Washington Court Refuses To Spread Asbestos Liability To Post-Sale Products

The Washington State Supreme Court has ruled that makers of nonhazardous component parts, such as pipes or valves, have no duty to warn ultimate users about asbestos products made by others and attached to the components post-sale.

The decision denies plaintiff attorneys a new line of attack in an effort to collect on behalf of those exposed to asbestos in the workplace, said a lawyer who submitted a friend-of-the-court brief in two cases on behalf of insurance trade groups.

“It is easy to see what is suddenly driving this novel theory,” said Mark Behrens, a partner at Shook, Hardy & Bacon L.L.P., Washington, D.C. “Most major manufacturers of asbestos-containing products have filed for bankruptcy, and the Navy”–which allegedly applied the asbestos–”enjoys sovereign immunity.”

Mr. Behrens submitted his briefs in the cases on behalf of industry trade groups that included the American Insurance Association, the National Association of Mutual Insurance Companies and the Property Casualty Insurers Association of America.

“Component-part makers are being targeted simply because they happen to be solvent and subject to suit,” according to Mr. Behrens, noting that “the Washington Supreme Court cases are significant because they are the first state Supreme Court cases to address this proposed new duty-to-warn.”

However, Mr. Behrens cautioned that oral argument in a similar appeal before the California First District Court of Appeal in Taylor v. A.W. Chesterton is scheduled for Dec. 18 in San Francisco.

In the Washington case, Simonetta v. Viad Corp., the court ruled that the manufacturer of an evaporator was responsible only for the chain of distribution of its non-asbestos product.

The subsequent addition of asbestos-containing insulation manufactured by another company was an entirely separate product outside of the defendant's control and in a separate chain of distribution, the court said, according to Mr. Behrens.

“The court used this distinction as the basis to deny liability under both negligence and common law strict liability provisions,” he explained. Importantly, he added, the court rejected the claim of plaintiffs that the possibility of harm gave rise to a duty.

In its decision, the court said that “it makes no difference if the manufacturer knew its products would be used in conjunction with asbestos insulation,” Mr. Behrens pointed out.

In Braaten v. Saberhagen Holdings, the court addressed the issue of whether product manufacturers had a duty to warn about the danger of exposure to asbestos in replacement packing and replacement gaskets that the defendants did not manufacture, sell or otherwise supply.

Mr. Behrens said that while some of the defendants did incorporate asbestos in their original products, the court properly shifted the analysis to whether the replacement parts the plaintiff was exposed to as part of his work as a pipefitter for the Navy could result in liability for the manufacturers of the original parts.

“The court rejected this liability theory for the reasons expressed in Simonetta,” according to Mr. Behrens.

He said the court also declined to impose liability on the defendants for asbestos which may have been originally supplied with their products, finding that the plaintiff presented insufficient evidence that he worked with asbestos originally supplied by the defendants as opposed to replacement products made by others.