Plaintiff Arlan C. Morman files this Response to Defendant General Electric’s No-Evidence Motion for Summary Judgment and would respectfully show the Court as follows:


Plaintiff Arlan C. Morman suffers from asbestosis, a progressive scarring of the lung tissue caused by exposure to asbestos. Mr. Corder was exposed to asbestos while working with turbines made by Defendant General Electric Company (“GE”). GE claims that it was not responsible for the asbestos fibers released by its products, even though GE specified the use of asbestos-containing materials for its turbines.

Under Rule 166a(i), the court should “review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences.” Benitz v. Gould Group, 27 S.W.3d 109, 112 (Tex. App. – San Antonio 2000, no pet.). The motion must be denied if the non-movant “brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. . . . More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. at 113 (citations omitted). Plaintiffs “are not required to prove they would prevail at a trial on the merits; they need only produce evidence sufficient to raise an issue of fact.” Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 620 (Tex. App. – Houston [1st Dist.] 1997), aff’d, 997 S.W.2d 217 (Tex. 1999).


A manufacturer has a duty “to inform users of hazards associated with the use of its products.” Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986) (emphasis added). A manufacturer has a duty to warn if it ‘knows or should know of potential harm to a user because of the nature of its product.’” General Motors Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993) (emphasis added). In this case, the nature of GE’s product created a serious health risk, and GE failed to take any steps to warn potential users of the hazards associated with its products.

GE’s design specifications called for the use of asbestos insulation in completing its turbines. GE’s “General Specifications for Heat Retention Material,” a document applicable to “large steam turbine[s],” requires the use of asbestos cloth, asbestos paper, asbestos cement, sprayed asbestos and specifies particular brands of asbestos-containing insulation manufactured by Johns-Manville, Owens Corning, Pittsburgh Corning and other manufacturers. See “General Specifications for Heat Retention Material,” attached as Exhibit 1. GE’s product design required the extensive use of asbestos-containing materials.

GE asserts that it cannot be held responsible for the asbestos fibers released from its products. GE relies primarily on Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996), but the reasoning of Barajas does not apply to this case. Indeed, the court observed in Barajas that its holding was based on “the specific and unique facts” of that case, which involved a manufacturer copying another company’s product design. Id. at 617. This case involves GE’s own products, not copies of GE’s design by third parties.

In Barajas, the court cited Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225-26 (N.Y. 1992) and several other cases for the proposition that “[a] manufacturer generally does not have a duty to warn or instruct about another manufacturer’s products, even though a third party might use those products in connection with the manufacturer’s own product.” Barajas, 927 S.W.2d at 614. This reasoning has been specifically distinguished in the context of asbestos cases. In Berkowitz v. AC&S, Inc., 733 N.Y.S.2d 410 (N.Y. App. 2001), the court held that the Rastelli case cited in Barajas did not preclude liability for the manufacturer of a pump that required asbestos insulation. The court explained that a pump manufacturer could have a duty to warn “concerning the dangers of asbestos” even though “it neither manufactured nor installed” the asbestos on its pumps. Id. at 411. The court noted that “it is at least questionable whether pumps transporting steam and hot liquids on board a ship could be operated safely without insulation, which [the defendant] knew would be made out of asbestos.” Id.

GE also cites Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. App. – San Antonio 1990, writ denied), but in that case there was no evidence that the crane manufacturer had specified or called for the use of the defective rigging in connection with its product. See id. at 226 (explaining that defendant “did not manufacture, distribute, sell, or otherwise place the nylon strap or any other rigging material into the stream of commerce.”). In contrast to cases such as Barajas and Walton, Texas law does impose liability on a defendant who “designs a product as a conscious part of the overall development of that product.” Arceneaux v. Lykes Bros. S.S. Co., Inc., 890 S.W.2d 191, 195 (Tex. App. – Beaumont 1994, writ denied). A defendant who plays a conscious role in the design process “may be subjected to strict product liability or liability for negligence, even though the designer never actually manufactures the product or holds title to it.” Id. at 195 (citing Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986)). At a minimum, GE’s specifications reflect its conscious involvement in the design of its turbines, including the decision to require asbestos-containing insulation. GE cannot disavow legal responsibility for its conduct.

Indeed, no court has ever accepted GE’s reasoning in an asbestos case. Courts in Texas and other jurisdictions have consistently held that manufacturers of boilers, turbines and similar equipment requiring asbestos insulation may be held liable for asbestos exposure from their products. See, e.g., White v. CBS Corp., 996 S.W.2d 920 (Tex. App. – Austin 1999, pet. denied) (plaintiff alleged that decedent’s mesothelioma caused by asbestos exposure while working with Westinghouse turbines); Anderson v. Combustion Engineering, Inc., 647 N.W.2d 460 (Wis. App. 2002) (affirming judgment against boiler manufacturer for mesothelioma caused by exposure to asbestos insulation from its boilers); Berkowitz v. AC&S, Inc., 733 N.Y.S.2d 410, 411 (N.Y. App. 2001) (holding pump manufacturer could be held liable for failure to warn, even though manufacturer “neither manufactured nor installed” the asbestos on its pumps). GE has cited no authority to the contrary.


Plaintiff respectfully requests that this Court deny Defendant’s motion for summary judgment in its entirety.