July 1, 2016

New York high court expands the duty to warn

By Deborah J. La Fetra Senior Attorney

Ronald Dummitt worked aboard Navy ships in the boiler rooms for two decades, during which time he was exposed to asbestos dust during the maintenance of valves and gaskets, some of which were insulated with asbestos-containing materials. Crane Co. manufactured some of the valves on which Dummit worked, none of which containing any asbestos whatsoever. The valves were, in fact, bare metal. Thirty years after leaving the Navy, Dummitt contracted mesothelioma. He sued Crane Co., and 67 other defendants, 65 of whom settled before trial and one of whom settled after trial. Although Dummit worked with at least 20 other manufacturers’ equipment used with or containing asbestos, a jury found Crane 99% at fault for Dummitt’s illness and awarded him $32 million in non-economic damages, reduced to $8 million by the court. The appellate division affirmed, holding that the only way Crane—again, a manufacturer of a safe, non-asbestos-containing product—could avoid liability is if it had, against all industry practices of decades past, recommended non-asbestos insulation of its valves.

For its failure to depart from the then-best practices in the industry, the court held that Crane acted recklessly, and had a duty to warn Dummit about the dangers of asbestos. This week, the New York Court of Appeals (the state’s highest court) affirmed, holding in an astonishingly broad opinion that Crane had a “duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer’s product to function as intended.”

Ignoring the policy implications of such a holding—which PLF detailed in our amicus brief in support of Crane Co.—the New York court adopted a standard with nearly limitless potential liability. Saucepan manufacturers will have to warn of the dangers of grease fires. Jelly manufacturers will have to warn of the danger of peanut allergies. Even the pro-plaintiff California and Washington Supreme Courts reject such a duty. The New York court’s holding, however, was unanimous, although Judge Michael J. Garcia authored a concurring opinion expressing concern with the breadth of the majority’s test:

Rather than basing liability on the defendant’s actions here, the majority, in my view, focuses on forces acting upon the product downstream from the manufacturer. While “design” does suggest some affirmative step, under the majority’s test liability may also be premised, in the alternative, on “mechanics”— undefined—or, most troubling, “economic necessity” (majority op. at 2). What level of necessity is required and when it may arise, or what “mechanics” means in this context, will assuredly become questions for future juries in an expanding pool of litigation.

No doubt. New duties developed in asbestos cases are bound to bleed into other types of tort cases, affecting tort doctrine as a whole. Overly expansive tort litigation harms citizens of New York by deterring economic investment and job creation and curbing the availability of goods and services on the market—thus increasing the already-high cost of living in one of our nation’s most expensive states.

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