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.

Virginia

• Gehant v. Foster Wheeler Energy Corporation (2022). Under Air & Liquid Systems v. DeVries, a manufacturer's duty to warn depends on whether its product required incorporation of an asbestos-containing part, not merely heat insulation generally. Disputed facts on each DeVries prong, on the Boyle/Sawyer government contractor test, and on substantial-factor causation preclude summary judgment.
• Goodrich v. John Crane, Inc. (2018). A manufacturer cannot offer evidence of the Navy's knowledge or negligence as a superseding cause, because the Navy's failure to protect workers from asbestos was foreseeable. Evidence of the Navy's knowledge also is not state-of-the-art evidence, because it shows the hazards were known to experts and so supports a duty to warn.
• Brinkman v. General Dynamics Corporation (2016). The government contractor defense is available in failure-to-warn cases, so a district court may not remand a federally removed case for lack of a colorable federal defense based on a practice of denying that defense in failure-to-warn cases.
• Ripley v. Foster Wheeler LLC (2016). The government contractor defense is available in failure-to-warn cases, not only design defect cases, so it can supply the colorable federal defense needed for federal officer removal under 28 U.S.C. § 1442.
• Ford Motor Co. v. Boomer (2013). In Virginia mesothelioma cases involving multiple exposures, causation is judged by whether the defendant's exposure was more likely than not sufficient by itself to cause the disease (concurring or multiple sufficient causes), not by a "substantial contributing factor" instruction. A jury may infer from the evidence that an injured person would have heeded an adequate warning.
• Garlock Sealing Technologies, LLC v. Little (2005). Federal maritime tort law governs an asbestos claim based on exposure during repair and construction of vessels in navigable waters, and a party that induced the jury's apportionment among non-parties cannot then complain about how it was applied.
• Owens-Corning Fiberglas Corp. v. Watson (1992). A manufacturer has a duty to warn only if it knows or has reason to know its product is dangerous. Circumstantial evidence can prove exposure to a particular manufacturer's product. Evidence of conscious concealment of a known hazard can support punitive damages. The attorney-client privilege does not cover a memorandum that reveals a fraud on a court.

Washington

• Olson v. Air & Liquid Systems Corp. (1st Division, 2024). Where the injury-producing events predated 1981, common law negligence applies, and a proposed instruction that a duty to warn attaches whenever a reasonable user would want to know of a risk misstates the law. Instructions that let a party argue its theory of the case are sufficient, even without a requested ongoing-duty instruction.
• 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.
• Perkins v. United States (2023). Under the FTCA's discretionary function exception, the government must show no mandatory directive governed the challenged conduct and that the decision was susceptible to policy analysis. Mandatory Navy directives on coveralls for asbestos ripout work removed that claim from the exception, while the laundry and warning decisions were discretionary and policy-based.
• Welch v. Crane Co. (2023). Under maritime law, a plaintiff must show actual exposure to asbestos-containing materials from the defendant's product and that the exposure was a substantial contributing factor in causing the injury. The mere presence of a defendant's products on the ship is not enough. A manufacturer's duty to warn is assessed under the DeVries three-part test.
• 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). Under maritime law, a plaintiff must show with evidence of the amount or duration of exposure that a defendant's asbestos product was a substantial factor in causing the disease; general evidence of possible exposure is not enough. A failure to warn claim fails when causation cannot be shown.
• Jack v. Dco, LLC (2021). Under Washington law, a take-home exposure claim fails without evidence of asbestos on the premises and without evidence that the risk to a worker's family was foreseeable at the relevant time. A post-sale failure-to-warn claim fails without specific evidence that an adequate warning would have led the plaintiff to avoid injury.
• Wineland v. Air & Liquid Systems Corp. (2021). Maritime law governed, and under it plaintiffs must show substantial exposure to asbestos from the defendant's own products, including the amount and duration of exposure. A manufacturer has no duty for third-party replacement parts unless its product required their use. State-law causation rules could not supplement maritime law where they conflict.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show exposure to a defendant's asbestos products was a substantial contributing factor, with evidence of the amount and duration of exposure. A manufacturer owes a duty to warn about third-party replacement parts only if its product requires the part to function as intended.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show with evidence of the amount and duration of exposure that asbestos from the defendant's products was a substantial contributing factor in the injury. A manufacturer has no duty to warn about third-party replacement parts unless its product requires them to function as intended.
• 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.
• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law 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. The court deferred applying this standard pending further briefing.
• 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.
• Yaw v. Air & Liquid Systems Corporation (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b)(4), and the plaintiff's husband's death just before the deadline met that standard. Because DeVries announced a new maritime-law duty-to-warn standard after briefing, the court required supplemental briefing before deciding summary judgment.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may not order a new trial on damages unless it has a firm conviction the jury erred, and may not grant judgment as a matter of law where substantial evidence, including admissible expert testimony on causation and exposure, supports the verdict.
• Mikelsen v. Air & Liquid Systems Corporation (2018). Maritime law did not apply because the worker's exposure was mainly in a land-based shipyard machine shop, so Washington law governed. A jury could find causation even without proof the worker handled the defendant's product, and the government contractor defense was not shown as a matter of law.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Woo v. General Electric Company (1st Division, 2017). A manufacturer generally has no duty to warn of asbestos in other makers' products used with its equipment, but a fact issue on duty exists where the evidence shows the equipment required asbestos-containing insulation, gaskets and packing to function as designed and the plaintiff was exposed to original gaskets and packing the manufacturer supplied.
• 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.
• McMann v. Air & Liquid Systems Corp. (2014). Under the federal officer removal statute, which is liberally construed, a defendant need only prove by a preponderance of the evidence a colorable government contractor defense and a causal nexus to federal direction. A plaintiff's disclaimer of claims subject to that defense does not defeat removal.
• McMann v. Air & Liquid Systems Corporation (2013). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under federal direction and the claims, and a colorable federal defense; speculative evidence about Navy control and warnings does not meet that burden.
• 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.
• Wangen v. AW Chesterton Company (1st Division, 2011). A pump manufacturer is not liable for asbestos in replacement gaskets, packing or insulation it did not manufacture or supply, and the plaintiff must show exposure to asbestos products made or supplied by that defendant. Evidence that the manufacturer specified asbestos parts did not defeat summary judgment where no authority supported liability on that basis.
• Yankee v. APV North America, Inc. (1st Division, 2011). An equipment manufacturer has no duty to warn of asbestos in replacement parts it did not make, sell or supply, and the documents offered here did not amount to specifications requiring asbestos-containing parts, so the court did not need to decide whether a specification exception exists.
• Cashman v. Pacific Scientific Company (1st Division, 2010). A party who does not object in the trial court to evidence considered on summary judgment cannot challenge its admissibility on appeal. A manufacturer has no duty to warn about asbestos insulation made by others and added later, and trial courts have broad discretion to choose a spoliation sanction short of dismissal.
• 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.
• Cashman v. Pacific Scientific Company (1st Division, 2009). A manufacturer owes no common law duty to warn of hazards of replacement asbestos insulation it did not make or supply, and a worker without a proper foundation cannot give opinion that materials contained asbestos; speculative circumstantial evidence of exposure to the defendant's asbestos product does not defeat summary judgment.
• 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.
• Kimball v. Asbestos Corporation Ltd. (1st Division, 2008). Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.
• Simonetta v. Viad Corporation (2008). Under Washington common law (Restatement (Second) of Torts §§ 388 and 402A), the duty to warn, in negligence and in strict liability, is limited to those in the chain of distribution of the hazardous product. A manufacturer therefore has no duty to warn of the hazards of another company's asbestos insulation used with its own product.
• Mavroudis v. Pittsburgh-Corning Corp. (1st Division, 1997). In multi-supplier asbestos cases where the expert says all of the plaintiff's exposure probably played a role and the actual cause cannot be identified, a substantial-factor causation instruction is proper instead of but-for. A claim arises under the Washington Product Liability Act when the plaintiff is exposed to asbestos, not when the disease is discovered.
• 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.
• Koker v. Armstrong Cork, Inc. (1st Division, 1991). Claims from continuous asbestos exposure that occurred before July 26, 1981 'arose' before the 1981 tort reform act, so pre-Act law governs; when the claim accrued is a jury question. A plaintiff with no present cancer cannot recover for increased risk or lost chance of survival, only for a reasonable present fear of cancer.
• Lockwood v. AC & S, Inc. (1987). A plaintiff may prove exposure to a defendant's asbestos product through witnesses who identify the products present at the workplace, rather than by his own identification. A manufacturer also has a continuing duty after exposure ends to use reasonable care to warn of known dangers if a warning could prevent or lessen harm.

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.
• Miller v. American Art Clay Co. Inc. (2014). Under Wisconsin law a plaintiff must show a defendant's product was a substantial factor in causing the injury. Where the evidence fits asbestos-free products as well as the asbestos-containing one, causation is only speculation and summary judgment is proper.
• 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.