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.

Maryland

• Adams v. Owens-Illinois (1998). A trial judge's rulings on juror challenges, new trial motions and evidence are reviewed only for abuse of discretion, and the appellate court does not reweigh the evidence or expert credibility. Absent a showing of prejudice, and given a verdict that is not irreconcilably defective, the judgments stand.
• Ford Motor v. Wood (1998). A bystander plaintiff must show frequent, regular exposure to the defendant's own asbestos products, and a vehicle maker has no duty to warn about replacement brake parts it did not make, sell or place in commerce. Evidence of exposure to other asbestos products is admissible as an alternative cause only if the proffered exposures could have caused the disease.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• ACandS Inc. v. Asner (1996). Threshold limit value evidence is relevant state of the art evidence in negligence and strict liability failure-to-warn claims, and evidence of exposure to non-parties' asbestos products is not per se irrelevant. Punitive damages require clear and convincing proof that the defendant, when the product left its control, actually knew of the danger to bystanders and consciously disregarded it.
• Owens-Corning Fiberglas Corp. v. Baltimore City (1996). To recover punitive damages in a non-intentional product case, the plaintiff must prove by clear and convincing evidence that the defendant actually knew, before the product left its control, that it posed a serious risk to the class of persons at issue; knowledge of danger to asbestos trade workers does not show knowledge of danger to ordinary building users.
• ACandS, Inc. v. Asner (1995). A punitive damages claim in a products liability case goes to the jury if the plaintiff offers evidence that could clearly and convincingly show actual malice (actual knowledge of the hazard and conscious disregard of it). Exposure to the products of non-party companies is irrelevant to whether a defendant's product was a substantial factor. A spouse's death ends the measure of consortium damages but not the consortium claim, and solatium damages may also be recovered.
• US Gypsum v. Baltimore (1994). A building owner seeking asbestos removal costs may sue in tort because the defect creates a substantial risk of personal injury, and a post-sale duty to warn applies. Punitive damages require clear and convincing proof that the defendant actually knew, at the time of sale, that its product endangered ordinary building users.
• Eagle-Picher Industries, Inc. v. Balbos (1992). A nonmanufacturing supplier-installer of asbestos is held to a 'should have known' standard in a negligent failure-to-warn claim. A bystander plaintiff must show frequent exposure near regularly used products of the particular defendant to prove substantial-factor causation, and 'fiber drift' alone is not enough. A sophisticated-user instruction requires evidence that the supplier reasonably relied on the intermediary, and punitive damages require actual malice shown by clear and convincing evidence.
• Owens-Illinois, Inc. v. Armstrong (1992). A trial judge may exclude a document that technically qualifies as a business record if the objecting party shows it lacks the usual reliability, though a heavy burden applies. A cause of action arises under the noneconomic damages cap when it comes into existence, not when it is discovered. The contribution statute does not reduce a nonsettling defendant's liability by another defendant's punitive damages settlement.
• Eagle-Picher Industries, Inc. v. Balbos (1990). A jury's negligence verdict was upheld despite arguably inconsistent findings, and a defendant's failure to warn was a cause-in-fact of harm to bystander shipyard workers, with expert evidence of asbestos fibers drifting supporting the inference that bystanders were exposed. Suppliers could not rely on the employer as a sophisticated purchaser. Punitive damages require direct evidence of substantial knowledge that the product itself was dangerous and gross indifference to that danger.

Massachusetts

• Cook v. Foster Wheeler Energy Corporation (2023). Summary judgment is not appropriate where significant facts are genuinely in dispute, such as whether gaskets contained asbestos, what the Navy permitted regarding warnings, and whether DCo supplied asbestos gaskets.
• Pritt v. John Crane, Inc. (2022). A magistrate judge's pretrial ruling is set aside only if clearly erroneous or contrary to law. Challenges to an expert's reliability and interpretation of military specifications go to weight and credibility for the jury, not admissibility, under Rule 702 and Daubert.
• Pritt v. John Crane, Inc. (2022). A contractor asserting the government contractor defense on summary judgment must show no genuine dispute on all three Boyle prongs; disputes over what warnings and specifications the Navy required preclude judgment. Derivative sovereign immunity does not protect a contractor from liability for its own negligence.
• Sebright v. General Electric Co. (2021). Under maritime law, a manufacturer's duty to warn under the DeVries test can reach asbestos insulation added to its bare-metal product if the product required insulation to function, and the court treats the sophisticated purchaser defense as unavailable where a risk and burden balancing weighs for the Navy sailor. A plaintiff must also show that a defendant's specific product contained asbestos, and loss of consortium and parental society claims are not available under general maritime law in this circuit.
• Stearns v. Metropolitan Life Insurance Co. (2018). The Massachusetts six-year statute of repose for improvements to real property does not bar asbestos claims against a contractor like GE, given the long latency of asbestos disease, known risks and GE's continuing control of the site. A premises owner is not liable to an independent contractor's employee for asbestos hazards the contractor's own work created, or for a contractor's negligence where the owner kept no real control over the work.
• Morin v. AutoZone Northeast, Inc. (2010). A plaintiff in an asbestos case must show product identification, exposure, and that the exposure was a substantial contributing factor. Evidence of the defendant's product at the work site and of the plaintiff's close proximity to it is enough to reach a jury, but exposure that is only insignificant or de minimis is not.
• Holdren v. Buffalo Pumps, Inc. (2009). To remove a failure-to-warn case under the federal officer removal statute, a government contractor must show reasonably precise government specifications or other evidence that the government exercised discretion over asbestos warnings, creating a genuine conflict with state law, plus a causal link. Government silence on warnings is not enough.
• Hilbert v. McDonnell Douglas Corp. (2008). To remove a failure-to-warn case under the federal officer removal statute, a contractor must make a colorable showing that the government exercised discretion and imposed reasonably precise warning specifications, creating a conflict with state law. Conclusory affidavits that cite no contract or regulation do not meet that burden.
• O'connell v. Foster Wheeler Energy Corp. (2008). To remove under the federal officer removal statute, a defendant need only plausibly show a military contractor defense to a failure-to-warn claim: the government approved reasonably precise warnings, the contractor complied, and the contractor warned the government of hazards the government did not know. A plaintiff's disclaimer of federal claims does not defeat this removal.
• Hilbert v. Aeroquip, Inc. (2007). A defendant removing under the federal officer statute must show a causal nexus between its actions under federal direction and the claims, plus a colorable federal defense. Northrop did not show that the Navy prevented it from giving state-law warnings, so removal failed.
• Thayer v. Pittsburgh-Corning Corporation (1997). Under Vassallo, a defendant is not liable under the implied warranty of merchantability for failure to warn of risks not reasonably foreseeable at the time of sale, so state of the art evidence is relevant. Lack of privity is judged by the date of injury, not the date of exposure or sale.

Michigan

• Allen v. Owens-Corning Fiberglas Corp. (1997). Evidence of a plaintiff's exposure to other manufacturers' asbestos products is relevant to whether the defendant's product was a substantial factor in causing the injury, but its exclusion is harmless where the plaintiff's evidence independently showed substantial exposure to the defendant's product. A manufacturer who knew of asbestos harms must warn even if it did not know of the specific disease that resulted.

Minnesota

• Conwed Corp. v. Union Carbide Corp. (2003). Under Minnesota law, a supplier's reliance on a purchaser to warn its employees must be reasonable, which depends on the supplier's own knowledge of the hazard, including any knowledge superior to the purchaser's. To the extent Gray v. Badger Mining says otherwise, the court predicted the Minnesota Supreme Court would not follow it.
• Kath v. Burlington Northern R. Co. (1989). Failure to object at trial to a special verdict form or to refused instructions waives the objection on appeal. Averaging juror damage estimates is not misconduct without proof of an advance agreement to be bound by the average.
• Bertrand v. Johns-Manville Sales Corp. (1982). Under the flexible approach to offensive collateral estoppel, defendants may be barred from relitigating that asbestos dust can cause asbestosis and mesothelioma. They may not be estopped on other issues based on earlier trials in which many of them did not take part, because that would violate due process.

Mississippi

• Dickens v. A-1 Auto Parts & Repair Inc. (2019). Under the Mississippi Product Liability Act's innocent seller provision, a seller is not liable unless it controlled the product's manufacture, altered it, or knew of the defect. A general allegation of failure to warn does not plead actual or constructive knowledge, so the defense appeared on the face of the complaint.
• Union Carbide Corporation v. Nix (2014). A manufacturer's compliance with the OSHA warning wording does not make its warning adequate as a matter of law, and expert testimony is not required where a warning's adequacy is within a layperson's understanding. A judge's comments suggesting the compensatory award was too low can taint a punitive award submitted right after.
• McCarty v. Johns-Manville Sales Corp. (1980). In a diversity case the federal court applies state collateral estoppel law, and Mississippi requires mutuality of parties. Even under federal non-mutual offensive estoppel, it would not apply here because the issues were not identical, the earlier results conflicted, and the defendants could not have foreseen the later litigation.

Missouri

• Poage v. Crane Co. (Eastern District, 2nd Division, 2017). A plaintiff can show a valve maker's product was a substantial factor in causing mesothelioma through a co-worker's testimony about shared work on the valves, and the maker owes a duty to warn and to design safely where its valves required or specified asbestos gaskets and packing. Missouri's statutory cap on punitive damages does not apply to this wrongful death action, and a defendant's setoff under § 537.060 is limited to settlements actually reached, not possible future asbestos trust recoveries.
• Wagner v. Bondex International, Inc. (Western District, 2012). Missouri requires but-for causation (the substantial factor test applies only in two-fires cases), and a plaintiff must identify the defendant's asbestos-containing product as the source of exposure. Section 537.060 reduces a judgment only by settlements actually made, not by trust payments the plaintiff never sought.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.
• Nugent v. Owens-Corning Fiberglas, Inc. (Eastern District, 3rd Division, 1996). A trial court has broad discretion over use of a deposition, and when a party uses part of it the other side may use the rest to explain. It also has discretion to limit expert testimony to each expert's area of expertise and to allow exhibits to be published to the jury in booklets.
• Clayton Center Assoc. v. WR Grace & Co. (Eastern District, 2nd Division, 1993). A building owner may recover in strict liability and negligence for asbestos contamination of the building from a fireproofing product. A claim accrues when asbestos fibers are released and a substantial, unreasonable risk of harm can be ascertained, and the economic loss doctrine does not bar recovery for damage to property other than the product itself.
• Speck v. Union Elec. Co. (Eastern District, 2nd Division, 1987). An employer's intentional conduct falls outside workers' compensation exclusivity if the employer acts with a specific purpose to injure, which includes being substantially certain that injury will result. The compensation statute still bars claims for the initial occupational disease, but a claim for intentionally withholding health information may proceed.

Montana

• Maryland Cas. Co. v. Asbestos Claims Court (2020). A party that affirmatively undertakes to render services to a third party owes a duty to others only if the Restatement (Second) of Torts § 324A conditions are met, together with foreseeability and public policy. Here the workers' compensation insurer assumed a distinct part of the employer's safety duty and the employer relied on it, so the insurer owed the workers a duty to warn of airborne asbestos.
• Orr v. State (2004). State health and industrial hygiene statutes imposed a duty on the State to protect workers by warning them of known workplace dangers, and a special relationship took the case outside the public duty doctrine. Neither federal mine-safety law nor pre-1973 sovereign immunity barred the claims, because the claims accrued only when the injuries became manifest, after immunity was abolished.

New Jersey

• Losurdo v. Viacomcbs Inc. (2025). Under maritime law and DeVries, a manufacturer's duty to warn turns on whether it directed incorporation of asbestos parts, knew the integrated product was dangerous, and had no reason to believe the sailors using it would know of the danger. Under Miles, punitive and loss-of-consortium damages are not available in a maritime wrongful death action.
• McDERMID v. 3M Company (2023). A turbine maker whose engineers only gave technical advice, with no contractual duty over worker safety, owed no duty of care to supervise or warn the owner's employees; the employer had the non-delegable duty. Asbestos blankets and components that were part of the original design of the turbines remained improvements to real property during later overhauls, so the ten-year statute of repose barred the claims.
• Fowler v. Akzo Nobel Chemicals, Inc. (2022). An asbestos manufacturer or supplier that puts inadequate warnings on its asbestos bags has breached its duty to the worker, even if it gave adequate information to the employer. A medical-causation charge on the substantial factor test was sufficient even though it did not use the Sholtis 'frequency, regularity and proximity' wording.
• Marino v. Abex Corporation (2022). A trial court may sanction a party for violating a discovery consent order by directing a verdict on duty and breach, and on general causation, where the violation was deliberate and the sanction fit it. Admitting a doctor's out-of-court statement about the cause of the disease was an error that did not warrant reversal.
• Fowler v. Akzo Nobel Chemicals, Inc. (2021). A manufacturer cannot delegate its duty to warn to an employer but may discharge it, if reasonable under the circumstances, by giving adequate warnings to the employer; the jury must be told this. In multi-defendant asbestos cases, medical causation instructions must include the frequency, regularity and proximity test, not just a general proximate cause charge.
• Hammell v. Air & Liquid Systems Corporation (2020). Under the DeVries test applied in maritime law, whether a manufacturer had a duty to warn about asbestos-containing parts made by others depends on factual questions: whether its product required the part, whether it knew the integrated product was dangerous, and whether it had reason to think users would realize the danger. Disputed facts about what the Navy knew also defeated summary judgment on the government contractor defense.
• Fishbain v. Colgate-Palmolive Company (2019). A trial court does not abuse its discretion by excluding tangible samples whose chain of custody over about forty years is not shown under N.J.R.E. 901. Evidentiary errors, such as hearsay from a corporate representative and an FDA letter, are not grounds for reversal unless clearly capable of producing an unjust result.
• Whelan v. Armstrong International Inc. (2019). A manufacturer or distributor can be strictly liable for failing to warn about its product's asbestos-containing components and a third party's replacement components, if the original components were integral to the product, routine maintenance required replacing them with similar asbestos-containing parts, and exposure was a substantial factor in causing the disease.
• Thomas-Fish v. Aetna Steel Products Corp. (2018). A contractor building a government vessel under agency contracts satisfies the 'acting under,' 'for or relating to,' and colorable federal defense requirements of 28 U.S.C. § 1442(a)(1) without showing detailed federal control or a specific federal directive on warnings. A facial challenge accepts the removal notice's allegations as true.
• Whelan v. Armstrong International Inc. (2018). A manufacturer has a strict-liability duty to warn when its product as marketed contained asbestos components integral to its function and it reasonably knew routine maintenance would require replacing them with other asbestos components. The duty extends to the danger from those replacement parts even if the manufacturer did not make or supply them.
• Fowler v. Akzo Nobel Chemicals, Inc. (2017). In an asbestos case, a plaintiff can show exposure to a particular defendant's asbestos through circumstantial evidence under the frequency, regularity and proximity test. Regular direct handling of asbestos, together with large documented deliveries by the defendant to the workplace, is enough to reach a jury.
• Whelan v. Armstrong Int'l (2016). A manufacturer has a strict-liability duty to warn about asbestos in replacement parts it did not make or sell if its product as marketed contained asbestos components integral to its function and it was reasonably aware routine maintenance would replace them with other asbestos-containing parts. The court disagreed with Hughes v. A.W. Chesterton, and plaintiff must still show frequent, regular and close exposure to the complete product, including necessary replacement parts.
• Estate OF Brust v. Acf Industries, LLC (2015). The Locomotive Inspection Act preempts state-law design and failure-to-warn claims about locomotive equipment even when the user is an urban rapid transit operator not subject to federal railroad regulation. A plaintiff must show asbestos exposure to the defendant's product that was frequent, regular and in close proximity to establish substantial-factor causation.
• Feaster v. AW Chesterton Company (2015). Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the injury, including that the defendant made or distributed the asbestos-containing product. New Jersey law would give the same result because liability requires an asbestos-containing product made or supplied by the defendant.