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.

Ohio

• Potts v. 3M Co. (8th Appellate District, 2007). Under R.C. 2307.78(B)(1), 'not subject to judicial process' means not subject to personal jurisdiction, and manufacturers that filed bankruptcy but have funded trusts are neither outside judicial process nor insolvent, so a supplier is not vicariously liable for them.
• State EX rel. Pilkington N. AM. v. Indus. Comm. (10th Appellate District, 2007). The last-injurious-exposure rule applies only to decide which employer a claim is allowed against when several employers exposed the worker, and it cannot be used to allocate risk liability between one employer's self-insured and state-fund periods after the claim is already allowed.
• Sequa Corporation v. Elyria Foundry Company (2006). Under Ohio law, indemnification is not available between joint or concurrent tortfeasors, and the workers' compensation 'last injurious exposure' doctrine does not create an indemnity right. Tortfeasors who pay more than their share of common liability may recover contribution under Ohio Rev. Code § 2307.25.
• Horton v. Harwick Chem. Corp. (1995). Summary judgment in an asbestos case is governed by the ordinary standard, and Ohio does not adopt the Lohrmann frequency-regularity-proximity test for proving that a product was a substantial factor. Alternative liability does not apply where the defendants' products did not create a substantially similar risk of harm.
• Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. (1995). Under Ohio law, a continuous-injury trigger applies to asbestos claims under these excess policies, and the insured may recover in full from any one triggered insurer. The court also declined to adopt a separate known loss doctrine and held that Ohio law bars insuring punitive damages.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.
• Layne v. GAF Corp. (1988). Ohio strict products liability under Restatement 402A, Comments j and k, supports a failure-to-warn claim and a state-of-the-art defense for asbestos products, and the learned intermediary rule has been affirmed only for prescription drugs, not for building owners.

Oregon

• Miller v. Agripac, Inc. (2022). A defendant whose negligence is found reckless (wanton), the third category of tortious conduct, cannot use the comparative-fault defense. Under Shin, that defendant also falls outside the several-only liability statute and stays jointly and severally liable, whenever the action arose.
• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.

Other federal courts

• Barabin v. AstenJohnson, Inc. (2012). A district court must act as gatekeeper and make some on-the-record relevance and reliability determination before admitting expert testimony under Rule 702 and Daubert; failing to do so is reversible error requiring a new trial under Ninth Circuit precedent.
• Conwed Corp. v. Union Carbide Corp. (2006). Under Minnesota law, after a Naig settlement the jury's allocation of fault to the employer is applied once, to the lesser of the verdict or the workers' compensation benefits paid and payable, and a verdict on warnings in a mesothelioma trial does not collaterally estop litigation of warnings for asbestosis claims where the issue was not necessarily determined.
• New Orleans Stevedores v. Ibos (2003). Under the LHWCA's last exposure rule, the last exposing employer is liable for the full award, and it can escape only by proving that asbestos exposure did not cause the disease or that a later covered employer exposed the worker. An employer is not entitled to a credit for settlements with earlier employers under the LHWCA itself, because the Nash credit doctrine covers successive aggravating injuries and not alternative liability for one injury.
• Norfolk & Western R. Co. v. Ayers (2003). Under the FELA, a railroad worker who has asbestosis may recover, as part of pain and suffering, for a genuine and serious fear of developing cancer. The FELA does not require apportioning damages among other tortfeasors, so a negligent railroad is liable for the full damages and must seek contribution elsewhere.
• Newport News Shipbuilding and Dry Dock v. Stilley (2001). The Director's last maritime employer rule, which makes the last LHWCA-covered employer fully liable even when a later non-maritime employer also contributed to an occupational disease, is a reasonable construction of the Act and is constitutional under rational basis review.
• Sybron Transition Corp. v. Security Ins. (2001). Applying New York law as interpreted by the Second Circuit, insurers' shares of a long-latency asbestos loss are allocated by time on the risk, with a one-month policy counted as one month. Time the insured self-insured stays in the denominator, and the insured may not stack policies to exceed a single per-occurrence limit.
• Barnes v. Owens-Corning Fiberglas Corp. (2000). Under Kentucky's apportionment statute, fault may be apportioned only to parties, dismissed or settling parties, and persons released by agreement, and only where the evidence could support a finding of fault. Including unsupported parties in the instructions was harmless here, and a verdict is not set aside as against the weight of the evidence if a reasonable juror could reach it.
• Norfolk Shipbuilding & Drydock Corp. v. Faulk (2000). Under the last employer rule, the employer in the last employment with exposure to injurious stimuli is liable for the full award, and it can rebut the statutory presumption only by showing the exposure had no potential to cause the disease or that a later employer exposed the worker. The court declined to require a minimum level of exposure.
• Brown & Root, Inc. v. Sain (1998). Under the LHWCA a latent-disease claimant becomes a "person entitled to compensation" when he learns of the disease and its disabling effect, not at exposure. For the section 33(g) forfeiture comparison, the gross amount of third-party settlements is compared with disability compensation only, excluding medical benefits.
• Cimino v. Raymark Industries, Inc. (1998). Under Texas law, causation and damages in asbestos injury suits must be determined for each individual plaintiff, not for groups, and a class or consolidation procedure cannot change that or remove the Seventh Amendment jury right. A raw-material supplier selling non-defective asbestos to a sophisticated manufacturer has no duty to warn the manufacturer's end users.
• Barnes v. Keene Corp. (1995). Following its earlier decision in Tragarz v. Keene Corp., the court held that asbestos defendants are jointly and severally liable under Illinois Code of Civil Procedure Sections 2-1117 and 2-1118. It also held that an objection to entry of a single judgment on separate verdicts was waived because the plaintiff never proposed separate judgments in the district court.
• Consorti v. Armstrong World Industries, Inc. (1995). In a diversity case, state law governs whether a compensatory damages award is excessive, so New York's 'deviates materially from reasonable compensation' standard applied. Consolidation of asbestos cases is within a trial court's discretion unless it causes confusion or prejudice that prevents the jury from deciding on the evidence.
• Stonewall Ins. Co. v. Asbestos Claims Management (1995). Under New York and Texas law, occurrence-based liability policies are triggered throughout a progressive disease process when the evidence shows injury-in-fact recurring at each point; the insured bears pro rata responsibility for years it chose to go uninsured but not for years after 1985 when asbestos insurance was unavailable, and each installation of asbestos building products is a separate occurrence for per-occurrence deductibles.
• Cretan v. Bethlehem Steel Corp. (1993). Family members who settle third-party tort claims before a worker's death are persons "entitled to compensation" under both section 33(f) and section 33(g) of the LHWCA, so the set-off and written-approval requirements apply to them even though the death had not yet occurred.
• Johnstone v. American Oil Co. (1993). Under Louisiana's risk-utility test for a product that is unreasonably dangerous per se, a court may not grant JNOV by disregarding admitted utility evidence as irrelevant. The product's danger and utility are weighed as to society as a whole, and the evidence here left a jury question.
• Miller v. American President Lines, Ltd. (1993). Punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. Indemnity and contribution among maritime tortfeasors, including product makers, are decided by comparative fault rather than the active-passive negligence rule.
• Sealover v. Carey Canada Inc. (1993). A claimant who has merely a claim against the Manville Trust, and has not settled with or released it, does not have a settled defendant for molding a verdict. Under Pennsylvania Rule 238, a continuance requested by plaintiff's counsel counts as plaintiff-caused delay and is excluded from delay damages.
• Becht v. Owens Corning Fiberglas Corp. (1992). Under Kentucky law, workers' compensation exclusivity is an affirmative defense the employer must prove, including that it employed the plaintiff and secured payment of compensation in Kentucky. Denial of a new trial on weight-of-the-evidence grounds is reviewed only for abuse of discretion.
• Borman v. Raymark Industries, Inc. (1992). Under Pennsylvania law as predicted from Martin v. Owens-Corning Fiberglas, evidence that an insulator's lung disease was caused by both asbestos and smoking, with experts unable to assign percentages, gives no reasonable basis to apportion damages. A lost-earnings claim may go to the jury even where the proof of the decedent's personal maintenance cost is sparse.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• Rohrbaugh v. Owens-Corning Fiberglas Corp. (1992). Under Oklahoma manufacturer's products liability law, the duty to warn extends only to ordinary consumers and users, and arises only when the manufacturer knew or should have known of the hazard; a wife exposed through her husband's work clothes was not owed a duty to warn.
• Rotondo v. Keene Corp. (1992). Under Pennsylvania's Eckenrod standard, circumstantial evidence placing a defendant's pipecovering in the same boiler room where the plaintiff worked, near the pipecoverers and used about half the time, was enough for a jury to infer exposure and causation. The jury could also infer that dust from sawed asbestos covering contained asbestos.
• Tragarz v. Keene Corp. (1992). Under Illinois law, direct testimony of working with or near a defendant's asbestos product can support a finding of probable exposure without naming specific job sites. The frequency, regularity and proximity test is less rigid in mesothelioma cases, and release of asbestos dust inside a workplace can count as a 'discharge into the environment' that keeps joint and several liability.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Force v. Director, Owcp, Dept. of Labor (1991). Under 33 U.S.C. § 933(f), an employer may offset the claimant's entire third-party recovery, including non-economic and punitive damages, but only the portion attributable to the claimant. The employer bears the burden of proving that apportionment in a multi-party settlement.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• Vaughn v. Farrell Lines, Inc. (1991). Non-contractual maritime indemnity is available after a settlement when the indemnitor was notified and tendered the defense but refused to participate, if the indemnitee shows an indemnitor relationship, compulsion to settle, a reasonable settlement, and that the indemnitor's wrongdoing proximately caused the injury. The indemnitor may litigate its own wrongdoing and owes only for damage caused by its own products.
• George v. Celotex Corp. (1990). A manufacturer is held to the knowledge of an expert in its field, so an unpublished report showing what it reasonably should have known is relevant to the state of the art, and an ancient document may be admitted under Rule 803(16). A jury allocation of liability is upheld where evidence supports it.
• King v. Armstrong World Industries, Inc. (1990). A party is bound by its attorney's concession in closing argument that the plaintiff was exposed to its products. In asbestos cases, evidence of what the industry knew is relevant to what was scientifically discoverable, even if it shows only a nonparty's knowledge. Under Texas law the defendant bears the burden of allocating causation, and the evidence supported the jury's apportionment and punitive award.
• Dube v. Pittsburgh Corning (1989). The FTCA discretionary function exception covers only conduct involving a permissible exercise of policy judgment; the Navy's negligent failure to warn domestic bystanders of asbestos dangers, made without any policy decision while operating a shipyard like a private owner, is not shielded.
• Eagle-Picher Industries, Inc. v. US (1988). The LHWCA's express exclusion of federal employees (§ 903(b)) means § 905(b) gives no right of action against the United States for its own employees, so a third-party contribution claim under the FTCA fails. Asbestos injuries to shipyard workers also lack the significant relationship to traditional maritime activity needed for admiralty jurisdiction.
• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.
• Whatley v. Armstrong World Industries, Inc. (1988). Under Texas comparative causation (Duncan), a non-settling defendant must prove the liability of settling defendants to reduce the plaintiff's recovery by their shares. Where that proof fails for some settling defendants, no reduction is allowed for them, and the non-settling defendant stays jointly and severally liable for that portion.
• Dykes v. Raymark Industries, Inc. (1986). Tennessee's Contribution Among Tort-Feasors Act excludes only intentional tortfeasors, so a punitive award for willful and wanton conduct may be set off by settlements paid by co-defendants. Post-exposure documents may be admitted on punitive damages if relevant to pre-injury conduct.
• Herber v. Johns-Manville Corp. (1986). Under New Jersey law, as predicted by the court, a plaintiff with asbestos-caused pleural thickening cannot recover for increased risk of a possible future cancer alone. He can recover the cost of future cancer monitoring and emotional distress from fear of cancer, without proof of a physical manifestation of that fear. Excluding that evidence under Rule 403 was an abuse of discretion.
• ACandS, Inc. v. Aetna Cas. and Sur. Co. (1985). Under Pennsylvania law as predicted by the court, exposure, exposure-in-residence and manifestation each count as 'bodily injury' that triggers liability coverage for asbestos claims, and a triggered policy is not prorated. The duty to defend ends when policy limits are exhausted, and it carries the insurer's right to defend.
• Dartez v. Fibreboard Corp. (1985). Under Texas law, a plaintiff without a medically probable cancer or mesothelioma may still recover for mental anguish from fear of those diseases, though not for their future costs. Evidence of what other asbestos makers knew is relevant to the state of the art, but hearsay and treatise rules still apply, and compliance with OSHA fiber limits can defeat liability for a low-emission product.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Rocco v. Johns-Manville Corp. (1985). Under the Pennsylvania Joint Tortfeasors Act, settlement payments by defendants not determined to be joint tortfeasors do not reduce a verdict, while a pro rata release of a joint tortfeasor who later files for bankruptcy still reduces the verdict. Pennsylvania delay damages may be assessed against a non-settling defendant only on its proportionate share of the verdict.
• Belton v. Fibreboard Corp. (1984). Evidence of co-defendant settlements may be admitted for a non-liability purpose such as explaining their absence, but telling the jury the settlement amounts so it bases its award on them violates Rule 408. A judge also may not comment on the ultimate fact of damages or steer the jury toward a verdict.