State-of-the-Art Defense

The state-of-the-art defense is the argument that a company can be held responsible only for dangers that were known, or could have been discovered, when it sold its product. The New Jersey Supreme Court described it in 1982 as the claim that makers can be liable only for "dangers that were scientifically discoverable at the time the product was distributed."¹ Union Carbide's court disclosures in a 2000 Texas case put it this way: the company would show that it "was charged with no greater knowledge than that of the medical and scientific community."² Because the answer turns on what was known and when, the defense has brought the history of asbestos medicine, and the industry's own files, into asbestos trials.

What the defense asks

The defense works differently under the two main theories in product cases. In negligence, what a company knew or should have known matters¹. In strict liability, the question is whether the product was unreasonably dangerous without a warning, and courts have disagreed about whether the state of knowledge at the time of sale still counts^{1, 3}. Where it is allowed, each side calls experts to say when the risk to users became known. In Texas cases in 1995, Union Carbide listed several doctors who would testify "on state-of-the-art and the Saranac papers" that defendants could not have known end users were at risk until about the late 1960s⁴. Defendants in a 2000 Texas case filed a joint list of their "Medical, State-of-the-Art, Economic, Liability and Damage" experts⁵.

The first insulator cases

The defense appears in the earliest asbestos product cases in our library. In the Potter case in Beaumont, Texas, the defendants argued in 1971 that there was no published medical knowledge that construction insulators risked asbestosis until Dr. Selikoff's work was published in 1964⁶. Citing Dean Page Keeton, they argued that under Texas law a maker is not liable in strict liability if "the state of the art or scientific knowledge was such that the risk was unknown."⁶ In the Borel case in the same court, the defendants' 1970 joint motion argued under the heading "the state of the art at the time of sale" that health authorities had only recently learned more about the danger, and that 5 million particles per cubic foot had been the accepted safe guideline during the plaintiff's working years⁷.

The Fifth Circuit's 1973 decision in Borel answered the argument. A maker of asbestos insulation, the court held, is "held to the knowledge and skill of an expert," must keep up with scientific knowledge, is presumed to know what it shows, and has a duty to test its product⁸. The court added that a manufacturer may not "rely unquestioningly on others to sound the hue and cry."⁸ It noted evidence that none of the defendants had tested whether insulators' exposures exceeded the recommended limits or whether those limits were reliable⁸.

The industry's state-of-the-art program

By 1977 the asbestos industry's trade group, the Asbestos Information Association/North America (AIA/NA), was preparing a shared defense. A March 1977 memo from its special counsel, Wendell B. Alcorn, Jr., listed a "State of the Art Defense" survey of the medical literature by Dr. Philip Enterline among the services offered to member defendants⁹. A draft letter that year offered the Enterline materials to a non-member company for $2,000, on condition that they be requested for a specific pending lawsuit¹⁰.

Minutes of the AIA/NA board meeting of December 14, 1977, record Alcorn describing the "medical State of the Art document" for defense lawyers: a memorandum of law on strict liability, three books of articles collected by Enterline, testimony of defense experts, and a digest of cases¹¹. He set out "seven points to the State of the Art Defense," which included Dr. Selikoff's October 1964 statements at the New York Academy of Sciences and ended with testimony from recent cases that major insulation suppliers began putting warning labels on products in 1965–66¹¹.

Enterline's finished history, dated November 1978, thanked the association for financial support given with the understanding that information about how knowledge of asbestos and cancer developed "might seriously weaken the asbestos industry's position" in litigation¹². He concluded that in Germany the lung cancer question seemed settled by the early 1940s and that in the United States it was settled at the 1964 New York conference¹². A 1980 report of a defense committee on shared experts said candidates were researched for, among other things, their "knowledge of state of the art."¹³

Courts divide

In Beshada v. Johns-Manville Products Corp. (1982), the New Jersey Supreme Court struck the defense from strict liability failure-to-warn cases¹. It held that knowledge of a product's danger is imputed to the maker, and it reasoned that the state of the art at any time partly depends on how much the industry itself has spent on safety research¹. The court said that makers should not be excused because their own "inadequate investment in safety" left hazards unknown¹. Two years later, in Feldman v. Lederle Laboratories, the same court limited Beshada to the asbestos cases before it³.

Other courts went different ways. A federal court in Hawaii struck the defense from strict liability claims in 1986 while allowing the evidence on negligence; Maine's highest court held the same year that state-of-the-art evidence is admissible in failure-to-warn claims; and the Third Circuit ruled in 1987 that New Jersey's bar did not violate the manufacturers' constitutional rights³. In Texas, a federal court in 1983 dismissed a strict liability failure-to-warn claim against Johns-Manville because the parties had stipulated that the danger was unforeseeable, but let the design defect claim go forward³.

Other uses of the phrase

"State of the art" also appears in the documents in its ordinary sense of the best methods then available. Asbestos magazine wrote in 1972 that the Asbestos Textile Institute's 1964 pamphlet on measuring dust described the testing techniques of the "then-current state-of-the-art."¹⁴ NIOSH's 1972 recommended standard said it had considered the present "state-of-the-art" in setting a limit¹⁵. In 1977 AIA/NA argued that the state of the art ruled out counting fibers at the 0.1 level NIOSH had proposed¹⁶.

Companies also used the phrase about their own practices. In 1976 Johns-Manville told OSHA that its dust controls had been upgraded "as the 'state of the art' of dust control advanced."¹⁷ A 1974 memo to Dr. Paul Kotin about J-M's Waukegan plant said the way empty fiber bags were handled there was not the method J-M had been recommending to others "as the highest state of the art."¹⁸ A 1976 medical review by Margaret Becklake titled "State of the Art" was handed out at an AIA/NA technical committee meeting in January 1978¹⁹, and a Union Carbide technology manager sent it to a customer that year with a list of AIA/NA information and services²⁰.

Related Terms

Failure to Warn, Strict Liability, Duty to Warn, State of the Art Evidence, Corporate Knowledge, Sumner Simpson Papers, Selikoff Studies, Threshold Limit Value (TLV)

References

1. Beshada v. Johns-Manville Products Corp. (N.J. 1982), the court's opinion
2. UC-1661: Union Carbide Chemical & Plastics Co.'s Responses to Plaintiffs' Request for Disclosure in Moake v. Owens-Corning Fiberglas (2000), p. 3
3. Beshada v. Johns-Manville Products Corp. (N.J. 1982), later history and later decisions citing it
4. UC-1987: Responses of Union Carbide Corporation to Plaintiffs' Master Interrogatories, In re Asbestos Litigation, Cameron County, Texas (1995), pp. 34–35
5. UC-1659: Defendants' General List of Medical, State-of-the-Art, Economic, Liability and Damage Experts, Moake v. Owens-Corning Fiberglas (2000), p. 1
6. The Potter v. Fibreboard Case File, Defendants' motion for summary judgment (1971), p. 35
7. The Borel v. Fibreboard Case File, Defendants' joint motion for summary judgment (1970), p. 47
8. Borel v. Fibreboard Paper Products Corporation (5th Cir. 1973), the court's opinion
9. AIA-102: Wendell B. Alcorn, Jr. to G. G. Gabrielson, Jr. on Availability of Services from Special Counsel (1977), p. 4
10. AIA-105: Draft Letter Prepared by Wendell Alcorn on the Enterline Study and "State of the Art" Memorandum (1977)
11. Asbestos Information Association Board of Directors Minutes on the State of the Art Defense (1977)
12. Philip E. Enterline, Asbestos and Cancer: The First Thirty Years (1978), pp. 6, 74 and 78
13. AIA-110: Asbestos Litigation: Report and Recommendation of Committee on Experts, Ogden, Ogden & Murphy (1980), p. 1
14. Asbestos Magazine, September 1972, p. 8
15. Criteria for a Recommended Standard: Occupational Exposure to Asbestos (1972), p. 67
16. Asbestos Magazine, January 1977, p. 34
17. Comments of Johns-Manville Corporation With Respect to Notice of Proposed Rulemaking, Occupational Exposure to Asbestos (1976), p. 25
18. W. B. Reitze to Dr. Paul Kotin on Conditions at the Waukegan Plant (1974)
19. AIA-106: AIA/NA Technical Committee Agenda and Executive Director's Remarks for the 25 January 1978 Meeting (1978), p. 1
20. UC-926: Harrison B. Rhodes to Craig McNey (Norwal, Inc.) Enclosing Drywall Dust Counts and Asbestos Litigation Information (1978)