TRENTON, N.J. (Legal Newsline) – Makers of parts that did not contain asbestos – but would later need to be used with parts that did – owed a duty to warn users, according to the New Jersey Supreme Court.
On June 3, the New Jersey Supreme Court ruled against a group of traditional asbestos defendants including Ford Motor Company that had won summary judgment in the trial court but suffered losses in both appellate courts.
“The purpose of warnings is to allow a worker, like (plaintiff Arthur) Whelan, the opportunity to take the necessary precautions, such as donning protective gear, to protect against the inhalation of deadly asbestos fibers or dust,” Justice Barry Albin wrote.
“The manufacturer or distributor of the integrated product is best situated to provide those warnings. Here, defendants provided no warnings at all.”
So if plaintiffs can pass a few requirements, they can sue companies that didn’t make asbestos-containing parts for their asbestos-related illnesses, like mesothelioma.
Plaintiffs will need to prove:
-That manufacturers or distributors incorporated asbestos-containing components in their original products;
-That the parts were integral to the product;
-That routine maintenance of the product required replacing the asbestos-containing components; and
-That the exposure to asbestos was a substantial factor in causing the disease.
It’s an argument asbestos attorneys have had success making in some states but failed in others
“The Court concludes, however, that New Jersey’s evolving common law jurisprudence in the field of failure-to-warn, strict-liability cases involving asbestos-containing products leads to a result that aligns with similar decisions rendered by the United States Supreme Court, the New York Court of Appeals, and the Maryland Court of Appeals, which have recognized a strict-liability duty to warn of the dangers of necessary replacement components,” the decision says.
The New Jersey Association for Justice, the state’s group for plaintiffs lawyers, supported Whelan’s case and was represented by Levy Konigsberg. Also in support was the Asbestos Disease Awareness Organization, represented by Weitz & Luxenberg.
Arguing against were the U.S. Chamber of Commerce, the Product Liability Advisory Council and the Washington Legal Foundation.
Two justices dissented, with Justice Anne Patterson explaining why.
“In today’s decision, the majority substantially alters the test for medical causation that has governed our state’s asbestos litigation for decades,” she wrote.
“The majority does not base its revision of the standard on any showing that the existing rule deprives asbestos plaintiffs of a remedy. Indeed, the specific issue addressed in this appeal has been raised in only two published decisions -- one of them the Appellate Division’s decision in this very case -- among the tens of thousands of asbestos claims that our courts have handled over generations.”
Nothing was preventing Whelan’s lawyers (Cohen Placitella & Roth and The Lanier Law Firm) from recovering damages from the many defendants that case law already allowed and there was no need to add more defendants to that pool, Patterson wrote.
“I view the majority opinion to erode the core element of a plaintiff’s burden of proof in an asbestos case, to unfairly impose upon defendants liability premised on products that they neither manufactured nor sold, and to discourage the product-identification discovery that ordinarily leads to an equitable allocation of fault,” she wrote.