Fault, Apportionment and Settlement Credits in Asbestos Cases

Decisions in our library in which the court ruled on fault allocation: 480 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Most asbestos plaintiffs were exposed to products from many companies, and most of their cases end with some defendants settling, some in bankruptcy, and a few going to verdict. A defendant is liable only if the plaintiff proves the state's product identification and causation requirements against it; a company is not responsible merely because its product was somewhere in the person's work history. Apportionment rules then decide what liable defendants pay, and each state sets its own rules for when, and on what proof, fault may be assigned to other companies.

Key questions:

• Joint and several liability: can the plaintiff collect the whole judgment from any one liable defendant, or only that defendant's share? Many states have limited joint liability, sometimes with exceptions.
• Allocation of fault: which companies may be placed on the verdict form, such as companies that settled, bankrupt companies, or the plaintiff's employer? State law and the evidence decide, and the answer differs by state.
• Settlement credits: depending on the state's statute or rule, a verdict may be reduced dollar for dollar by earlier settlements, by an equal share for each settling company, or by the settling companies' proportionate share of fault.
• Bankruptcy trusts: whether trust payments count as credits, and whether fault may be allocated to bankrupt companies, are separate questions; see asbestos trust claims in court.

Alabama

• Bobo v. Tennessee Valley Authority (2015). Applying Alabama law as it predicted, the court held that an employer owes a duty of reasonable care to an employee's household member exposed to asbestos carried home on work clothes, and that substantial factor causation applies to asbestos negligence claims involving multiple exposures. It also held that TVA was not shielded by the discretionary function doctrine because it violated mandatory rules.

Arkansas

• Thomas v. Borg-Warner Morse Tec LLC (2018). Under Arkansas law, a plaintiff must show frequent exposure to a defendant's asbestos product and causation, and market share liability is not allowed. A non-buyer warranty claimant must give the defendant pre-suit notice, and a design defect claim does not require proof of a safer alternative design.

California

• Brooks v. Mission Stucco Company (2nd Appellate District, 3rd Division, 2024). A special verdict that finds a single design defect both was and was not a substantial factor in causing harm is irreconcilably inconsistent, and the reviewing court cannot choose between the answers. A new trial may be limited to liability on that theory and fault allocation, leaving the total damages intact.
• Watts v. Pneumo Abex, LLC (1st Appellate District, 2nd Division, 2024). A directed verdict against a defendant on the sophisticated user defense is improper when, viewing the evidence most favorably to the defendant, a jury could find the plaintiff knew or should have known of the product's hazards as a member of the class of sophisticated users.
• Ochoa v. Spx Cooling Technologies, Inc. (1st Appellate District, 1st Division, 2023). In an asbestos injury case, a plaintiff must show threshold exposure to the defendant's asbestos-containing products; evidence that the worker may have worked on some tower that might have had asbestos parts, without evidence that his work disturbed asbestos, is speculation and does not create a triable issue.
• Wilgenbusch v. Metalclad Insulation LLC (1st Appellate District, 3rd Division, 2023). Under Proposition 51, noneconomic damages are apportioned between separate products, but defendants in the same chain of distribution of a single product remain jointly and severally liable for the harm that product caused. A judgment may be entered consistent with an ambiguous special verdict as read with the instructions and evidence.
• Putt v. Ford Motor Co. (In re Laosd Asbestos Cases) (2nd Appellate District, 2nd Division, 2021). Where the jury found Ford's brake pads defective and a substantial factor in causing mesothelioma, and it was undisputed that other makers' brake pads were identical and also exposed the plaintiff, the evidence compelled apportioning some nonzero fault to those others, and a defendant need not prove precise percentages to overturn a 100 percent apportionment.
• Phipps v. Copeland Corporation LLC (2nd Appellate District, 7th Division, 2021). A defendant bears the burden at trial of proving the percentage of fault attributable to others, and on appeal must show the evidence compelled a more favorable apportionment as a matter of law; on a new trial motion for excessive damages, Code Civ. Proc. sections 657 and 658 bar the court from considering a survey of other verdicts outside the minutes of the court.
• Barr v. Parker-Hannifin Corp. (1st Appellate District, 3rd Division, 2020). Expert and lay testimony that a plaintiff's father may have brought shipyard asbestos home was properly excluded because it rested on speculation about actual exposure. Punitive damages were supported by substantial evidence that the manufacturer knew of asbestos hazards, warned its own employees, and did not warn its customers.
• Booker v. Imerys Talc America, Inc. (1st Appellate District, 3rd Division, 2020). A jury may find a worker was exposed to asbestos-contaminated talc from the manufacturer's own laboratory reports, internal documents and coworker testimony, without expert analysis of the manufacturer's samples. A party seeking to allocate fault to nonparties on a verdict form must point to evidence of their wrongdoing. A buyer that broadly assumes all liabilities relating to a business's assets takes on liability for the seller's earlier product sales.
• Booker v. Imerys Talc America, Inc. (1st Appellate District, 3rd Division, 2020). Under Code of Civil Procedure section 1032, a prevailing party with a net monetary recovery is entitled to costs as of right, and cost apportionment among defendants is discretionary only where a party recovers non-monetary relief. In any event, the challenged costs were reasonably necessary to the litigation.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2020). A plaintiff may prove past medical expenses through an expert's testimony on billed amounts where there is no evidence the lienholder or insurer would accept less, and a trial court has wide discretion to allocate prior settlement proceeds to future wrongful death claims when computing a nonsettling defendant's credit.
• Burch v. Certainteed Corporation (1st Appellate District, 4th Division, 2019). Civil Code section 1431.2 (Proposition 51) does not limit an intentional tortfeasor's liability for noneconomic damages to its percentage of fault, so the intentional tortfeasor stays jointly and severally liable for them.
• Linsowe v. Hennessy Indus. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A special verdict whose findings cannot be reconciled with one another is against the law, so a new trial is required; an appellate court may not choose between inconsistent answers, and the rule of reconciliation applies only to conflicts between general and special verdicts. Because of the inconsistencies, the court could not order JNOV on liability for either side.
• Lopez v. the Hillshire Brands Company (1st Appellate District, 5th Division, 2019). CACI No. 435, the asbestos substantial-factor instruction based on Rutherford, applies to an asbestos claim against a premises owner that is not a manufacturer or supplier, and a 'but-for' causation instruction is not required where there may be multiple sources of exposure.
• Marteney v. Elementis Chemicals Inc. (2nd Appellate District, 4th Division, 2018). A pending appeal from the original plaintiffs' judgment did not strip the trial court of jurisdiction over the heirs' separate wrongful death claims, and a nonsettling defendant gets a section 877 credit for settlements the heirs did not sign only if those settlements bind the heirs.
• Williams v. the Pep Boys Manny Moe & Jack OF California (1st Appellate District, 4th Division, 2018). Damages in a survival action by a decedent's personal representative or successor in interest are limited to loss the decedent sustained or incurred before death and exclude 'lost years' damages. A Doe amendment relates back only if the plaintiff was actually ignorant of the facts establishing a claim against the defendant when the original complaint was filed.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 4th Division, 2017). A spouse who could have sought postdeath loss of consortium damages in the injured spouse's earlier personal injury trial is barred by res judicata from claiming them in a later wrongful death action. Unallocated settlements may be credited against a wrongful death economic damages award, and an overbroad allocation is not reversible where a smaller allocation would still offset the whole award.
• Casey v. Kaiser Gypsum Co. Inc. (1st Appellate District, 4th Division, 2016). A trial court may order a retrial limited to malice and punitive damages before a new jury after the first jury deadlocks on malice, and Civil Code section 3295(d)'s 'same trier of fact' language does not forbid this. Punitive damages must also satisfy due process limits, which here required reducing the award to a 2.5-to-1 ratio against Kaiser Gypsum's share of compensatory damages.
• In re Cfb Liquidating Corporation (2016). A chapter 11 plan is a contract interpreted under general contract rules (here Illinois law). The plan's term "allocated percentage" has its ordinary meaning, so an allocation of 100% is an allocation and no equitable contribution analysis was required.
• The Marley-Wylain Co. v. Superior Court of Los Angeles County (2nd Appellate District, 1st Division, 2016). Under California's governmental interest analysis, the law of the state where the asbestos exposure occurred (Michigan) applies to the claims against the defendant, because that state's interest would be more impaired than California's, to which the plaintiff later moved.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2015). Preverdict settlements are credited against economic damages by the Espinoza method regardless of the settling defendants' fault, while postverdict settlements are credited under the Torres method, and a settlement executed after the verdict is a postverdict settlement. A court need not reduce a judgment for uncertain future asbestos bankruptcy trust recoveries that have not been received.
• Soto v. BorgWarner Morse Tec Inc. (2nd Appellate District, 4th Division, 2015). A punitive damages award cannot stand without meaningful evidence of the defendant's financial condition, and revenue figures alone are not enough. A minor is 'dependent' under Code Civ. Proc. § 377.60(c) only if financially reliant on the decedent for the necessaries of life, not merely for niceties.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2014). Evidence that asbestos products routinely emitted respirable fibers in ordinary use supports a design defect under the consumer expectations test, and evidence that each exposure increased the risk of mesothelioma supports substantial-factor causation. A judgment is final and appealable even if settlement credits have not yet been applied.
• Izell v. Union Carbide Corp. (2nd Appellate District, 3rd Division, 2014). In an asbestos cancer case, a plaintiff must show exposure to the defendant's asbestos, and then in reasonable medical probability that the exposure was a substantial factor in increasing the risk of disease. A reduction of compensatory damages does not by itself require a new trial on punitive damages; the award is tested under the State Farm due process guideposts.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff can prove legal causation in an asbestos cancer case through expert testimony that respirable exposures contribute to cancer risk, but exposure to one supplier's asbestos cannot rest on speculation where a manufacturer had several suppliers. A large reduction of compensatory damages does not by itself require retrial of punitive damages, and an award of about 4.6 times the defendant's share of compensatory damages, against a net worth of $4.2 billion and highly reprehensible conduct, satisfies due process.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff must show exposure to the defendant's asbestos beyond speculation, and then that the exposure was a substantial factor contributing to his risk of cancer. A large cut in compensatory damages does not by itself require a new trial on punitive damages. The question is whether the resulting ratio and the defendant's reprehensibility satisfy due process.
• Lovelace v. Pneumo Abex LLC (3rd Appellate District, 2014). A new trial motion based on surprise is properly denied where the party never asked for a continuance, and a mistrial motion does not take the place of one. Substantial evidence, with conflicts resolved for the verdict winner, supported the jury's fault allocation to the brake maker.
• Paulus v. Crane Co. (2nd Appellate District, 3rd Division, 2014). Expert testimony read in context, together with other evidence of frequent and repeated exposure, can support a finding that a defendant's own asbestos products were a substantial factor in increasing the risk of mesothelioma. A defendant gets no setoff for speculative future bankruptcy trust recoveries, because the statutory setoff applies only to settlements made before verdict or judgment.
• Keeney v. AW Chesterton Company (2nd Appellate District, 4th Division, 2013). A jury's apportionment of fault is upheld if any evidence under a reasonable view supports it, and the appellant must set out all material evidence. A party lacks standing to assert a privilege held by the Navy or another public entity.
• Lara v. CBS Corp. (2013). A plaintiff's post-removal waiver of all claims arising from exposure at federal government sites and on Navy vessels defeats a government-contractor defense for federal officer removal, and a defendant's possible need to allocate fault to co-defendants under Proposition 51 does not support removal.
• Pfeifer v. John Crane, Inc. (2nd Appellate District, 4th Division, 2013). When a supplier sells hazardous goods to a sophisticated intermediary that passes them to its employees, the supplier can still be liable for failing to warn those employees unless it has reason to believe the ultimate users know or should know of the hazards. The intermediary's sophistication alone does not shield the supplier.
• Bankhead v. ArvinMeritor, Inc. (1st Appellate District, 4th Division, 2012). Punitive damages need not be measured against a defendant's net worth, and no 10 percent of net worth ceiling exists; a roughly 2.4-to-1 punitive-to-compensatory ratio for highly reprehensible conduct did not violate federal due process.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• Evans v. Certainteed Corp. (2nd Appellate District, 8th Division, 2012). An order granting a new trial is reviewed for abuse of discretion and stands if there is a reasonable justification. The trial court could order a new trial on all issues, not just fault allocation, because the jury's failure to assign any fault to Johns Manville cast doubt on its other findings.
• Kelemen v. John Crane, Inc. (2nd District, Division 2, 2011). Punitive damages require evidence of the defendant's financial condition, and a defendant that refuses a court order to produce its financial records cannot then argue the plaintiff lacked such evidence. A future pain and suffering award is excessive when it is based on life expectancy without the disease rather than the plaintiff's actual short prognosis.
• Saffold v. Bondex International, Inc. (2nd Appellate District, 7th Division, 2011). A defendant that uses a special verdict form omitting liability findings for nonparty tortfeasors, and does not object or argue their fault to the jury, forfeits a later challenge to the jury's allocation of fault among them.
• Collins v. Plant Insulation Company (1st Appellate District, 1st Division, 2010). Federal sovereign immunity under the FTCA's discretionary function exception is an immunity from suit, not a determination that the government owes no duty or is not at fault, so fault may be apportioned to the Navy under Proposition 51.
• Russell v. Ford Motor Company (2nd Appellate District, 8th Division, 2010). Substantial evidence can support a finding that a failure to warn caused a plaintiff's disease. A non-settling defendant must be allowed to review the evidence supporting a contested post-trial settlement offset, and the trial court may not review it only in camera.
• Smith v. Pneumo Abex LLC (2nd Appellate District, 3rd Division, 2010). A trial court cannot, after the verdict, reduce a lump-sum medical-expense award that includes future expenses without speculating about the future portion, so the Hanif-Nishihama reduction could not be applied here. Settlement credits against economic damages are calculated by a three-step method, and the court need not accept the settling parties' allocations to wrongful death claims.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 5th Division, 2010). A raw asbestos supplier that gave no warning cannot rely on a sophisticated purchaser or intermediary to give warnings, and the sophisticated-user rule in Johnson turns on the user's own knowledge, not the purchaser's. A defendant seeking to shift fault to other asbestos suppliers bears the burden of proving their fault and its percentage.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2009). When a plaintiff accepts a remittitur reducing non-economic damages, the ratio of economic to total damages must be recalculated, which increases the settlement credit against the defendant's joint liability for economic damages under Civil Code section 1431.2 and Greathouse.
• Clemmer v. Thorpe Insulation Company (1st Appellate District, 4th Division, 2009). A plaintiff may prove exposure to a defendant's asbestos product through circumstantial evidence that the product was sufficiently prevalent at the work site to support a reasonable inference of exposure.
• Mahoney v. Georgia-Pacific, LLC (1st Appellate District, 1st Division, 2009). Under Rutherford, an asbestos plaintiff need not quantify dose; evidence of repeated, close exposure to a dusty product, plus expert testimony of substantial contribution to risk, supports causation. A trial court may grant a new trial limited to medical expenses when noneconomic damages are separable from them.
• Ransom v. Calaveras Asbestos, Ltd. (2nd Appellate District, 5th Division, 2009). A jury's apportionment of fault is reviewed for substantial evidence and is not subject to exact mathematical computation. Sophisticated user and bulk supplier arguments not raised at trial are forfeited on appeal.
• Silvestro v. Kaiser Gypsum Company, Inc. (2nd Appellate District, 8th Division, 2009). Under Rutherford, expert testimony that cumulative asbestos exposures, including low-level chrysotile exposure, contribute to mesothelioma, together with the plaintiff's own account of regular exposure, is substantial evidence of causation. A fault allocation that cannot be reconciled with the plaintiff's own evidence about the relative potency of the fibers is not supported by substantial evidence.
• Walmach v. Wheeler (2nd Appellate District, 3rd Division, 2009). A judgment stands if an independent ground, here the unchallenged design defect verdict, supports it, so the sophisticated intermediary defense to the failure to warn claims did not need to be reached. Substantial evidence supported the apportionment of fault, and due process did not bar punitive damages for conduct that was directed at the decedent and occurred partly outside California.
• Behshid v. Bondex International, Inc. (2nd Appellate District, 3rd Division, 2008). In California asbestos cancer cases, a plaintiff need not show that fibers from the defendant's product began the malignancy. It is enough to show in reasonable medical probability that exposure to the product was a substantial factor contributing to the risk of cancer. A defendant seeking to assign fault to 'others' must offer substantial evidence that the others' products were defective and a cause of the injury.
• Clemmer v. John Crane, Inc. (1st Appellate District, 4th Division, 2008). A remittitur may be used only when a new trial is warranted solely because damages are excessive, not to correct an improper apportionment of fault. Counsel's closing argument urging that two separate companies were the same entity, after counsel conceded they were separate, was misconduct that could justify a new trial.
• Norris v. Crane Company (2nd Appellate District, 5th Division, 2008). Under Rutherford's substantial factor test, exposure to asbestos from a defendant's product that adds to the cumulative dose can support causation. The consumer expectations test may be used for a design defect claim based on asbestos-containing valve gaskets and packing.