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

• Barnett v. City of Yonkers (1990). Under New York law a school board is liable like a private landowner only if it had actual or constructive notice of the hazard, an owner out of possession without control is not liable, and an architect is liable only for professional negligence judged by the standards of the time his services ended.
• Grispo v. Eagle-Picher Indus. (In re Joint E. & S. Dist. New York Asbestos Lit.) (1990). Under Boyle, a military contractor facing a state-law failure-to-warn claim must show that the government dictated or controlled the product's warnings, creating a significant conflict with state law; government specifications on product content alone do not displace a duty to warn.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (1990). A federal court sitting in diversity applied New York law and held that a dismissal with prejudice of a decedent's lifetime personal injury claim for lack of exposure evidence bars his personal representative's later wrongful death claim against the same defendant, because she stands in the decedent's position. Circumstantial exposure evidence and medical testimony were enough to support the jury's verdict.
• Raney v. Owens-Illinois, Inc. (1990). Under New York law, a jury may infer from the facts and circumstances that a reasonably required warning would have been heeded, so the plaintiff did not need direct evidence that the worker would have changed his conduct. This inference is not a formal presumption.

North Carolina

• Walls v. Ford Motor Company (2023). Under North Carolina law, applied in a federal diversity case, settlement credits under N.C. Gen. Stat. § 1B-4(1) are applied against an aggregate judgment that includes costs, so costs are subject to setoff.
• Walls v. Ford Motor Company (2022). Under North Carolina law, an asbestos plaintiff can show causation with direct or circumstantial evidence of regular exposure to a defendant's product over an extended period, without expert testimony specific to that defendant. Punitive damages require clear and convincing evidence that corporate managers actually understood the specific risk.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to a specific defendant's asbestos product (Lohrmann test), and a contractor owes no duty to the spouse of a non-employee for take-home exposure absent a special relationship involving control.
• Settlemyer v. Borg-Warner Morse Tec, LLC (2021). Under North Carolina law, a plaintiff must show exposure to the defendant's own asbestos-containing product with frequency, regularity and proximity (Lohrmann). A truck or trailer assembler is not liable for third parties' replacement parts, and North Carolina has no exception for parts the assembler specified or recommended.
• Finch v. Covil Corporation (2019). A verdict for the plaintiff stands where the evidence permitted a jury to find that the defendant supplied asbestos insulation, that the worker was exposed to it, and that no warning was given. Under North Carolina law, a wrongful death verdict is excessive only if the record shows passion, prejudice or disregard of the law, not merely because it is large.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Phillips v. Pneumo Abex, LLC (2017). Under North Carolina law, a jury may find a defendant's negligence was a proximate cause of injury yet also find that a third party's intervening negligence became the sole proximate cause. Such answers on a special verdict form can be harmonized and are not inconsistent.
• Smith v. American Honda Motor Co., Inc. (2016). Under North Carolina law, compliance with federal labeling standards does not conclusively show a warning was adequate, and proximate cause is ordinarily for the jury. Design defect under N.C. Gen. Stat. § 99B-6 does not require expert testimony on a feasible alternative design, and punitive damages require clear and convincing evidence of willful and wanton conduct by corporate officers, directors or managers.
• Harris v. Ajax Boiler, Inc. (2014). Under North Carolina products liability law, a boiler maker is not liable where the plaintiff cannot show the boiler left the factory with asbestos cement or that the asbestos mud he removed was the maker's. Nor is the maker liable for an asbestos cement the worker applied that was not part of the boiler when made, since liability rests with that product's manufacturer.
• Logan v. Air Products and Chemicals, Inc. (2014). Under North Carolina law a plaintiff must show actual exposure to the defendant's product, and that rule is not relaxed for mesothelioma. A failure-to-warn claim about third-party replacement parts needs evidence that the manufacturer knew or should have known such parts would be used.
• Williams v. CSX Transportation, Inc. (2006). Under the FELA, the trial court acted within its discretion in its evidence rulings, its jury instructions and its handling of the trial. Conflicting expert testimony on causation properly went to the jury, so the post-trial motions were rightly denied.

North Dakota

• Palmer v. 999 Quebec, Inc. (2016). Whether a duty is owed in a take-home asbestos case, whether judged by foreseeability of injury, the relationship of the parties, or both, depends on evidence of the defendant's knowledge of asbestos dangers or a special relationship, and the plaintiff offered none.

Ohio

• Blakely v. Goodyear Tire & Rubber Co. (9th Appellate District, 2019). An unrebutted statutory presumption under R.C. 2307.941 that a premises owner complied with state safe exposure levels does not by itself defeat a premises claim built on a theory that the owner knew those levels were unsafe. A negligence-based supplier claim under R.C. 2307.78(A)(1) is not barred by DiCenzo or a privity requirement, and the product question is whether the component had left the manufacturer's control, not whether it was still in a manufacturing process.
• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Estate OF Blandford v. AO Smith Corp. (8th Appellate District, 2016). Under R.C. 2307.78(B), a bankrupt manufacturer that is subject to personal jurisdiction in Ohio and is not shown to be insolvent does not trigger substituted strict liability for its supplier. A supplier can still face negligent failure to warn liability under R.C. 2307.78(A)(1) if fact issues remain on its knowledge of the hazard, exposure to its product, and substantial factor causation.
• DiCENZO v. A-Best Prods. Co., Inc. (8th Appellate District, 2007). A plaintiff need not quantify the share of workplace asbestos attributable to a defendant to show its product was a substantial factor, and testimony placing the product directly above the worker can create a fact issue. Temple v. Wean's strict liability rule applies retroactively to suppliers who sold asbestos products before 1977.
• Bartel v. John Crane, Inc. (2004). A plaintiff must show substantial exposure to the particular defendant's asbestos product for a substantial period, and that the exposure was a substantial contributing factor in causing the disease. An opinion that every exposure, however small, was a substantial factor does not meet that test, and there is no duty to warn of unknown hazards.
• La Placita Partners v. Northwestern Mut. Life Ins. (1990). Under Arizona law a seller in an arm's-length, "as is" real estate sale has no duty to disclose easily discoverable conditions to a buyer who inspected the property, and a buyer who admits the defect would not have changed its decision cannot show materiality or reliance.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.
• Layne v. GAF Corp. (1988). Ohio strict products liability under Restatement 402A, Comments j and k, supports a failure-to-warn claim and a state-of-the-art defense for asbestos products, and the learned intermediary rule has been affirmed only for prescription drugs, not for building owners.
• Lavelle v. Owens-Corning Fiberglas Corp. (1987). A plaintiff with asbestosis but no cancer cannot present evidence of increased risk of cancer because it is speculative, but may present evidence of reasonable fear of developing cancer as a claim of serious emotional distress.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, a manufacturer owes no duty to warn a worker's wife who was exposed only by laundering his work clothes, because she is not a foreseeable user. The negligence duty of care also failed because take-home harm from the boilers was not foreseeable on this record.
• Olsen v. Oklahoma Gas and Elec. Co. (4th Division, 2012). Oklahoma's 10-year statute of repose for improvements to real property (12 O.S. § 109) does not apply where the worker was exposed to asbestos insulation on pipes before they were installed, because the item was still personal property. Section 109 also does not bar premises liability or negligent-supply-without-warning claims.

Oregon

• McKenzie v. AW Chesterson Co. (2016). Under Oregon's strict liability statute (ORS 30.920) and the Restatement (Second) of Torts § 402A comments it incorporates, the product at issue is the pump as sold to the Navy with its asbestos-containing parts, so the bare-metal or no-duty defense does not bar a failure-to-warn claim as a matter of law. Plaintiff's evidence also sufficed on causation and foreseeability for negligence.
• Griffin v. Allis-Chalmers Corporation Product Liability Trust (2010). A plaintiff opposing summary judgment in an asbestos case need only show the defendant's asbestos was present in the workplace and could have been inhaled, including through others' handling of it. Oregon's raw material supplier doctrine does not shield a supplier from claims of exposure to raw asbestos fibers themselves.
• Mason v. Mt. St. Joseph, Inc. (2009). A 'product liability civil action' under ORS 30.900 lies only against a manufacturer, distributor or seller of the defective product that caused the harm. A party that only directed or reused asbestos products occasionally and noncommercially is not such a defendant, so the asbestos-specific limitations period in ORS 30.907 does not apply.

Other federal courts

• Air and Liquid Systems Corp. v. DeVries (2019). In maritime tort law, a product manufacturer has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely to be dangerous for its intended uses, and it has no reason to believe users will realize that danger. Mere foreseeability of use with another product is not enough, and the bare-metal defense is rejected.
• Devries v. Air & Liquid Systems Corp. (In re Asbestos Products Liability Litigation) (2017). Under maritime law, a manufacturer of a bare-metal product may be held liable in negligence for injuries from later-added asbestos materials if the injuries were a reasonably foreseeable result of its conduct. A bright-line rule that bare-metal manufacturers are never liable does not apply.
• Savoie v. Huntington Ingalls, Incorporated (2016). Under the federal officer removal statute, negligence claims about safety measures the government did not control show no causal nexus, but pre-1996 Louisiana strict liability claims based on the mere use of asbestos required by government contract specifications do show one, and removal of the whole case is proper if a single claim qualifies.
• Leite v. Crane Co. (2014). When a plaintiff factually challenges federal officer removal jurisdiction under 28 U.S.C. § 1442(a)(1), the Rule 12(b)(1) framework applies and the defendant must prove by a preponderance of the evidence a colorable federal defense and a causal nexus to acts taken at a federal officer's direction.
• Ruppel v. CBS Corporation (2012). A private contractor may remove under the federal officer removal statute if it was a person acting under a federal officer, the suit relates to acts under color of office, and it has a colorable federal defense; the government contractor defense can be colorable for both use-of-asbestos and failure-to-warn claims without proof that the government prohibited warnings.
• Kurns v. AW Chesterton Inc. (2010). The Locomotive Inspection Act preempts the field of locomotive parts and appurtenances, so state-law design defect and failure-to-warn claims against makers of locomotive parts over asbestos exposure are preempted. The Federal Railroad Safety Act did not narrow that preemption.
• Conwed Corp. v. Union Carbide Corp. (2006). Under Minnesota law, after a Naig settlement the jury's allocation of fault to the employer is applied once, to the lesser of the verdict or the workers' compensation benefits paid and payable, and a verdict on warnings in a mesothelioma trial does not collaterally estop litigation of warnings for asbestosis claims where the issue was not necessarily determined.
• Lindstrom v. AC Product Liability Trust (2005). Under maritime products liability law, a plaintiff must show for each defendant that he was exposed to that defendant's product and that it was a substantial factor in causing the injury. A generic expert opinion that every asbestos exposure contributed does not meet this requirement. A manufacturer is not responsible for asbestos in other companies' packing or gaskets attached to its equipment.
• Cimino v. Raymark Industries, Inc. (1998). Under Texas law, causation and damages in asbestos injury suits must be determined for each individual plaintiff, not for groups, and a class or consolidation procedure cannot change that or remove the Seventh Amendment jury right. A raw-material supplier selling non-defective asbestos to a sophisticated manufacturer has no duty to warn the manufacturer's end users.
• Braun v. Lorillard Inc. (1996). A district court may exclude an expert who departs from the accepted methods of his field without knowing those methods or justifying the departure, since Daubert requires scientific rigor and does not make customary methods irrelevant. The court also upheld the district judge's discretion over pretrial witness disclosure, hearsay and expert qualification, and found an improperly limited redirect harmless.
• Rohrbaugh v. Celotex Corp. (1995). Under the law of the case doctrine, an appellate court's earlier holdings, explicit or by necessary implication, govern later stages of the same case. The earlier ruling that the plaintiff was not a foreseeable user and that the manufacturer had no reason to know of the hazard defeated both the products liability and negligence claims.
• Blancha v. Raymark Industries (1992). A defendant need not present evidence of what type of asbestos its product contained in order to offer expert testimony that chrysotile does not cause mesothelioma. Such testimony is relevant to rebut plaintiffs' causation theory, and a new trial for jury confusion or a missing instruction was an abuse of discretion.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• Rohrbaugh v. Owens-Corning Fiberglas Corp. (1992). Under Oklahoma manufacturer's products liability law, the duty to warn extends only to ordinary consumers and users, and arises only when the manufacturer knew or should have known of the hazard; a wife exposed through her husband's work clothes was not owed a duty to warn.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• Dorse v. Eagle-Picher Industries, Inc. (1990). Under Boyle, state failure-to-warn law is displaced only if it significantly conflicts with a federal contract duty. No conflict existed because the Navy specifications did not prohibit health warnings, so the contractor could comply with both.
• George v. Celotex Corp. (1990). A manufacturer is held to the knowledge of an expert in its field, so an unpublished report showing what it reasonably should have known is relevant to the state of the art, and an ancient document may be admitted under Rule 803(16). A jury allocation of liability is upheld where evidence supports it.
• Dube v. Pittsburgh Corning (1989). The FTCA discretionary function exception covers only conduct involving a permissible exercise of policy judgment; the Navy's negligent failure to warn domestic bystanders of asbestos dangers, made without any policy decision while operating a shipyard like a private owner, is not shielded.
• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.