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 York

• Mtr OF Nyc Asbestos Litig. (2016). A manufacturer has a duty to warn of the danger from the known and reasonably foreseeable use of its product together with a third-party product that, by design, mechanics or economic necessity, is necessary for the manufacturer's product to function as intended. Foreseeability alone does not create the duty.
• Finerty v. Abex Corp. (1st Dept., 2015). A parent company is not liable on a veil-piercing theory, but fact issues exist whether it may be directly liable for its role in standardizing and distributing a subsidiary's asbestos-containing parts. Personal jurisdiction over a foreign subsidiary under CPLR 302(a)(3)(ii) requires that it reasonably expected the out-of-state exposure to have consequences in New York.
• Gonzales v. AO Smith Water Prods. Co. (2015). A manufacturer of a safe (bare metal) product may have a duty to warn about asbestos components used with it if it had a sufficiently significant role, interest, or influence in the type of component used after the product entered the stream of commerce; evidence of such a role raises a triable issue.
• Hockler v. William Powell Company (1st Dept., 2015). A manufacturer is not liable in strict products liability or negligence where the plaintiff's injury came from dismantling or salvaging the product for scrap, because that is neither an intended use nor a reasonably foreseeable one. Without a foreseeable use, there is also no duty to warn.
• Hernandez-Vega v. Fisher Controls Int'l (In re New York City Asbestos Litigation) (2015). A defendant moving for summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's injury, and personal jurisdiction defenses not raised in a pre-answer motion or the answer are waived under CPLR 3211(e). A valve maker with a sufficiently significant role, interest or influence in the asbestos parts used with its valves may be liable even if the valve was "bare metal."
• Ricci v. Crane Co. (In re New York City Asbestos Litigation) (2015). A valve maker has no duty to warn about other makers' asbestos components unless it had a sufficiently significant role, interest or influence in the components used with its product. A defendant seeking summary judgment must unequivocally show that its product could not have contributed to the injury, and weighing equivocal identification testimony is for the jury.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (2015). A verdict is set aside as a matter of law only where no valid line of reasoning could support it. Testimony on cumulative asbestos exposure, together with evidence of exposure to the defendant's equipment, can establish causation under New York's Frye standard. Awards that deviate materially from reasonable compensation must be reduced.
• Hackshaw v. Crane Co. (In re New York City Asbestos Litigation) (2015). A verdict may be set aside only where no valid line of reasoning could support it. A manufacturer with a significant role, interest or influence in the asbestos components used with its products may owe a duty to warn, and evidence of that role supported the failure-to-warn and recklessness findings. Awards that deviate materially from reasonable compensation are reduced under CPLR 5501(c).
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (Erie, 2015). A trial court may set aside a damages award that deviates materially from reasonable compensation and order a new trial unless the defendant stipulates to a higher award. The jury's allocation of 100% fault to the defendant was a fair reading of the evidence, and New York law applied because the plaintiff lived in New York when first exposed.
• Smith v. AO Smith Water Prods. (2015). The First Department's Hockler decision is limited to salvage work and does not bar strict liability claims by skilled tradesmen who disassemble products during routine maintenance or renovation; whether such disassembly was foreseeable is a question of fact.
• Vellucci v. Borg-Warner Corp. (2015). A manufacturer of a brake-grinding machine, whose intended use necessarily creates asbestos-containing dust from brake shoes, has a duty to warn of asbestos hazards; Rastelli's rule limiting the duty to warn about other makers' products does not apply.
• Crews v. Air & Liquid Systems Corporation (2014). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing the injury. A plaintiff who cannot tell which of two similarly named companies supplied the product offers only speculation, and the defendant has no duty to warn about third-party products used with its valves.
• Cuomo v. Crane Co. (2014). To remove under the federal officer removal statute, a defendant need only offer some competent evidence of a colorable federal contractor defense; the court does not resolve the merits or factual disputes. For failure-to-warn claims, the government need not have dictated the literal text of a warning, only approved reasonably precise specifications and controlled the nature and content of the warnings.
• Hockler v. The William Powell Co. (In re New York City Asbestos Litigation) (2014). Foreseeability of use or misuse of a product is generally a fact question for trial, and a manufacturer that sells asbestos-containing gaskets and packing for its valves may have a duty to warn of asbestos hazards whether or not it made those components.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• Wiacek v. 3M Co. (2014). A design defect claim against a product maker needs expert proof of a feasible safer design, so plaintiffs without an expert cannot defeat summary judgment. The adequacy of a warning is ordinarily a question of fact, and compliance with NIOSH standards does not by itself bar a state-law failure to warn claim.
• Barawa v. Acker Drill Co. (2013). Plaintiff's testimony of exposure over twenty-plus years to new and old clutches and head gaskets, with documents showing Ford sold asbestos-containing components from suppliers, lets a jury reasonably infer exposure to original Ford parts. An unsupported affidavit first submitted in reply cannot meet the defendant's burden.
• Frieder v. Long Is. RR (2013). A landowner that controls the premises and its employees can owe a duty of care to a diner worker on its property exposed to asbestos dust carried on its employees' work clothes, and circumstantial evidence of exposure can raise a question of fact defeating summary judgment.
• Logan v. AP Moller-Maersk, Inc. (2013). In asbestos cases a plaintiff may defeat summary judgment by showing facts from which exposure to the defendant's product can reasonably be inferred. Flawed or unrepresentative test samples, conflicting evidence on whether the supplier's asbestos was in the joint compound, and open questions about the adequacy of warnings leave triable issues of fact.
• Lowe v. Aerco Intl., Inc. (2013). A plaintiff need only show facts and conditions from which a defendant's liability may be reasonably inferred, so a co-worker's testimony that Crane valves were among those worked on raised a fact issue. A valve maker that designed and supplied its valves for use with asbestos-containing insulation, gaskets and packing has a duty to warn of asbestos hazards.
• Macek v. CBS Corporation (2013). Conflicting testimony about whether the joint compound contained the defendant's Calidria asbestos, and factual questions about the adequacy of its warnings to its direct customer, prevented summary judgment. The bulk supplier, sophisticated intermediary and knowledgeable user doctrines did not relieve the supplier of liability as a matter of law on this record.
• Peraica v. Crane Co. (Matter of New York City Asbestos Litig.) (2013). Under New York law, whether a manufacturer of a bare-metal product had a duty to warn of asbestos insulation others applied to it after sale is a question of fact for the jury where the manufacturer knew or should have known the product would be used with asbestos-containing materials. A court may reduce a jury award that deviates materially from reasonable compensation.
• McDonald v. CBS Corp. (2013). A manufacturer seeking summary judgment cannot rely on a conclusory, unsupported affidavit that asbestos-containing replacement pads were not required for its presses, particularly where catalogs show it advertised and supplied asbestos pads, and summary judgment is not granted where a triable issue of fact exists.
• Vega v. Georgia-Pacific, LLC (2013). Whether a raw asbestos supplier's warnings to its customer were adequate, and whether the bulk supplier, sophisticated intermediary or knowledgeable user doctrines apply, are fact questions for a jury; conflicting evidence about which supplier's asbestos was in the joint compound also precludes summary judgment.
• Feinberg v. Colgate-Palmolive Co. (2012). The 1997 FDCA cosmetics preemption clause does not apply retroactively to product use that ended decades earlier. Without a binding FDA regulation on cosmetic talc labeling, there was no express or implied preemption of the state failure-to-warn claim, and primary jurisdiction did not require dismissal.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (2012). A valve manufacturer may owe a duty to warn about asbestos gaskets, packing and insulation made by others when it meant its valves to be used with them or knew or should have known they would be. Under CPLR Article 16, the Navy is not counted in apportioning fault because Feres and the grave-injury rule bar suit against it.
• Romero v. AC & S., Inc. (2012). A plaintiff can reach a jury on product identification by showing facts from which exposure to asbestos from the defendant's product can reasonably be inferred. A valve maker that designed and supplied its products for use with asbestos-containing gaskets, packing and insulation has a duty to warn of asbestos hazards, even if it did not make or specify those components.
• Defazio v. Chesterton (2011). A manufacturer may have a duty to warn about third-party asbestos components such as packing and insulation when it knew or should have known its product would foreseeably be used with them. Rastelli and Berkowitz are consistent applications of that foreseeability principle.
• Penn v. Amchem Products (1st Dept., 2011). Viewed in the light most favorable to the prevailing plaintiffs, evidence that Kerr's name was on the liner boxes, that Kerr supplied such liners to the schools, and that Kerr did not test the liners' safety permitted the jury to find product identification, causation and a failure to warn. Objections to summation and to an allegedly inconsistent verdict that were not raised in time were unpreserved.
• Penn v. Amchem Products (1st Dept., 2010). Viewed in the light most favorable to the plaintiffs, evidence that boxes bore the defendant's name, that it supplied liners to the school, and that visible dust arose with expert testimony on dose was enough for the jury to find product identification, causation and failure to warn.
• Stewart v. AO Smith Water Products (2010). A plaintiff must show actual exposure to fibers from the defendant's own asbestos-containing product; a manufacturer is not liable to warn about other manufacturers' replacement parts used with its product where the connection is too attenuated and speculative.
• Curry v. American Standard, Inc. (2009). A defendant removing under the federal officer removal statute need only show it acted under a federal officer, that the claims relate to those acts, and that it has a colorable federal defense, not a clearly sustainable one. The government contractor defense may be asserted against state-law failure-to-warn claims.
• Flynn v. AO Smith Water Prods. (2009). Questions of fact about whether ship owners had actual or constructive knowledge of asbestos hazards preclude summary judgment on a Jones Act claim, and a vessel with friable asbestos can be unseaworthy regardless of the Coast Guard's insulation requirements.
• Briggs v. General Electric Co. (Nassau, 2007). A summary judgment movant must first make a prima facie showing eliminating material fact issues, and failing that, its motion is denied regardless of the opposing papers. An insulation contractor performing a service is not a manufacturer or seller, so strict liability and warranty claims fail.
• Caradonna v. AW Chesterton Co., Inc. (2007). The Locomotive Boiler Inspection Act preempts conflicting state-law claims but does not preempt another federal statute, so a railroad worker's FELA negligence claim against the railroad, including a duty to warn of workplace hazards, is not preempted.
• IN Matter of New York City Asbestos Litigation (2007). A finding of reckless disregard that removes the limit on a defendant's share of liability under CPLR 1602(7) is supported where the record shows the defendant knew of asbestos dangers to people like the plaintiff and did not warn. A jury's damages verdict is upheld if it does not deviate materially from reasonable compensation in comparable cases.
• IN the Matter of New York City Asbestos Litig. (2007). A jury's finding that a defendant acted with reckless disregard, which makes it liable for the full verdict under CPLR 1603(7), stands where the record shows the defendant knew of asbestos dangers and failed to warn. A damages award is reviewed for whether it deviates materially from reasonable compensation, and the jury's verdict receives great deference.
• Holdampf v. Port Authority of New York and New Jersey (Matter of Nyc Asbestos Litig) (2005). Under New York law, an employer or landowner owes no duty of care to an employee's household member allegedly injured by asbestos dust brought home on work clothes, because no relationship between the defendant and the plaintiff creates such a duty.
• Nesbiet v. General Electric Co. (2005). A defendant seeking federal officer removal under 28 U.S.C. § 1442(a)(1) must show a colorable federal defense, that it acted under federal direction, and a causal nexus; circumstantial evidence that the Navy controlled warnings on equipment can satisfy these without direct proof that the Navy forbade an asbestos warning.
• Holdampf v. The Port Authority of New York and New Jersey (In re New York City Asbestos Litigation) (1st Dept., 2004). An employer that permits asbestos use at its work sites may owe a duty of care to members of an employee's household exposed at home to dust from the employee's work clothes, if it knew or should have known of that risk. The duty is limited to household members, and the Port Authority did not show a lack of duty as a matter of law.
• Polito v. Burns Int'l Services Corp. (Matter of Asbestos Litig.) (Monroe, 2003). Evidence of plant workers' compensation claims and plant conditions, and nonparty industry documents, may be admitted on what a manufacturer knew or should have known, subject to foundation and hearsay objections. An expert retained by a party in unrelated litigation is not that party's agent, so his statements are not admissions.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Hamilton v. Garlock, Inc. (2000). Evidence of exposure to the defendant's products, state-of-the-art notice and reckless concerted conduct supported the verdict. A defendant that offers no proof on allocating fault among joint tortfeasors forfeits any reduction for settling defendants' shares, so a directed verdict on allocation is proper.
• Maltese v. Westinghouse Electric Corp. (Matter of New York City Asbestos Litig.) (1997). Reckless disregard requires a gross negligence standard: intentionally acting in disregard of a known or obvious risk so great that harm is highly probable, with conscious indifference to the outcome. General awareness that high, prolonged asbestos exposure could cause injury did not meet that standard.
• Mtr. OF Nyc Asbestos Litig. (1997). A jury may consider a manufacturer's actual knowledge of asbestos dangers in allocating relative culpability under CPLR article 16, and answers to interrogatories by settling defendants cannot be offered by a non-settling defendant who is no longer adverse to them. A recklessness finding must be set aside if no valid line of reasoning could support it.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• Zalinka v. Owens-Corning Fiberglass Corp. (3rd Dept., 1995). Where plaintiffs show liability of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability of each settling defendant. Testimony about the plaintiff's inhalation of dust from cutting Kaylo, plus expert opinion on causation, was enough to sustain the verdict.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Kreppein v. Celotex Corp. (1992). Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.
• Mendelowitz v. Xerox Corp. (1st Dept., 1991). A document request must describe the items sought with reasonable particularity, and the requesting party bears that burden. A list of asbestos lawsuits over a defendant's copiers is discoverable whatever the model, since admissibility and weight are separate from disclosure.