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The following is a review of recent court decisions in various jurisdictions interpreting the responsibility of asbestos product manufacturers to persons harmed by their products. If you have questions or concerns about how any of these decisions may affect any asbestos injury claims which you may have, contact attorney John Caron at 1-800-831-9399 or jcaron@rgwpc.com.

Machinery Manufacturers’ Duty to Warn Severely Limited in Washington

In the wake of the spate of bankruptcy filings by many of the companies which manufactured asbestos insulation, rendering them immune civil lawsuits, asbestos cancer victims have focused their claims on manufacturers of the machinery, such as valves, pumps, turbines and boilers, which were insulated with asbestos. The rationale for these claims is that the manufacturers knew, and in many instances specified, that asbestos insulation, gaskets and/or packing be used with the machinery. Accordingly, the machinery manufacturers should be held responsible to warn users of the health risks associated with exposure to asbestos, which is an anticipated or foreseeable risk of working with their machinery.

Many states have accepted this rationale. As a result, asbestos cancer victims have been able to recover much needed compensation from the manufacturers which profited greatly from the sale of this machinery, but failed to spend the relative “pennies” it would have cost to warn users of the dangers of asbestos exposure and inform them how to avoid the danger.

Washington had been one such state. Courts of appeal in the state had consistently rejected attempts by machinery manufacturers to avoid responsibility to asbestos cancer victims. They argued that, in the case of asbestos insulation, gaskets or packing produced by some other manufacturer, they should not have been required to warn of health risks. This despite the fact that most of the machinery manufacturers specified the use of asbestos products with the machinery and many even supplied asbestos products when the machinery was originally shipped. Two separate Washington Courts of appeal had issued published decisions confirming the machinery manufacturers’ duty to warn of health risks associated with asbestos products used with the machinery, even if the asbestos products were manufactured by someone else.

In December 2008, the Washington Supreme Court succumbed to the machinery manufacturers’ incessant efforts to avoid responsibility to asbestos cancer victims. The Court issued decisions in Braaten v. Saberhagen Holdings Corp. et al. and Simonetta v. Viad Corp. et al. reversing the two published lower court of appeal decisions establishing machinery manufacturers’ duty to warn. Unfortunately, six of the nine Supreme Court justices accepted the manufacturers’ position that there should be no liability for failing to warn users of asbestos hazards when the asbestos that the person was exposed to was produced or supplied by someone other than the machinery manufacturer. The Court did, however, indicate that machinery manufacturers can still be held responsible for exposure to asbestos products which they supplied with the machinery, whether or not they manufactured it.

We are very disappointed in the Washington Supreme Court’s willingness to absolve machinery manufacturers of responsibility for the thousands of workers who were exposed to asbestos products attached to, or installed in, their products. We find it arbitrary for the Court to impose a duty to warn for asbestos products which the machinery manufacturer supplies with the machinery, but absolve them from the same duty with respect to replacement asbestos insulation, gaskets or packing which are manufactured by someone else. These asbestos products, which are essential to the proper operation of the machinery, have a much shorter service life than the machinery itself. Accordingly, the machinery manufacturers clearly knew that asbestos products from a variety of different manufacturers would be used with their machinery.

Furthermore, the Court’s decision ignores the fact that those machinery manufacturers which supplied asbestos products with their machinery and failed to warn at that time did, in fact, breach a legal duty owed to users of the machinery. This often “fatal” breach doesn’t simply disappear when the owner uses replacement asbestos insulation, gaskets or packing manufactured by someone else. Indeed, if a warning is attached to the machinery at the time it is shipped, the warning remains affixed to the machinery alerting all users of the same hazards associated with all asbestos products used with the machinery throughout its lengthy service life, irrespective of who made them.

Many states, including but not limited to California, Oregon and Texas, continue to recognize machinery manufacturers’ responsibility for exposure to asbestos products used with their machinery, even if provided by someone else. Attorneys for the machinery manufacturers have already been hard at work trying to get these and other states to follow the Washington Supreme Court’s decisions in Braaten and Simonetta. The attorneys of The Law Office of Roger G. Worthington have and will continue to work with other members of the plaintiffs’ asbestos bar to oppose these efforts and preserve the rights of asbestos cancer victims.


California Widow Held to Unfair Standard in Case Against Machinery Manufacturers

As indicated above, claims against machinery manufacturers for exposure to asbestos products used with the machinery, even if made by someone else, are permitted in California. However, in an effort to avoid responsibility to asbestos cancer victims who were exposed while working with their machinery, attorneys for the manufacturers often employ a strategy designed to confuse juries and thereby make it more difficult for them to enter a verdict against their clients. Specifically, defense counsel will try to convince the trial judge that the nature of the machinery used by the asbestos cancer victim was so “complex” and “beyond the comprehension of lay jurors” that the straightforward “consumer expectation” test should be abandoned in favor of the “risk benefits” test which requires a much more detailed analysis of each manufacturer’s machinery under a complicated set of factors.

In a November 2008 decision in Cunningham v. Buffalo Pumps Inc. et al., a California court of appeal found that a Los Angeles trial court had improperly instructed the jury to apply the more complicated “risk benefit” test in a case against valve and pump manufacturers which resulted in a verdict in favor of the manufacturers.

Richard Cunningham was diagnosed with mesothelioma in 2004. He was exposed to dust from asbestos insulation and gaskets used with machinery, included valves and pumps, while serving as a marine machinist on Navy ships from 1964 to 1989. Mr. Cunningham testified in a videotaped deposition taken before his death that his work frequently involved removing worn out asbestos insulation and gaskets from valve and pump flanges.

At trial, the attorneys Mr. Cunningham’s widow, Betty Cunningham, argued that the jury should be instructed to apply the “consumer expectation” test which is commonly used in asbestos/machinery cases. Under this test, the jury may find that liability attaches for a defective product if “it did not perform as safely as an ordinary consumer would have expected at the time of use.” Attorneys for the defendants, Buffalo Pumps and Leslie Valves, argued that nature of their valves and pumps were so far beyond the comprehension of the lay jurors that the more complicated “risk benefit” test should be applied. Under this test, usually reserved for juries dealing with complicated technical issues, the jury is required to analyze numerous factors in order to determine whether the manufacturer weighed the knowledge that a product could be dangerous against the benefits of using it anyway. Unfortunately, the trial court sided with defense counsel and the jury, when working through the many levels of factors involved, found in favor of the manufacturers.

Upon reviewing the matter, the court of appeal found that the trial court should have applied the consumer expectations test. “The composition of asbestos-containing pump and valve insulation and its function were not complex or esoteric concepts beyond the comprehension of lay consumers. There is nothing technical or esoteric about the production of dust containing toxic fibers,” the court said. “Nothing in the record supported giving the risk-benefits instruction,” the court of appeal added.

The court of appeal remanded Mrs. Cunningham’s case back to the trial court where the machinery manufacturers will be forced to either settle or re-try the case under the consumer expectations test.


Pennsylvania “By-Stander’s” Exposure Found Sufficient to Compel Auto Parts Manufacturers to Trial

In its December 2008 decision in the case of Weible v. Allied Signal Inc. et al., a Pennsylvania court of appeal rejected the argument of three auto parts manufacturers which claimed that they should not be compelled to stand trial against a mesothelioma patient who merely visited a service garage where their asbestos products were used.

William Weible worked for Philadelphia Electric Co. as a residential boiler installer from 1958 to 1991 and also spent time in the service garage at the company's facility. Mr. Weible testified that he would visit the mechanics there while walking through the garage to clock out for the day. Some days he spent a few minutes there, and on other days he stayed up to four hours. He said the mechanics performed maintenance and repairs in his presence that involved asbestos-containing brakes, clutches and gaskets.

Following his June 2005 diagnosis with mesothelioma, Mr. Weible sued Borg-Warner Corp., Brake & Clutch Co. of Philadelphia and Carlisle Cos. in the Philadelphia County Court of Common Pleas.

In the case of a “by-stander”, or a person who doesn’t personally use the asbestos product, a common strategy employed by defense counsel is to try to convince the court that there is insufficient evidence to establish that the amount of asbestos involved in the “by-stander” exposures was sufficient to cause or contribute to the person’s disease. This argument, of course, ignores the long-standing conclusion of the medical and scientific community that there is no safe dose of asbestos.

In Mr. Weible’s case, the auto parts manufacturers argued that the evidence was unclear as to how many years Mr. Weible was in the practice of visiting the mechanics in the garage, the length of time he spent there and whether the mechanics actually worked while he was there. Unfortunately, the trial court was compelled by these arguments and issued an order granting judgment in favor of the auto parts manufacturers without requiring them to try their case against Mr. Weible before a jury.

The court of appeal, however, concluded that the trial court got it wrong. The court of appeal court said that the evidence presented by Mr. Weible showed that their products were used frequently at the garage and that Mr. Weible was often was near them. In response the defense oft-repeated argument that more specific evidence should be required in order to make them stand trial, the court of appeal stated: “Pinpoint precision in the proofs may be desired, but it is not required.” The court of appeal reversed the trial court’s ruling and the auto parts manufacturers will now be forced to either settle with Mr. Weible or try their case against Mr. Weible before a jury.

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