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.

New Jersey

• Fuoco v. 3M Company (2015). Under maritime law, a plaintiff must show exposure to an asbestos-containing product made or supplied by the defendant and that it was a substantial factor in causing the injury; speculation that the worker was around the defendant's pump does not defeat summary judgment.
• Hammell v. Air & Liquid Systems Corporation (2015). Under maritime law, a manufacturer is not liable for, and owes no duty to warn about, asbestos-containing parts it did not manufacture or supply, and a plaintiff must show exposure to an asbestos product made or supplied by that defendant. The government contractor defense could not be resolved on summary judgment where there was a factual dispute over whether the Navy controlled warnings.
• Kaenzig v. Charles B. Chrystal Company, Inc. (2015). In an asbestos failure-to-warn case, a plaintiff must prove product-defect causation and medical causation, and exposure is a substantial factor if it meets the frequency, regularity and proximity test. Discovery of a non-testifying consulting expert's facts or opinions requires exceptional circumstances.
• Shearer v. AW Chesterton Company (2015). Under maritime law, which governed work aboard a dry-docked Navy ship, a manufacturer owes no duty to warn about asbestos products it neither made nor distributed, so a turbine maker is not liable for insulation applied after the turbine left its control.
• Haas v. 3M Company (2014). Under New Jersey's frequency, regularity and proximity test, a plaintiff must show exposure to an asbestos-containing component of the defendant's product; speculation does not suffice. A contractor meeting the three Boyle prongs is shielded from both design defect and failure-to-warn claims where the specifications are silent on warnings.
• Hammell v. Air & Liquid Systems Corporation (2014). A defendant removing under the federal officer removal statute need only identify facts which, viewed favorably to it, would establish a colorable government contractor defense; the court does not weigh credibility or the quantum of evidence at the removal stage.
• Papp v. Fore-Kast Sales Co., Inc. (2014). A private defendant seeking federal officer removal must show it acted under direct and detailed federal control over the challenged conduct; where the claim is only failure to warn, military control over design and manufacture is not enough without evidence the government barred warnings.
• Barile v. 3M Company, Inc. (2013). A builder of a custom boiler that is an improvement to real property is protected by the ten-year statute of repose, including for follow-up repairs and for strict liability claims based on standard asbestos insulation made by others. A landowner owes no duty to protect an independent contractor's workers from hazards inherent in the contracted work unless it controls the means and methods of that work.
• Olivo v. Exxon Mobil Corporation (2005). Under New Jersey's fairness-and-foreseeability duty analysis, a landowner that knew of asbestos hazards owed a duty to a worker's spouse who predictably came into contact with his asbestos-laden work clothes at home. The court limited the duty to the spouse and declined to extend it to unpredictable contacts such as car pool members.
• Feidt v. Owens Corning Fiberglas Corp. (1998). Under 28 U.S.C. § 1447(d), a remand order based on the district court's finding that removal jurisdiction was lacking under the federal officer removal statute is not reviewable on appeal, even if the court was wrong, and certification under § 1292(b) does not avoid that bar.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Becker v. Baron Bros. (1994). Asbestos-containing products sold without warnings are not defective as a matter of law across the board; where the product's dangerousness is genuinely disputed, the jury must decide that first. Beshada is limited to the state-of-the-art defense. If the product is found dangerous and a warning would not destroy its usefulness, the court may then find it defective as a matter of law, leaving proximate cause to the jury.
• Coffman v. Keene Corp. (1993). In a strict liability failure-to-warn case, the plaintiff may rely on a rebuttable presumption that he would have followed an adequate warning. In the workplace, the manufacturer can rebut it only by proving that the employee, with meaningful choice, or the employer would not have heeded a warning.
• Landrigan v. Celotex Corp. (1991). Under Rubanick, an expert's causation opinion in toxic-tort cases is admissible if based on sound, reliable methodology, and a qualified non-physician such as an epidemiologist may testify to specific causation; a plaintiff may proceed on both strict liability and negligence without being forced to elect.
• Campolongo v. Celotex Corp. (1988). Under Rule 42(b), a court may sever strict liability from negligence and punitive damage claims in an asbestos failure-to-warn case and bar conduct-related proofs, if defendants waive conduct-based defenses. The court also said an asbestos product sold without a warning may be treated as defective as a matter of law.
• Fischer v. Johns-Manville Corp. (1986). Punitive damages may be pursued and awarded in a strict liability, failure-to-warn products case, including asbestos cases, when the manufacturer knew of or was culpably indifferent to an unnecessary risk and refused to reduce the danger. The standard is a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.
• Beshada v. Johns-Manville Products Corp. (1982). In a strict liability failure-to-warn case, a manufacturer cannot defend on the ground that the danger was undiscoverable given the scientific knowledge when the product was marketed, because knowledge of the danger is imputed to the manufacturer.

New York

• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (1st Dept., 2025). Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.
• Ironshore Specialty Insurance Company v. Color Techniques, Inc. (2024). Under New York law, an insurer may use extrinsic evidence that merely clarifies which claims an underlying plaintiff actually brings, without going to the merits, to show no claim falls within coverage. Coverage for the insured's 'work' covers services, not products, so product-based claims fall under the products coverage and its asbestos exclusion.
• Pefanis v. AO Smith Water Prods. Co. (2024). A defendant seeking summary judgment on causation must affirmatively prove its product could not have contributed to the injury. Competing expert evidence on whether the product released asbestos is a battle of the experts that raises fact issues, as does evidence that a talc supplier knew of contamination and gave no warning.
• Howard v. AO Smith Water Prods. (3rd Dept., 2023). A defendant seeking summary judgment in an asbestos case must affirmatively show its product could not have contributed to the plaintiff's injury, and cannot merely point to gaps in the plaintiff's proof. Testimony that a plaintiff encountered the defendant's pumps, together with routine overhauls, raised a fact issue.
• McWilliams v. AO Smith Water Prods. Co. (2023). A verdict is set aside as against the weight of the evidence only if no valid line of reasoning could lead rational jurors to it, and pain-and-suffering awards receive great deference. Counsel who submit false discovery responses and let an expert give false testimony uncorrected engage in sanctionable frivolous conduct under 22 NYCRR 130-1.1.
• Pritt v. Air & Liquid Systems Corporation (2022). Under maritime law, a plaintiff must show exposure to the defendant's own product and that the product was a substantial factor in causing the disease. Minimal exposure, or exposure only to another maker's component, is not enough. Maritime law also allows loss of consortium and punitive damages in a non-Jones Act claim.
• Viglietta v. Asbestos Corp., Ltd. (Erie, 2022). Under Nemeth, an expert need not quantify exposure precisely if the methods used are generally accepted in the scientific community. Where a defendant invokes CPLR Article 16 apportionment, the plaintiff may invoke the reckless disregard exception of CPLR 1602(7).
• Berger v. Aerco Intl., Inc. (2021). Conflicting expert evidence on whether talc contained asbestos and caused the disease raises fact issues defeating summary judgment on causation. A bulk supplier that adequately warned the intermediary manufacturer, a sophisticated user, has no duty to warn the end user of the intermediary's finished products.
• Kriz v. Air & Liquid Sys. Corp. (Rockland, 2021). An asbestos defendant seeking summary judgment must first show that its product could not have contributed to the plaintiff's injury, and cannot meet that burden by pointing to gaps in the plaintiff's proof. A duty to warn in a take-home exposure case can extend to a roommate who lived in close quarters with the worker.
• Phelps v. CBS Corporation (2021). Under maritime law and Air & Liquid Systems v. DeVries, a boiler manufacturer has a duty to warn about third-party asbestos parts only if its product requires incorporation of the part, and plaintiff offered no admissible evidence that the boilers required asbestos insulation.
• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (4th Dept., 2020). A plaintiff need not quantify exposure precisely or use dose-response data to prove specific causation; evidence that the plaintiff was exposed to levels of the agent known to cause the harm, including expert opinion drawing on studies of similar work, suffices. A verdict sheet need not list loss of services and loss of society as separate items.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Proctor v. Burnham (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony raises credibility issues that cannot be resolved on papers.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough. New York does not recognize an independent cause of action for civil conspiracy to commit a tort.
• Decanio v. Kohler Co. (In re New York City Asbestos Litigation) (2019). A boiler maker seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the injury. Removing parts from boilers already disassembled by other trade workers was not shown to be an unforeseeable use or misuse, so that question was for a jury.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (Erie, 2019). A manufacturer has a duty to warn of dangers from the known and reasonably foreseeable use of its product with a third-party product needed for it to function as intended. Specific causation does not require precise quantification of dose, only evidence that the plaintiff was exposed to levels of the agent known to cause the harm.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2019). A jury's findings of exposure and recklessness stand if supported by legally sufficient evidence, but damages awards that deviate materially from reasonable compensation under CPLR 5501(c) must be reduced or retried.
• Olson v. Brenntag N. AM. Inc. (2019). Due process bars punishing a defendant for harm to nonparties, so punitive-damages evidence must be tied to the conduct that harmed the plaintiff; post-injury conduct that could not have harmed plaintiffs is inadmissible, while out-of-state conduct and advertisements that are part of the same course of wrongful conduct may be admitted to show reprehensibility.
• Cavalieri v. A.O. Smith Water Prods. Co. (In re Eighth Judicial District Asbestos Litigation) (Erie, 2018). Hockler v William Powell Co. is limited to salvage workers; a plumber who disassembles boilers while replacing them as part of his regular work is not barred from claiming against the boiler manufacturer.
• Prokocimer v. R.J. Reynolds Tobacco Co. (In re New York City Asbestos Litigation) (2018). Summary judgment is denied where the plaintiff's evidence raises triable issues of fact on whether defendants knew or should have known of asbestos hazards. Unopposed loss of consortium claim may be dismissed.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2018). A jury verdict is set aside only if it could not be reached on any fair interpretation of the evidence, but damages that deviate materially from reasonable compensation must be reduced. A boiler maker has a duty to warn of asbestos hazards from foreseeable removal of its boilers and the asbestos components used with them.
• Robaey v. Air & Liquid Sys. Corp. (2018). Repeated exposure to visible dust from a defendant's asbestos gaskets, shown by its consistency, duration and intensity, can supply enough evidence of exposure to support an expert's specific-causation opinion under Parker; Juni does not require mathematical modeling or product-specific studies. A recklessness finding based on knowledge of asbestos hazards and failure to warn is not a finding of solely intentional conduct.
• Shulman v. Brenntag N. AM., Inc. (2018). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's illness, and speculative or conclusory expert affidavits fail that burden. Conflicting expert evidence on whether talc was contaminated with asbestos raises fact issues for trial.
• All Craft Fabricators, Inc. v. Atc Assoc., Inc. (2017). A manufacturer has no duty to warn of latent dangers that do not arise from the intended or reasonably foreseeable use of its product; cutting into asbestos-core fire doors and panels during refurbishment was not an intended use.
• Donohue v. CBS Corporation (2017). A defendant seeking federal officer removal under 28 U.S.C. § 1442(a)(1) need only make a colorable showing that it acted under a federal officer, has a colorable federal defense, and has a causal nexus to the federal directive, without proving the defense on the merits. Removal by one such defendant brings the whole case, including non-removing co-defendants, into federal court.
• Brown v. Consolidated Edison Co. of New York (In re New York City Asbestos Litigation) (2017). Where a non-party employer appears on the verdict sheet only as a manufacturer that failed to warn, and the plaintiff was exposed to its products before working for it, the workers' compensation bar does not remove it from CPLR article 16 apportionment, so its share is not shifted to a co-defendant.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). A manufacturer of a grinder used on asbestos-containing brake linings has a duty to warn of the latent danger from the foreseeable use of its product, and expert testimony that the grinder's use created asbestos dust sufficient to cause mesothelioma was adequate to establish causation.
• Finerty v. Abex Corp. (2016). A parent corporation that is not itself a manufacturer, seller or distributor in the chain of distribution cannot be held strictly liable for its subsidiary's products unless the corporate veil can be pierced; being in a position to exert pressure on a subsidiary or controlling a trademark does not create strict liability.
• Holzworth v. Alfa Laval Inc. (2016). A plaintiff must show exposure to the defendant's own asbestos-containing product, and a pump maker has no duty to warn about third-party asbestos parts used with its pumps absent evidence it had an active role, interest or influence in their use. Under maritime and New York law alike, wrongful death claims fail if the underlying liability claims fail.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (2016). A manufacturer that knew its product would mainly be used with asbestos-containing brakes and designed it for that use may be held to have a duty to warn. Visible dust from an asbestos-containing product can support expert testimony on specific causation of mesothelioma without precise dose quantification.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). A manufacturer that promoted and sold asbestos insulation for its boilers, and for which insulation was a practical necessity, could be held to have a duty to warn of asbestos hazards. Unpreserved objections to jury instructions are not reviewed.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). Applying the Court of Appeals' 2016 standard, a manufacturer may be liable for failing to warn of asbestos hazards in insulation used with its products where it promoted and sold that insulation and its products needed insulation to operate safely and efficiently.