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.

California

• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2007). A raw-asbestos supplier is not relieved of its duty to warn merely because the buyer-employer knew or should have known of asbestos hazards or was subject to OSHA rules. A noneconomic damages award that is grossly disproportionate to the evidence and was influenced by improper argument may be reduced or retried on appeal.
• Cadlo v. Metalclad Insulation Corporation (1st Appellate District, 5th Division, 2007). When a trial court validly enters a judgment nunc pro tunc to a date before the plaintiff's death, that date decides whether Code of Civil Procedure section 377.34 bars pain-and-suffering and future economic damages. A verdict exceeding a plaintiff's section 998 offer is prima facie evidence the offer was reasonable.
• Garcia v. Duro Dyne Corporation (1st Appellate District, 1st Division, 2007). A nonsettling defendant is not entitled to a Code of Civil Procedure section 877 offset for settlement monies until they are actually paid, and cost-waiver releases with defendants who would have prevailed at trial have offset value, with the burden of proving that value on the settling plaintiffs.
• Ferris v. Gatke Corporation (1st Appellate District, 4th Division, 2003). Even assuming Sindell market share liability could apply to asbestos friction products, plaintiffs failed to supply its requisites, including proof of the defendant's share of the national market. A civil conspiracy claim requires that each defendant already owe the plaintiff an independent tort duty.
• Taylor v. John Crane, Inc. (1st Appellate District, 4th Division, 2003). Under Proposition 51, fault may be allocated to an entity that is immune from paying for its tortious acts, but not to an entity whose conduct has been declared non-tortious. Fault could therefore be allocated to the Navy even assuming it was immune.
• Hackett v. John Crane, Inc. (1st Appellate District, 1st Division, 2002). When a jury awards economic damages and loss of consortium damages and pre-verdict settlements cover those claims, the trial court must apportion the settlements using the jury's ratio of economic to total damages, including consortium. The court keeps discretion to allocate part of the settlements to claims the jury did not decide, such as heirs' potential wrongful death claims.
• Wilson v. John Crane, Inc. (1st Appellate District, 4th Division, 2000). Civil Code section 1431.2 (Proposition 51) applies to strict products liability claims, so a defendant's liability for noneconomic damages is several only and proportional to its fault. Settlement sums allocated to loss of consortium and potential wrongful death claims are not credited against a personal injury judgment.
• Ehret v. Congoleum Corp. (2nd Appellate District, 4th Division, 1999). Under Proposition 51, a settlement that does not separate economic from noneconomic damages must be apportioned so that only the economic share is set off against a nonsettling defendant. A plaintiff who wants a different allocation must offer evidence of the settlement terms and timing showing good faith; without that evidence, the Espinoza percentage formula applies.
• Overly v. Ingalls Shipbuilding, Inc. (1st Appellate District, 2nd Division, 1999). A personal injury plaintiff may recover lost earnings, including pension, Social Security and household-services benefits, for the period by which his life expectancy was shortened. No deduction for his expected personal consumption during that period is required.
• Arena v. Owens Corning Corp. (1st Appellate District, 1st Division, 1998). A supplier of raw asbestos is subject to strict products liability and the consumer expectations test of defect. Proposition 51 applies in a strict liability asbestos case where multiple products caused the injury and the evidence permits allocating noneconomic damages among the products, with defendants in the same product's chain of distribution jointly and severally liable for that product's share.
• Gutierrez v. Cassiar Mining Corp. (1st Appellate District, 2nd Division, 1998). Under Potter, a plaintiff may recover medical monitoring costs only for monitoring additional to or different from what preexisting conditions such as smoking already require, and a defendant is entitled on request to a jury instruction saying so when the evidence supports it.
• Buttram v. Owens-Corning Fiberglas Corp. (1997). For deciding whether Proposition 51 can be applied prospectively, a cause of action for a latent disease like mesothelioma accrues when the plaintiff is diagnosed or otherwise discovers the illness or injury, not when undetected cellular changes began.
• Rutherford v. Owens-Illinois, Inc. (1997). In asbestos-related cancer cases, no instruction shifting the burden of proof on causation to defendants is warranted. A plaintiff proves causation by showing that exposure to the defendant's product was, in reasonable medical probability, a substantial factor contributing to the risk of developing cancer, without showing that the defendant's fibers began the malignancy.
• Kellogg v. Asbestos Corp. Ltd. (1st Appellate District, 4th Division, 1996). When a plaintiff dies after submission of a bench trial but before final judgment, the court may still render judgment under CCP section 669, but under former Probate Code section 573(c) the judgment cannot include damages for pain and suffering. A defendant who seeks to reduce its share under Proposition 51 bears the burden of proving others' fault.
• Lineaweaver v. Plant Insulation Co. (1st Appellate District, 1st Division, 1995). A plaintiff must prove exposure to the defendant's asbestos product and a reasonable medical probability that the exposure was a substantial factor in causing the disease; the court declined to shift the burden of proof on causation to defendants under an alternative liability theory.
• Sparks v. Owens-Illinois, Inc. (1st Appellate District, 2nd Division, 1995). A product such as asbestos insulation that releases toxic dust in its ordinary use can be judged under the consumer expectation test without proof of a safer alternative design. A defendant claiming that other manufacturers or the plaintiff's employer share fault must prove it, and a defendant that did not try to prove it at trial waives the point.
• Kaminski v. Western MacArthur Co. (1st Appellate District, 5th Division, 1985). Under Ray v. Alad Corp., successor liability for a predecessor's defective products can extend to a corporation that took over a distributor, not only a manufacturer. The successor's acquisition need only have caused or contributed to the loss of the plaintiff's remedies against the predecessor.
• Scott Co. v. Workers'comp. Appeals BD. (1st Appellate District, 3rd Division, 1983). Labor Code section 5500.5 does not impose liability on a last-exposure employer unless the exposure was a contributing (injurious) cause of the disease; the causation requirement of the workers' compensation statutes remains. The board's finding of the last injurious exposure date was supported by substantial evidence.
• Johns-Manville Products Corp. v. Superior Court (1980). Workers' compensation is the exclusive remedy for an employee's initial injury, including injury from an employer's knowing failure to make the workplace safe. An employee may still sue at law for aggravation of the disease caused by the employer's fraudulent concealment of the condition and its work-related cause.

Colorado

• Church v. Dana Kepner Company, Inc. (2013). Confidentiality agreements do not shield settlement information from discovery, but under Colorado's apportionment statutes settlement amounts with nonparties are not relevant to apportioning fault or calculating damages; only the fact of settlement is discoverable.
• Fibreboard Corp. v. Fenton (1993). State-of-the-art evidence is admissible in strict liability failure-to-warn claims to show a product was not defective and unreasonably dangerous because the risk was not known or knowable. Under the pre-1986 set-off statute, settlement amounts must actually be collected before they can be set off against a joint judgment.
• Fenton v. Fibreboard Corp. (5th Division, 1991). In a strict liability case the focus is on the product, not the manufacturer's knowledge, so evidence of what the manufacturer knew bears only on punitive damages. A set-off for a settlement not yet paid may be handled by ordering any later payment applied to the judgment, with the defendants remaining liable if it is never collected.

Connecticut

• Carlson v. CBS Corporation (2020). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing his injury. A loss of consortium claim under Connecticut law fails when the injured spouse's underlying claim fails.
• RT Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Company (2019). Under Connecticut law, an undefined exclusion for "occupational disease" has a plain meaning beyond workers' compensation and, when not limited to the insured's employees, excludes claims by nonemployees who contracted an occupational disease while working for other employers.
• RT Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Company (2017). In long-latency asbestos claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Pollution exclusions bar coverage only for traditional environmental pollution, while occupational disease exclusions reach claims by employees of any employer.
• RT Vanderbilt Co. v. Hartford Acc. & Indem. (2016). For long-latency asbestos disease claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Standard pollution exclusions bar coverage only for traditional environmental pollution, and occupational disease exclusions unambiguously reach claims by employees of other employers.
• Deschenes v. Transco, Inc. (2008). Permanent partial disability benefits may be apportioned or proportionally reduced when the employer proves that a disability results from two concurrently developing disease processes, one occupational and one not, and that the claimant's occupation had no influence on the development of the nonoccupational disease.
• Deschenes v. Transco, Inc. (2007). Workers' compensation benefits may be apportioned or proportionally reduced when the employer proves that a disability resulted from two concurrently developing disease processes, one nonoccupational and one occupational, and that the claimant's occupational conditions had no influence on the development of the nonoccupational disease.

Delaware

• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (2024). Under Texas Civil Practice and Remedies Code § 33.004, a defendant need only plead a factual basis showing a third party's potential responsibility to designate it. A bankruptcy proof of claim can support that pleading, and a designation after limitations has run is not barred where the defendant timely disclosed the third parties.
• Stimson v. AO Smith Corporation (2020). A new trial is warranted only where the evidence preponderates heavily against the verdict or the verdict clearly results from confusion; a jury may accept or reject expert testimony, and a jury-confusion objection not raised at trial is reviewed only for plain error.
• Evans v. John Crane, Inc. (2019). General maritime law and state survival statutes can supply survival damages where an asbestos injury is indivisible across the high seas and territorial waters, so DOHSA does not bar them. DOHSA does limit the wrongful death claim itself to pecuniary damages. An expert's lack of experience with the specific products or documents goes to weight, not admissibility.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2019). When deciding whether a jury's compensatory damages verdict is excessive, a court must look at the total damages the jury found, not the defendant's smaller share based on its percentage of fault.
• RT Vanderbilt Co. Inc. v. Galliher (2014). A trial court must instruct the jury on the substance of the governing law, here the employer's duty of care under Ohio law, when the defendant blames the employer. A new trial is required where an expert's inadmissible hearsay about the defendant's lying and bribery is not cured.
• In re Specialty Products Holding Corp. (2013). In estimating asbestos liability under §502(c)(1), the court relies on the debtors' own tort-system claiming and settlement history, which places a value on claims. It will not discount that history for claimed implicit defense costs, nuisance settlements, market share, or apportionment among corporate eras.
• In re WR Grace & Co. (2012). A § 524(g) asbestos trust and channeling injunction may be confirmed where they are fair and equitable in light of the contributions made to the trust, they cover only derivative third-party liability, and the plan treats similar claims in substantially the same manner. Bankruptcy Code § 1123(a)(5)(B) preempts anti-assignment clauses in insurance policies so that the policy rights can be transferred to the trust.
• Viking Pump, Inc. v. Century Indemnity Company (2009). Under New York law, post-loss assignments of insurance rights are not barred by anti-assignment clauses. Where policies contain non-cumulation and prior insurance provisions, they are read to require all-sums allocation, and any remaining ambiguity is construed against the insurer.
• Farrall v. AC & S. Co., Inc. (1990). Under 10 Del.C. § 6304, the reduction of a plaintiff's award is the greater of the total paid by all released tortfeasors or their combined pro rata share, applied once as an aggregate and not separately for each released tortfeasor. A lump-sum settlement is credited in full and is not allocated among diseases.

Florida

• Union Carbide Corporation v. Font (3rd District, 2020). A defendant may present evidence of alternative causes, such as a decedent's own sworn asbestos claims against non-parties, without proving those non-parties' fault by expert testimony; and a learned intermediary instruction must let the jury understand that reasonable reliance on an intermediary fulfills or discharges the duty to warn.
• Bechtel Corporation v. Batchelor (3rd District, 2017). Premises liability requires proof that the defendant possessed or controlled the premises, meaning the ability to control access or exclude others; a contractor's large presence and service contracts silent on possession do not support that inference. A discovery sanction such as an adverse inference instruction is unavailable where the party never violated an order compelling the discovery.
• Northrop Grumman Systems Corporation v. Britt (3rd District, 2017). A suggestion of death must be filed with the court and served to start Florida's 90-day substitution period under Rule 1.260(a)(1). Competent, substantial evidence of causation may support a mesothelioma verdict even without precise dose quantification, particularly where the premises owner did not monitor airborne asbestos.
• Crane Co. v. DeLisle (4th District, 2016). A trial court must act as an active gatekeeper under section 90.702 and Daubert, and an expert's 'every exposure above background' causation opinion unsupported by tested data or explained methodology is inadmissible. Counsel's invitation to measure damages by the defendants' expert fees is an improper basis for an award.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts doctrine, adopted in this district, a component seller is liable for a design defect only if the defective design, not the raw material's natural dangers, caused the harm. Whether a bulk supplier could discharge its duty to warn by reasonably relying on intermediaries is a jury question, and an instruction omitting that was misleading.
• Honeywell International, Inc. v. Guilder (3rd District, 2009). A non-party's fault must go on the verdict form for apportionment when the defendant pleaded it and presented sufficient evidence. A child's parental consortium claim under section 768.0415 requires a negligent act on or after October 1, 1988, measured by the last exposure. Settlement proceeds are set off against the verdict.
• Honeywell International, Inc. v. Guilder (3rd District, 2009). A non-party's fault must be listed on the verdict form for apportionment once the defendant pleads it and presents sufficient evidence, and a child's parental consortium claim under section 768.0415 requires negligent acts on or after October 1, 1988, measured by the last exposure. Settlement proceeds are set off against the verdict in the same economic and noneconomic proportion as the jury's award.
• Snoozy v. US Gypsum Co. (3rd District, 1997). A defendant that wants non-parties placed on the verdict form for apportionment of fault must produce evidence of the specifics of the different asbestos products, how often they were used, and their toxicity as used. Minor children cannot be awarded zero damages for a parent's wrongful death when the record shows undisputed evidence of their loss.
• Chesterton v. Fisher (3rd District, 1995). A party may use medical treatises to cross-examine an expert who does not recognize them as authoritative, and must be allowed to establish their authoritativeness through other experts or judicial notice. On retrial, the jury must be able to apportion fault among all alleged tortfeasors, including settled nonparties, under Fabre v. Marin.
• WR Grace & Co.—Conn. v. Dougherty (2nd District, 1994). A jury may be instructed on, and asked to apportion fault to, nonparties under Fabre and section 768.81 only if there is evidence of the nonparties' fault. In asbestos cases that evidence must cover the specifics of the products, how often they were used and their toxicity as used. Evidentiary objections not raised at trial are not preserved for appeal.
• Celotex Corp. v. Copeland (1985). Market share liability is not needed, and the court did not adopt it, where the plaintiff can identify at least some manufacturers of the products that injured him. When a progressive asbestos disease manifested itself is a fact question that summary judgment cannot resolve.
• Copeland v. Celotex Corp. (3rd District, 1984). A complaint alleging long-term cumulative exposure to asbestos products need not plead a specific time and place of exposure. Where the plaintiff cannot identify which manufacturer's product caused the injury, the court adopted market share liability, applied through Restatement (Second) of Torts § 433B(2) in asbestosis cases.

Georgia

• Scapa Dryer Fabrics, Inc. v. Knight (2015). Where a plaintiff has multiple asbestos exposures involving multiple defendants, each defendant's conduct need only be a contributing cause, not a substantial one. Expert testimony that Scapa's exposures were substantial causes was reliable enough to be admitted, and a pretrial reliability hearing is discretionary, not mandatory.