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Under the new paradigm for failure to warn outlined in section 402A, the question then became, of which risks must the manufacturer warn? In answering this question, Wisdom held that the manufacturer was held to the level of knowledge and skill of an expert, meaning that the manufacturer “must keep abreast of scienti‹c knowledge, discoveries, and advances ” and “even more importantly . . . has a duty to test and inspect his product.”69 At trial, the jury had heard testimony that the health risks caused by exposure to asbestos, speci‹cally asbestosis, had “been recognized as a disease for well over ‹fty years.”70 Wisdom therefore had no dif‹culty in upholding the jury’s verdict that the defendants were liable on the strict liability count. Borel’s Own Conduct in Working with Asbestos Insulation As in the tobacco litigation, the manufacturer’s knowledge and conduct was only half the story in Borel’s lawsuit against the asbestos industry. Intertwined with the court’s ‹nding that the manufacturers had behaved tortiously and ought to be held liable was its evaluation of Borel’s own knowledge and conduct. During his deposition, Borel testi‹ed “that he had known for years that inhaling asbestos dust ‘was bad for me,’” but “that he and his fellow insulation workers thought that the dust ‘dissolves as it hits your lungs.’” Further, he testi‹ed that in his later years of working, respirators were made available for those on the job, but he had declined to use them because “you can’t breathe,” and they were uncomfortable and could not be worn in hot weather.71 As the defendants pointed out, between 1964 and 1966, several years before Borel stopped working, their insulation products contained warning labels advising that “inhalation of asbestos in excessive quantities over longer periods of time may be harmful” and that users should “avoid breathing the dust” and wear respirators.72 Finally, in 1964, Borel’s physician had told him that “x-rays of his lungs were cloudy” and “advised him to avoid asbestos dust as much as he possibly could.”73 Despite the emergence of strict products liability, Borel became a morality contest that rivaled the tobacco litigation in intensity. Should the manufacturer or the worker, who admittedly had some knowledge that working with asbestos products could be dangerous, bear the ‹nancial consequences of asbestos-related diseases? That basic question played itself out in the Borel decision in several different doctrinal pigeonholes, some addressing the manufacturers’ prima facie liability and others focused on af‹rmative defenses arising from the plaintiff’s own conduct. On the prima facie liability side of the ledger, manufacturers, simultaneously with arguing that the risks of exposure to asbestos products were Product-Caused Diseases Confront the Law of the Iron Horse 47 not foreseeable, argued that the public health hazards of their products were “obvious,” thus precluding any duty to warn on the manufacturers’ part. Judge Wisdom responded, in essence, that although Borel may have understood that asbestos insulation posed some health risk, he had no idea that it could cause serious illness. Therefore, it was the manufacturers’ responsibility to warn him. In a second, separate opinion issued after a second round of arguments in the case, Wisdom concluded that the warnings that the manufacturers ‹rst placed on their insulation products in the mid1960s did not adequately communicate the extent of the dangers posed.74 On the side of the ledger analyzing af‹rmative defenses arising from the plaintiff’s own conduct, Judge Wisdom essentially adopted the position of the Restatement (Second) of Torts on the effect of the plaintiff’s conduct in a strict products liability action,75 an interpretation common among American courts during the twenty-year period following the decision in Borel. He held that the plaintiff’s conduct constituted contributory negligence and barred the liability action only when the plaintiff unreasonably, voluntarily, and knowingly encountered a product risk. Again, Wisdom concluded that the evidence showed that Borel “never actually knew or appreciated the extent of the danger involved.”76 Finally, the asbestos manufacturers argued a separate and distinct defense based on Borel’s own conduct: namely, that he had “misused” the asbestos insulation by applying it without wearing a respirator. Product misuse was to become one of the most misunderstood defenses to product liability actions.77 At this early point in the development of the law of strict products liability, Judge Wisdom simply understood misuse as a form of contributory negligence consisting of the...

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