Causation in Asbestos Cases

Decisions in our library in which the court ruled on medical or specific causation: 1,200 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

• Wannall v. Honeywell, Inc. (2014). A district court does not abuse its discretion under Rules 26 and 37(c) by striking an untimely expert declaration when the plaintiff, for strategic reasons, never invoked Rule 26(e) or 56(d) and so waived those arguments. Exclusion does not require a finding of bad faith.
• 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.
• Moeller v. Garlock Sealing Technologies, LLC (2011). Under Kentucky law a plaintiff must show that the defendant's product was probably, not just possibly, a substantial factor in causing the injury. Expert testimony that every asbestos exposure contributed, with no quantified exposure from the defendant's product alongside far greater exposure from other sources, does not support that inference.
• Albina Engine & Machine v. Director, Owcp (2010). In LHWCA occupational disease cases with multiple employers, the §20(a) presumption must be invoked against each employer, and the evidence is analyzed sequentially starting with the last employer. The first employer in that sequence who fails to rebut the presumption, or is shown responsible by a preponderance, is liable.
• Martin v. Cincinnati Gas and Electric Company (2009). Under Kentucky law, a negligence claim needs evidence that the defendant's product was a substantial factor in causing the harm, and a duty depends on whether the risk was foreseeable from what the defendant knew or should have known at the time. The record did not show that the danger of household exposure to asbestos on work clothes was known or knowable to the defendants in the 1950s and early 1960s, so they owed no duty.
• Lindstrom v. AC Product Liability Trust (2005). Under maritime products liability law, a plaintiff must show for each defendant that he was exposed to that defendant's product and that it was a substantial factor in causing the injury. A generic expert opinion that every asbestos exposure contributed does not meet this requirement. A manufacturer is not responsible for asbestos in other companies' packing or gaskets attached to its equipment.
• 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 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.
• Chism v. WR Grace & Co. (1998). Under Missouri law, an asbestos plaintiff needs expert evidence that each defendant's product directly contributed to the death as a substantial factor, and must show frequency, regularity and proximity of exposure to that product. Showing exposure to a product that is not shown to contain asbestos does not meet this requirement.
• 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.
• Braun v. Lorillard Inc. (1996). A district court may exclude an expert who departs from the accepted methods of his field without knowing those methods or justifying the departure, since Daubert requires scientific rigor and does not make customary methods irrelevant. The court also upheld the district judge's discretion over pretrial witness disclosure, hearsay and expert qualification, and found an improperly limited redirect harmless.
• Holbrook v. Lykes Bros. SS Co., Inc. (1996). Under Rule 702's liberal standard, a court abuses its discretion by excluding a medical expert's testimony because the expert lacks the specialty the court considers most appropriate, and such exclusion is not harmless if the testimony bore on a critical issue such as diagnosis or causation.
• Peerman v. Georgia-Pacific Corp. (1994). Even under a 'job site' test of causation, a plaintiff must produce evidence that the defendant's product, as used, could have produced a significant amount of asbestos dust that the plaintiff might have inhaled; presence of the product at the work site is not enough.
• Jackson v. Anchor Packing Co. (1993). Under Arkansas law, an asbestos plaintiff must show that exposure to a particular defendant's product was more likely than not a substantial factor in causing the injury, measured by the frequency, regularity and proximity test. Arkansas has not adopted alternative or market share liability, and "fiber drift" evidence can widen the area of probable exposure but cannot by itself establish causation.
• 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.
• Blancha v. Raymark Industries (1992). A defendant need not present evidence of what type of asbestos its product contained in order to offer expert testimony that chrysotile does not cause mesothelioma. Such testimony is relevant to rebut plaintiffs' causation theory, and a new trial for jury confusion or a missing instruction was an abuse of discretion.
• 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.
• 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.
• Hoffman v. Allied Corp. (1990). Under the summary judgment standard, affidavits that asbestos products were in use 300 to 400 feet away, that dust drifted into the shop, and that asbestos was the substantial cause of the disease allowed a reasonable jury to find exposure to the defendant's products and proximate cause.
• In re Fibreboard Corp. (1990). A federal court sitting in diversity cannot try thousands of asbestos claims by statistical extrapolation from a few sample plaintiffs, because that changes the substantive Texas requirement of proving individual causation and damage, and the class lacks the predominance Rule 23(b)(3) requires.
• 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.
• Lohrmann v. Pittsburgh Corning Corp. (1986). Under Maryland law, circumstantial proof of substantial-factor causation in a large workplace requires evidence of exposure to a specific product on a regular basis over some extended period in proximity to where the plaintiff worked (the frequency, regularity and proximity test). State-of-the-art evidence is relevant in a strict liability failure-to-warn claim.
• Blackston v. Shook & Fletcher Insulation Co. (1985). Under Georgia law, an asbestos plaintiff must show he was exposed to the particular defendant's asbestos-containing product by working with it or in close proximity to it. A federal court sitting in diversity will not create a rebuttable presumption of exposure from the mere fact that the defendant's product was used at the job site while the plaintiff worked there.
• 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.
• Lee v. Celotex Corp. (1985). To pursue a claim against a particular asbestos defendant, a plaintiff must produce enough evidence to support a finding of direct exposure to that defendant's asbestos-containing products; speculation or conjecture is not enough.
• 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.
• Adams v. Johns-Manville Sales Corp. (1984). Under Louisiana law, a cause of action for cancer does not arise from asbestos exposure until cancer manifests, so evidence of increased risk of future cancer is properly excluded. A court need not instruct on future damages for which there is no proof, and a jury's findings with a reasonable evidentiary basis need not be consistent across products.
• Halphen v. Johns-Manville Sales Corp. (1984). Under Louisiana strict products liability law, a manufacturer is presumed to know the defects in its product, so the state-of-the-art defense fails; foreseeability applies only to the injury, not to the defect.
• 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.
• Migues v. Fibreboard Corp. (1981). Borel v. Fibreboard held only that the jury on that record could find asbestos products without adequate warnings unreasonably dangerous. It does not establish by stare decisis that all asbestos products are unreasonably dangerous as a matter of law.
• Petes v. Hayes (1981). Special interrogatories must be consistent with the jury instructions and must not confuse or mislead the jury. An interrogatory asking whether a disease "specifically" resulted from asbestos inhalation could be read as "solely," which conflicted with the instruction that more than one proximate cause may support recovery.
• Porter v. American Optical Corp. (1981). A jury could find a respirator filter defective in design where it was never tested with asbestos dust and the plaintiff's experts showed asbestos passing through it, even though it met government and industry standards. For a progressive disease such as asbestosis, insurance liability is prorated among the insurers on the risk during the exposure period (the "injurious exposure" theory) rather than assigned to the insurer at the time symptoms first appeared.
• 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

• Constantine v. Lenox Instrument Co., Inc. (2024). A trial court may limit a toxicologist who is not a physician and has no experience diagnosing patients to general causation. Under Pa.R.Civ.P. 238, delay damages are excluded only for delay the plaintiff caused, not for administrative or COVID-related court delays. A Supreme Court reading of the Workers' Compensation Act that lets a mesothelioma claim proceed in tort does not take away a vested defense.
• 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.
• Anderson v. Consolidated Rail Corporation (2023). In a FELA case, which applies a relaxed causation standard, an expert report should not be rejected on summary judgment over methodology concerns. If the trial court questions the expert's methodology, the proper step is a Frye hearing. A statute of limitations defense turns on fact questions that are ordinarily for the jury.
• Finello v. Foster Wheeler LLC (2023). Under Pennsylvania's frequency, regularity and proximity test, evidence of exposure to Kentile tiles that contained Union Carbide's asbestos fiber, plus expert opinions that the exposure was a substantial factor in causing the disease, raised a fact question on causation for a jury.
• Korol v. Aurora Pump Company (2023). In Pennsylvania asbestos cases, courts apply the frequency, regularity and proximity test, which is less strict in mesothelioma cases and where there is specific product evidence. Co-worker testimony about cramped Navy engine and fire rooms and routine gasket and packing work on identified pumps and valves created a jury question on exposure.
• Mullen v. American Circuit Breaker Corporation (2023). Under the frequency, regularity and proximity test, which is less demanding in mesothelioma cases, co-worker testimony that a worker stood next to dust from removing asbestos-like packing from the defendant's valves was enough to send the question of causation to a jury.
• Pine v. John Crane, Inc. (2023). Under maritime law, a plaintiff needs evidence of exposure to the defendant's product high enough to make substantial-factor causation more than conjectural, and coworker testimony that only the defendant's gaskets were used can meet that. Survival, non-pecuniary and punitive damages are not available under general maritime law against a non-employer manufacturer in a seaman's death claim.
• Warrington v. 3M Company (2023). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. A bare-metal failure-to-warn claim also requires proof under DeVries that the manufacturer directed or required incorporation of the asbestos part and knew or had reason to know it was dangerous.
• Gorton v. Eaton Corporation (2022). Under Pennsylvania's frequency, regularity and proximity test, which is less demanding in mesothelioma cases with direct evidence of exposure, a jury could find that work on asbestos-containing motor controllers was a substantial factor in causing the disease. The plaintiff did not invoke admiralty jurisdiction, so maritime law did not apply.
• Hilster v. Air & Liquid Systems Corporation (2022). Under Connecticut law, a plaintiff must identify an asbestos-containing product the defendant is responsible for and show it was a substantial factor in causing the harm. Purchase orders that could be tied to the plaintiff's work only through speculation do not create a genuine factual dispute.
• Hilster v. Air & Liquid Systems Corporation (2022). Under Connecticut law, a plaintiff must identify an asbestos-containing product the defendant is responsible for and offer evidence supporting an inference that the plaintiff inhaled asbestos dust from it; recalling the defendant's name on a valve or in plans, without more, is speculation and does not suffice.
• Rogers v. AO Smith Corp. (2022). Under maritime law a plaintiff must show exposure to each defendant's asbestos-containing product that was a substantial factor in causing the injury. Under DeVries, the bare metal defense defeats a claim over asbestos insulation added to a turbine unless the turbine required that asbestos insulation.