In Johnson v. Edward Orton, Jr. Ceramic Foundation, 71 F.4th 601 (7th Cir. 2023), the Seventh Circuit reversed summary judgment for the defendant on a failure to warn claim, finding that the duty to warn can extend to packaging manufactured by another company. Here, the defendant, a manufacturer, and seller of pyrometric cones used for ceramics, shipped its cones using packaging material including a mineral called vermiculite. Starting in 1975, the cone manufacturer purchased its packaging material from a separate company, which had allegedly extracted the vermiculite from mining sites that could also contain asbestos. It appears the cone manufacturer was not told the mineral could contain asbestos until 1981 – more than five years later after initially shipping products to the plaintiff – when the packaging company provided a Material Safety Data Sheet noting the vermiculite “contained less than 0.1% by weight of asbestos.” It’s not clear whether even at that time, there was any specific warning provided about the potential hazards of asbestos.
Decades later, the defendant was sued by the plaintiff, acting as a representative of her husband’s estate after he passed away due to mesothelioma, potentially caused by exposure to asbestos. The decedent, a ceramics teacher, frequently used the manufacturer’s cones and had testified that the packaging material would “always create some dust,” which would regularly be “in [his] face.” The District Court granted the defendant’s motion for summary judgment on the failure to warn claim. But the Seventh Circuit reversed, finding the defendant potentially liable for failure to warn, even though it did not mine or create the material and did not expressly know the contents of the packaging materials until years later.
The Seventh Circuit made clear that a manufacturer has a duty to warn when the manufacturer either (1) actually knows of a reasonable risk of harm relating to the product, or (2) reasonably should know of a reasonable risk of harm relating to the product. The Court held that duty to warn, whether rooted in strict liability or negligence, is considered in light of the “present state of human knowledge” at the time of the alleged failure to warn. Id. at 615. And even a manufacturer who does not create the product or incorporate it as a component, but instead uses it as packaging, is still held to this heightened standard.