Failure to Warn in Asbestos Cases

Decisions in our library in which the court ruled on duty to warn: 599 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

Most asbestos product cases are failure-to-warn cases. A manufacturer generally has a duty to warn users of dangers it knew or should have known about; the rules for sellers and distributors that did not make the product vary, and some states limit claims against them. Many asbestos products were sold for decades with no warning at all, or with warnings that came late or said little.

The disputes in this section usually involve:

• What the company knew, and when. In negligence claims, and in many states' warning claims, the duty depends on what was known or reasonably knowable at the time, often called the "state of the art." States differ on the role of that evidence in strict liability claims. Evidence of industry knowledge going back to the 1930s is common in these cases.
• Who had to be warned. End users, workers who never saw the packaging, and bystanders all raise different questions. See also sophisticated user and intermediary defenses.
• Whose product it was. Whether a company must warn about asbestos parts made by others and used with its equipment is a separate question; see the bare-metal defense.
• Adequacy. Whether a warning that did exist was clear and strong enough.
• Causation. The plaintiff must still prove exposure to the defendant's product and that it contributed to the disease, and also that an adequate warning would have prevented or reduced the exposure. Some states presume a person would have followed an adequate warning; others require evidence.

Claims can be brought in negligence or in strict liability, depending on the state, against companies other than the worker's employer. Claims against the employer itself are usually limited to workers' compensation.

Alabama

• Bobo v. Agco Corp. (2013). The discretionary function doctrine applies to TVA's power-production activities, so decisions not to warn employees' spouses or how to train employees are shielded. TVA is not shielded where it failed to follow mandatory OSHA or internal directives, or negligently carried out safety policies it had adopted.
• Bobo v. Agco Corporation (2013). The discretionary function doctrine applies to TVA's power-generation activities, but it does not shield TVA from claims that it violated mandatory OSHA regulations or its own mandatory policies, or that it negligently carried out safety procedures it had adopted. Decisions not to warn employees' spouses and on the content of training are discretionary and protected.
• 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.
• 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

• Coulbourn v. Crane Co. (2018). Under Arizona law, where several defendants' asbestos products may have caused an indivisible injury, a defendant's product is a causal factor if it was a substantial factor, meaning it was independently sufficient to cause the disease. Evidence that a manufacturer knew its gaskets would expose workers to fatal dust can support punitive damages.

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.

California

• 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.
• Speck v. CBS Corporation (2024). Under federal maritime law a plaintiff must show actual exposure to the defendant's asbestos-containing product and that the exposure was a substantial contributing factor in causing the injury, and expert testimony is not required to prove this. The government contractor defense fails where the product was substantially the same as one sold commercially or the contractor did not show the Navy required asbestos.
• 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.
• Elorreaga v. Rockwell Automation, Inc. (2023). The Boyle government contractor defense rests on preemption of state law, so it does not apply to claims brought under federal maritime law. Plaintiffs' evidence of exposure to each defendant's products and of a substantial contributing factor was enough to create a genuine factual dispute.
• 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.
• Toy v. Warren Pumps (In re Asbestos) (2021). Maritime law applies to naval shipyard asbestos claims where some exposure occurred aboard vessels in drydock, and plaintiffs must show exposure to the defendant's asbestos products that was a substantial factor in causing the disease. A pump maker may owe a duty to warn about asbestos in third-party parts its product requires, and conflicting evidence on exposure precludes summary judgment.
• Toy v. Armstrong Int'l (In re Toy Asbestos) (2021). Under California law, a product maker is not liable for asbestos in third-party gaskets or insulation used with its product unless its own product contributed substantially to the harm or it mandated or advised use of the asbestos parts. Foreseeability that such parts would be used is not enough.
• Pizarro v. National Steel and Shipbuilding Company (2021). A contractor asserting Yearsley or Boyle government contractor defenses must show it complied with the government's specifications, and a genuine dispute over that compliance requires a jury. Under California law, evidence that a retailer knew of asbestos dangers and sold asbestos-containing brakes without warning can create a jury question on malice for punitive damages.
• Spurlin v. Air & Liquid Systems Corporation (2021). Yearsley government-contractor immunity is an affirmative defense on which the contractor bears the burden, not a bar to subject matter jurisdiction. It also did not apply here because no government instruction prevented the manufacturers from giving asbestos warnings.
• Spurlin v. Air & Liquid Systems Corporation (2021). Under federal maritime law, a manufacturer has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. Punitive damages and loss of consortium are not available in a maritime negligence action.
• 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.
• Pizarro v. Astra Flooring Company (2020). A defendant may remove an entire action under 28 U.S.C. § 1442(a)(1) if it shows by a preponderance of the evidence a colorable government contractor defense to a failure-to-warn claim, and declarations from a retired Navy admiral can suffice at the removal stage under Leite v. Crane Co.
• Mettias v. The Pep Boys Manny, Moe & Jack of California (Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A party is entitled to instructions on every theory supported by substantial evidence, but not to general negligence instructions when the only supported negligence theory was the defendant's duty as a supplier, which specific instructions already covered. Any instructional error was harmless because the jury's special verdict findings made a different result not reasonably probable.
• Viale v. Air & Liquid Systems Corp. (2019). A defendant sued under state law over asbestos warnings can remove under 28 U.S.C. § 1442(a)(1) by showing it is a covered person, that a causal nexus exists between the claims and acts done at a federal officer's direction, and that it has a colorable federal defense such as the government contractor defense.
• Hubbard v. California Water Service Company (1st Appellate District, 3rd Division, 2018). Under Kinsman, the party asserting the exception to a hirer's general non-liability for a contractor's employees bears the burden of proving that the contractor neither knew nor could reasonably be expected to know of the concealed hazard. The contractor's actual or constructive knowledge is an essential element of the failure-to-warn claim.
• Phillips v. Honeywell International Inc. (5th Appellate District, 2017). An expert may testify that each identified, significant asbestos exposure contributed to a person's cumulative dose and risk of mesothelioma without relying on the rejected every-exposure theory. Substantial evidence supported the failure-to-warn finding and the finding of malice supporting punitive damages.
• Thrash v. Cirrus Enterprises, LLC (2017). A defendant removing under the federal officer removal statute must show it acted under a federal officer's direction with a causal nexus to the claims and has a colorable federal defense; it need not prove the government contractor defense is meritorious, and evidence of detailed military specifications and government control of warnings suffices.
• 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.
• Moran v. Foster Wheeler Energy Corporation (2nd Appellate District, 4th Division, 2016). To establish the sophisticated user defense to a failure-to-warn claim, the defendant must prove that the plaintiff, or his peer group, knew or should have known of the specific risk from the start of the exposure. The general state of scientific and industry knowledge cannot be imputed to the plaintiff without evidence of how it reached him or his peer group.
• 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."
• Webb v. Special Electric Company, Inc. (2016). A supplier of a hazardous raw material may discharge its duty to warn end users under the sophisticated intermediary doctrine only if it warned the purchaser or sold to a purchaser it knew was or should have been aware of the specific danger, and it actually and reasonably relied on the purchaser to warn downstream users. The supplier bears the burden of proof, and reasonable reliance is ordinarily a jury question.
• 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.
• 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.
• Murat v. Exxon Mobil Corp. (2nd Appellate District, 4th Division, 2015). Under the Longshore Act, a vessel owner is liable to a ship repair contractor only for breach of the turnover, active control or intervention duties. A plaintiff must produce evidence of the manner and circumstances of asbestos exposure to show such a breach, and a mere possibility of exposure is not enough.
• Collin v. Calportland Company (3rd Appellate District, 2014). A plaintiff must show exposure to the specific defendant's asbestos-containing product, and a defendant can shift the burden on summary judgment with comprehensive discovery and factually devoid responses; the sophisticated user defense turns on what the class of users knew or should have known about the particular product's dangers.
• Grande v. Borg-Warner Morse Tec, Inc. (2014). Under California law, a plaintiff may show exposure to a defendant's asbestos-containing product through circumstantial evidence that supports a reasonable inference of exposure. Punitive damages go to the trier of fact unless no reasonable jury could find clear and convincing proof of malice, fraud or oppression.
• Scott v. Ford Motor Company (1st Appellate District, 1st Division, 2014). The sophisticated user defense did not bar a failure to warn claim because Ford did not prove that service station owners knew or should have known of automotive asbestos risks during the early part of Scott's career. Under California's governmental interest analysis, Michigan has no interest in having its ban on punitive damages applied in California courts, so no true conflict exists and California law applies.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a boiler maker can be liable for asbestos components it supplied or specified, and the sophisticated user defense turns on the plaintiff's own sophistication, not the employer's. A Restatement § 402B misrepresentation claim requires an affirmative misrepresentation, not just concealment.
• Pfeifer v. John Crane, Inc. (2nd Appellate District, 4th Division, 2013). When a supplier sells hazardous goods to a sophisticated intermediary that passes them to its employees, the supplier can still be liable for failing to warn those employees unless it has reason to believe the ultimate users know or should know of the hazards. The intermediary's sophistication alone does not shield the supplier.
• Webb v. Special Electric Company, Inc. (2nd Appellate District, 1st Division, 2013). A trial court may enter judgment notwithstanding the verdict only after the statutory waiting period and with the required written notice. A supplier of raw asbestos is not relieved of its duty to warn downstream users, as a matter of law, just because its sophisticated customer already knew the dangers.
• Willis v. Buffalo Pumps, Inc. (2013). A defendant is entitled to federal officer removal under 28 U.S.C. § 1442(a)(1) where it identifies facts, viewed in the light most favorable to it, that entitle it to a complete defense; a government contractor need only show a colorable defense based on government discretion over warnings, not that the government dictated exact warnings.
• Bankhead v. ArvinMeritor, Inc. (1st Appellate District, 4th Division, 2012). Punitive damages need not be measured against a defendant's net worth, and no 10 percent of net worth ceiling exists; a roughly 2.4-to-1 punitive-to-compensatory ratio for highly reprehensible conduct did not violate federal due process.
• 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.
• Davis v. Foster Wheeler Energy Corporation (2nd Appellate District, 5th Division, 2012). A boiler manufacturer that did not make or sell asbestos-containing products is not liable for harm from other makers' asbestos insulation (O'Neil v. Crane Co.). Contradictory testimony that did not tie Foster Wheeler workers to the insulation removal raised no triable issue, and an argument about incomplete discovery that was not raised in the trial court cannot be raised on appeal.
• 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.
• Rollin v. Foster Wheeler, LLC (2nd Appellate District, 2nd Division, 2012). The sophisticated user defense does not bar a worker's claim merely because his employer was knowledgeable about asbestos, and the sophisticated intermediary doctrine applies only if the manufacturer gave adequate warnings to the intermediary. A new trial was proper so the parties could address the O'Neil limits on liability for other manufacturers' asbestos products.
• 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.
• 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.