Asbestos fibers
Asbestos fibers ()

Manufacturers have a duty to warn of the dangers of using their products if they contain asbestos-laden parts from a third party that are essential for those products to function, the state Court of Appeals ruled Tuesday in two appeals.

Both cases involved valves manufactured by the Crane Co. intended for use in high-pressure, high-temperature environments. They included asbestos-laden gaskets and packing that were produced by other companies.

The plaintiffs in both cases regularly worked around the company’s products for years and later were diagnosed with mesothelioma and died.

From 1960 to 1977, Ronald Dummitt was a boiler technician for the Navy and was exposed to asbestos dust by regularly changing gaskets and packing on the valves. He was diagnosed with mesothelioma in 2010 and subsequently sued Crane and 67 companies that produced asbestos-containing gaskets, packing and insulation, alleging that Crane had failed to warn him of the hazards of asbestos exposure for components used with its valves.

The jury in Matter of New York City Asbestos Litigation (Dummitt v. A.W. Chesterton), found Crane 99 percent at fault and awarded Dummitt $32 million in damages, which the court reduced to $8 million.

Crane moved to set aside the verdict, arguing that it had no duty to warn users of the perils arising from the use of its products in conjunction with products containing asbestos that were manufactured by a third party.

In 2014, a divided panel of the Appellate Division, First Department, affirmed the judgment though it agreed that Crane had a duty to warn, finding the company had influenced the Navy’s decision to use asbestos gaskets in the valves.

The plaintiff in the other case, Matter of New York City Asbestos Litigation (Suttner v. A.W. Chesterton), Gerald Suttner, was a pipe fitter at a General Motors plant in Tonawanda from 1960 to 1979 and maintained the plant’s steam system, which included Crane’s valves.

Like Dummitt, Suttner regularly changed asbestos-laden gaskets, insulation and lining and was diagnosed with mesothelioma in 2010.

Suttner also sued Crane and producers of asbestos-containing products following his diagnosis. A jury found Crane 4 percent liable and awarded $3 million to Suttner’s estate. The company appealed the verdict to the Appellate Division, Fourth Department, but the appeals court affirmed the lower court.

In both appeals, Crane relied upon the upon the Court of Appeals’ 1992 ruling in Rastelli v. Goodyear Tire & Rubber, 79 NY2d 289, to argue that it had no duty to warn users of the dangers of third-party products. It had no control over the production of the asbestos-containing implements used in its products, the company argued, and did not place the products into the “stream of commerce.”

In a ruling issued on Tuesday, Judge Sheila Abdus-Salaam wrote that a duty to warn is in line with New York public policy regarding products liability and that a major determinant in a manufacturer’s duty to warn about the use of its product in conjunction with another product constructed by a third party is whether or not the manufacturer of a durable product with fungible parts is in a “superior position” to know of the hazards of combining those products.

“Where two products are used together, the user has even less ability to comprehend the risk without a warning from the manufacturers because he or she rarely has access to sufficient technical information about both products to anticipate the perils of their joint use,” Abdus-Salaam said, adding in a footnote that this logic does not hold in instances where the dangers of the combined use of two products is obvious to the user.

Crane’s executives were aware of the dangers of breathing asbestos dust as early as the 1970s, the decision stated, and did not provide warnings about the dangers of using its products until at least 1980.

There is no evidence that a duty to warn would saddle manufacturers with an untenable financial burden, Abdus-Salaam wrote, especially given that the manufacturers can obtain insurance for this type of liability.

Abdus-Salaam also said the court’s adoption of the principle that a manufacturer has a duty to warn of the peril of a known and foreseeable joint use of its product and another product is no “radical innovation” for the court.

In Levczuk v. Babcock & Wilcox, 10 NY2d 830 (1961), the court laid the foundation for a manufacturer’s duty to warn by approving a plaintiff’s claim that, because the manufacturer of a boiler that exploded allowed another company to install a safety bypass, the manufacturer may have negligently failed to warn the plaintiff that using the two products together “created new dangers.”

Abdus-Salaam cited five decisions by Appellate Division courts from 1984 to 2004 that held that manufacturers have a duty to warn. “Thus, our decision here adds but a note to a familiar anthem in failure-to-warn jurisprudence,” she said.

Also on Tuesday, the court issued a unanimous ruling in Matter of New York City Asbestos Litigation (Konstantin v. 630 Third Ave.), which was jointly tried with Dummitt.

Tishman Liquidating Corp., the general contractor at two Manhattan construction sites where plaintiff Dave John Konstantin worked as a carpenter and was exposed to asbestos dust, argued that the trial court abused its discretion in allowing the two cases to be tried together.

But, the Court of Appeals wrote, the contractor did not challenge the joint trial until it filed a post- trial motion, and thus the matter was not preserved for appellate review.

Chief Judge Janet DiFiore did not take part in either ruling.

Seth Dymond, a partner at Belluck & Fox and head of the firm’s appellate practice, represented the plaintiffs in both Dummitt and Konstantin.

Dymond told the Law Journal that the court’s decision is a “statement that the courts are going to continue to hold product manufacturers responsible for hazards associated with the intended use of their products.”

John Lipsitz, a founding partner at Lipsitz & Ponterio, represented Suttner. Dennis Harlow, an associate at the firm who worked on the brief, said in an interview that the court’s decision is a “reaffirmation” of existing products liability law in New York.

“I expect you’ll see it cited for quite some time,” Harlow said.

Caitlin Halligan, a partner at Gibson, Dunn & Crutcher, represented Crane.

The company released a statement expressing disappointment in the ruling, which it said was in conflict with decisions by other courts. As Abdus-Salaam noted in her decision, the failure-to-warn doctrine used by New York courts is a negligence-based doctrine that is not universally accepted while some sister courts rely on a strict liability standard that places stricter limits on the existence of a duty to warn.

“Crane Co. never manufactured asbestos-containing products, and it believes that all of its products were safe when used as intended,” the company stated. “Consequently, Crane Co. will continue to vigorously defend itself against asbestos cases, consistent with its past practices.”