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.

California

• Russell v. Ford Motor Company (2nd Appellate District, 8th Division, 2010). Substantial evidence can support a finding that a failure to warn caused a plaintiff's disease. A non-settling defendant must be allowed to review the evidence supporting a contested post-trial settlement offset, and the trial court may not review it only in camera.
• Saller v. Crown Cork & Seal Company, Inc. (2nd Appellate District, 1st Division, 2010). The consumer expectations test for design defect applies to asbestos-containing pipe insulation, and a worker's testimony about his exposure can support giving the instruction. Strict liability failure to warn is distinct from negligent failure to warn, so a verdict on the negligence claim does not make omitting the strict liability instruction harmless.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 5th Division, 2010). A raw asbestos supplier that gave no warning cannot rely on a sophisticated purchaser or intermediary to give warnings, and the sophisticated-user rule in Johnson turns on the user's own knowledge, not the purchaser's. A defendant seeking to shift fault to other asbestos suppliers bears the burden of proving their fault and its percentage.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A manufacturer is not strictly liable for failure to warn or design defect from asbestos products it did not make, supply or place in the chain of distribution, even if their use with its product was foreseeable. The component parts doctrine also bars liability absent proof that the defendant's own component caused the injury.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A valve manufacturer that did not make or supply the asbestos-containing packing, gaskets or insulation that caused the plaintiff's exposure is not in the chain of distribution of those products and has no strict liability duty to warn of their hazards. The same reasoning bars the design defect claim, and the component parts doctrine supports it.
• O'neil v. Crane Co. (2nd Appellate District, 5th Division, 2009). Makers of pumps and valves designed to be used with asbestos insulation and packing are not shielded by the component parts defense. They can be strictly liable for failure to warn and design defect when a user is injured by replacement asbestos used with their products during ordinary maintenance.
• Oxford v. Foster Wheeler LLC (1st Appellate District, 1st Division, 2009). The government contractor defense can apply to negligence claims as well as strict liability claims, but satisfying the Boyle elements for design does not by itself bar failure-to-warn claims. A finding of no failure-to-warn product defect is logically inconsistent with a finding of negligent failure to warn, and inconsistent special verdicts require a new trial.
• Taylor v. Elliott Turbomachinery Co. Inc. (1st Appellate District, 5th Division, 2009). Under California law, a manufacturer has no duty to warn, in strict liability or negligence, of asbestos hazards in replacement gaskets, packing or insulation made or supplied by others and used with its equipment. The duty arises only when the manufacturer's own product causes or creates the risk of harm.
• Cunningham v. Buffalo Pumps, Inc. (2nd Appellate District, 7th Division, 2008). The consumer expectations test for design defect can apply to asbestos gaskets and packing in pumps and valves, and failure to warn is a distinct strict liability theory that cannot be made to depend on first finding a risk/benefit design defect. A maker of a finished product cannot escape liability by pointing to a component made by another.
• Garza v. Asbestos Corp., Ltd. (1st Appellate District, 3rd Division, 2008). A supplier of raw asbestos can be held strictly liable for design defect and failure to warn, because incorporating raw asbestos into an insulation product does not substantially alter it. The bulk-supplier defense did not apply where the supplier gave no adequate warnings and the purchaser was not shown to know the dangers.
• Norris v. Crane Company (2nd Appellate District, 5th Division, 2008). Under Rutherford's substantial factor test, exposure to asbestos from a defendant's product that adds to the cumulative dose can support causation. The consumer expectations test may be used for a design defect claim based on asbestos-containing valve gaskets and packing.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2007). A raw-asbestos supplier is not relieved of its duty to warn merely because the buyer-employer knew or should have known of asbestos hazards or was subject to OSHA rules. A noneconomic damages award that is grossly disproportionate to the evidence and was influenced by improper argument may be reduced or retried on appeal.
• Kinsman v. Unocal Corporation (1st Appellate District, 3rd Division, 2007). A premises owner that relies on an industry exposure limit (TLV) as a defense to negligence bears the burden of showing it knew of and complied with that standard. The plaintiff need not prove exposure above the limit, and substantial evidence that the owner knew or should have known of asbestos hazards supports a negligence verdict.
• Rosen v. Regents of University of California (1st Appellate District, 4th Division, 2007). A negligent failure-to-warn claim requires that the risk was known or reasonably should have been known when the product was supplied. Without evidence of foreseeability there is no duty to warn, and nonsuit on negligence is proper.
• Kinsman v. Unocal Corporation (2005). A landowner that hires an independent contractor may be liable to the contractor's employee, even without retained control, if it knew or should have known of a concealed preexisting hazard, the contractor did not know and could not reasonably discover it, and the landowner failed to warn.
• Chavers v. Gatke Corp. (1st Appellate District, 4th Division, 2003). In California a civil conspiracy can be formed only by parties who already owe the plaintiff an independent tort duty, and concert of action cannot make a manufacturer liable for an industry's products absent evidence its own product caused the injury.
• Dekens v. Underwriters Laboratories Inc. (4th Appellate District, 3rd Division, 2003). Under the negligent undertaking (Good Samaritan) doctrine, liability requires that the defendant specifically undertook the task it is accused of performing negligently. U.L.'s testing and certification of appliances for fire, electrical and accident hazards did not include an undertaking to guarantee safety from asbestos-related disease.

Colorado

• Church v. Dana Kepner Company, Inc. (2012). Under Colorado's innocent seller statute, a plaintiff need only plead facts plausibly showing the seller had actual knowledge of a product defect to sue a non-manufacturer seller. Allegations of knowledge and distribution without adequate warnings also suffice to plead civil conspiracy.
• Fibreboard Corp. v. Fenton (1993). State-of-the-art evidence is admissible in strict liability failure-to-warn claims to show a product was not defective and unreasonably dangerous because the risk was not known or knowable. Under the pre-1986 set-off statute, settlement amounts must actually be collected before they can be set off against a joint judgment.
• Rice v. Armstrong World Industries, Inc. (1987). Under the Colorado Products Liability Act, a seller who relabels a product is treated as a manufacturer if it had actual knowledge of a defect or did not disclose the actual manufacturer, and a seller's non-manufacturer status bars only strict liability claims, not negligence, warranty or gross negligence claims.

Connecticut

• Kotecki v. Buffalo Pumps, Inc. (2009). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), by showing it acted under a federal officer, that its acts were causally tied to the government's directions, and that it has a colorable federal defense. The defense need not be proven on the merits at the removal stage.
• Carroll v. Buffalo Pumps, Inc. (2008). A defendant may remove under the federal officer statute, 28 U.S.C. § 1442(a)(1), if it is a person acting under a federal officer, acted under color of federal office, and raises a colorable federal defense. Federal officer jurisdiction rests on the defendants' defenses, so plaintiffs cannot disclaim it in their complaint.
• Contois v. Able Industries Inc. (2007). A defendant may remove under the federal officer statute when it shows it acted under federal direction, with a causal link to the claim, and has a colorable military contractor defense. The 30-day removal period runs from when the defendant can intelligently ascertain removability from a pleading or other paper.
• Machnik v. Buffalo Pumps Inc. (2007). A government contractor may remove under the federal officer removal statute if it shows a colorable federal defense, that it acted under a federal officer, and a causal nexus to the claims. It need not fully prove the defense on the merits at that stage.

Delaware

• Salvemini v. Air & Liquid Systems Corporation (2025). Under maritime law a plaintiff must show exposure to the particular defendant's product and that it was a substantial factor in the injury, and vague testimony that cannot separate that defendant's product from others fails. General maritime law did not reach a spouse's land-based take-home exposure when the plaintiffs did not show the maritime connection test was met.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (2023). Interlocutory review under Supreme Court Rule 42 was not warranted because no exceptional circumstances existed and the benefits of review did not outweigh the inefficiency, disruption and costs of an interlocutory appeal.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (2023). Predicting Ohio law, the court held that Ohio would recognize an exception to the bare metal rule. A manufacturer may have a duty to warn where its product is necessarily used with another product and the danger results from the two products used together.
• Droz v. Hennessy Industries, LLC (2022). Under Rule 56 and Stigliano, once a defendant shows it made both asbestos-containing and asbestos-free products at the time of exposure, the plaintiff need only show by direct or circumstantial evidence a genuine issue whether she was exposed to the asbestos-containing product; exclusive use or direct evidence is not required.
• Thorne v. Crane Co. (In re Asbestos Litigation) (2022). Under Iowa law, a valve attached to real property remains an improvement after it is detached and refurbished, so the statute of repose bars claims based on exposure during that work. Iowa Code § 686B.7(5) also shields a defendant from liability for exposures from a product or component part made or sold by a third party.
• Cox v. Foster Wheeler (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must show exposure to the defendant's product, that it was a substantial factor in the injury, and that the defendant made or sold it; and a manufacturer may have a duty to warn about asbestos parts incorporated into its equipment under the DeVries test, which here raised genuine fact issues.
• Cox v. Foster Wheeler (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must show exposure to the defendant's product that was a substantial factor in causing the injury, and a manufacturer may owe a duty to warn about third-party replacement parts when its product requires them, it knows or has reason to know of the danger, and it has no reason to believe users will realize that danger. Disputed facts on these elements and on the Boyle elements preclude summary judgment.
• Gibbs v. 84 Lumber Company (2020). Under South Carolina law as applied by the court, a raw-material supplier of asbestos that did not control its customers' finished products could reasonably rely on sophisticated manufacturer-intermediaries to warn end users. It therefore owed no duty to warn Mr. Gibbs, and the adequacy of its warnings did not need to be assessed.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (2020). Under Stigliano, where a manufacturer made both asbestos and non-asbestos versions of a product, the plaintiff must present direct or circumstantial evidence of exposure to the asbestos-containing version. Under Rhode Island's frequency, regularity and proximity test, a plaintiff must show regular exposure to friable asbestos in connection with the defendant's product.
• Evans v. Imo Industries, Inc. (2019). An expert may be qualified without direct experience in the subject, and lack of experience goes to weight; but expert testimony lacks "fit" and is excluded when the documents relied on do not govern the defendant's products. Late disclosure of reliance documents is harmless where the opposing party had notice and was not prejudiced.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2019). When deciding whether a jury's compensatory damages verdict is excessive, a court must look at the total damages the jury found, not the defendant's smaller share based on its percentage of fault.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2019). A court will not overturn a jury verdict as inconsistent if the differently worded interrogatory answers can be logically reconciled, and will not set aside or reduce a damages award unless it was the product of passion, prejudice or disregard of the evidence or law.
• Johansen v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must show asbestos exposure from the defendant's product was a substantial factor in causing injury, and about five brake jobs over seventeen years was de minimis exposure that did not meet that standard. A manufacturer generally has no duty to warn of dangers of another manufacturer's product, and Washington does not allow punitive damages unless the legislature authorizes them.
• Robinson v. Union Carbide Corporation (2019). Under Ohio law, a bulk supplier has no duty to warn end users when it adequately warned a sophisticated intermediary and reasonably relied on it to pass the warning on. A plaintiff must offer evidence supporting a reasonable inference of a greater than fifty-percent chance of exposure to the defendant's product, and the opinion rejects a blanket rule that two or more suppliers to an intermediary defeats product identification.
• Thomas-Fish v. Avborne Accessory Group, Inc. (2019). Under federal pleading standards, a complaint that makes collective allegations against all defendants, without facts tying a particular defendant to the exposure or to successor liability, fails to state claims for strict liability, negligence, warranty, failure to warn, conspiracy, or punitive damages. Marketing an 'ultra-hazardous product' is not an independent cause of action under New Jersey law.
• Walls v. Ford Motor Co. (In re Asebestos Litigation) (2017). An error in a ruling that a manufacturer had no duty to warn about third-party replacement parts is harmless where the jury found the manufacturer was not negligent in failing to warn about its own original and replacement parts. The court did not decide whether an automobile manufacturer has a duty to warn about third-party replacement brake parts.
• Evans v. Foster Wheeler Energy, Corporation (2016). Under the federal officer removal statute, a defendant need only identify facts that, viewed in its favor, would establish a colorable government contractor defense, not prove the defense by a preponderance; the statute is broadly construed.
• Hillyer v. Mine Safety Appliances Co. (In re Asbestos Litigation) (2016). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-containing product and that the exposure was a substantial factor in causing the injury. A manufacturer is not liable for asbestos-containing parts it did not make or supply, and speculation cannot create a fact issue on product identification.
• Malone v. Air & Liquid Systems Corporation (2016). Under Mississippi law a plaintiff must show exposure to the defendant's asbestos-containing product with sufficient frequency, regularity and proximity, even in a mesothelioma case. A manufacturer of bare-metal equipment has no duty to warn about asbestos insulation made and supplied by others, and foreseeability of such use alone does not create that duty.
• Dougherty v. AO Smith Corporation (2014). A complaint's jurisdictional disclaimer does not defeat federal officer removal, but a post-removal express disclaimer of the claims supporting removal can be given effect, and the court then must decline supplemental jurisdiction over the state-law claims absent affirmative justification, favoring remand.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (2013). Under Delaware law, a manufacturer has no duty to warn of dangers from replacement parts it did not manufacture or distribute, and a motion for reargument fails when it only rehashes arguments the court already decided.
• Phillips v. Hoffman/New Yorker (In re Asbestos Litigation Phillips) (2013). Under Virginia law as applied by this court (following Merritt), a manufacturer's duty of care can extend to exposure from replacement parts made by a third party. A court has discretion to deny summary judgment when the record is confusing or insufficiently developed.
• Martinez v. EI DuPont De Nemours and Co. (2012). A parent corporation cannot be sued for its subsidiary's workplace conduct without specific pleaded facts of its own tortious acts. An absent foreign subsidiary that employed the worker and owned the plant is an indispensable party under Rule 19. Delaware forum non conveniens dismissal was warranted where the defendant was wrongly named in place of the foreign employer.
• Davis v. Crane Co. (In re Asbestos Litigation) (2011). Under maritime law, a plaintiff must show substantial exposure to asbestos from the defendant's own product; a valve maker is not liable for third-party asbestos packing, gaskets or insulation absent evidence it specified or required them.
• Olson v. Crane Co. (In re Asbestos Litigation) (2011). Applying Idaho law, the court predicted that Idaho would not impose a duty to warn on a manufacturer for hazards arising from asbestos-containing products or replacement parts that it did not manufacture, distribute, or sell, even if its own product incorporated similar components.
• Price v. EI DuPont de Nemours & Co. (2011). Claims that an employer failed to prevent a worker from carrying asbestos home or failed to warn the family are nonfeasance, not misfeasance. Absent a special relationship between the employer and the spouse, the employer owes her no duty of care.