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.

Pennsylvania

• Lonasco v. A-Best Products Co. (2000). A plaintiff diagnosed with asbestosis and pleural disease who also has asbestos-related shortness of breath has a symptomatic, compensable condition. A prima facie case against a manufacturer requires evidence that the plaintiff inhaled fibers from its product while working in the vicinity of its use, and a defendant that offers no evidence of the plaintiff's knowledge does not rebut the presumption that he would have heeded a warning.
• Coward v. Owens-Corning Fiberglas Corp. (1999). Where a warning is required to make a product non-defective and none was given, the plaintiff may use a rebuttable presumption that he would have followed an adequate warning, and the defendant must produce evidence that a warning would not have been heeded. Product-identification sufficiency (regularity, frequency, proximity) is separate from the jury's causation question, which asks whether exposure was a substantial contributing factor.
• Ierardi v. Lorillard, Inc. (1991). Under Pennsylvania law as stated in Walton v. Avco, no post-sale duty to warn is imposed where the defect cannot be remedied, the product is no longer in use, users cannot practicably be identified, and a warning would not have prevented the plaintiff's harm.
• Gill v. Pacor, Inc. (1982). A supplier's duty to warn the ultimate user of an asbestos product cannot be avoided by pointing to the employer's failure to provide a safe workplace. An employer's conduct is not a superseding cause unless it was so extraordinary that it could not reasonably have been foreseen.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.

Rhode Island

• Day v. 3M Company Inc. (2024). Expert opinion based on the 'each and every exposure' theory is scientifically valid and admissible under Rule 702, and the 'frequency, regularity, and proximity' showing goes to a defendant's ultimate liability rather than to admissibility. An expert may not give an opinion that lacks a factual basis, but may rely on record evidence that supports it.
• Moore v. Crane Company (2021). A private contractor removing under the federal officer statute on a premises-liability failure-to-warn claim must show the government's control interfered with its ability to warn at the worksite itself; proof of Navy control over product specifications and labeling is not enough.
• Wallace v. Trane Company (2021). Under Maine law, an asbestos plaintiff must show product nexus, meaning exposure to asbestos that originated with the defendant's own product, before medical causation is reached. Evidence of third-party sealants or replacement materials used on a defendant's boilers does not establish that nexus.
• Wallace v. Trane Company (2020). Applying Maine law, a plaintiff must show exposure to asbestos that originated with the defendant's product (product nexus). Evidence that the defendant's catalog sold the same kind of third-party sealant is not enough without proof that the actual sealant used was sold or recommended by the defendant.
• Nichols v. Allis Chalmers Product Liability Trust (2018). Under Rhode Island's ad hoc duty analysis, an employer owes a duty to a member of an employee's household who is exposed to asbestos dust on the employee's work clothes, where the harm was foreseeable. At summary judgment, the frequency, regularity, proximity test is met by evidence of regular exposure and an expert opinion on cumulative exposure.
• Stevens v. Air & Liquid Systems Corporation (2017). Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.
• 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.
• Burdick v. Air & Liquid Systems Corporation (2012). Under Rhode Island's significant relationship approach, choice of law in tort cases is fact-intensive, so a court cannot decide it on a Rule 12(b)(6) motion when the complaint lacks facts to apply the choice-of-law factors.
• LaPOINTE v. 3M Company (2007). Installing burners is an improvement to real property under the Rhode Island statute of repose, but servicing, repairing and maintaining them is not, so claims based on repair exposure are not repose-barred. Whether the burners contained asbestos and whether a duty to warn existed are jury questions.

South Carolina

• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• 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.
• Chesher v. 3M Company (2017). Under maritime law, an equipment manufacturer can owe a duty to warn about asbestos-containing replacement parts it did not supply if it actually incorporated asbestos components into its original product and either specified asbestos replacements or they were essential to the product's proper functioning (the Quirin approach).
• Dandridge v. Crane Co. (2016). Under maritime law, a valve manufacturer is not liable for asbestos in gaskets it did not make or supply. Even if the Quirin exception applies, it must be read narrowly and requires that the manufacturer actually incorporated asbestos-containing parts into its product, making exposure inevitable.
• Sparkman v. Goulds Pumps, Inc. (2015). A federal court predicted that the South Carolina Supreme Court would reject the bare metal defense and would hold a manufacturer subject to a duty to warn about asbestos parts of its product that it did not make or supply, at least where it specified asbestos parts for the product. A state trial judge's ruling that the court had overlooked was treated as persuasive evidence of how the state's highest court would rule.
• Sparkman v. AW Chesterton Company (2014). Applying South Carolina law, the frequency, regularity and proximity test governs causation in mesothelioma cases. The court predicted the South Carolina Supreme Court would adopt the bare metal defense, so a manufacturer has no duty to warn about parts of its product that it did not make or supply.

Tennessee

• Coffman v. Armstrong International, Inc. (2021). Under the Tennessee Products Liability Act, a manufacturer or seller has a duty to warn only about the condition of its own product when it left its control, so it has no duty to warn about asbestos-containing products made and sold by others and added after sale.
• Coffman v. Armstrong International, Inc. (2019). Daily removal and reinstallation of insulation at an industrial plant is repair or replacement, not construction of an improvement to real property, so the construction repose statute does not apply. Under Tennessee's Satterfield duty analysis, equipment makers can owe a duty to warn about asbestos parts added to their equipment after sale, and Tennessee does not follow the bare-metal defense.
• Stockton v. Ford Motor Company (2017). In a Tennessee products liability case, whether pleaded as negligence or strict liability, the jury must find that the product was defective or unreasonably dangerous, and must decide foreseeability, before it can find negligence. A verdict that omits these findings is inconsistent and cannot stand.
• 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.
• 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

• Williams v. Avon Products, Inc. (2019). Under Texas CPRC § 82.003(a)(6), a nonmanufacturing seller is liable only if it actually knew of the defect, so allegations that it knew or should have known, without supporting facts, fail Rule 12(b)(6) and show improper joinder of the in-state seller.
• Uop, LLC v. Kozak (1st District, 2010). Under former section 150.002, a certificate of merit is mandatory and cannot be waived by the trial court. It is required for a negligence-based failure-to-warn claim against an engineering firm when the claim rests on the firm's engineering knowledge and expertise, whether the firm is sued as designer or as general contractor.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• Brown & Root, Inc. v. Moore (6th District, 2002). A corporation can be liable for exemplary damages for malice if it commits, authorizes or ratifies malicious acts, or acts through a vice principal. Circumstantial evidence of knowledge of a serious risk and a failure to warn or protect workers can legally support a malice finding.
• Madden v. Able Supply Co. (2002). A corporation is a "person" under the federal officer removal statute, and a contractor that acted under Navy direction and raises a colorable military contractor defense may remove; the court may decline supplemental jurisdiction over the remaining state-law claims and remand them.
• In re Kellogg-Brown & Root, Inc. (12th District, 2001). Deemed admissions may be withdrawn or amended on a showing of good cause, meaning the failure to respond was accident or mistake rather than conscious indifference, if the other side is not unduly prejudiced and the merits are served. Refusing withdrawal of admissions that would eliminate any defense is a clear abuse of discretion not correctable by appeal.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Owens-Corning Fiberglas Corp. v. Keeton (3rd District, 1996). Correspondence from other asbestos makers about known hazards was relevant to what Owens-Corning knew or should have known for a negligent failure-to-warn claim under Alabama law. A contributory-negligence issue was properly refused because the plaintiffs did not consciously appreciate the danger, and the company also failed to preserve the point.
• 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.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.
• Castorina v. Lykes Bros. SS Co., Inc. (1984). Under post-1972 LHWCA law, the date of injury for asbestosis is the date of manifestation, so the claim is limited to a § 905(b) negligence action. A vessel owner that neither knew nor should have known of a cargo's hazard and complied with shipping regulations is not negligent, and the danger of the cargo itself does not make the vessel unseaworthy.
• 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.
• Hardy v. Johns-Manville Sales Corp. (1981). A federal court sitting in diversity predicted that Texas would adopt some form of Sindell market-share liability in asbestos cases, so market share discovery may lead to admissible evidence. The court also held that Borel precludes relitigating whether asbestos causes asbestosis and mesothelioma, and that the Borel duty-to-warn findings preclude warning and state-of-the-art evidence for insulation products.
• 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.

Utah

• Hipwell v. Air & Liquid Systems Corp. (2022). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-associated product that was a substantial factor in causing the injury, and a boiler maker may owe a duty to warn under DeVries if it directed that asbestos be incorporated. The court treated the substantiality of exposure, the duty to warn, the government contractor defense and warning causation as disputed fact questions, with Utah's heeding presumption applying to the causation question.
• Hipwell v. Air & Liquid Systems Corp. (2022). A party seeking to exclude an entire category of evidence without specifying the particular items cannot show irrelevance or unfair prejudice, and whether an intervening cause was foreseeable is generally a jury question. The Navy's knowledge of asbestos hazards is relevant to the failure-to-warn claim and to the government contractor and DeVries defenses.
• 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.