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.

Other federal courts

• 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.
• Shuman v. United States (1985). Government decisions about whether and how to regulate, inspect, or warn about workplace safety at private contractors' shipyards, including the timing and content of safety standards, are discretionary functions protected from suit under 28 U.S.C. § 2680(a).
• 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.
• Hansen v. Johns-Manville Products Corp. (1984). Applying Texas law, the court held that Texas courts would not bar punitive damages in a mass asbestos products case, that punitive damages in a private suit do not raise double jeopardy, and that no government specification defense was recognized or applicable. Awards found excessive must be reduced to the maximum the jury could properly have awarded.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.
• Large v. Bucyrus-Erie Co. (1983). Under Virginia law as stated in Locke v. Johns-Manville, a personal injury claim accrues when the plaintiff is injured, as shown by competent medical evidence, not at last exposure. A brief later exposure that caused no new injury, and no continuing service relationship, does not extend the limitations period.
• Hardy v. Johns-Manville Sales Corp. (1982). Offensive collateral estoppel could not bind defendants who were not parties or privies in Borel, and it could not bind the Borel defendants because that judgment was ambiguous, inconsistent with other verdicts, and unfair. Courts also may not judicially notice that asbestos in all products is a competent producing cause of cancer.
• Petes v. Hayes (1981). Special interrogatories must be consistent with the jury instructions and must not confuse or mislead the jury. An interrogatory asking whether a disease "specifically" resulted from asbestos inhalation could be read as "solely," which conflicted with the instruction that more than one proximate cause may support recovery.
• 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

• Gay v. AO Smith Corporation (2024). A contractor operating a government-owned laboratory under government contract and direction is derivatively immune from a failure-to-warn claim under either the Yearsley test or the Boyle government contractor test, where the government approved and controlled its work and GE had no superior knowledge of asbestos hazards.
• 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.
• Shellenberger v. Kreider Farms (2023). An employer owes an employee, as a business invitee, a duty to protect against dangers that could be discovered with reasonable care, not just known dangers. Whether the employer should have known of asbestos hazards and breached that duty is a jury question when there is evidence the dangers were generally known.
• Warrington v. 3M Company (2023). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. A bare-metal failure-to-warn claim also requires proof under DeVries that the manufacturer directed or required incorporation of the asbestos part and knew or had reason to know it was dangerous.
• Data v. Joy Global Underground Mining (2022). Under Pennsylvania's frequency, regularity and proximity test, a plaintiff must show actual inhalation of fibers from the defendant's product, and mere presence of asbestos nearby is not enough. A manufacturer that sells a product with an asbestos component installed has a duty to warn about aftermarket replacement parts of that type.
• 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.
• Hilster v. Air & Liquid Systems Corporation (2022). Under either maritime or Connecticut law, a pump maker is not liable for third-party external asbestos gaskets it did not specify, supply or require, and a plaintiff needs non-speculative evidence of exposure to the defendant's own asbestos-containing product. The government contractor defense also applied, because the Navy approved the specifications and warnings and knew of the asbestos hazards.
• Walker v. Viad Corp. (2019). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury, and the bare-metal defense is a foreseeability standard rather than a bright-line rule. A summary judgment movant may not raise a new argument and evidence for the first time in a reply brief.
• Kraus v. Alcatel-Lucent (2018). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person acting under a federal officer, the claims relate to that federal act, and it raises a colorable federal defense. At the removal stage, the Boyle government contractor defense need only be colorable, not proven.
• Rabovsky v. Air & Liquid Systems Corporation (2016). Under the law of the case doctrine, a prior ruling in the same case that the manufacturer could be liable under Schwartz was not reopened. Under Schwartz, a manufacturer may be liable for negligent failure to warn about asbestos components it neither made nor supplied if it knew its product would be used with such components, knew asbestos was hazardous, and gave no adequate warning.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• 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.
• Nelson v. Airco Welders Supply (2014). Expert causation testimony resting on the 'any-exposure' theory is inadmissible under Betz v. Pneumo Abex, and plaintiff's counsel may not give the jury a formula or amount for non-economic damages. Strict liability, including failure to warn, is limited to a product's intended use by an intended user, and intended use includes the intermediate steps needed to fulfill the product's purpose.
• Cardaro v. General Electric Co. (In re Asbestos Products Liability Litigation (VI)) (2013). The 1990 amendment to Louisiana's statute of repose (La. R.S. 9:2772), which removed the failure-to-warn exception, is substantive and applies only prospectively, so it does not retroactively bar earlier failure-to-warn claims. Whether the premises owner knew or should have known of the asbestos hazard is a question of fact.
• Conner v. Alfa Laval, Inc. (2012). Under maritime law, a manufacturer is not liable for harm caused by, and has no duty to warn of the hazards of, asbestos products that it did not manufacture or distribute, even if it was foreseeable that those products would be used with its own.
• Donn v. AW Chesterton Co., Inc. (2012). Federal war powers, procurement law and regulations do not occupy the field of state tort law on failure to warn of asbestos on Navy ships, and conflict with federal interests is addressed through the Boyle government contractor test rather than preemption. A failure-to-warn suit between private parties against Navy equipment suppliers is also not a non-justiciable political question.
• 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).
• Wagers v. Sgl Carbon, LLC (2011). Under North Carolina law, a premises owner owes an independent contractor's employees a general duty to warn of hidden dangers, but no breach occurs where the contractor already knew the danger. The owner also owes a nondelegable duty for inherently dangerous work, and whether the work was inherently dangerous is usually a jury question.
• Willis v. BW IP International Inc. (2011). To win summary judgment on the government contractor defense, a defendant must show no genuine factual dispute on all three Boyle elements, including that the government approved reasonably precise specifications reflecting considered judgment about warnings. Conflicting evidence on those points precludes summary judgment.
• Faddish v. CBS Corporation (2010). Under Florida law, a plaintiff need only raise a genuine factual issue that the defendant's product was a substantial factor in causing the asbestos injury. Whether a sophisticated intermediary such as the Navy discharged a manufacturer's duty to warn is a jury question that weighs several factors.
• Faddish v. General Electric Co. (2010). The government contractor defense applies to failure-to-warn claims. A contractor need not show the government expressly prohibited warnings; it must show the government exercised discretion over warnings, the contractor complied, and the government knew as much or more about the hazards.
• Faddish v. Warren Pumps, LLC (2010). Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.
• Hagen v. Benjamin Foster Co. (2010). A defense is colorable for federal officer removal under 28 U.S.C. § 1442(a)(1) if the defendant identifies facts which, viewed in the light most favorable to it, would establish a complete defense at trial. The court need not weigh the evidence at the remand stage.
• Peter & Elpis Constantinides v. Alfa Laval, Inc. (2010). Under Florida law a plaintiff must show that asbestos exposure from the defendant's product was a substantial contributing factor; a bare-metal defense not squarely argued before the magistrate panel is waived. Circumstantial and expert evidence of the defendant's valves aboard ship and work on their packing and gaskets can create a genuine issue on product identification.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law a plaintiff must show that the defendant's product was a substantial factor in causing the injury. Whether a sophisticated intermediary such as the Navy discharged a supplier's duty to warn of asbestos is a jury question that weighs several factors.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law, a plaintiff must show a defendant's product was a substantial factor in the injury, and a sophisticated intermediary's knowledge does not automatically end a supplier's duty to warn, which is a jury question weighing several factors.
• 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.
• Chenot v. AP Green Services, Inc. (2006). A landowner that possesses superior knowledge of asbestos hazards owes a duty to warn an independent contractor's employees, and the landowner bears the burden of showing the contractor or employee knew as much or more. A peculiar-risk theory may also present a triable issue.
• 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.
• Smalls v. Pittsburgh-Corning Corp. (2004). Evidence of a later product warning is admissible to impeach a defendant's claim that its product created no dust, and an expert's 'each and every breath' causation opinion is admissible; a verdict unsupported by the evidence of injury and loss of consortium is excessive and warrants a new trial on damages.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Gutteridge v. AP Green Services, Inc. (2002). A plaintiff can defeat a manufacturer's summary judgment motion with co-worker testimony that he worked close to where the defendant's asbestos products were used, and credibility cannot be decided at that stage. A landowner that has superior knowledge of a hazard owes a duty to warn an independent contractor's employees, even if it is out of possession.