Sophisticated User and Intermediary Defenses in Asbestos Cases

Decisions in our library in which the court ruled on sophisticated user: 87 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.

Massachusetts

• 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.

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.

Mississippi

• 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.

New Jersey

• 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.

New York

• 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.
• 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.
• 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.
• 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.
• 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.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (1997). A defendant asserting the military contractor defense to a design defect claim must prove every Boyle element, including warnings to the government, and merely raising some elements is not enough. New York does not recognize a child's claim for loss of parental consortium, and filing a proof of claim with the Manville Trust is not a settlement that supports a set-off under General Obligations Law § 15-108.
• 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.

North Carolina

• Walls v. Ford Motor Company (2022). Under North Carolina law as predicted by the court, no sophisticated user or learned intermediary defense exists, and the Workers' Compensation Act does not bar product liability suits against third-party manufacturers. Contributory negligence, misuse and intervening cause turn on factual disputes for the jury, but assumption of risk fails without evidence that the plaintiff knew of the risk in time.
• 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.

Ohio

• 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.

Oregon

• 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.

Other federal courts

• 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.
• 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.

Pennsylvania

• Gay v. AO Smith Corporation (2022). Under Pennsylvania law, a landowner owes no duty to an independent contractor's employee for a danger the contractor knows of, and the retained-control and peculiar-risk exceptions did not apply because the owner did not control the contractor's methods and asbestos exposure was an ordinary risk of construction work.
• Rogers v. AO Smith Corp. (2022). Under maritime law a plaintiff must show exposure to each defendant's asbestos-containing product that was a substantial factor in causing the injury. Under DeVries, the bare metal defense defeats a claim over asbestos insulation added to a turbine unless the turbine required that asbestos insulation.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• Cardaro v. General Electric Co. (In re Asbestos Products Liability Litigation (VI)) (2013). The 1990 amendment to Louisiana's statute of repose (La. R.S. 9:2772), which removed the failure-to-warn exception, is substantive and applies only prospectively, so it does not retroactively bar earlier failure-to-warn claims. Whether the premises owner knew or should have known of the asbestos hazard is a question of fact.
• Faddish v. CBS Corporation (2010). Under Florida law, a plaintiff need only raise a genuine factual issue that the defendant's product was a substantial factor in causing the asbestos injury. Whether a sophisticated intermediary such as the Navy discharged a manufacturer's duty to warn is a jury question that weighs several factors.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law a plaintiff must show that the defendant's product was a substantial factor in causing the injury. Whether a sophisticated intermediary such as the Navy discharged a supplier's duty to warn of asbestos is a jury question that weighs several factors.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law, a plaintiff must show a defendant's product was a substantial factor in the injury, and a sophisticated intermediary's knowledge does not automatically end a supplier's duty to warn, which is a jury question weighing several factors.
• Gill v. Pacor, Inc. (1982). A supplier's duty to warn the ultimate user of an asbestos product cannot be avoided by pointing to the employer's failure to provide a safe workplace. An employer's conduct is not a superseding cause unless it was so extraordinary that it could not reasonably have been foreseen.

Rhode Island

• Stevens v. Air & Liquid Systems Corporation (2017). Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.

South Carolina

• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.

Tennessee

• Nye v. Bayer Cropscience, Inc. (2011). A non-manufacturing seller may be sued in strict liability under Tenn. Code Ann. 29-28-106(b) when the manufacturers cannot be served because of bankruptcy stays or channeling injunctions. The learned intermediary doctrine does not apply to an employee's claim over asbestos products bought by his employer, and the employee, not the employer, is the consumer who must be warned.
• Nye v. Bayer Cropscience, Inc. (2009). Tennessee has not extended the learned intermediary or sophisticated buyer doctrine beyond medical products, so a jury may not be told that a seller cannot be liable for failure to warn because the employer already knew the danger. Combining that instruction with a proper sole-cause instruction confused the jury.

Texas

• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.

Utah

• Riggs v. Asbestos Corp. Ltd. (2013). A tort claim for asbestos disease accrues when the disease is diagnosed, not at exposure, so the law in force at diagnosis governs. A raw-material supplier can obtain JNOV under the bulk supplier rule only if the evidence shows as a matter of law that it met its duty to warn.

Virginia

• Goodrich v. John Crane, Inc. (2018). A manufacturer cannot offer evidence of the Navy's knowledge or negligence as a superseding cause, because the Navy's failure to protect workers from asbestos was foreseeable. Evidence of the Navy's knowledge also is not state-of-the-art evidence, because it shows the hazards were known to experts and so supports a duty to warn.

Washington

• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Rublee v. Carrier Corp. (2018). Washington adopts the apparent manufacturer doctrine (Restatement (Second) of Torts § 400) for claims arising before the 1981 product liability act. Apparent manufacturer liability is judged by the objective reliance test from the view of an ordinary, reasonable consumer, not a sophisticated industrial purchaser, and does not require the defendant to be in the chain of distribution.

Wisconsin

• Tatera v. FMC Corp. (2009). Strict product liability under Restatement (Second) of Torts § 402A was not extended to a company that supplied brake linings to a subcontractor's employee for grinding before final assembly. A supplier who did not manufacture a chattel can still be liable in negligence under § 388, and the Wagner exceptions for affirmative acts and ultra-hazardous materials allowed the negligence claim to proceed.