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.

Missouri

• Wagner v. Bondex International, Inc. (Western District, 2012). Missouri requires but-for causation (the substantial factor test applies only in two-fires cases), and a plaintiff must identify the defendant's asbestos-containing product as the source of exposure. Section 537.060 reduces a judgment only by settlements actually made, not by trust payments the plaintiff never sought.

Montana

• Wells v. BNSF Railway Company (2023). Under Montana's comparative-fault statute, a defendant may not assign fault to an unsettled nonparty such as W.R. Grace, and must prove a settled party's negligence with expert testimony where the issues are beyond lay knowledge. The HMTA and FRSA do not preempt state-law claims over transporting asbestos-bearing vermiculite ore.

Nebraska

• Osteen v. AC & S., Inc. (1981). Where an asbestos-related occupational disease develops over successive employments and its onset cannot be pinpointed, the employer of the last injurious exposure pays the entire award. That exposure need only be of a kind that could cause the disease, and the limitations period and benefit rate run from the date disability is first incurred.

New Jersey

• Rowe v. Bell & Gossett Company (2019). A settling defendant's interrogatory answers and corporate-representative deposition testimony can be admitted as statements against interest under N.J.R.E. 803(c)(25) without showing the declarant is unavailable, and the declarant need not be a party. A non-settling defendant who gives fair notice and presents prima facie evidence may have fault allocated to the settling defendants.
• Rowe v. Bell & Gossett Company (2018). A non-settling defendant cannot use settled defendants' interrogatory answers and deposition testimony to prove their fault when the statements are offered against the plaintiff rather than against the statement-makers, and unavailability of a witness requires due diligence, including enforcing a notice in lieu of subpoena that survives dismissal.
• Anderson v. AJ Friedman Supply Co. (2010). An employer shielded by workers' compensation exclusivity for an employee's direct occupational exposure can still be sued under a dual persona theory for a separate duty owed to the employee's spouse for take-home asbestos exposure. Fault need not be allocated to the employer in its capacity as the plaintiff's own employer.
• Buttitta v. Allied Signal, Inc. (2010). In a mesothelioma case, the frequency, regularity and proximity test is applied in light of expert evidence that the disease can follow minimal and infrequent exposure, so brief but regular work near a defendant's asbestos product can support a jury finding of medical causation.
• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• Kurak v. AP Green Refractories Co. (1997). To hold an asbestos defendant liable, a plaintiff must show with direct or circumstantial evidence that he was exposed to that defendant's friable asbestos frequently, regularly and in close proximity, and mesothelioma's low dose threshold bears on that showing. Jurors must set damages without regard to how fault is apportioned among defendants, and the trial court must correct a jury question suggesting otherwise.
• Thalman v. Owens-Corning Fiberglas (1996). A jury damages award may be set aside or reduced only on a carefully reasoned and articulated finding that it would be a manifest denial of justice; a remittitur based on speculation or an unexplained 'more reasonable number' was improper.
• Higgins v. Owens-Corning Fiberglas (1995). A jury may apportion fault only among parties to the suit, so placing a non-party that had not settled on the verdict sheet was reversible error. Future consequences of an existing injury are compensable if reasonably probable, and the plaintiff must be allowed to present expert evidence of probable progression of his asbestosis.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Schiavo v. Owens-Corning Fiberglas (1995). A 'day in the life' videotape is admissible once the trial judge finds it relevant, probative and an accurate depiction of the injuries, and error in admitting punitive-phase documents without foundation may be harmless where the punitive award was minimal.
• Goss v. American Cyanamid Co. (1994). A plaintiff must show exposure to the defendant's asbestos products with sufficient frequency, regularity and proximity, but may do so by circumstantial evidence, including a distributor's supply of the products to the plant. A trial court may not set aside a jury verdict and resubmit an issue when the evidence supports a reasonable inference for the jury's finding.
• Owens-Illinois, Inc. v. United Ins. Co. (1993). For asbestos liability coverage, the court adopted a continuous trigger covering the period from exposure to manifestation, and held that each triggered insurer is liable for the full loss up to its limits, subject to other-insurance clauses, rather than a prorated share. Questions of waiver, intent and fraud turn on state of mind and ordinarily cannot be decided on summary judgment.
• Stevenson v. Keene Corp. (1992). Asbestos personal injury and death actions are 'environmental tort actions' under N.J.S.A. 2A:15-5.3d and f(1), so the 1987 limits on joint and several liability in the Comparative Negligence Act do not apply to them.
• Sholtis v. American Cyanamid Co. (1989). To defeat summary judgment in an asbestos case, a plaintiff must show exposure to a defendant's friable asbestos that was a substantial factor in causing the disease, shown by exposure of sufficient frequency, regularity and proximity, usually with expert proof linking the exposure to the condition. Market-share and similar collective liability theories do not apply to this cumulative-exposure case.
• Sea-Land Service, Inc. v. US (1988). Following the Sandy Hook approach, a contribution claim against the United States under the Suits in Admiralty Act accrues when the underlying cause of action arises, not at settlement, so it is barred after two years.

New York

• Kirby v. David Fabricators OF NY, Inc. (1st Dept., 2025). A prior dismissal with prejudice of a settled action does not bar a later suit against a defendant who was not a party to it and was not in privity with the settling party, an alleged joint tortfeasor. Joint tortfeasors are not necessary parties under CPLR 1001(a).
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (1st Dept., 2025). Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2024). A pain and suffering award that deviates materially from reasonable compensation under CPLR 5501(c) must be reduced or retried, and under General Obligations Law § 15-108 settlement amounts paid by settling defendants are deducted from the total award, with specified offsets for a settling defendant on the verdict sheet.
• Meissner v. Ridge Constr. Corp. (4th Dept., 2024). In an excess-coverage dispute over an asbestos judgment, an all-sums allocation applies where the excess policies contain non-cumulation clauses. Whether an injured plaintiff gave the insurer notice within a reasonable time, and when asbestos injury-in-fact occurred where experts conflict, are fact questions that cannot be decided on summary judgment.
• McWilliams v. AO Smith Water Prods. Co. (2023). A verdict is set aside as against the weight of the evidence only if no valid line of reasoning could lead rational jurors to it, and pain-and-suffering awards receive great deference. Counsel who submit false discovery responses and let an expert give false testimony uncorrected engage in sanctionable frivolous conduct under 22 NYCRR 130-1.1.
• Petro v. Aerco Intl., Inc. (2023). A jury verdict may be set aside only if no valid line of reasoning and permissible inferences could lead rational jurors to the result. Disputed facts, credibility and the weight of expert testimony are for the jury, and expert causation testimony needs enough specificity about exposure but not a precise numerical dose.
• Viglietta v. Asbestos Corp., Ltd. (Erie, 2022). Under Nemeth, an expert need not quantify exposure precisely if the methods used are generally accepted in the scientific community. Where a defendant invokes CPLR Article 16 apportionment, the plaintiff may invoke the reckless disregard exception of CPLR 1602(7).
• Milan-Leal v. Brenntag N. AM. (2021). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury, and it cannot meet that burden by pointing to gaps in the plaintiff's proof. Strict liability may be imposed on retailers, and indemnification claims are premature until the underlying claims are resolved.
• Matter of Gimber v. Eastman Kodak Co. (3rd Dept., 2020). Under Workers' Compensation Law § 44, apportionment to a prior employer requires evidence of when the occupational disease was contracted; unquantified prior exposure and speculative medical opinions do not establish that the disease began during the prior employment.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (1st Dept., 2020). Expert testimony that visible dust from gaskets known to contain 50% to 85% asbestos necessarily contained enough asbestos to cause mesothelioma can establish specific causation without a quantified exposure level. The court treated Matter of New York City Asbestos Litig. (Juni) as turning on its own particular record.
• Lanza v. Kaiser Gypsum Co. (Matter of Nyc Asbestos Litig) (2020). Two asbestos actions may be tried jointly under CPLR 602(a) and the Malcolm factors when individual issues do not predominate over common questions and the defendant shows no real prejudice.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• Ford v. AO Smith Water Products (1st Dept., 2019). An award for future pain and suffering that deviates materially from reasonable compensation may be reduced under CPLR 5501(c), where the jury found the decedent would live only one month. Expert testimony that the asbestos dust quantities were sufficient to cause mesothelioma was adequate, and a 25% liability allocation to the boiler maker was not against the weight of the evidence.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (Erie, 2019). A manufacturer has a duty to warn of dangers from the known and reasonably foreseeable use of its product with a third-party product needed for it to function as intended. Specific causation does not require precise quantification of dose, only evidence that the plaintiff was exposed to levels of the agent known to cause the harm.
• Grimes v. CBS Corporation (2018). Joint tortfeasors are not necessary parties under Rule 19(a), because a plaintiff need not sue all joint tortfeasors in one action and a defendant that pays more than its share can seek contribution. Efficiency in avoiding multiple lawsuits does not make absent parties necessary.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2018). A jury verdict is set aside only if it could not be reached on any fair interpretation of the evidence, but damages that deviate materially from reasonable compensation must be reduced. A boiler maker has a duty to warn of asbestos hazards from foreseeable removal of its boilers and the asbestos components used with them.
• Macaluso v. Carrier Corp. (In re New York City Asbestos Litigation) (2018). Under the NYCAL Case Management Order, defendants may use a settled non-party's interrogatory answers and, where the CPLR allows, its deposition to establish its share of fault under CPLR Article 16, so forcing a settling party to produce a live trial witness is contrary to the policy favoring settlement.
• Macaluso v. Burnham (In re New York City Asbestos Litigation) (2018). A settled non-party in the New York City Asbestos Litigation need not produce a live trial witness for a defendant's Article 16 purposes, because the Case Management Order lets defendants use non-party interrogatory answers and, where the CPLR allows, depositions, and compelling testimony would undercut the policy favoring settlement.
• Matter of Murphy-Clagett v. AO Smith Water Prods. Co. (2018). Under the New York City Asbestos Litigation Case Management Order, defendants may meet their CPLR Article 16 burden as to settled non-parties through those non-parties' interrogatory answers and certain depositions, so forcing a settled party to produce a live trial witness is contrary to settlement policy and unnecessary.
• Robaey v. Air & Liquid Sys. Corp. (2018). Repeated exposure to visible dust from a defendant's asbestos gaskets, shown by its consistency, duration and intensity, can supply enough evidence of exposure to support an expert's specific-causation opinion under Parker; Juni does not require mathematical modeling or product-specific studies. A recklessness finding based on knowledge of asbestos hazards and failure to warn is not a finding of solely intentional conduct.
• Carilli v. AO Smith Water Prods. Co. (2017). Under the New York City Asbestos Litigation Case Management Order, defendants may use non-party interrogatory answers to prove a non-party's product contained asbestos or lacked warnings for CPLR Article 16 apportionment, which removes the need to subpoena a non-party witness to testify at trial.
• Gallen v. Aerco Intl., Inc. (2017). Under the New York City Asbestos Litigation case management order, a non-defendant or settled party's interrogatory answers and deposition may be used to establish its share of fault under CPLR Article 16. Forcing a settled party to produce a trial witness would undermine the policy of encouraging settlement.
• Brown v. Consolidated Edison Co. of New York (In re New York City Asbestos Litigation) (2017). Where a non-party employer appears on the verdict sheet only as a manufacturer that failed to warn, and the plaintiff was exposed to its products before working for it, the workers' compensation bar does not remove it from CPLR article 16 apportionment, so its share is not shifted to a co-defendant.
• Carilli v. CRANE CO. (In re New York City Asbestos Litigation) (2017). A settled party in the New York City asbestos litigation cannot be forced to produce a live trial witness, because that would undercut the policy of encouraging settlement and the case management order. The defendant may instead use the settled party's interrogatory answers and prior deposition testimony to show its share of fault under CPLR Article 16.
• Matter of Claim OF Manocchio v. Abb Combustion Eng'g (3rd Dept., 2017). Apportionment among prior employers depends on whether the claimant contracted the occupational disease while employed by each one. Without objective proof of contraction during earlier employment, the Board's refusal to apportion and its setting of the contraction date at the diagnosis date were supported by substantial evidence.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). A manufacturer of a grinder used on asbestos-containing brake linings has a duty to warn of the latent danger from the foreseeable use of its product, and expert testimony that the grinder's use created asbestos dust sufficient to cause mesothelioma was adequate to establish causation.
• Matter of Schwartz v. AO Smith Water Prods. (2017). In the New York City Asbestos Litigation, the case management order lets defendants use non-party and settled-party interrogatory answers and depositions to prove their share of fault under CPLR Article 16, which makes a live corporate witness subpoena unnecessary.
• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (1st Dept., 2016). An owner that specifies the means and methods of work and coordinates the trades can be liable under Labor Law § 200, and a pre-1996 indemnification clause covering all losses arising from the work can require the contractor to indemnify the owner, including fees for defending the plaintiff's action but not for prosecuting the indemnity claim.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (2016). A party challenging a joint-trial order must assemble an adequate appellate record and must specifically object when circumstances change, such as after some cases settle, to preserve the challenge. The Court of Appeals has no power to review a claim that damages are excessive.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (2016). A manufacturer that knew its product would mainly be used with asbestos-containing brakes and designed it for that use may be held to have a duty to warn. Visible dust from an asbestos-containing product can support expert testimony on specific causation of mesothelioma without precise dose quantification.
• Mtr OF Nyc Asbestos Litig. (2016). A manufacturer has a duty to warn of the danger from the known and reasonably foreseeable use of its product together with a third-party product that, by design, mechanics or economic necessity, is necessary for the manufacturer's product to function as intended. Foreseeability alone does not create the duty.
• Assenzio v. AO Smith Water Prods. Co. (2015). After verdict, a court may mold the judgment using the aggregate amount of settlements (the Didner method) without disclosing individual settlement agreements or amounts. Disclosure is not required where plaintiffs timely disclosed their claims and the agreements show no new liability information.