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
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
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.