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.

Louisiana

• Bell v. Foster Wheeler Energy Corp. (2017). Under the court's narrowed bare metal defense, a component maker can be liable under general maritime law if it substantially participated in integrating its part with asbestos products or recommended asbestos for use with its part. A manufacturer is not liable merely because asbestos ended up on its product, or because asbestos use was foreseeable.
• Coleman v. Anco Insulations, Inc. (2017). Rule 30(b)(6) topics must be relevant and proportional; general 'dust' topics were cumulative of the asbestos-specific topics, and post-employment information was not shown to be relevant because the tortious exposure period was during the decedent's employment.
• Bell v. Foster Wheeler Energy Corp. (2016). Under maritime law, a manufacturer is not liable merely because its product might foreseeably be used with asbestos; liability depends on whether it added the asbestos, took part in design integration, negligently entrusted a component, or negligently recommended asbestos use. The court rejected both the Sixth Circuit's absolute bare metal defense and the broader exceptions other courts have adopted.
• Weis v. Dsm Copolymer, Inc. (2016). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under a federal officer's direction and the plaintiff's claims, and for failure-to-warn and premises claims this requires evidence that the government controlled warnings or required the asbestos use, plus a colorable federal defense.
• Hayes v. Asbestos Corp. Ltd. (2015). Under the Louisiana Products Liability Act, a manufacturer is liable only for harm from a reasonably anticipated use of its product. The court held the brake drum blow out procedure was not a reasonably anticipated use in the 1990s, given the manufacturer's repeated warnings and instructions.
• Meyers v. Chesterton (2015). Plaintiffs' verified, binding disclaimer of strict-liability and design-defect claims was effective, and for failure-to-warn claims a federal officer removal defendant must show direct government control that prevented it from giving warnings, which was not shown.
• Savoie v. Pennsylvania General Insurance Co. (2015). To remove under the federal officer removal statute, a defendant must show a causal nexus between its actions under federal direction and the claims; for failure-to-warn and strict-liability claims, that requires showing the government directly controlled warnings or how asbestos materials were handled, not just that it mandated the materials. A federal defense such as the LHWCA cannot independently support removal.
• Wilde v. Huntington Ingalls Inc. (2015). Under the federal officer removal statute, a contractor must show the government directed or controlled the acts alleged to cause the injury; building vessels to Navy specifications, without government control over warnings or how asbestos was handled, does not satisfy the causal nexus requirement.
• Comardelle v. Pennsylvania General Insurance Company (2014). A contractor may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and raises a colorable federal defense. Removal proper as to one claim makes the whole case removable.
• Laurent v. City of New Orleans (2014). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and has a colorable federal defense; it need not prove the defense at the removal stage.
• Leonard v. Board OF Supervisors OF Louisiana State University and Agriculture and Mechanical College (2014). Under Louisiana law, a railroad carrier's duty is to inspect its railcars to make sure they are reasonably safe for use, and no duty was shown to protect or warn a person boarding cars about hazardous cargo.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A turbine manufacturer is not liable for asbestos-containing insulation that third parties made and applied to its bare metal turbines after delivery, absent evidence that it made, sold, supplied or distributed the insulation or that its employees attached it.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2012). 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's direction, has a colorable federal defense, and there is a causal nexus between plaintiff's claims and its federal acts; a design-defect claim satisfying this makes the whole action removable.
• Spillman v. Anco Insulations, Inc. (1st Circuit, 2008). A cause of action for a long-latency occupational disease accrues once there has been a significant tortious exposure, not at diagnosis. Under this circuit's precedent, mesothelioma was not covered by workers' compensation before the 1975 amendment, so the employer's immunity defense, on which the employer bears the burden, failed for a claim that accrued before 1952.
• Bradley v. Northrop Grumman Systems Corporation (2007). Removal under the federal officer statute requires that defendants acted under a federal officer's direction, with a causal nexus to the claims and a colorable federal defense. Defendants did not show government control over their safety and warning practices, so failure-to-warn claims lacked the required nexus and the federal defenses were not colorable.
• Faulkner v. McCarty Corp. (4th Circuit, 2003). A port authority that leased warehouses to stevedores with complete control, and that did not know asbestos was stored there, owed no duty under duty-risk analysis or La. R.S. 9:3221 and was not strictly liable under La. C.C. arts. 2317 and 2322. The Louisiana Supreme Court has rejected the public duty doctrine.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (4th Circuit, 2002). Under federal maritime law, a manufacturer is strictly liable if its asbestos product, unreasonably dangerous and sold without warnings, was a substantial contributing cause of the harm. A non-settling defendant is solidarily liable for the whole of the damages, less the fault share of the settling employer.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Halphen v. Johns-Manville Sales Corp. (1986). In Louisiana strict products liability, a manufacturer is liable for a product that is unreasonably dangerous per se or in construction or composition even if it did not and could not have known of the danger. Knowledge available to the manufacturer matters only under failure-to-warn and alternative-design theories.
• Halphen v. Johns-Manville Sales Corp. (1985). The en banc Fifth Circuit certified a question to the Louisiana Supreme Court asking whether a strict products liability manufacturer may avoid liability by showing it did not and could not have known of its product's danger; it did not decide the appeal between Halphen and Johns-Manville.

Maine

• Soucy v. Briggs & Stratton Corporation (2014). At the motion-to-dismiss stage, an asbestos plaintiff need not identify the particular products of each defendant, and need not allege what alternative warning should have been given, so long as the complaint gives fair notice and plausibly alleges how exposure occurred.
• Bernier v. Raymark Industries, Inc. (1986). In a failure-to-warn claim under Maine's strict liability statute, the manufacturer's actual or constructive knowledge at the time of sale is relevant, and wrongful death damages are available. An asbestos claim does not arise until physical injury manifests itself, not at inhalation, so the statute applies if the disease manifested after its October 3, 1973 effective date.
• Austin v. Unarco Industries, Inc. (1983). A shipyard worker's asbestos products liability claim against manufacturers is not within admiralty jurisdiction because his work was not traditional maritime activity. A bankruptcy debtor's automatic stay does not extend to solvent co-defendants. An appellate court applies a state-law clarification made after trial.

Maryland

• Coates v. Ford Motor Company (2020). A trial court has wide discretion to deny summary judgment and let a case go to trial, and a jury's weighing of conflicting expert evidence on exposure will not be disturbed. Res judicata and collateral estoppel do not apply where an appellate reversal and remand left no final judgment on the issues.
• Dugger v. Union Carbide Corporation (2019). A jury could infer from several witnesses' testimony that they did not recall seeing warnings on brake boxes, despite their regular handling of the brakes, that no warnings were present, which creates a genuine dispute of material fact on whether the warnings were adequate.
• Sawyer v. Union Carbide Corporation (2019). Under Maryland law, a supplier invoking the sophisticated user defense must show it reasonably relied on the intermediary to warn users, which requires evidence that it warned the intermediary or knew a warning was unnecessary. An employer's failure to warn is not a superseding cause unless it was extraordinary and unforeseeable.
• Estate of Schatz v. John Crane, Inc. (2018). Under Georgia-Pacific v. Farrar, a manufacturer's duty to warn a household member of take-home asbestos exposure depends on foreseeability weighed against policy factors including the parties' relationship and the feasibility and effectiveness of a warning; with no feasible or effective warning shown, no duty existed.
• Mack Trucks, Inc. v. Coates (2018). A jury instruction on a liability theory the evidence did not generate is reversible error when it prejudices the party, and pattern instructions must be tailored to the theories actually in the case. A party must object to allegedly inconsistent civil verdicts before the jury is discharged, and a party's out-of-court denial of liability is inadmissible hearsay even under the completeness doctrine.
• Hiett v. Ac&r Insulation Co., Inc. (2017). Under Georgia Pacific v. Farrar, an installer or distributor of asbestos products owes no duty to warn a household member of a worker-bystander for pre-1972 exposures. No practical way existed for a warning to the worker to avoid the harm, even if the defendant knew the danger. Farrar does not set a bright-line rule, but the plaintiffs' added facts did not distinguish it.
• Rockman v. Union Carbide Corp. (2017). Expert opinions that any asbestos exposure, however small, causes mesothelioma, or that tie low-level chrysotile bystander exposure to peritoneal mesothelioma without supporting data, do not satisfy Rule 702 and Daubert. Under Maryland's Balbos factors, brief bystander exposures during three short home repairs were not a substantial factor in causing the disease as a matter of law.
• Sawyer v. Foster Wheeler LLC (2017). A government contractor may remove under the federal officer removal statute if it acted under a federal officer, has a colorable government-contractor defense (shown where the government exercised discretion in approving warnings, the contractor gave them, and the government knew the hazards as well as the contractor), and the claims are connected to or relate to the federal act; a strict causal nexus is not required.
• Arbogast v. AW Chesterton Co. (2016). Under Maryland law a plaintiff must show exposure to respirable fibers from a specific defendant's asbestos-containing product with frequency, regularity and proximity. A manufacturer is liable for third-party asbestos used with its product only in the narrow circumstances described in May. A strict liability claim for a product sold before Phipps (1976) may proceed because the claim accrues at diagnosis.
• Rhodes v. McIC, Inc. (2016). A defendant seeking federal officer removal need only make a plausible, colorable showing of the government contractor defense, which can apply to failure-to-warn claims, and that showing ordinarily satisfies the causal nexus requirement. The court may retain supplemental jurisdiction over the non-federal claims, given the cross-claims and the need for economy and fairness.
• Sawyer v. Union Carbide Corporation (2016). To remove under the federal officer removal statute, a defendant must show a colorable federal defense and a causal nexus to conduct under federal direction; Navy control over warnings on delivered boilers did not extend to warnings for workers in the shipyard boiler shop.
• May v. Air & Liquid Systems Corp. (2015). A manufacturer has a duty to warn in negligence and strict liability about asbestos-containing replacement parts it did not supply when its product contains asbestos and no safer material is available, asbestos is critical to the product, periodic maintenance involving asbestos parts is required, and the manufacturer knows or should know of the risk.
• May v. Air & Liquid Systems Corporation (2014). A manufacturer has no duty to warn of the hazards of asbestos-containing replacement parts (here, gaskets and packing) that it neither manufactured nor placed into the stream of commerce, even if it was foreseeable that such parts would be used with its product.
• Sherin v. John Crane-Houdaille, Inc. (2014). Under Maryland law, a supplier owes no duty to warn unless a better warning could feasibly and effectively have prevented the harm, and the plaintiff must offer evidence that improved warnings to intermediaries would have prevented the take-home exposure. Testimony about the manufacturer name on a product container is circumstantial evidence of the manufacturer, not hearsay.
• Georgia Pacific v. Farrar (2013). Whether a manufacturer owes a duty to warn a household member of take-home asbestos exposure depends on what the manufacturer knew or should have known when the warning was due and on whether a warning could feasibly be given and be effective. Foreseeability alone does not establish the duty. In 1968-69 no such duty existed toward a household member.
• Joyner v. AC & R. Insulation Co. (2013). A removing government contractor need only plausibly allege that it acted under federal direction, has a colorable government contractor defense, and has a causal nexus to the claims; the court may sever the removed claims and remand the remaining state-law claims by declining supplemental jurisdiction.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Crane v. Linkus (2010). Expert testimony that a defendant's unencapsulated asbestos product released respirable fibers above ambient levels is not required; lay testimony of visible dust from regular handling, plus expert testimony on dose-response and no safe threshold, can let a jury infer substantial-factor causation. A defendant is not credited for payments from bankrupt entities absent proof of tortfeasor status or trust terms providing a reduction.
• Scapa Dryer Fabrics, Inc. v. Saville (2010). A defendant seeking to reduce a verdict for payments from bankruptcy trusts under Maryland's contribution act must prove the trusts are joint tort-feasors. JNOV in a jury trial requires a motion for judgment at the close of all evidence. A manufacturer's duty to warn can continue after the plaintiff's exposure, so later-dated evidence of its knowledge can be relevant.
• Scapa Dryer Fabrics, Inc. v. Saville (2009). Circumstantial evidence of regular, close-range exposure to a defendant's asbestos product meets Maryland's frequency-regularity-proximity test for substantial-factor causation. A party seeking a verdict reduction for payments by claimed joint tort-feasors, such as bankruptcy trusts, must prove their joint tort-feasor status. A duty to warn can continue after exposure ends, so later-dated evidence of the defendant's knowledge can be relevant.
• Wajer v. Baltimore Gas and Electric Company (2004). A premises owner that hires independent contractors is not liable to a contractor's employee under the retained-control rule (§ 414) or the safe-workplace rule (§ 343) unless it controlled the operative details of the very work that caused the injury; asbestos products the contractors brought in were their own work product, not a preexisting latent condition.
• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Hollingsworth v. Connor (2000). A nonresident component maker that sold its product to another company outside the forum, and did not direct activity at the forum, lacks minimum contacts even if it knew the product would be sold there. For Maryland's noneconomic damages cap, a mesothelioma cause of action arises when the disease is contracted, not at the first cellular change.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.