BOREL V. FIBREBOARD PAPER PRODCUCTS United States Court of Appeals, Fifth Circuit 493 F.2d 1076 (1973) CASE BACKGROUND: Borel was exposed to asbestos from 1936 through 1969 as he worked in various industrial insulation jobs. in 1963, an X ray showed his lungs to be cloudy. His doctor advised him to avoid asbestos dust. lrr 1969, a lung biopsy revealed pulmonary asbestosis. The following year, Borel had a lung removed because of mesothelioma, a lung cancer caused by asbestosis. Shortly thereafter, Borel died. Borel's heirs continued with litigation that Borel had begun against eleven manufacturers of asbestos insulation materials he had used over the years. Four manufacturers settled out of court, and one was dismissed at trial, leaving six manufacturers, including Fibreboard and Manville. The jury found the defendants liable under strict liability. The manufacturers appealed. CASE DECISION Wisdom, Circuit Judge. *ii- The evidence . . . indicated . . . that during Borel's working career no manufacturer ever warned contractors or insulation workers, including Borel, of the dangers associated with inhaling asbestos dust. . . . Furthermore, no manufacturer ever tested the effect of their products on the workers using them or attempted to discover whether the exposure of insulation workers to asbestos dust exceeded the suggested threshold limits. I'** As the plaintiff has argued, insulation materials containing asbestos may be viewed as \"unavoidably unsafe products." . . . As a practical matter, the decision to market such a product requires a balancing of the product's utility against its known or foreseeable danger. . . . [E]ven when such balancing leads to the conclusion that marketing is justified, the seller still has a responsibility to inform the user or consumer of the risk of harm. The failure to give adequate warning in these circumstances renders the product unreasonably dangerous. I'i't Furthermore, in cases such as the instant case, the manufacturer is held to the knowledge and skill of an expert. This is relevant in determining (1)whether the manufacturer knew or should have know the danger, and (2) whether the manufacturer was negligent in failing to communicate this superior knowledge to the user or consumer of its product. The manufacturer's status as expert means that at a minimum he must keep abreast of scientic knowledge, discoveries. and advances and is presumed to know what is imparted thereby. But even more importantly, a manufacturer has a duty to test and inspect his product. The extent of research and experiment must be commensurate with the dangers involved. A product must not be made available to the public without disclosure of those dangers that the application of reasonable foresight would reveal. Nor may a manufacturer rely unquestioningly on others to sound the hue and cry concerning a danger in its product. Rather, each manufacturer must bear the burden of showing that its own conduct was proportionate to the scope of its duty. I'** The Petition for Rehearing [by the manufacturers] is denied. . . . [The trial court's (jury's) decision is afrmed and stands]