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.

Delaware

• In re Asbestos Litigation v. Adel Wiggins Group (2009). A defendant removing under the federal officer statute must show a causal connection between the federal direction it acted under and the claim; for a failure-to-warn claim, it must show the government directed or restricted warnings, which the affidavits did not do, so no colorable government contractor defense existed.
• Kirks v. General Electric Company (2009). A contractor may remove under the federal officer removal statute, construed broadly, when affidavits show the Navy controlled the warnings on its equipment, so that the failure-to-warn claims arise from acting under a federal office. The contractor must also raise a colorable federal contractor defense.
• Riedel v. Ici Americas Inc. (2009). Under the Restatement (Second) of Torts, an employer owes no duty to an employee's spouse absent a legally significant special relationship for a nonfeasance claim, and a party cannot argue on appeal a misfeasance theory not fairly presented to the trial court. The court declined to adopt the Restatement (Third) of Torts duty provisions.
• Threadgill v. Armstrong World Industries, Inc. (1991). There is no 'law of the district' binding one district judge to another's ruling, and a court must independently assess authenticity under Rule 901(b)(8), which asks whether a document is what it purports to be, not whether its content is complete or reliable.

District of Columbia

• Owens-Corning Fiberglas Corp. v. Henkel (1997). A Batson objection must be raised before the jury is sworn or it is waived; state-of-the-art evidence of what the industry knew is admissible to show what a manufacturer should have known; and the new one-year asbestos limitations statute (D.C. Code § 12-311) cannot be applied to bar a claim already accrued and timely under the prior three-year statute.

Florida

• Union Carbide Corporation v. Font (3rd District, 2020). A defendant may present evidence of alternative causes, such as a decedent's own sworn asbestos claims against non-parties, without proving those non-parties' fault by expert testimony; and a learned intermediary instruction must let the jury understand that reasonable reliance on an intermediary fulfills or discharges the duty to warn.
• Dugas v. 3M Company (2016). A dust mask not designed or marketed to protect against asbestos is not defectively designed for failing to do so, but a jury may find the manufacturer's warnings about its limits inadequate. A Florida fraud claim is barred when the last act of concealment fell outside the 12-year repose period.
• Aubin v. Union Carbide Corporation (2015). Florida keeps the consumer expectations test from the Second Restatement for strict liability design defect and does not require proof of a reasonable alternative design. Causation is judged by ordinary causation rules rather than by comparing the product with raw asbestos. A manufacturer may argue that it reasonably relied on a learned intermediary to warn end users, but it must request an accurate instruction on the defense.
• Dugas v. 3M Company (2015). Florida's heightened asbestos pleading requirement (Fla. Stat. 774.205) conflicts with Federal Rule 8 and does not apply in federal court. Fraudulent concealment claims must be pleaded with particularity under Rule 9(b), and lumping defendants together fails that standard.
• Faddish v. Buffalo Pumps (2012). Under maritime law, applying Florida substantive law, a manufacturer that sold 'bare metal' equipment and was not in the chain of distribution of the asbestos-containing insulation, gaskets or packing used with it has no duty to warn, in negligence or strict liability, about hazards from those third-party products.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts doctrine, adopted in this district, a component seller is liable for a design defect only if the defective design, not the raw material's natural dangers, caused the harm. Whether a bulk supplier could discharge its duty to warn by reasonably relying on intermediaries is a jury question, and an instruction omitting that was misleading.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts rule, which binds the Third District, a component supplier is liable for design defect only if the design, not the raw material's natural dangers, caused the harm. Whether a supplier discharged its duty to warn by reasonably relying on an intermediary is a jury question, and the jury must be told so.
• Honeywell International, Inc. v. Guilder (3rd District, 2009). A non-party's fault must be listed on the verdict form for apportionment once the defendant pleads it and presents sufficient evidence, and a child's parental consortium claim under section 768.0415 requires negligent acts on or after October 1, 1988, measured by the last exposure. Settlement proceeds are set off against the verdict in the same economic and noneconomic proportion as the jury's award.
• Marley v. Elliot Turbomachinery Co., Inc. (2008). For federal officer removal under 28 U.S.C. § 1442(a)(1), a defendant need only advance a colorable federal contractor defense and show a causal nexus to its official duties, without proving the defense on the merits. General affidavits from Navy admirals suffice at the removal stage.
• Davies v. Owens-Illinois, Inc. (3rd District, 1994). Knowledge that an officer or director acquires within the scope of his authority is imputed to the corporation, so a deposition showing a director's knowledge of asbestos dangers should not have been excluded as non-imputable to the defendant.
• Baione v. Owens-Illinois, Inc. (2nd District, 1992). When facts support both negligence and strict liability, a plaintiff may proceed on either or both, so dismissing strict liability counts in an asbestos case was error. A claim for punitive damages cannot be struck as a matter of law only because the defendant was previously assessed punitive damages in other cases.

Georgia

• Sinyard v. Georgia Power Company (2022). A premises owner that contracts to build for co-owners is a statutory employer immune from tort suit for that construction work. Otherwise, whether a premises owner had superior knowledge of the specific asbestos hazard, and whether it relinquished possession and control to the worker's contractor, are jury questions unless the worker's own employer had equal knowledge.
• Davis v. John Crane, Inc. (2019). In Georgia a plaintiff must show exposure to asbestos-containing products for which the defendant is responsible, and a plaintiff's own testimony from personal knowledge can meet that burden. A pump manufacturer is not liable for design or failure to warn over asbestos-containing replacement parts made by others (bare metal defense).
• Farmer v. Air and Liquid Systems Corporation (2018). Under Georgia law, an asbestos plaintiff must show exposure to asbestos-containing products the defendant made or supplied, or to a defendant's product that required an asbestos component to function. A successor that agreed to provide maintenance or repair services for a predecessor's products may be liable for failing to warn under Restatement (Third) of Torts § 13.
• Certainteed Corporation v. Fletcher (2016). A manufacturer's design-defect liability is judged under the Banks risk-utility test, not the CSX v. Williams employer-duty rule, and a defendant seeking summary judgment must show an absence of any evidence of defect. A manufacturer owes no duty to warn third parties, such as family members laundering a worker's dusty clothes, because the scope and mechanism of such warnings would be endless.
• Thurmon v. Georgia Pacific, LLC (2016). Under Georgia law, negligent design and failure-to-warn claims both require proof that the defendant's own product, as originally sold, proximately caused the injury. Exposure to third-party asbestos gaskets used on the defendant's valves was not enough, and the court did not need to adopt a general 'bare metal defense'.
• Fletcher v. Water Applications Distribution (2015). A manufacturer's duty in a design defect case is judged by risk-utility analysis, which is not limited to particular classes of people, so a household-exposure plaintiff's design and failure-to-warn claims against the manufacturer can go to a jury. A distributor lacking knowledge of the hazard and never possessing the product has no continuing duty to warn.
• Cabasug v. Crane Company (2013). Under maritime law the sophisticated user defense applies to both negligence and strict liability failure-to-warn claims. The sophisticated purchaser defense requires that the defendant knew the intermediary (the Navy) was aware of the asbestos dangers and reasonably concluded it would warn its employees, and the intermediary's knowledge alone is not enough.
• John Crane, Inc. v. Jones (2003). A trial court need not charge that exposure to a defendant's product must be a 'substantial' contributing factor; Georgia's joint tortfeasor rule requires only that the defendant's negligence be a contributing cause. A verdict will be upheld if any evidence supports it.
• John Crane, Inc. v. Wommack (1997). A jury verdict approved by the trial judge must be affirmed if any evidence supports it. Here there was evidence that the manufacturer knew or should have known of asbestos hazards, owed a duty to warn, that its packing released respirable fibers in foreseeable use, and that it contributed to the plaintiff's disease.

Hawaii

• Cabasug v. Crane Co. (2013). Under maritime law the sophisticated user defense applies to both negligence and strict liability failure-to-warn claims. The sophisticated purchaser defense requires proof that the defendant knew the intermediary (the Navy) was aware of asbestos dangers and reasonably concluded it would warn its employees; the intermediary's knowledge alone is not enough.
• Cabasug v. Crane Company (2013). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the exposure was a substantial factor in causing his injury. A manufacturer has no duty to warn about, and is not liable for, asbestos-containing replacement parts it did not manufacture or distribute.
• In re Hawaii Federal Asbestos Cases (1986). Predicting Hawaii Supreme Court law, the court held that state of the art is not a defense to strict products liability in either design defect or failure to warn cases, and that the consumer expectation test applies to asbestos products used in shipyards.

Illinois

• Johnson v. Edward Orton, JR. Ceramic Foundation (2023). Under Illinois law, a manufacturer is held to an expert standard of knowledge, including for the packaging it uses to ship its product, and is judged by the present state of human knowledge rather than the knowledge of its own industry.
• LaFever v. Ford Motor Company (3rd District, 2023). A trial court's grant of a new trial is reviewed for abuse of discretion; violating a specific order in limine, where the violation is clear and prejudices the moving party, can justify a new trial.
• Daniels v. Venta Corp. (2nd District, 2022). An employer's directive to a worker to do work that violates a licensing statute makes the employment contract unenforceable, so the workers' compensation exclusive remedy does not bar the claim. An allegation that the employer deliberately directed the worker to remove asbestos, knowing it would injure him, pleads an intentional tort, and a landowner who knows of a dangerous condition may owe a duty to a business invitee.
• Johnson v. Orton (2021). Under Illinois negligence law, a manufacturer's duty to warn depends on what it knew or should have known, judged by industry knowledge. A pyrometric cone maker that used vermiculite only as packing filler is not a vermiculite manufacturer and is held to the knowledge standard of the ceramics industry.
• Daniels v. ArvinMeritor, Inc. (1st District, 4th Division, 2019). A trial court may use the standard Illinois pattern proximate-cause instruction in an asbestos case, and need not give a 'substantial factor' instruction. A manufacturer that actually knew of the danger is not entitled to a 'state of the art' instruction, and settled defendants need not appear on the verdict form.
• McKinney v. Hobart Bros. Co. (4th District, 2018). A manufacturer owes no duty to warn of a hazard that was unknown to its industry when the product was made, and knowledge that raw asbestos was dangerous does not show knowledge that a product with encapsulated asbestos was dangerous. A plaintiff must also present evidence that exposure to the defendant's product was a substantial factor in causing the disease.
• Startley v. Welco Mfg. Co. (1st District, 2nd Division, 2017). Under Illinois's frequency, regularity and proximity test, which is less rigid for mesothelioma, testimony that a worker used a defendant's joint compound on some jobs, backed by expert evidence that low exposures contribute to the disease, can let a jury find a substantial factor. The injury occurred in Illinois, so Illinois law presumptively applies.
• Neumann v. Borg-Warner Morse Tec LLC (2016). Predicting Illinois law without guidance from the state supreme court, a federal court chose the narrower view and held that a product manufacturer owes no duty to a worker's family member in a take-home asbestos case, given the burden of guarding against the injury and the consequences of imposing that burden.
• Horrie v. AW Chesterton Company (2014). A defendant removing on the government contractor defense in a failure-to-warn case must show with specifics, such as contracts or Navy warning requirements, that the government controlled the warnings and that this conflicted with state law. Crane's general affidavits did not do so.
• Quirin v. Lorillard Tobacco Company (2014). Maritime law governs asbestos exposure during work on a Navy vessel. A valve maker may owe a duty to warn about asbestos gaskets and packing supplied by others where its valves needed asbestos components to function and those parts would be replaced with similar materials, but it owes no such duty for third-party insulation it did not supply.
• Totten v. Crane Co. (2014). A defendant sued over asbestos in products made for the Navy may remove under 28 U.S.C. § 1442(a)(1) if it is a person, acted at a federal officer's direction, has a causal link to the claims, and raises a plausible government contractor defense; it need not prove that defense at the removal stage. Attaching the wrong complaint to the notice of removal is a minor irregularity that does not defeat jurisdiction.
• Gillenwater v. Honeywell Intern., Inc. (4th District, 2013). A civil conspiracy proved only by circumstantial evidence needs clear and convincing proof, and parallel conduct that has a reasonable nonconspiratorial explanation is not enough. A manufacturer owes no duty to a worker's future spouse for an asbestos exposure that occurred before the marriage, so her consortium claim fails.
• Adams v. Armstrong International, Inc (2012). A defendant removing under the federal officer statute must show the federal government prevented it from complying with its state-law duty to warn; without that showing, the government contractor defense does not support federal jurisdiction and the case is remanded.
• Rodarmel v. Pneumo Abex, LLC (4th District, 2011). In 1953-1956 an employer owed no duty to warn of asbestos carried home on work clothing because such injury was not reasonably foreseeable, and parallel conduct plus trade-group membership, shared directors, and suppression of non-significant animal data did not clearly and convincingly prove a conspiratorial agreement.
• Sublett v. Air & Liquid Systems Corporation (2011). A removing defendant must show the Navy prevented it from complying with state-law warning duties to establish federal officer jurisdiction and the government contractor defense. Federal officer removal is read narrowly where only a private company's liability is at issue, and doubts are resolved in favor of remand.
• Vickroy v. AW Chesterton, Inc. (2011). A removing defendant under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense. For a failure-to-warn claim, it must show the Navy prevented it from complying with state-law warning duties, and doubts are resolved in favor of remand.
• Zickuhr v. Ericsson, Inc. (1st District, 6th Division, 2011). In an asbestos case a plaintiff shows causation by the frequency, regularity and proximity of exposure to the defendant's asbestos product, without proof of the exact quantity of fibers; the jury's credibility choices on product identification stand where evidence supports them.
• Glein v. Boeing Company (2010). A defendant removing under the federal officer statute on a failure-to-warn claim must show a causal nexus and a colorable government contractor defense, which requires that the government dictated or prevented warnings; mere Navy approval of warnings is not enough.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.
• Nolan v. Weil-McLain (4th District, 2006). Once a plaintiff meets the frequency, regularity and proximity test, the defendant is presumed a proximate cause and evidence of the decedent's other asbestos exposures is irrelevant; the defendant may rebut only by showing no exposure to its product, insufficient exposure, or too little asbestos in its product.
• Risch v. Paul J. Krez Co. (1st District, 6th Division, 1997). Under the construction statute of repose, protection turns on the defendant's activities rather than its status. A defendant that was only an insulation installer working on a labor and material basis is protected, and evidence of paying sales-type taxes did not show distinct sales activity.
• Costa v. Dresser Industries, Inc. (3rd District, 1994). Expert testimony from a witness disclosed months before trial was properly admitted under Illinois Rule 220 even though the plaintiff never served Rule 220 interrogatories, and consulting experts are discoverable only on a showing of exceptional circumstances. An instruction that mere presence of a product at a work site is insufficient to show exposure was erroneous but harmless where the jury found no mesothelioma.