Bucking the Tort Reform Trend? Manufacturer of Non-Asbestos Product Has Duty to Warn About Asbestos Dangers

The Simonetta Decision

In Simonetta, the plaintiff, a 20-year Navy employee, contracted lung cancer and 'underlying 'asbestos related pleural disease.” 2007 Wash. App. LEXIS 127, at *2. During 1958-59, while serving as a machinist mate, Simonetta repaired an evaporator on a ship that converted seawater to freshwater. The evaporator was insulated by asbestos mud and asbestos cloth, which Simonetta had to remove with a hammer in orderto make the repairs. Simonetta then re-insulated the machine using the same materials. Viad Corporation's alleged predecessor, Griscom Russell ('Griscom'), manufactured the evaporator. Griscom did not make, provide, or install the asbestos used to insulate the machine; it shipped the evaporator to the Navy without insulation. As manufactured, the evaporator did not contain asbestos.

Simonetta sued Griscom under negligence and strict liability theories, alleging that it failed to warn him of the dangers associated with asbestos. Griscom moved for summary judgment, claiming it had no duty to warn of the dangers of another manufacturer's product. Although the trial court found that Griscom knew or should have known its product would be insulated with asbestos, it granted summary judgment to Griscom, holding that it had no duty to warn Simonetta because its product was not the cause of his injury.

On appeal, the court first examined the plaintiff's negligence claim, explaining that manufacturers have a duty to exercise ordinary care, which requires them to warn of ”hazards involved in the use of a product which are or should be known to the manufacturer.” Id. at *6 (quoting Reichelt v. Johns-Manville Corp., 733 P.2d 530, 536 (Wash. 1987). Griscom thus had a duty to warn product users of known hazards, and because Simonetta was involved in repairing the evaporator, the court determined that Griscom had a duty to warn Simonetta of dangers involved in its use. The court rejected Griscom's contention that it was only obligated to warn of dangers 'inherent in its product' because it built the evaporator knowing that insulation was necessary and that repairmen would have to break through the insulation to repair the evaporator. Id. at *7. It also was known that the respiration of asbestos fibers caused harm. This, coupled with Griscom's knowledge that the Navy used asbestos for insulation, constituted a known inherent danger involved in the use of the evaporator. The court disregarded the fact that asbestos was not the required material for insulation because Griscom was aware that the Navy used asbestos for insulation.

The court held that Griscom had a duty to warn Simonetta of the 'known danger' associated with exposure to asbestos fibers, which Griscom 'understood with certainty' would occur because of the need to break apart the insulation to repair and maintain the evaporator. Id. at *9. Griscom argued that it was a component manufacturer that manufactured a non-defective component part, but the court rejected this argument because Griscom had knowledge of the dangerous use.

Griscom also contended that common law did not support an imposition of a duty on its part. However, the court noted that the common law is constantly evolving to deal with new situations, and that at times courts are required 'to make logical extensions of principles announced in earlier decisions in order to meet evolving standards of justice.' Id. at *11 (citing Dickinson v. Edwards, 716 P.2d 729, 826 (Wash. Ct. App. 1986)). The court cited its recent decision redefining a 'user' of an asbestos product to include those who are exposed to it from a family member's clothing. See Lunsford v. Saberhagen Holdings Inc., 106 P.3d 808 (Wash. Ct. App. 2005). Noting that a duty to warn of a product's hazards 'has not traditionally applied to products manufactured by another, this present case represents a set of facts that compels another logical extension of the common law.' Simonetta, 2007 Wash. App. LEXIS 127, at *13. Accordingly, the court concluded that summary judgment was improper on plaintiff's negligence claim because Griscom had a duty to warn evaporator service personnel of the risk associated with asbestos exposure.

As to the plaintiff's strict liability claim, the court observed that because the plaintiff's exposure occurred prior to the enactment of the Washington Product Liability Act, it was governed by product liability common law, namely the Restatement (Second) of Torts, '402A. The court stated that in a failure-to-warn claim, '[i]f a product has dangerous propensities, the manufacturer is strictly liable for inadequate warnings about inherent dangers in the use of the product unless those dangers are obvious or known to the user.' Id. at *15 (citing Little v. PPG Indus., Inc., 579 P.2d 940, 947 (Wash. Ct. App. 1978)). Here, the court said the evaporator was defective because it contained no warning as to the risk of asbestos exposure.

The court rejected several of Griscom's arguments. It rebuffed Griscom's assertion that it should not be subject to strict liability because it was not in the chain of distribution of the asbestos. The court rejected this claim, stating that strict liability applied to ”any person engaged in the business of selling products for use or consumption,” and because it was engaged in selling evaporators to the Navy, it could be held strictly liable for injuries resulting from the use of those products. Id. at *16 (quoting Restatement (Second) of Torts, '402A cmt. f). The court further rejected Griscom's contention that the evaporator was a component part that was integrated into a main unit. Instead, it characterized the asbestos insulation as the component part integrated into the evaporator, which it described as the main unit.

The court examined Teagle v. Fischer & Porter Co., 570 P.2d 438 (Wash. 1977), for 'insight into Washington's previous analysis of third party product liability.' Simonetta, 2007 Wash. App. LEXIS 127, at *22. Teagle involved strict liability claims against the manufacturer of a flowrater that was dangerous when used to measure ammonia with a certain type of O-ring. However, while recommending that the flowrater be used with an O-ring that was not dangerous, the manufacturer did not warn against using the O-ring that was. The Washington Supreme Court found that the absence of such a warning rendered the product unsafe.

The court also discussed a case decided by the Fifth U.S. Circuit Court of Appeals, Stapleton v. Kawasaki Heavy Indus., 608 F.2d 571 (5th Cir.1979). In Stapleton, a motorcycle manufacturer was sued in strict liability for injuries sustained when gasoline that leaked from a motorcycle was ignited. The motorcycle had been tipped over with its fuel switch in the 'on' position, which caused the gasoline leak. The motorcycle manufacturer was held liable for failing to warn that a leak could occur under these conditions.

The Simonetta court compared Stapleton to the case at hand, stating that '[l]ike the present case, the motorcycle was not dangerous because of product failure but because its design required the use of a hazardous substance that was released during normal use.' Simonetta, 2007 Wash. App. LEXIS 127, at *24. It found that, like the motorcycle, the evaporator required the use of a hazardous substance that was released during normal use.

The court held that 'when a product requires the use of another product and the two together cause a release of a hazardous substance, the manufacturer has a duty to warn about the inherent dangers.' Id. at *25. Because asbestos was released during the reasonable use of the evaporator, Griscom had a duty to warn about the dangers attendant with that release. It therefore reversed the trial court's grant of summary judgment to Griscom under both negligence and strict liability theories.

The Braaten Decision

Similarly, in Braaten v. Union Carbide Corp., the court held that manufacturers of pipes and other products insulated with asbestos have a duty to warn about dangers associated with asbestos, even though they did not manufacture it. 2007 Wash. App. LEXIS 128, at *26. Braaten was a Navy shipyard worker who repaired pumps and valves that were insulated with asbestos. During regular maintenance on the machines, Braaten had to remove and replace their insulation, resulting in his exposure to asbestos fibers. Braaten, similar to Simonetta, was exposed prior to the enactment of the Washington Product Liability Act. Consequently, the common law also applied to his claims. Engaging in essentially the same analysis that it did in Simonetta, the court reversed the trial court's grant of summary judgment to the defendant pump and valve manufacturers, holding that they had a duty to warn ' in both negligence and strict liability ' of the dangers involved in the use of their products.

Conclusion

It is not entirely clear what these decisions will mean for Washington litigants, how broad their application will be, or whether other state courts will follow their reasoning and impose the same duty. In Simonetta, the court indicated that its holding might be limited to those facts or perhaps only very similar situations, stating '[w]hile this duty has not traditionally applied to products manufactured by another, this present case represents a set of facts that compels another logical extension of the common law.' 2007 Wash. App. LEXIS 127, at *13 (emphasis added). The duty established by Simonetta and Braaten may, therefore, be limited to products necessarily used with asbestos like the evaporator, pumps, and valves.

At the very least, it appears that manufacturers of products known to be used with asbestos (e.g., products insulated with asbestos) can expect to be subject to expanded liability. Simonetta and Braaten, coupled with the 2005 holding of the Washington Court of Appeals in Lunsford v. Saberhagen Holdings Inc., supra, which redefined a product user to include people exposed to asbestos from a family member's clothing, seem to indicate a trend of increasing liability. This trend conflicts with the tort reform developments in many other jurisdictions that have limited both liability and the ability of plaintiffs to file suit. Until the breadth of the court's holdings in Simonetta and Braaten has been determined, it is impossible to determine the extent of Washington's deviation from the tort reform movement.

Although the court's decisions appear to buck the current tort reform trend that is taking place on the state and federal level, the holdings are compatible with a different trend. In recent years, as manufacturers of asbestos and products containing large quantities of asbestos, have filed for bankruptcy, plaintiffs' attorneys, in an effort to identify and sue solvent companies, have started targeting nontraditional defendants with the blessing of many courts. More and more companies that were never directly involved with the mining, manufacture, or sale of asbestos have become subject to asbestos suits. The expansion of liability in Simonetta and Braaten to yet another tier of defendants ' those who did not manufacture or distribute asbestos or products containing asbestos ' though inconsistent with the overarching tort reform trend, is nonetheless congruent with the established trend in asbestos litigation of plaintiffs' attorneys broadening their sights to include nontraditional defendants.

Kenneth R. Meyer is a principal of Porzio, Bromberg & Newman P.C. and co-chair of the firm's Complex Tort Litigation Department. He practices in the areas of complex product liability, mass tort, recall and retrofit counseling, and personal injury litigation. Brian P. Sharkey is counsel to Porzio, Bromberg & Newman and
a member of the firm's Complex Tort Litigation Department. He concentrates his practice in the areas of product liability, mass tort, toxic tort litigation and general liability. Genevieve M. Spires is an associate and a member of the firm's Complex Tort Litigation Department.

Product liability plaintiffs are facing ever-growing barriers to filing suit in state and federal courts. Tort reformers have won significant victories at the state level, including restrictions on asbestos claims and caps on punitive damages. At the federal level, the Class Action Fairness Act ('CAFA') has allowed for easier removal of state class actions to federal courts. In addition to the impact of CAFA, a number of states have enacted legislation that makes it more difficult to file class actions in their courts. Several states also have initiated 'venue reform,' which limits the ability of out-of-state plaintiffs to file lawsuits in those states.

Many of these reforms even have been won in so-called 'magnet' jurisdictions that were once beloved by personal injury plaintiffs' attorneys because of their huge jury verdicts and pro-plaintiff judges. For example, Texas, home of countless plaintiffs' havens, passed a constitutional amendment in 2003 that capped pain and suffering awards in medical malpractice cases, established a ceiling for punitive damages awards, and enacted a 15-year statute of repose for product liability suits against manufacturers or sellers of manufacturing equipment. Texas' tort reform efforts are indicative of a larger trend nationwide.

However, the Washington Court of Appeals, an intermediate appellate court, recently decided two asbestos cases that appear to buck this trend. Simonetta v. Viad Corp., No. 56614-8-I, 2007 Wash. App. LEXIS 127 (Wash. Ct. App. Jan. 29, 2007) and Braaten v. Union Carbide Corp., No. 57011-1-I, 2007 Wash. App. LEXIS 128 (Wash. Ct. App. Jan. 29, 2007) represent significant victories for the plaintiffs' bar because the court held that manufacturers of products that do not contain asbestos have to warn about asbestos dangers if their products are known to be used with asbestos or asbestos-containing components.

The Simonetta Decision

In Simonetta, the plaintiff, a 20-year Navy employee, contracted lung cancer and 'underlying 'asbestos related pleural disease.” 2007 Wash. App. LEXIS 127, at *2. During 1958-59, while serving as a machinist mate, Simonetta repaired an evaporator on a ship that converted seawater to freshwater. The evaporator was insulated by asbestos mud and asbestos cloth, which Simonetta had to remove with a hammer in orderto make the repairs. Simonetta then re-insulated the machine using the same materials. Viad Corporation's alleged predecessor, Griscom Russell ('Griscom'), manufactured the evaporator. Griscom did not make, provide, or install the asbestos used to insulate the machine; it shipped the evaporator to the Navy without insulation. As manufactured, the evaporator did not contain asbestos.

Simonetta sued Griscom under negligence and strict liability theories, alleging that it failed to warn him of the dangers associated with asbestos. Griscom moved for summary judgment, claiming it had no duty to warn of the dangers of another manufacturer's product. Although the trial court found that Griscom knew or should have known its product would be insulated with asbestos, it granted summary judgment to Griscom, holding that it had no duty to warn Simonetta because its product was not the cause of his injury.

On appeal, the court first examined the plaintiff's negligence claim, explaining that manufacturers have a duty to exercise ordinary care, which requires them to warn of ”hazards involved in the use of a product which are or should be known to the manufacturer.” Id. at *6 (quoting Reichelt v. Johns-Manville Corp. , 733 P.2d 530, 536 (Wash. 1987). Griscom thus had a duty to warn product users of known hazards, and because Simonetta was involved in repairing the evaporator, the court determined that Griscom had a duty to warn Simonetta of dangers involved in its use. The court rejected Griscom's contention that it was only obligated to warn of dangers 'inherent in its product' because it built the evaporator knowing that insulation was necessary and that repairmen would have to break through the insulation to repair the evaporator. Id. at *7. It also was known that the respiration of asbestos fibers caused harm. This, coupled with Griscom's knowledge that the Navy used asbestos for insulation, constituted a known inherent danger involved in the use of the evaporator. The court disregarded the fact that asbestos was not the required material for insulation because Griscom was aware that the Navy used asbestos for insulation.

The court held that Griscom had a duty to warn Simonetta of the 'known danger' associated with exposure to asbestos fibers, which Griscom 'understood with certainty' would occur because of the need to break apart the insulation to repair and maintain the evaporator. Id. at *9. Griscom argued that it was a component manufacturer that manufactured a non-defective component part, but the court rejected this argument because Griscom had knowledge of the dangerous use.

Griscom also contended that common law did not support an imposition of a duty on its part. However, the court noted that the common law is constantly evolving to deal with new situations, and that at times courts are required 'to make logical extensions of principles announced in earlier decisions in order to meet evolving standards of justice.' Id. at *11 (citing Dickinson v. Edwards , 716 P.2d 729, 826 (Wash. Ct. App. 1986)). The court cited its recent decision redefining a 'user' of an asbestos product to include those who are exposed to it from a family member's clothing. See Lunsford v. Saberhagen Holdings Inc. , 106 P.3d 808 (Wash. Ct. App. 2005). Noting that a duty to warn of a product's hazards 'has not traditionally applied to products manufactured by another, this present case represents a set of facts that compels another logical extension of the common law.' Simonetta, 2007 Wash. App. LEXIS 127, at *13. Accordingly, the court concluded that summary judgment was improper on plaintiff's negligence claim because Griscom had a duty to warn evaporator service personnel of the risk associated with asbestos exposure.

As to the plaintiff's strict liability claim, the court observed that because the plaintiff's exposure occurred prior to the enactment of the Washington Product Liability Act, it was governed by product liability common law, namely the Restatement (Second) of Torts, '402A. The court stated that in a failure-to-warn claim, '[i]f a product has dangerous propensities, the manufacturer is strictly liable for inadequate warnings about inherent dangers in the use of the product unless those dangers are obvious or known to the user.' Id. at *15 (citing Little v. PPG Indus., Inc. , 579 P.2d 940, 947 (Wash. Ct. App. 1978)). Here, the court said the evaporator was defective because it contained no warning as to the risk of asbestos exposure.

The court rejected several of Griscom's arguments. It rebuffed Griscom's assertion that it should not be subject to strict liability because it was not in the chain of distribution of the asbestos. The court rejected this claim, stating that strict liability applied to ”any person engaged in the business of selling products for use or consumption,” and because it was engaged in selling evaporators to the Navy, it could be held strictly liable for injuries resulting from the use of those products. Id. at *16 (quoting Restatement (Second) of Torts, '402A cmt. f). The court further rejected Griscom's contention that the evaporator was a component part that was integrated into a main unit. Instead, it characterized the asbestos insulation as the component part integrated into the evaporator, which it described as the main unit.

The court examined Teagle v. Fischer & Porter Co. , 570 P.2d 438 (Wash. 1977), for 'insight into Washington's previous analysis of third party product liability.' Simonetta, 2007 Wash. App. LEXIS 127, at *22. Teagle involved strict liability claims against the manufacturer of a flowrater that was dangerous when used to measure ammonia with a certain type of O-ring. However, while recommending that the flowrater be used with an O-ring that was not dangerous, the manufacturer did not warn against using the O-ring that was. The Washington Supreme Court found that the absence of such a warning rendered the product unsafe.

The court also discussed a case decided by the Fifth U.S. Circuit Court of Appeals, Stapleton v. Kawasaki Heavy Indus. , 608 F.2d 571 (5th Cir.1979). In Stapleton, a motorcycle manufacturer was sued in strict liability for injuries sustained when gasoline that leaked from a motorcycle was ignited. The motorcycle had been tipped over with its fuel switch in the 'on' position, which caused the gasoline leak. The motorcycle manufacturer was held liable for failing to warn that a leak could occur under these conditions.

The Simonetta court compared Stapleton to the case at hand, stating that '[l]ike the present case, the motorcycle was not dangerous because of product failure but because its design required the use of a hazardous substance that was released during normal use.' Simonetta, 2007 Wash. App. LEXIS 127, at *24. It found that, like the motorcycle, the evaporator required the use of a hazardous substance that was released during normal use.

The court held that 'when a product requires the use of another product and the two together cause a release of a hazardous substance, the manufacturer has a duty to warn about the inherent dangers.' Id. at *25. Because asbestos was released during the reasonable use of the evaporator, Griscom had a duty to warn about the dangers attendant with that release. It therefore reversed the trial court's grant of summary judgment to Griscom under both negligence and strict liability theories.

The Braaten Decision

Similarly, in Braaten v. Union Carbide Corp., the court held that manufacturers of pipes and other products insulated with asbestos have a duty to warn about dangers associated with asbestos, even though they did not manufacture it. 2007 Wash. App. LEXIS 128, at *26. Braaten was a Navy shipyard worker who repaired pumps and valves that were insulated with asbestos. During regular maintenance on the machines, Braaten had to remove and replace their insulation, resulting in his exposure to asbestos fibers. Braaten, similar to Simonetta, was exposed prior to the enactment of the Washington Product Liability Act. Consequently, the common law also applied to his claims. Engaging in essentially the same analysis that it did in Simonetta, the court reversed the trial court's grant of summary judgment to the defendant pump and valve manufacturers, holding that they had a duty to warn ' in both negligence and strict liability ' of the dangers involved in the use of their products.

Conclusion

It is not entirely clear what these decisions will mean for Washington litigants, how broad their application will be, or whether other state courts will follow their reasoning and impose the same duty. In Simonetta, the court indicated that its holding might be limited to those facts or perhaps only very similar situations, stating '[w]hile this duty has not traditionally applied to products manufactured by another, this present case represents a set of facts that compels another logical extension of the common law.' 2007 Wash. App. LEXIS 127, at *13 (emphasis added). The duty established by Simonetta and Braaten may, therefore, be limited to products necessarily used with asbestos like the evaporator, pumps, and valves.

At the very least, it appears that manufacturers of products known to be used with asbestos (e.g., products insulated with asbestos) can expect to be subject to expanded liability. Simonetta and Braaten, coupled with the 2005 holding of the Washington Court of Appeals in Lunsford v. Saberhagen Holdings Inc., supra, which redefined a product user to include people exposed to asbestos from a family member's clothing, seem to indicate a trend of increasing liability. This trend conflicts with the tort reform developments in many other jurisdictions that have limited both liability and the ability of plaintiffs to file suit. Until the breadth of the court's holdings in Simonetta and Braaten has been determined, it is impossible to determine the extent of Washington's deviation from the tort reform movement.

Although the court's decisions appear to buck the current tort reform trend that is taking place on the state and federal level, the holdings are compatible with a different trend. In recent years, as manufacturers of asbestos and products containing large quantities of asbestos, have filed for bankruptcy, plaintiffs' attorneys, in an effort to identify and sue solvent companies, have started targeting nontraditional defendants with the blessing of many courts. More and more companies that were never directly involved with the mining, manufacture, or sale of asbestos have become subject to asbestos suits. The expansion of liability in Simonetta and Braaten to yet another tier of defendants ' those who did not manufacture or distribute asbestos or products containing asbestos ' though inconsistent with the overarching tort reform trend, is nonetheless congruent with the established trend in asbestos litigation of plaintiffs' attorneys broadening their sights to include nontraditional defendants.

Kenneth R. Meyer is a principal of Porzio, Bromberg & Newman P.C. and co-chair of the firm's Complex Tort Litigation Department. He practices in the areas of complex product liability, mass tort, recall and retrofit counseling, and personal injury litigation. Brian P. Sharkey is counsel to Porzio, Bromberg & Newman and
a member of the firm's Complex Tort Litigation Department. He concentrates his practice in the areas of product liability, mass tort, toxic tort litigation and general liability. Genevieve M. Spires is an associate and a member of the firm's Complex Tort Litigation Department.