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.

New York

• Koulermos v. Treadwell Corp. (In re New York City Asbestos Litig.) (2015). A defendant moving for summary judgment must first make a prima facie showing of no material issue of fact; failing that, and given factual disputes over when the plaintiff worked at the site and whether he worked alongside the defendant's employees, cross-claims cannot be dismissed.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (2015). A verdict is set aside as a matter of law only where no valid line of reasoning could support it. Testimony on cumulative asbestos exposure, together with evidence of exposure to the defendant's equipment, can establish causation under New York's Frye standard. Awards that deviate materially from reasonable compensation must be reduced.
• Hackshaw v. Crane Co. (In re New York City Asbestos Litigation) (2015). A verdict may be set aside only where no valid line of reasoning could support it. A manufacturer with a significant role, interest or influence in the asbestos components used with its products may owe a duty to warn, and evidence of that role supported the failure-to-warn and recklessness findings. Awards that deviate materially from reasonable compensation are reduced under CPLR 5501(c).
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (Erie, 2015). A trial court may set aside a damages award that deviates materially from reasonable compensation and order a new trial unless the defendant stipulates to a higher award. The jury's allocation of 100% fault to the defendant was a fair reading of the evidence, and New York law applied because the plaintiff lived in New York when first exposed.
• Brown v. Bell & Gossett Co. (2014). Under Labor Law § 200, a premises owner is not liable for injuries from the method and manner of a contractor's work unless it actually supervised or controlled that work. General supervision, inspection, and contract specifications that listed asbestos materials are not enough.
• Konstantin v. 640 Third Ave. Assoc. (2014). A court may vacate a judgment under CPLR 5015(a) or in the interests of justice, but reopening discovery needs newly discovered evidence, misconduct, or a reasonable basis to think the subpoenas would reveal relevant information. Plaintiff's failure to update an interrogatory answer after filing trust claims did not amount to misconduct here.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• McCloskey v. AO Smith Water Prods. (2014). A verdict will be set aside as a matter of law only if no valid line of reasoning could lead rational jurors to it. A defendant found reckless is liable for the full verdict regardless of apportionment, and a defendant bears the burden of proving the equitable shares of other entities.
• McCormick v. Burnham (In re Asbestos Litigation) (2013). Where Kansas is the plaintiff's domicile and place of injury and the parties agree, Kansas law governs, so comparative fault allocates each defendant's liability by percentage and statutory caps on non-economic damages are applied by the court, not disclosed to the jury.
• Peraica v. Crane Co. (Matter of New York City Asbestos Litig.) (2013). Under New York law, whether a manufacturer of a bare-metal product had a duty to warn of asbestos insulation others applied to it after sale is a question of fact for the jury where the manufacturer knew or should have known the product would be used with asbestos-containing materials. A court may reduce a jury award that deviates materially from reasonable compensation.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (2012). A valve manufacturer may owe a duty to warn about asbestos gaskets, packing and insulation made by others when it meant its valves to be used with them or knew or should have known they would be. Under CPLR Article 16, the Navy is not counted in apportioning fault because Feres and the grave-injury rule bar suit against it.
• Beltrami v. AO Smith Water Prod. Co. (2009). Summary judgment is denied where the decedent's testimony about the products he used conflicts with the defendant's affidavit and documents, creating fact issues. Common-law indemnification requires proof of no negligence beyond statutory liability, which a fact issue about who supplied the gaskets and packing prevents.
• Aguirre v. Long IS. Rail RD. Co. (2007). In a FELA case tried in state court, plaintiffs still need expert testimony to show causation, but under New York law (Parker v. Mobil Oil) exposure need not be quantified precisely if the expert's method is generally accepted. Awards that materially deviate from reasonable compensation may be reduced under CPLR 5501(c).
• Aguirre v. Long Island Railroad Co. (2007). In a FELA case tried in state court, plaintiffs still need expert proof of causation, but under New York law exposure need not be quantified precisely and may be shown through work history and qualitative evidence. A verdict stands if some valid line of reasoning could lead rational jurors to it.
• IN Matter of New York City Asbestos Litigation (2007). A finding of reckless disregard that removes the limit on a defendant's share of liability under CPLR 1602(7) is supported where the record shows the defendant knew of asbestos dangers to people like the plaintiff and did not warn. A jury's damages verdict is upheld if it does not deviate materially from reasonable compensation in comparable cases.
• IN the Matter of New York City Asbestos Litig. (2007). A jury's finding that a defendant acted with reckless disregard, which makes it liable for the full verdict under CPLR 1603(7), stands where the record shows the defendant knew of asbestos dangers and failed to warn. A damages award is reviewed for whether it deviates materially from reasonable compensation, and the jury's verdict receives great deference.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2007). Broad contractual indemnity clauses covering 'any and all liability' occasioned in whole or part by the contractor's act or omission can require indemnification even where the indemnitee was itself negligent. Failure to allocate the contractor's negligence among sites does not bar indemnity.
• Reynolds v. Garlock Sealing Technologies (Mtr OF Eighth Jud. Dist. Asbestos Litigation) (2007). When a plaintiff and a defendant in a multi-defendant action make a high-low agreement that keeps the agreeing defendant in the case, the parties must disclose the agreement and its terms to the court and the non-agreeing defendants. Failure to disclose it prejudices the non-agreeing defendant and warrants a new trial.
• Lustenring v. AC&S, Inc. (1st Dept., 2004). A jury could find causation from evidence that plaintiffs worked in dust raised by manipulating the defendant's asbestos packing and gaskets, and a defendant's factual disagreement with the plaintiffs' causation theory does not require a Frye hearing.
• Matter of Drewes v. Steel (3rd Dept., 2003). A carrier ordered to contribute a share of compensation benefits is liable for compensation and so holds a lien under Workers' Compensation Law § 29(1) on third-party settlement proceeds, and its written consent to the settlements is required. The Board could rationally put the duty to obtain consent on the State Insurance Fund.
• Plumb v. AC and S., Inc. (3rd Dept., 2003). A verdict may be set aside where there is no valid line of reasoning and permissible inferences that could lead rational people to the jury's conclusion. Plumb's testimony that GE cable contained asbestos was speculative and legally insufficient to support apportioning fault to GE.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Hamilton v. Garlock, Inc. (2000). Evidence of exposure to the defendant's products, state-of-the-art notice and reckless concerted conduct supported the verdict. A defendant that offers no proof on allocating fault among joint tortfeasors forfeits any reduction for settling defendants' shares, so a directed verdict on allocation is proper.
• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (1st Dept., 1998). Evidence was sufficient for a jury to link a defendant's asbestos-containing components and products to the worker's injury. A government contractor defense charge was unwarranted without evidence of a conflict between state warning requirements and federal requirements. A defendant that challenges its share of fault must show the equitable shares of the settling defendants.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (1997). A defendant asserting the military contractor defense to a design defect claim must prove every Boyle element, including warnings to the government, and merely raising some elements is not enough. New York does not recognize a child's claim for loss of parental consortium, and filing a proof of claim with the Manville Trust is not a settlement that supports a set-off under General Obligations Law § 15-108.
• Maltese v. Westinghouse Electric Corp. (Matter of New York City Asbestos Litig.) (1997). Reckless disregard requires a gross negligence standard: intentionally acting in disregard of a known or obvious risk so great that harm is highly probable, with conscious indifference to the outcome. General awareness that high, prolonged asbestos exposure could cause injury did not meet that standard.
• Mtr. OF Nyc Asbestos Litig. (1997). A jury may consider a manufacturer's actual knowledge of asbestos dangers in allocating relative culpability under CPLR article 16, and answers to interrogatories by settling defendants cannot be offered by a non-settling defendant who is no longer adverse to them. A recklessness finding must be set aside if no valid line of reasoning could support it.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• Zalinka v. Owens-Corning Fiberglass Corp. (3rd Dept., 1995). Where plaintiffs show liability of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability of each settling defendant. Testimony about the plaintiff's inhalation of dust from cutting Kaylo, plus expert opinion on causation, was enough to sustain the verdict.
• In re Keene Corp. (1994). A holder of a non-final judgment secured by a supersedeas bond can show cause under 11 U.S.C. § 362(d)(1) for stay relief to complete the appeal and then collect on the bond, where the debtor fails to show greater prejudice to itself or other grounds to deny relief.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Didner v. Keene Corp. (1st Dept., 1993). A defendant gets a verdict reduction under General Obligations Law § 15-108 only if the plaintiff gave a release or covenant not to sue to the other tortfeasor; a consent judgment with no release does not qualify. In dicta, the court said an aggregation method of reducing the verdict best serves the statute's purposes.
• Kreppein v. Celotex Corp. (1992). Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (1990). A federal court sitting in diversity applied New York law and held that a dismissal with prejudice of a decedent's lifetime personal injury claim for lack of exposure evidence bars his personal representative's later wrongful death claim against the same defendant, because she stands in the decedent's position. Circumstantial exposure evidence and medical testimony were enough to support the jury's verdict.
• Simpson v. Pittsburgh Corning Corp. (1990). A due process challenge to punitive damages based on earlier awards in asbestos cases fails when the defendant has not made an adequate factual record. A preponderance standard of proof, denial of bifurcation within the trial judge's discretion, and denial of a continuance to join the Manville Trust did not require reversal.
• Swogger v. Waterman SS Corp. (1st Dept., 1989). When a seaman on commercial vessels is allegedly injured by asbestos exposure on the high seas, admiralty law rather than state law applies to the related third-party contribution and indemnity claims, so New York General Obligations Law § 15-108 does not bar contribution.

North Carolina

• Walls v. Ford Motor Company (2023). Under North Carolina law, applied in a federal diversity case, settlement credits under N.C. Gen. Stat. § 1B-4(1) are applied against an aggregate judgment that includes costs, so costs are subject to setoff.
• Covil Corporation v. United States Fidelity and Guaranty Co. (2021). A party's duty to supplement discovery under Rule 26(e) continues after discovery closes, so a motion to compel supplementation is timely. Settlement agreements are discoverable only to the extent they bear on damages and setoff, and neither confidentiality terms nor a state-court sealing order bars production.
• Zurich American Insurance Company v. Covil Corporation (2020). Under South Carolina law (Crossmann), a loss from progressive injury spanning several policy periods is allocated pro rata by each insurer's time on the risk, with the insured bearing uninsured years. A federal court should not decide hypothetical coverage questions and declines declaratory jurisdiction where they are not tied to a concrete claim.
• Finch v. Covil Corporation (2019). A verdict for the plaintiff stands where the evidence permitted a jury to find that the defendant supplied asbestos insulation, that the worker was exposed to it, and that no warning was given. Under North Carolina law, a wrongful death verdict is excessive only if the record shows passion, prejudice or disregard of the law, not merely because it is large.
• Gaunt v. Guy M. Beaty & Co., Inc. (2018). A death-benefits claim under N.C. Gen. Stat. § 97-38 is a distinct claim from the worker's underlying compensation claim, so a court setting a § 97-10.2(j) lien need not weigh prospective third-party recoveries tied to the worker's separate claim. The court's lien decision is reviewed for abuse of discretion.
• In re Garlock Sealing Technologies, LLC (2014). In estimating aggregate asbestos liability, a bankruptcy court may use a merits-based legal-liability analysis instead of the debtor's settlement history when that history is unreliable because exposure evidence was withheld and because settlements reflected avoided defense costs rather than liability.
• Kingston v. Lyon Construction, Inc. (2010). A superior court has jurisdiction under N.C. Gen. Stat. § 97-10.2(j) to determine a workers' compensation lien once a final, enforceable settlement with some third parties exists, even if claims against other third parties remain. The court has discretion to reduce the lien after considering the statutory factors.

North Dakota

• Pyle v. AH Bennett Co. (2023). Because no federal rule or North Dakota provision authorizes a court to order a plaintiff to file asbestos trust claims, the court could not compel filing whether or not the state statute's investigation and filing requirements apply in federal court. Trust-related discovery relevant to apportionment of fault is still allowed under Rule 26.
• Black v. Abex Corp. (1999). Even assuming market share liability were recognized, a plaintiff must present admissible evidence that the defendants' products were fungible and carried equivalent risks of harm. Alternative liability does not apply when the plaintiff has not joined all possible manufacturers.

Ohio

• RW Beckett Corp. v. Allianz Global Corp. (2020). Under Ohio law, "atmosphere" in a pollution exclusion is ambiguous as to whether it covers air inside a residential basement, so the exclusion is construed against the insurer. A non-settling insurer seeking a settlement credit must show the settling insurer's payment was for the same damages.
• Heaton v. Ford Motor Co. (8th Appellate District, 2017). A trial court may exclude evidence under Civ.R. 26(E) and 37(C) when a party fails to supplement discovery responses, even if the failure was inadvertent, where the resulting prejudice to the opposing party cannot be cured by a lesser sanction. Without that testimony, product identification evidence against McCord was lacking.
• Brucker v. CBS Corporation (2016). Complete relief under Rule 19 is judged among the existing parties, so absent joint tortfeasors are not necessary parties merely because Ohio's apportionment of fault statute affects the defendants' defense. The movant also bears the burden of identifying the absent party, its location, and whether jurisdiction exists over it.
• Fisher v. Beazer East, Inc. (8th Appellate District, 2013). A plaintiff in a multidefendant asbestos case must prove exposure to the defendant's product and that it was a substantial factor in causing the injury. Under Ohio's apportionment statutes, a jury may allocate fault to employers who are immune from suit under workers' compensation law, as "empty chair" parties.