Products Liability Law Reporter

The Maryland Court of Appeals held that the assembler and installer of a turbine generator was not liable for strict liability design defect where it retained control over the turbine and its component parts at the time a worker and his wife were allegedly exposed to asbestos.

Westinghouse and Potomac Electric Power Co. (PEPCO) negotiated for PEPCO’s purchase of a turbine generator for use at PEPCO’s Morgantown Generating Station. Westinghouse and PEPCO also negotiated another contract for Westinghouse’s construction and installation of the turbine. Westinghouse subcontracted with the Walter E. Campbell Co. (WECCO), which sold and installed asbestos insulation. The subcontract provided that WECCO was to supply and install heat insulation for the turbine according to Westinghouse’s specifications, which called for the application of asbestos cement.

Frank Basil, a WECCO employee, worked on the installation of the asbestos insulation on the turbine at the Morgantown Generating Station. He cut, mixed, and applied the insulation, which caused dust to collect on his clothing. His wife, Barbara, laundered his work clothes and was therefore exposed to the dust. She later developed mesothelioma and died of her disease.

Before her death, Barbara Basil sued multiple defendants, including Westinghouse. The plaintiff—and later, her estate—alleged strict products liability design defect and other claims. Westinghouse moved for summary judgment on the basis that it owed no duty to warn Basil of the dangers of asbestos and could not be held liable for a subcontractor’s negligent work practices. The trial court granted the motion.

Affirming, the appellate court noted that for strict liability to attach, a product must leave the seller’s possession or control or enter the stream of commerce. Here, Westinghouse retained control over the turbine and its component parts at the time the Basils were exposed to asbestos. The court noted that the Westinghouse contracts also reflect the intention that Westinghouse retain control over the turbine until it was fully constructed.

Consequently, the court held that Westinghouse was not liable to the plaintiff for strict products liability design defect.

Citation: Basil-Flippen v. General Electric Co., 2024 WL 488559 (Md. Feb. 8, 2024).

Comment: In Sims v. Aerojet Rocketdyne, Inc., No. 22-62148-CIV-DIMITROULEAS (S.D. Fla. Feb. 29, 2024), the plaintiff alleged that Curtiss-Wright Corp. and dozens of other defendants were liable for damages arising out of the late John McCabe’s alleged exposure to asbestos in equipment and products. The plaintiff alleged claims for strict products liability and negligent failure to warn, asserting that McCabe’s asbestos exposure led to his malignant epithelioid mesothelioma and subsequent death. Curtiss-Wright moved for summary judgment. In its motion, the defendant asserted that the plaintiff had not offered any evidence establishing that McCabe had worked on or around a Curtiss-Wright product, that the purported Curtiss-Wright product contained asbestos and created dust, and that McCabe had been exposed to asbestos-containing dust from any Curtiss-Wright product. Denying the motion, the district court noted that to prevail on a strict products liability claim, a plaintiff must establish the manufacturer’s relationship to the product at issue, a defective and unreasonably dangerous condition of the product, proximate cause, and damages. Here, the court found, the plaintiff introduced evidence that McCabe was exposed to asbestos while working on the C-46 aircraft manufactured by Curtiss-Wright and around other aircraft mechanics doing the same. The plaintiff also offered evidence that the asbestos-containing products on various C-46 components were a substantial factor in causing McCabe’s disease. Consequently, the court held that there were genuine issues of material fact regarding the plaintiff’s claims against Curtiss-Wright for negligent failure to warn and strict liability.

For another mesothelioma case, see Bassier v. A.O. Smith Water Prods. Co., 2024 WL 1117152 (N.Y. Sup. Ct. Mar. 13, 2024). There, in its motion for summary judgment, Burnham, LLC, asserted that the plaintiff, electrician Collin Bassier, failed to establish exposure to products that allegedly contained asbestos. Denying the motion, the court found that a factfinder must determine whether Bassier had properly identified Burnham Boilers as an asbestos-containing product to which he was exposed. The court also found that the defendant had failed to meet its initial burden of providing that its products did not contain asbestos.