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