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.

Other federal courts

• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.
• Thompson v. Johns-Manville Sales Corp. (1983). Louisiana law as predicted by the court does not dispense with proof that a defendant's product caused the injury; enterprise and market share liability are radical departures that Louisiana courts, not a federal court sitting in diversity, must adopt. Alternative liability and indivisible-injury theories do not apply to defendants with no proven connection to the injury.
• Murphree v. Raybestos-Manhattan, Inc. (1982). Under Tennessee law the vested rights doctrine no longer bars application of the 1979 amendment exempting asbestos-related disease actions from the ten-year sale-based limitations ceiling. Proximate cause requires only that the defendant's product be a substantial factor, not the sole cause.
• Keene Corp. v. Ins. Co. of North America (1981). For asbestos-related disease, inhalation exposure, exposure in residence and manifestation all trigger coverage under occurrence-based liability policies, and each triggered insurer is liable in full up to one policy's limits, with allocation among insurers governed by the policies' other-insurance clauses.
• Ins. Co. North America v. Forty-Eight Insulations (1980). Under standard comprehensive general liability policies, 'bodily injury' from asbestosis occurs when tissue damage begins on inhalation of fibers, not at manifestation, so every insurer on the risk during exposure is liable pro rata for indemnity and defense costs. The insured is treated as self-insured for uninsured years.
• Borel v. Fibreboard Paper Products Corporation (1973). Under Texas law and section 402A of the Restatement (Second) of Torts, a manufacturer of asbestos insulation can be strictly liable for failing to warn insulation workers of foreseeable dangers, and a warning given only to intermediary contractors does not by itself end that duty. Defendants whose products each caused some indivisible injury are jointly and severally liable, and assumption of risk is a defense only if the plaintiff's conduct was both voluntary and unreasonable.

Pennsylvania

• Fisher v. American International Industries (2024). A plaintiff must first show that the defendant's product actually contained asbestos before the frequency, regularity and proximity test applies. In a strict liability asbestos case, liability under the Fair Share Act is apportioned per capita among the liable defendants, and a defendant removed from the verdict cannot have its share added to a successor.
• Roverano v. John Crane, Inc. (2020). Pennsylvania's Fair Share Act does not displace the common-law rule that liability among strictly liable defendants is apportioned equally, and percentage apportionment is impossible for an indivisible asbestos injury. Bankruptcy trusts that were joined as defendants or that released the plaintiff may be listed on the verdict sheet, for apportioning liability only, on appropriate requests and proofs.
• Roverano v. John Crane, Inc. (2017). The Fair Share Act applies to strict liability asbestos cases, so a fact-finder must allocate liability among strictly liable tortfeasors in proportion to their liability rather than per capita. Settlements with bankrupt entities may be considered in that allocation because the Act bars use of the allocation against them and so does not conflict with the Bankruptcy Code.
• Rabovsky v. Air & Liquid Systems Corporation (2016). Under Pennsylvania's common-law joint and several liability rule and Charles v. Giant Eagle, a non-settling joint tortfeasor must pay its full apportioned share of the verdict and gets no further set-off for settlements. A defendant gets a set-off only for settlements by parties found to be joint tortfeasors, not for unadjudicated asbestos bankruptcy trust claims. Delay damages under Rule 238 do not cover a loss of consortium award.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• In re Mid-Valley, Inc. (2014). A challenge to the validity of a final confirmation order's channeling injunction is generally barred once the appeal period has run. An injunction protecting a listed non-debtor 'only to the extent' of indemnified claims is read to cover only the protected part of a claim with mixed exposures, so apportionment may be needed.
• Rost v. Ford Motor Company (2014). Betz v. Pneumo Abex does not bar all 'any exposure' expert opinion, and on review of a post-trial motion for judgment as a matter of law the record is viewed in the verdict winner's favor. Under Moore v. Ericsson, an asbestos-containing product may be treated as defective as a matter of law because it contains asbestos.
• Nelson v. Airco Welders Supply (2013). Following Betz v. Pneumo Abex, expert testimony that each and every asbestos exposure is a substantial contributing factor to mesothelioma is inadmissible. Plaintiff's counsel also may not suggest a specific dollar value for non-economic damages, and the instructions here did not cure that suggestion.
• Sabol v. Allied Glove Corp. (2011). A graduate student who was both a paid research assistant and a Ph.D. student is not an employee as a matter of law for workers' compensation exclusivity; a fact-finder must resolve how much asbestos exposure occurred while he was acting as a student rather than as an employee.
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• Bugosh v. Allen Refractories Co. (2007). A plaintiff in asbestos litigation can show exposure to a defendant's product by direct evidence or by showing the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked for verification of the plaintiff's Manville Trust claim before trial has not preserved a request to reduce the verdict by Trust payments.
• Bugosh v. Allen Refractories Company (2007). A plaintiff proves product exposure through the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked the Manville Trust for verification under the Trust Distribution Process did not preserve a claim to reduce the verdict by Trust payments.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Baker v. ACandS (2000). Under the Uniform Contribution Among Tort-feasors Act, which applies to strict liability actions, a release that expressly provides for a pro tanto set-off controls. Liability is first apportioned equally among all joint tortfeasors, and then each release's set-off method is applied to its settling party's share.
• Baker v. AC&S, Inc. (1999). A pro tanto release given to a settling tortfeasor in a strict liability action must be enforced according to its terms, so long as the consideration paid does not exceed the plaintiff's total claim. Pennsylvania's joint and several liability and the Uniform Contribution Among Tortfeasors Act are not displaced by equal allocation of liability among strictly liable tortfeasors.
• Kirk v. Raymark Industries, Inc. (1995). Forcing a party to use peremptory challenges on jurors who should have been excused for cause impairs its statutory right under 28 U.S.C. § 1870, and that impairment requires reversal without any showing of prejudice. A federal court sitting in diversity may award Pennsylvania Rule 238 delay damages.
• Sealover v. Carey Canada (1992). Where several asbestos defendants combined to cause a single indivisible harm such as mesothelioma death, their liability is joint and several under Pennsylvania law, and the Manville Trust is treated as a settling defendant with a straight pro rata share deducted before delay damages are calculated.
• Moran v. G. & WH Corson, Inc. (1991). Under Charles v. Giant Eagle Markets, where releases reduce the verdict only by the settling tortfeasor's pro rata share, non-settling defendants must pay their shares even if the settlements exceed the verdict, and this applies to strict liability cases not governed by the Comparative Negligence Act. Punitive damages require evidence that the defendant knew or had reason to know of the hazard, and vague awareness of newspaper reports was not enough.
• JH France Refractories v. Allstate Insurance Co. (1990). Under comprehensive general liability policies, the entire asbestos disease process from first exposure to manifestation triggers coverage, and when several insurers are triggered each pays a share prorated by the time its policy was in effect, with the insured bearing periods it was uninsured.
• Peeples v. Wcab (foster Wheeler) (1990). An employer's statutory right of subrogation to a worker's third-party recovery under Section 319 is absolute, has no filing time limit, and is not defeated by laches absent employer knowledge of the settlement or prejudice to the claimant. A petition filed under the wrong section is treated as filed under the correct one.
• Eagle-Picher Industries, Inc. v. US (1987). Under the Longshoremen's and Harbor Workers' Compensation Act, an employee injured while engaged in maritime employment on navigable waters is covered by § 905(b), without a separate admiralty-jurisdiction nexus test. A private shipowner could therefore have been sued in negligence, so the United States can be liable to a manufacturer for contribution under the Federal Tort Claims Act.
• Vigiolto v. Johns-Manville Corp. (1986). Predicting Pennsylvania law, the court held that enterprise liability requires a small number of manufacturers or delegation of safety functions to a trade association, and that market share liability, although likely to be recognized in an appropriate case, is not suited to asbestos cases.
• Colombo v. Johns-Manville Corp. (1984). Under the Federal Tort Claims Act the United States is treated like a private Pennsylvania shipyard employer, so the Pennsylvania Workmen's Compensation Act bars third-party contribution and indemnity tort claims against it, and Pennsylvania's dual capacity doctrine does not apply. The vessel-owner negligence claim under LHWCA section 5(b) survives because the state exclusivity bar does not apply to it, and the Tucker Act does not reach the implied-warranty claims.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.
• Tysenn v. Johns-Manville Corp. (1981). Mesothelioma falls within Pennsylvania's Occupational Disease Act, so compensation is the employee's exclusive remedy against his employer, and the intentional-tort exception did not apply on these facts. For the 1975 amendment barring contribution claims against employers, the disease "occurred" when it was or should have been discovered.

Rhode Island

• Turcotte v. 3M Company (2018). Under Rhode Island's interest-weighing approach, the law of the state with the most significant relationship governs, and depecage applies to issues rather than to individual defendants. In a multi-defendant asbestos case involving a single injury, different states' laws cannot be applied defendant by defendant.
• Murray v. 3M Company (2017). Under Rhode Island's interest-weighing choice-of-law approach, an asbestos plaintiff's place of injury is where he was diagnosed and treated, and the state of his domicile and diagnosis, here Tennessee, supplies the governing law. Applying that state's law is also constitutionally permissible given its contacts with the plaintiff.
• Jones v. 84 Lumber Company (2015). Once a court has decided that another state's law governs, it must take judicial notice of that state's statutes and cases. Rules on damages, fault allocation and seller liability are substantive, so Tennessee law applies to them.
• Sweredoski v. Alfa Laval, Inc. (2013). Crane could present evidence of the settled defendants' fault at trial to obtain a judgment reduction, but bankrupt entities reorganized under 11 U.S.C. § 524(g) were not 'joint tortfeasors' under the contribution act and public policy disfavored apportioning fault to them. Trust claim forms were not discoverable because they were not relevant to causation against the sole remaining defendant.

South Carolina

• Jolly v. Fisher Controls International, LLC (2024). A trial court may grant a new trial nisi additur when a verdict is inadequate but not grossly so, giving substantial deference to the jury and stating compelling reasons. A setoff judge must make a reasonable allocation of settlement funds among the claims and may set off only settlements for the same injury.
• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Edwards v. Scapa Waycross, Inc. (2022). Testimony that cumulative asbestos dose raises disease risk is not an 'each and every exposure' theory, and regular handling of asbestos-containing dryer felts supported a jury finding of substantial-factor causation. A nonsettling defendant gets setoff credit but cannot force reallocation of a plaintiff's settlement proceeds, and trust claims are offers to compromise excluded by Rule 408, SCRE.
• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.

Tennessee

• Davis v. 3M Company (2020). The trial court should first reduce noneconomic damages by the plaintiff's (or decedent's) percentage of fault if under 50%. If the result still exceeds the statutory cap, it should reduce the award to the cap and apportion that amount among all persons found at fault, including settled nonparties, by percentage of fault.
• Woody v. AW Chesterton Company (2008). A release's language determines whether it covers later-discovered injuries from pre-release exposure; it can bar a later mesothelioma claim if it expressly covers unknown future diseases, and non-party tortfeasors within its terms may rely on it. It did not cover injuries from post-release exposure, so those claims survived.
• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.

Texas

• Andrews v. John Crane, Inc. (14th District, 2020). General maritime law preempts state law for a Navy sailor's asbestos products claims against a gasket maker, and DOHSA does not bar a general maritime survival recovery for the decedent seaman's pre-death pain and suffering.
• Gilcrease v. Garlock, Inc. (8th District, 2006). A venue determination made before a nonsuit fixes venue for a refiled suit on the same claims against the same party. Family members asserting derivative claims are a single claimant for Chapter 33 settlement credits, Settlement credits under Chapter 33 apply only to actual damages, not to exemplary damages, and the jury's actual damages award still supports the exemplary award even if the credits offset it.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• Brown & Root, Inc. v. Shelton (12th District, 2003). The Texas contractor's statute of repose does not protect a contractor from exposure that occurred before the asbestos materials were annexed to the realty. Under Chapter 33, an injured person and the family member seeking damages for that injury are one claimant, so the non-settling defendant gets a full credit for all settlements.
• Broyles v. US Gypsum Co. (2001). A state-law dispute that is only "related to" a bankruptcy case, could not otherwise have been brought in federal court, and can be timely decided in state court requires mandatory abstention under 28 U.S.C. § 1334(c)(2), even when it was removed. Enforcement of a settlement of a tort suit is a non-core proceeding.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.