By Pamela C. Maloney, J.D.
Strict liability for failure to warn of the dangers of asbestos-containing products applied to asbestos-containing components, including those manufactured by third parties upon proof of four elements, including medical causation.
In a case of first impression, the New Jersey Supreme Court has held that manufacturers and distributors can be found strictly liable for failing to warn of the dangers posed by their products, including any asbestos-containing components and third-party asbestos-containing replacement components, provided the injured worker can prove that: (1) the manufacturers or distributors had incorporated asbestos-containing components in their original products; (2) the asbestos-containing components were integral to the product and necessary for it to function; (3) routine maintenance of the product required replacing the original asbestos-containing components with similar asbestos-containing components; and (4) the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating the injured worker’s disease. Based on this holding, a strict liability personal injury claim filed by a worker was remanded for resolution of any issues of fact with regard to these elements (Whelan v. Armstrong International Inc., June 3, 2020, Albin, B.).
A worker who had been employed as a plumber and auto mechanic filed strict products liability and negligence claims against Armstrong International, Inc.; Burnham LLC, Carrier Corp.; Cleaver-Brooks Inc.; Crown Boiler Co., Inc.; Ford Motor Co.; and Johnson Controls Inc., claiming that over a 40-year period, he had been exposed to asbestos dust while working on products, original components, and replacement parts manufactured or distributed by those companies or by third-party component suppliers, and that this exposure had caused him to develop mesothelioma. The asbestos-containing products manufacturers moved for summary judgment, arguing that they were not liable for the worker’s exposure to asbestos-containing replacement parts that they had not manufactured or distributed, even though the parts were incorporated into their products. The trial court granted summary judgment in favor of the manufacturers, finding that they could not be held liable for asbestos-containing replacement components later incorporated into their products unless those components were manufactured or distributed by those same manufacturers. The trial court also found that the worker could not show, with specificity, that he had been exposed on a regular and frequent basis to any asbestos-containing products or components actually manufactured or distributed by the named manufacturers.
While the appeal was pending, the Appellate Division issued a decision in Hughes v. A.W. Chesterton, 435 N.J. Super. 326 (App. Div. 2014), which involved failure-to-warn claims against a pump manufacturer whose asbestos-containing components required regular replacement with parts that also contained asbestos [see Products Liability Law Daily’sApril 24, 2014 analysis]. Although the appellate court held that the pump manufacturer had a duty to warn regardless of who manufactured the replacement components, it affirmed the trial court’s summary dismissal of the underlying claims because the workers had failed to show that the pump manufacturer had manufactured or distributed any of the asbestos-containing products to which they had been exposed.
The Appellate Division in this case rejected the conclusion reached in Hughes, opining that the decision effectively had rendered unenforceable the pump manufacturer’s duty to warn about inherently dangerous asbestos-containing components. Instead, the Appellate Division determined that manufacturers had a duty to warn about the dangers of the asbestos-containing replacement components necessary for the continued functioning of their products and that they could be held strictly liable for the failure to do so, provided the worker could prove that he had experienced sufficient exposure to the replacement components to contribute to his disease. The appellate court also found that the worker in this case had presented sufficient evidence detailing his exposure to asbestos, either from the named manufacturer’s original or replacement components or from a third party’s replacement components, to withstand summary judgment [see Products Liability Law Daily’s August 7, 2018 analysis]. The manufacturers appealed.
Common law duty to warn. On appeal, the manufacturers contested whether the duty to warn extended to a third party’s replacement components incorporated into the original products many years after those products left the manufacturers’ control and whether they should be held strictly liable to this worker for any harm caused by his exposure to those replacement components. In response, the New Jersey Supreme Court explained that because asbestos claims fell within the New Jersey Products Liability Act’s (PLA) environmental toxic tort exception, resolution of these questions was to be guided by common law principles governing product-liability jurisprudence. Noting that the standard in a failure-to-warn case was no different under common law or the PLA, the state high court explained that manufacturers had a duty to ensure that the products they placed into the stream of commerce were safe when used for their intended purposes and that lack of adequate instructions on the proper use of a product along with adequate warnings about the product’s inherent dangers constituted a product defect.
In order to succeed in a common law, strict-liability failure-to-warn action, a plaintiff must prove that (1) without warnings or adequate warnings, the product was dangerous to the foreseeable user and, therefore, was defective; (2) the product left the defendant’s control in a defective condition (without warnings or adequate warnings); and (3) the lack of warnings or adequate warnings proximately caused an injury to a foreseeable user. According to the high court, this standard included two criteria that must be satisfied in these cases: product-defect causation and medical causation, which required proof of an exposure of sufficient frequency, with a regularity of contact, and with the product in close proximity to the plaintiff.
Heeding presumption. The state high court further instructed that the failure-to-warn analysis must include an inquiry into the reasonableness of the manufacturer’s conduct in foregoing or in crafting a warning. In addition, it was presumed that any worker who had received adequate warnings about the dangers of a product would follow the instructions given and take any precautionary steps advised by those warnings. This so-called "heeding presumption" furthered the objectives of the public policy framework underlying the doctrine of strict products liability by aligning with the manufacturer’s basic duty to warn and by reducing the plaintiff’s burden of proof. To rebut this presumption, the manufacturer must produce evidence that the worker would not have heeded adequate warnings.
State of the art defense. In order to further advance the public policy goals of the state’s strict-liability jurisprudence, the New Jersey Supreme Court rejected the state of the art defense, allowing strict liability to be imposed on product manufacturers "for failure to warn of dangers which were undiscoverable at the time" they manufactured their products. Citing its decision in Beshada v. Johns-Manville Products Corp., 90 N.J 191 (1982), the high court reiterated that the burden of illness from dangerous products like asbestos should be placed upon those who profit from its production and, more generally, upon society at large, which benefitted from the various products manufactured by the country’s economy.
Foreseeability. The state high court acknowledged that the issue of whether a manufacturer could be held strictly liable for its failure to warn of foreseeable dangers of a third party’s asbestos-containing replacement components later integrated into its product during routine maintenance presented an issue of first impression. Both the Hughes and Whelan panels of the Appellate Division agreed that the manufacturer owed a duty to warn of the dangers of the required replacement components, regardless of who manufactured the components, and both panels had agreed that the failure to provide adequate warnings constituted a product defect. However, the Hughes panel concluded that regardless of this duty to warn, a manufacturer or distributor could not be held strictly liable for a third-party’s injury-causing replacement component incorporated into the original product after it left the manufacturer’s control. The state high court rejected that theory, stating that it made little sense to impose a duty to warn if violation of that duty led to a tortious injury for which there was no remedy.
Instead, in order to determine whether a manufacturer owed a strict liability duty to provide warnings on their products for foreseeable users, like the worker in this case who replaced asbestos-containing component parts with similar asbestos-containing components, courts should follow general common law principles (opportunity and ability to exercise care, and the public interest in the proposed solution) and, more significantly, they must consider the foreseeability of harm.
The high court stressed that the relationship ran between the manufacturer and the ultimate user of the product and a manufacturer’s duty to foreseeable users of its products had long been recognized by state common law. In addition, it was obvious to the high court that the makers and distributors of asbestos-containing products had the ability to act reasonably and could place proper warnings on their products, thereby making the products safer at virtually no added cost and without limiting the utility of the products. Furthermore, considering that asbestos-related illnesses were borne by workers and their families, manufacturers were generally in the best position to "spread the cost of losses caused by [their] dangerous products."
Liability for third-party components. Based on the doctrine of common law strict products liability and public policy considerations underlying that doctrine, the state high court found that imposing liability on a manufacturer or distributor of a product for failing to provide adequate warnings about the danger of incorporating required asbestos-containing replacement components into the product during routine maintenance satisfied an abiding sense of basic fairness under all of the circumstances outlined. In this case, given the manner in which they were designed, the products were dependent on asbestos-containing replacement parts, whether manufactured or distributed by the named manufacturers and distributors or by third parties. Thus, the makers and distributors of the original product had a duty to provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components. These warnings on the original products would provide a reliable form of protection for the ultimate user.
Dissent. Writing in dissent, Justice Patterson expressed the view that the majority had substantially altered the test for medical causation that has governed New Jersey’s asbestos litigation for decades and stressed that New Jersey has never adopted "theories of collective liability" or other alternative forms of proof as a substitute for product identification in cases such as this. Justice Patterson explained that under longstanding precedent, plaintiffs were required to make a prima facie showing of sufficient intensity of exposure to that specific defendant’s product—as contrasted with another manufacturer’s product or a generic class of toxic exposures—in order to support a finding of proximate cause by a reasonable jury. Justice Patterson viewed the majority opinion as an erosion of the core element of a plaintiff’s burden of proof in an asbestos case, which unfairly imposed upon the defendants liability for products that they neither manufactured nor sold, and discouraged the product-identification discovery that ordinarily led to an equitable allocation of fault.
The case is No. A-40/41/42/43/44/45/46.
Attorneys: Christopher M. Placitella (Cohen Placitella & Roth) for Arthur G. Whelan. Jeffrey S. Kluger (McGivney, Kluger & Cook, P.C.) for Armstrong International, Inc. Meghan C. Goodwin (Clyde & Co.) for Burnham LLC. Sara K. Saltsman (Mayfield, Turner, O'Mara & Donnelly P.C.) for Carrier Corp. Karen J. Stanzione-Conte (Reilly, McDevitt & Henrich) for Cleaver-Brooks Inc. and Crown Boiler Co. Sean Marotta (Hogan Lovells) for Ford Motor Co. Patrick K.A. Elkins (Morgan, Lewis & Bockius) for Johnson Controls Inc.
Companies: Armstrong International, Inc.; Burnham LLC; Carrier Corp.; Cleaver-Brooks Inc.; Crown Boiler Co.; Ford Motor Co.; Johnson Controls Inc.
MainStory: TopStory WarningsNews SCLIssuesNews CausationNews AsbestosNews NewJerseyNews
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