos-containing friction disks is not extrahazardous because precautions can reduce the risk.
• Tatera v. FMC Corp. (2009). Strict product liability under Restatement (Second) of Torts § 402A was not extended to a company that supplied brake linings to a subcontractor's employee for grinding before final assembly. A supplier who did not manufacture a chattel can still be liable in negligence under § 388, and the Wagner exceptions for affirmative acts and ultra-hazardous materials allowed the negligence claim to proceed.
• Zielinski v. AP Green Indus., Inc. (2003). Summary judgment is improper where the evidence supports a reasonable inference that the defendant's asbestos-containing product was used at the workplace and the plaintiff worked with it. The court declined to adopt a bright-line causation rule and applied Wisconsin's substantial-factor test to the totality of the circumstances.