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.

Louisiana

• Walker v. Anco Insulations, Inc. (4th Circuit, 2023). Under Louisiana's pre-comparative-fault law, joint tortfeasors are solidarily liable. Each is assigned a virile share, including non-parties found liable at trial, with credit only for parties who settled. Strict liability for things in one's custody depends on custody and control, not ownership.
• Adams v. Eagle, Inc. (2022). To show cause-in-fact in an asbestos case, a party must show significant exposure to the defendant's asbestos product and an injury substantially caused by that exposure; circumstantial evidence of proximity to the product can create a fact issue and defeat summary judgment.
• Adams v. Eagle, Inc. (2022). Under Louisiana law, a party must show significant exposure to asbestos attributable to the defendant and that the exposure was a substantial factor in the injury; a reasonable jury could find both here, so summary judgment was not proper.
• Becnel v. Lamorak Insurance Company (2022). Under Louisiana law, wrongful death claims are governed by the law in effect at the time of death, so comparative fault applies. Survival claims are governed by the law in effect when the exposure occurred, so pre-August 1980 exposures fall under contributory negligence. A defendant relying on that defense must prove by a preponderance of the evidence that the plaintiff's negligence, here smoking, was a cause of the injury.
• Falgout v. Anco Insulations, Inc. (2022). Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos product that was a substantial factor in causing injury. Evidence that a defendant's asbestos-containing product was merely present at the worksite is not enough to defeat summary judgment.
• Stansbury v. McCARTY Corporation (2022). Where a third-party defendant properly removes under the federal officer removal statute, a court may exercise supplemental jurisdiction over the plaintiff's state-law claims when they are sufficiently intertwined with the removed claim that they do not predominate, and judicial economy, fairness and comity do not require remand.
• Williams v. Huntington Ingalls Industries (2022). Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos-containing product and that the exposure was a substantial cause of the injury. Circumstantial evidence that the product was used throughout the workplace and near where the worker was can defeat summary judgment even without identifying the product by name.
• Bagwell v. Union Carbide Corp. (2021). A jury verdict must be read as a whole, and answers to interrogatories are not inconsistent where the jury could reasonably have found that the exposure source did not make a defendant's products a substantial contributing cause of the disease.
• Hotard v. Avondale Industries, Inc. (2021). A federal court may stay a case against an insurer in state liquidation, and under its inherent power and the Landis factors may stay the claims against all other defendants too. Severing the insurer and its insureds was inappropriate because of prejudice, the risk of inconsistent verdicts and lost judicial economy.
• Lege v. Union Carbide Corporation (4th Circuit, 2021). A jury's allocation of fault and general damages is reviewed for manifest error or abuse of discretion, and exposure need not be long if it was significant enough to be a substantial factor. A non-settling tortfeasor gets a credit for a released party's share only if it proves that party's fault at trial, even when solidary liability was already found.
• Adams v. Ethyl Corporation (2020). Under Louisiana article 2317, a premises condition is a defect if it is relatively permanent, and routine, ongoing maintenance activity that disturbs asbestos is not categorically a temporary condition. A jury's reasonable inferences from the evidence, and a district court's remittitur applying the maximum recovery rule, receive deferential review.
• Bagwell v. Union Carbide Corporation (4th Circuit, 2020). Jury answers that are inconsistent with each other or with the directed verdicts are an error of law, and a verdict not supported by a fair interpretation of the evidence warrants a new trial. Denying a new trial was therefore an abuse of discretion.
• Dempster v. Lamorak Insurance Co. (2020). Under Louisiana law, releases of future claims are narrowly construed, and any doubt about whether a future claim is covered means it is not released. Even where a release expressly mentions cancer, extrinsic evidence of the parties' intent can create a fact issue that precludes summary judgment.
• Gomez v. Aardvark Contractors, Inc. (2020). Under Louisiana's pre-comparative-fault solidary liability law, a defendant gets a virile share credit only if the plaintiff released the party through settlement and that party's liability as a joint tortfeasor is established at trial. Factual disputes about exposure and causation prevented the court from treating the Johns-Manville Trust as a joint tortfeasor in advance.
• Berry v. Anco Insulations (2nd Circuit, 2019). Under pre-comparative fault Louisiana law, a defendant who blames settled nonparties must prove their fault by a preponderance of the evidence, and a midtrial settlement does not automatically give the remaining defendant a virile share credit; the test is fairness to that defendant. Future medical expenses can be awarded where the record shows they will probably be incurred, even when the cost estimates are rough.
• Savoie v. Huntington Ingalls, Inc. (2019). Under Louisiana law, releases of future claims are narrowly construed, but a release that expressly names the claim (or future asbestos-related cancer), signed by a represented party, shifts the burden to the opposing party to show no meeting of the minds, fraud or ill practices. Where release language leaves doubt about covering a future claim, it is construed not to cover it.
• Romano v. Metropolitan Life Ins. Co. (4th Circuit, 2017). A solidary obligor gets a virile share credit only if the plaintiff released the other tortfeasor and that tortfeasor's liability was established at trial; absent a settlement, no credit applies. A general damages award that is an abuse of discretion is raised to the lowest amount a jury could reasonably have awarded.
• Sheppard v. Liberty Mutual Insurance Company (2017). Rule 408 and the collateral source rule do not bar all settlement or collateral-source evidence, which may be admitted for limited purposes after balancing. A medical record prepared by another facility but kept in a custodian's files can qualify as a business record, and authentication needs only evidence sufficient to support a finding.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Oddo v. Asbestos Corporation Ltd. (4th Circuit, 2015). When a jury's special-verdict answers are irreconcilably inconsistent and the trial court neither sends the jury back nor orders a new trial, that is legal error, and the appellate court reviews the affected findings de novo. In asbestos cases a plaintiff must show exposure to the defendant's product was significant and a substantial factor in causing the disease.
• Comardelle v. Pennsylvania General Insurance Company (2014). A company that acquires assets is not liable as successor for the transferor's liabilities unless it expressly assumed them; the unambiguous Contribution Agreement transferred only liabilities connected to the listed assets, so under either Texas or Louisiana law P2S did not assume SECO's employer liability.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• Smith v. Union Carbide Corp. (2014). A defendant may reduce a damage award by the fault of a settling joint tortfeasor only if it proves that tortfeasor negligently caused the plaintiff's damages, which requires evidence of significant exposure to its product that was a substantial factor in causing the injury.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2008). The 1952 version of the Louisiana workers' compensation statute did not cover mesothelioma, so exclusivity did not bar a tort suit against the employer. The peremption exception for those in possession or control of an improvement applies to a contractor that controlled the construction, not just to owners, lessors and tenants.
• Graves v. Riverwood International Corp. (2nd Circuit, 2007). A worker's tort claim against his employer vests when significant asbestos exposures occur. Exposures before Louisiana's 1952 occupational disease coverage therefore left the claim outside the later workers' compensation scheme. A JNOV or new trial is denied where reasonable minds could differ and the verdict is supportable by a fair interpretation of the evidence.
• Palermo v. Port of New Orleans (4th Circuit, 2007). A port authority that leases wharves to stevedores owes no duty to their employees to provide a safe workplace unless the premises are defective and it knew or should have known of the defect. Ship repairers are liable only if the evidence shows their work was a substantial factor in the plaintiff's asbestos exposure.
• Terrance v. Dow Chemical Company (1st Circuit, 2007). Mesothelioma was not a compensable occupational disease under the pre-1975 Louisiana workers' compensation statute, so the tort claim against a premises owner was not barred. A defendant seeking a credit for a settling party's fault must prove that party's fault at trial; settlement documents are not admissible to prove it.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Palermo v. Port of New Orleans (4th Circuit, 2006). A port authority that leased its wharves to stevedores owed no duty to their employees absent a known defect in the premises. A plaintiff must also show that a particular defendant's work was a substantial factor in the exposure; the generally substantial exposure from handling asbestos cargo does not supply that proof.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.
• Landry v. Avondale Industries, Inc. (2004). Louisiana's comparative fault law (Act 431 of 1979) applies prospectively, and for a wrongful death claim the key relevant event is the death itself. A death after August 1, 1980 is therefore governed by comparative fault, even if the asbestos exposure came earlier.
• Roberts v. Owens-Corning Fiberglas Corp. (1st Circuit, 2004). A trial court cannot substantively change a final judgment by a second judgment without a proper procedure, so the change is an absolute nullity. A premises owner that knew or should have known asbestos exposure caused serious lung disease and cancer is liable for mesothelioma even without specific knowledge of that disease.
• Torrejon v. Mobil Oil Co. (4th Circuit, 2004). Under the Jones Act a seaman need only show the employer's negligence was a cause, however slight, of the injury, and the jury's finding of negligent asbestos exposure together with the stipulation that asbestos caused the mesothelioma left no reasonable basis for finding no causation. A defendant seeking to reduce liability for settling manufacturers' fault must prove their liability, and allegations in another suit's complaint do not do so.
• Breaux v. Avondale Industries, Inc. (4th Circuit, 2003). Res judicata does not bar a later suit against different defendants absent identity of parties, and solidary liability does not create privity. The joinder rule of La. C.C.P. art. 425(A) yields to the interests of justice where no single court has jurisdiction over all defendants.
• Landry v. Avondale Industries, Inc. (4th Circuit, 2003). For a wrongful death claim arising from a long-latency occupational disease, the "events" in Act 431 § 4 mean the incidents of exposure, so the Comparative Fault Act does not apply where the exposure occurred before its effective date.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (4th Circuit, 2002). Under federal maritime law, a manufacturer is strictly liable if its asbestos product, unreasonably dangerous and sold without warnings, was a substantial contributing cause of the harm. A non-settling defendant is solidarily liable for the whole of the damages, less the fault share of the settling employer.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A product is unreasonably dangerous per se if its danger-in-fact outweighs its utility, regardless of the manufacturer's knowledge. Working near contractors who cut the product is enough evidence of exposure to support liability.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Egan v. Kaiser Aluminum & Chemical Corp. (4th Circuit, 1996). A short exposure to a defendant's asbestos product can be a substantial contributing factor in mesothelioma, and circumstantial evidence can support an inference that the product came from that defendant. Louisiana law, which bars punitive damages here, governed a Louisiana resident's asbestos injury in Louisiana.
• Coates v. AC and S, Inc. (1994). Pre-comparative-fault law and equal ("by heads") apportionment governed the wrongful death claim because the significant exposures came before August 1, 1980. The court refused to rule asbestos products unreasonably dangerous per se as a matter of law, admitted the OSHA and EPA publications, and denied Owens-Corning's three motions.
• Quick v. Murphy Oil Co. (4th Circuit, 1994). Where multiple causes are present, a defendant's asbestos-containing product is a cause in fact only if exposure to it was a substantial contributing factor, and not every asbestos exposure meets that standard; a trivial exposure does not.
• Cole v. Celotex Corp. (1992). In long-latency occupational disease cases, pre-Act law applies when significant tortious exposures occurred before the comparative fault act took effect, and contribution among defendants is governed by that same law. Coverage is triggered by exposure during the policy period, and a plaintiff may recover under each triggered annual policy.

Maine

• Coffin v. Ametek, Inc. (2020). A court may deny leave to implead a third party under Rule 14(a) when the request comes late, would unduly delay the case, and would prejudice the plaintiff by adding unrelated issues, even if the contribution or indemnity claim is colorable.
• In re All Maine Asbestos Litigation (1986). Following First Circuit precedent, a vessel-owner claim under LHWCA section 905(b) reaches only maritime torts, and asbestos injuries to shipyard workers are not maritime torts. Claims against the United States under the FTCA are barred by the discretionary function exception where the government made policy-based safety decisions, but not where facts are disputed about whether Navy personnel had discretion.