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State High Court Sets Low Causation Standard for Asbestos Exposure, Shifts Workplace Safety Burden to Manufacturers


When a product manufacturer distributes tools to a workplace, including all appropriate warnings and safety instructions, common sense would dictate that the manufacturer’s job is done. The employer now has the product, the knowledge, and the tools necessary to use the products safely and to appropriately instruct their employees. Employers, after all, are responsible for the safety of their employees.

A divided New Jersey Supreme Court came to the opposite conclusion in a recent decision, holding the product manufacturer liable for failure to warn workers about certain hazards even after providing adequate warning to the employer who actually purchased the product. To add insult to injury, the court also set a very low bar for proving causation in an asbestos/mesothelioma case. Read on to learn about the decision, and call an experienced New York products liability defense attorney for advice and representation.

Workplace Safety and the Manufacturer’s Duty to Warn Twice

The case titled Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. concerned a worker’s health conditions allegedly caused by exposure to asbestos in the workplace. The plaintiff, a representative of the deceased worker’s estate, instituted a wrongful death/product liability suit against the manufacturer of the asbestos the worker handled as part of his job.

The defendant asbestos manufacturer argued that it provided adequate warnings of the risks of asbestos usage. On the actual asbestos bags, the manufacturer printed: “CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm.” Additionally, over the years the defendant provided additional information and updated warnings to the employer who purchased the asbestos, and the defendant requested that the information be forwarded to the employees. The employer failed to pass on the updated information.

The court held that the warning on the bag was, alone, insufficient to adequately warn the workers of the risks of asbestos exposure. Moreover, the manufacturer did not satisfy its duty by informing the employer of all attendant risks–they should have updated all warnings on the bags that would actually go to the workers. Manufacturers cannot rely on employers to pass on full warnings and complete information.

Low Bar for Mesothelioma Causation

In order to prevail, the worker also needed to prove that he had actually suffered injury as a result of the complained-of product. We’ve talked about causation before, noting the distinction between general and specific causation. Plaintiffs must show both that the subject chemical can cause the plaintiff’s condition and that the plaintiff was individually exposed to the chemical at sufficient levels to cause their condition. It’s not enough for the plaintiff to simply state that “asbestos can cause mesothelioma, and I’ve been around asbestos before.”

At least, it’s not supposed to be that easy. The New Jersey Supreme Court appears to have held exactly that. The court stated that the prevailing “frequency, regularity and proximity test is not a rigid test with an absolute threshold level necessary to support a jury verdict.” Instead, it’s simply a method for evaluating what constitutes a “substantial factor” in evaluating proximate causation. In the case of asbestos:

Certain substances are much more toxic than others and have a much greater capacity to cause deadly diseases, even if exposure is relatively minimal. For example, “[m]alignant mesothelioma can develop after short-term asbestos exposures of only a few weeks, and from very low levels of exposure.”

The court went on to state: “There is no evidence of a threshold level below which there is no risk for mesothelioma.” Accordingly, “when a plaintiff has presented competent and credible evidence that even a minimal number of asbestos fibers can cause mesothelioma, then a jury may conclude the fibers were a substantial factor in causing a plaintiff’s injury.”

In other words, the court permitted the plaintiff to argue that basically any exposure to asbestos can cause mesothelioma, and then left it up to the jury to decide. If other courts take up this approach, manufacturers could face significant liability around the country.

For well-considered and effective legal guidance on a New York products liability, insurance defense, or toxic tort claim, contact the Islip offices of Richard A. Fogel at 516-721-7161.

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