Kelley Drye has issued its review of the Simonetta and Braaten opinion and provides practical advice for companies that may become targets of similar “duty to warn” lawsuits. Supreme Court of the State of Washington issued opinions in two landmark asbestos liability tort cases of nationwide significance. The two cases, Simonetta v. Viad Corp. and Braaten v. Saberhagen Holdings , held that defendants cannot be held liable for failing to warn of the hazards of asbestos contained in another manufacturer’s product, such as insulation, applied to or incorporated into the defendant’s non-asbestos product. Many companies and industries will benefit from these decisions, including those associated with the use of asbestos-containing products or other hazardous products such as lead paint or benzene.
However, while the Court’s decision casts renewed doubt on this novel “Duty to Warn” theory of recovery, the strongly worded dissenting opinions will no doubt embolden plaintiffs’ attorneys to continue to bring similar “duty to warn” cases in other jurisdictions. Current and potential asbestos defendants, therefore, should consider preparing now before faced with the first of what could quickly become a multitude of potential claims. To prepare, companies should invest time in formulating a coherent and integrated defense strategy, including self-discovery of corporate history, sales records, and product usage and investigation and organization of risk management records and insurance policies. By preparing at the outset, companies can make themselves an unattractive target for the plaintiffs’ bar as well as secure potentially available insurance to pay for what could be very significant defense costs.