In the world of asbestos, the predominant claim against defendants is that they should have warned against the dangers of asbestos. Typically, plaintiffs prove exposure to a product, absence of any warning (or an adequate warning) and damages. The jury verdict sheet simply reads something like, “Was defendant negligent in manufacturing, selling or supplying a product without an adequate warning” and “was that negligence a substantial factor in causing plaintiff’s injury.” Unlike all other products liability warnings cases, a plaintiff seems to be held to a lesser burden of establishing his or her claim. Why?
Assuming a recognized hazard exists (a separate battle over whether a product is capable of causing injury), the first question is whether any existing warning was inadequate, which falls within the discipline of a human factors expert. This type of expert must analyze the language of the warning to determine what information it conveys. The expert must also assess the layout of the warning; lettering, color, size, use of symbols, etc. Next, the expert must assess the location of the warning, including whether it was provided with the product literature, on the product itself and in a location that a user is likely to see it. Naturally, if there is no warning, this aspect of the analysis is not necessary. However, in some asbestos cases, products did have warnings, yet less than adequate effort is made to hold a plaintiff to his or her burden of establishing through a human factors expert that warnings, at the time they were given in light of the hazards known at the time, were inadequate.
Assuming there was no warning or a jury would believe the provided warning was inadequate, the plaintiff’s burden is not close to being satisfied. In many states, the plaintiff has the burden to next present the jury with an alternative adequate warning. Simply letting plaintiffs argue without expert proof “defendant should have warned asbestos was dangerous” is letting them off the hook. Even leading human factors experts who testify for plaintiffs across the country concede that an effective alternative warning requires development and testing. The person designing the alternative warning must understand the hazards and consequences in play at the time the defendant sold the product, what the relevant people know about the hazard, and when the incident occurred. These are factual inquiries that must be developed by the expert. Next, any proposed warning must be tested for adequacy in terms of language, layout and location, which preferably should be done in a real world setting. The warning must also be crafted in the context of the hazard known at the time. So, in the 1960s, for example, if the identified hazard was that prolonged and high level exposure to personally handling asbestos products posed a risk, how should the warning have read? If it stated “prolonged handling of asbestos under circumstances generating high levels of dust may cause serious disease or cancer,” is that an adequate warning? Would this have prevented use of the product? Based on what we know today about the medicine, would injury have occurred anyway despite an adequate alternative warning that was developed based on the understanding of the hazard as it existed back then? Plaintiffs often oversimplify and overreach as to what the warning should have said and what it would have actually prevented.
Lastly, even if a feasible alternative warning is offered, the plaintiff still has the burden of showing that he or she would have heeded that warning. Even in states where there is a heeding presumption, it is rebuttable. Again, little time is spent by defendants challenging whether a plaintiff truly would have read an alternative warning that it is claimed should have appeared on products. In smoking lung cancer cases, defendants sometimes partially develop the line of questioning by asking plaintiffs about cigarette warnings because that is the low hanging fruit and makes for an easy comparison. How about asking the plaintiff whether he read or could recall warnings on other industrial products he or she used? What about asking the plaintiff whether he or she read labels on things bought in the supermarket? There is a distinct line of questioning in product liability cases designed to establish whether a plaintiff is the type of person who would have actually read and heeded warnings, which would then support a human factors expert opinion that this plaintiff would not have heeded a warning. From a broader perspective, did industrial workers really need to be warned about these hazards in the workplace? Obtaining concessions from plaintiffs that industrial settings lend themselves to risks and hazards of inhaling different potentially harmful substances would counter a plaintiff’s attempt to skew the focus just on asbestos. We are mindful that in asbestos litigation plaintiffs are often ill and already subjected to prolonged questioning. However, foregoing the opportunity to question them on these critical warnings-related issues is surrendering important defenses in these products liability cases.
Hold the plaintiffs to their burden. Make them produce a warnings expert. Retain a warnings/state of the art expert to refute plaintiff’s claim. Treat asbestos cases like products liability warnings cases.