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.

California

• Johnson v. Dock (1st Appellate District, 1st Division, 2017). A plaintiff must produce admissible evidence supporting a reasonable inference of exposure to the defendant's asbestos product; speculation or an expert opinion lacking a reasoned basis does not raise a triable issue, and without exposure there is no causation.
• Lyons v. Colgate-Palmolive Co. (1st Appellate District, 3rd Division, 2017). A plaintiff defeats summary judgment on product exposure by showing her use of the defendant's product together with expert evidence that the product contained asbestos; the lack of retained packaging or testing of her own container does not make that evidence speculative.
• Petitpas v. Ford Motor Company (2nd Appellate District, 4th Division, 2017). An employer's or premises owner's duty to prevent take-home asbestos exposure extends only to members of the worker's household, and a vehicle maker is not liable in design defect for asbestos in other makers' replacement brakes merely because its vehicles were compatible with them. A service provider that does not sell the asbestos parts it installs is not within the stream of commerce for strict liability.
• Phillips v. Honeywell International Inc. (5th Appellate District, 2017). An expert may testify that each identified, significant asbestos exposure contributed to a person's cumulative dose and risk of mesothelioma without relying on the rejected every-exposure theory. Substantial evidence supported the failure-to-warn finding and the finding of malice supporting punitive damages.
• Sandoval v. American Appliance Manufacturing Corp. (2nd Appellate District, 4th Division, 2017). Under Kesner, employers and property owners owe a duty to prevent take-home asbestos exposure to household members, and a defendant seeking summary judgment for lack of exposure evidence must show the plaintiff cannot obtain it. A dissolved corporation is not shielded from punitive damages claims, and a strict liability claim can rest on a bystander theory for defective components of the defendant's own product.
• Botts v. US (2016). Under Washington law, expert testimony that asbestos fibers disperse across a whole shipyard can support an inference that a person working there breathed asbestos, so evidence of Navy rule violations, shipyard-wide exposure and a multi-year exposure period was enough for a factfinder to find causation.
• Davis v. Honeywell International Inc. (2nd Appellate District, 4th Division, 2016). Under Sargon, a trial court may admit expert testimony that each asbestos exposure contributed to the risk of mesothelioma, because the court does not resolve scientific disputes and Rutherford does not require a dose estimate. A jury instructed in line with Rutherford's substantial-factor standard (CACI No. 435) need not also receive a list of exposure factors.
• DePREE v. BASF Catalysts LLC (1st Appellate District, 5th Division, 2016). A mere possibility of exposure to an asbestos-containing product does not create a triable issue on causation. Where asbestos is only an occasional contaminant of a talc ingredient, plaintiffs must offer evidence that the product they actually used more likely than not contained asbestos.
• Rondon v. Hennessy Industries, Inc. (1st Appellate District, 4th Division, 2016). A manufacturer of a product that releases asbestos dust from another maker's component may be liable if its intended use would inevitably expose the user to asbestos dust; the test is "inevitable use," not "exclusive use."
• Untermann v. D. Zelinsky & Sons, Inc. (1st Appellate District, 4th Division, 2016). A defendant can shift the burden on summary judgment by showing the plaintiff cannot identify asbestos-containing materials tied to the defendant's activities. The plaintiff then needs admissible evidence of exposure, and an expert opinion lacking foundation about the specific products may be excluded without abuse of discretion.
• Walashek v. Air & Liquid Systems Corporation (2016). In California asbestos cases the plaintiff bears the burden of showing threshold exposure to the defendant's asbestos-containing product, and evidence showing only a possibility or speculation of exposure does not create a triable issue.
• Walashek v. Air Liquid Systems Corporation (2016). Expert testimony diagnosing mesothelioma and opining that significant asbestos exposures were substantial factors in causing it is admissible under Rule 702 and Daubert when based on reliable methods. Disagreements over how to read test results, the facts underlying the opinion, or the lack of a defined exposure threshold go to weight, not admissibility.
• Webb v. Special Electric Company, Inc. (2016). A supplier of a hazardous raw material may discharge its duty to warn end users under the sophisticated intermediary doctrine only if it warned the purchaser or sold to a purchaser it knew was or should have been aware of the specific danger, and it actually and reasonably relied on the purchaser to warn downstream users. The supplier bears the burden of proof, and reasonable reliance is ordinarily a jury question.
• Green v. CertainTEED Corporation (1st Appellate District, 3rd Division, 2015). Under California's governmental interest test, Texas law governs claims against defendants whose products or facilities exposed a Texas resident in Texas, even if other law applies to other defendants. Texas law requires proof that the exposure exceeded a harm-inducing threshold, and an 'any exposure' opinion does not meet that standard.
• Greenberg v. Superior Court of Los Angeles County (2nd Appellate District, 4th Division, 2015). A manufacturer can be strictly liable for asbestos dust from another maker's product under the Tellez-Cordova exception if its product was intended to be used with that product for the very activity that inevitably created the hazard, even if the product could also be used with non-asbestos materials.
• Kelly v. CBS Corporation (2015). Defendants may not base a sophisticated user defense on the Navy's knowledge imputed to the plaintiff; they must show that the plaintiff himself received information that made him know, or should have made him know, of the asbestos dangers.
• Marteney v. Union Carbide Corp. (2nd Appellate District, 4th Division, 2015). Under Rutherford, a plaintiff shows causation by evidence that exposure to the defendant's asbestos was a substantial factor contributing to the risk of cancer, and the whole trial record, including defense experts' testimony, can supply that proof. Findings that warnings were adequate do not bar a consumer-expectations design-defect claim against a raw asbestos supplier.
• Murat v. Exxon Mobil Corp. (2nd Appellate District, 4th Division, 2015). Under the Longshore Act, a vessel owner is liable to a ship repair contractor only for breach of the turnover, active control or intervention duties. A plaintiff must produce evidence of the manner and circumstances of asbestos exposure to show such a breach, and a mere possibility of exposure is not enough.
• Quiroz v. BNSF Railway Company (2nd Appellate District, 4th Division, 2015). In asbestos litigation the plaintiff must first show threshold exposure to asbestos. A defendant can shift the burden on summary judgment by showing through factually devoid discovery responses that the plaintiff cannot prove exposure, and an expert opinion with no factual basis that the materials contained asbestos cannot create a triable issue.
• Shiffer v. CBS Corporation (1st Appellate District, 1st Division, 2015). A plaintiff must produce evidence of actual exposure to the defendant's asbestos-containing product, and mere presence at a site is not enough. Expert opinions resting on an incomplete factual record cannot supply that evidence. Belated expert opinions based on evidence available before the summary judgment hearing are not new evidence for reconsideration or a new trial.
• Soto v. BorgWarner Morse Tec Inc. (2nd Appellate District, 4th Division, 2015). A punitive damages award cannot stand without meaningful evidence of the defendant's financial condition, and revenue figures alone are not enough. A minor is 'dependent' under Code Civ. Proc. § 377.60(c) only if financially reliant on the decedent for the necessaries of life, not merely for niceties.
• Collin v. Calportland Company (3rd Appellate District, 2014). A plaintiff must show exposure to the specific defendant's asbestos-containing product, and a defendant can shift the burden on summary judgment with comprehensive discovery and factually devoid responses; the sophisticated user defense turns on what the class of users knew or should have known about the particular product's dangers.
• Ganoe v. Metalclad Insulation Corporation (2nd Appellate District, 3rd Division, 2014). A defendant does not shift the summary judgment burden merely by pointing to a witness's failure to recall its name or to factually devoid discovery responses that the plaintiff has since amended with specific facts; circumstantial evidence and expert opinion tying the defendant's work to the decedent's exposure can raise a triable issue on causation.
• Grande v. Borg-Warner Morse Tec, Inc. (2014). Under California law, a plaintiff may show exposure to a defendant's asbestos-containing product through circumstantial evidence that supports a reasonable inference of exposure. Punitive damages go to the trier of fact unless no reasonable jury could find clear and convincing proof of malice, fraud or oppression.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2014). Evidence that asbestos products routinely emitted respirable fibers in ordinary use supports a design defect under the consumer expectations test, and evidence that each exposure increased the risk of mesothelioma supports substantial-factor causation. A judgment is final and appealable even if settlement credits have not yet been applied.
• Izell v. Union Carbide Corp. (2nd Appellate District, 3rd Division, 2014). In an asbestos cancer case, a plaintiff must show exposure to the defendant's asbestos, and then in reasonable medical probability that the exposure was a substantial factor in increasing the risk of disease. A reduction of compensatory damages does not by itself require a new trial on punitive damages; the award is tested under the State Farm due process guideposts.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff can prove legal causation in an asbestos cancer case through expert testimony that respirable exposures contribute to cancer risk, but exposure to one supplier's asbestos cannot rest on speculation where a manufacturer had several suppliers. A large reduction of compensatory damages does not by itself require retrial of punitive damages, and an award of about 4.6 times the defendant's share of compensatory damages, against a net worth of $4.2 billion and highly reprehensible conduct, satisfies due process.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff must show exposure to the defendant's asbestos beyond speculation, and then that the exposure was a substantial factor contributing to his risk of cancer. A large cut in compensatory damages does not by itself require a new trial on punitive damages. The question is whether the resulting ratio and the defendant's reprehensibility satisfy due process.
• Kent v. Warren Pumps, LLC (2nd Appellate District, 3rd Division, 2014). A defendant moving for summary judgment on product identification does not meet its initial burden when the plaintiff's discovery responses and deposition testimony identify the defendant's products and the undisputed fact that some of its gaskets and packing contained asbestos; declarations on sales records and Navy procurement go only to weight.
• Lovelace v. Elementis Chemicals, Inc. (3rd Appellate District, 2014). An appellate court will not reverse unless the appellant shows prejudicial error; where the appellant does not challenge an independent ground supporting the judgment (exclusion of evidence for lack of authentication), the judgment must be affirmed even if other evidentiary arguments had merit.
• Lovelace v. Pneumo Abex LLC (3rd Appellate District, 2014). A new trial motion based on surprise is properly denied where the party never asked for a continuance, and a mistrial motion does not take the place of one. Substantial evidence, with conflicts resolved for the verdict winner, supported the jury's fault allocation to the brake maker.
• Paulus v. Crane Co. (2nd Appellate District, 3rd Division, 2014). Expert testimony read in context, together with other evidence of frequent and repeated exposure, can support a finding that a defendant's own asbestos products were a substantial factor in increasing the risk of mesothelioma. A defendant gets no setoff for speculative future bankruptcy trust recoveries, because the statutory setoff applies only to settlements made before verdict or judgment.
• Sclafani v. Air & Liquid Systems Corp. (2014). Under California's Rutherford standard, a plaintiff must show through competent expert testimony, in reasonable medical probability, that exposure to the particular defendant's asbestos product contributed to the risk of cancer. An inadmissible 'every exposure' opinion and speculative evidence of the frequency, regularity and proximity of exposure do not meet that standard.
• Whalen v. General Electric Corporation (2014). Under maritime law, a complaint alleging that a defendant designed and manufactured asbestos-containing ships need not identify specific vessels at the pleading stage, and the Mack rule that a Navy ship is not a product was left open for the summary judgment or trial stage.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the aggregate dose causing disease; equivocal product-identification testimony and evidence of corporate knowledge of asbestos hazards create fact disputes that preclude summary judgment, including on punitive damages.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a boiler maker can be liable for asbestos components it supplied or specified, and the sophisticated user defense turns on the plaintiff's own sophistication, not the employer's. A Restatement § 402B misrepresentation claim requires an affirmative misrepresentation, not just concealment.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, an asbestos plaintiff must show exposure to the defendant's product that was a substantial factor in the aggregate dose; conflicting evidence on whether defendant supplied the product creates a jury question. Punitive damages require clear and convincing evidence of malice, oppression or fraud by an officer, director or managing agent, which was lacking here.
• Hernandez v. Amcord, Inc. (2nd Appellate District, 2nd Division, 2013). Under Rutherford, a plaintiff need not have an M.D. recite that the defendant's product caused the disease. Evidence of threshold exposure, an epidemiologist's testimony on cumulative exposure, and a physician's opinion that asbestos caused the mesothelioma can show the product was a substantial factor contributing to the risk of cancer. The Noerr-Pennington doctrine is a rule of substantive liability, not a rule of evidence, so it does not bar evidence of lobbying.
• Lee v. Clark Reliance Corporation (2nd Appellate District, 3rd Division, 2013). A manufacturer is not liable in strict liability or negligence for harm caused by another manufacturer's asbestos-containing replacement parts used with its product, and a plaintiff must show exposure to the defendant's own asbestos-containing product to establish causation.
• Nelson v. Air and Liquid Systems Corp. (2013). Under California law, a plaintiff must present evidence of exposure to asbestos from the specific defendant's product; evidence supporting only conjecture that the decedent was near or used a defendant's asbestos-containing product is insufficient to survive summary judgment.
• Pfeifer v. John Crane, Inc. (2nd Appellate District, 4th Division, 2013). When a supplier sells hazardous goods to a sophisticated intermediary that passes them to its employees, the supplier can still be liable for failing to warn those employees unless it has reason to believe the ultimate users know or should know of the hazards. The intermediary's sophistication alone does not shield the supplier.
• Scott v. Lennar Corporation (1st Appellate District, 2nd Division, 2013). In a toxic tort case, a plaintiff must prove exposure and causation within reasonable medical probability through competent expert testimony. When defendants' expert declarations negate causation, plaintiffs who offer no expert evidence of their own cannot avoid summary judgment.
• Strickland v. Union Carbide Corp. (2nd Appellate District, 7th Division, 2013). Under Rutherford, a plaintiff shows causation by proving threshold exposure to the defendant's product and expert testimony that the product can cause the cancer and that cumulative asbestos exposure contributed to the disease. Testimony isolating the defendant's product alone is not required.
• Webb v. Special Electric Company, Inc. (2nd Appellate District, 1st Division, 2013). A trial court may enter judgment notwithstanding the verdict only after the statutory waiting period and with the required written notice. A supplier of raw asbestos is not relieved of its duty to warn downstream users, as a matter of law, just because its sophisticated customer already knew the dangers.
• Bettencourt v. Hennessy Industries, Inc. (1st Appellate District, 5th Division, 2012). A manufacturer is generally not liable for harm caused by another manufacturer's product, but it can be liable when its own product contributes substantially to the harm. A machine whose sole intended use is to grind asbestos-containing brake linings, and which releases the fibers, falls within that exception.
• Brewer v. Crane Co. (2nd Appellate District, 2nd Division, 2012). Under O'Neil, a manufacturer is not liable in strict liability for harm from asbestos-containing replacement gaskets and packing it did not make or supply, unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use; mere compatibility with asbestos parts is not a defect.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• Palomares v. Thomas Dee Engineering Company (1st Appellate District, 2nd Division, 2012). A plaintiff in an asbestos case must show exposure to the defendant's asbestos; without evidence supporting a reasonable inference of such exposure, there is no causation and summary judgment is proper.
• Galicinao v. McMASTER Carr Supply Company (2nd Appellate District, 3rd Division, 2011). A plaintiff opposing summary judgment in an asbestos case may show exposure to a defendant's product through circumstantial evidence supporting a reasonable inference of exposure. Evidentiary objections raised in a separate statement are argument, not disputed fact.
• Webster v. Exxonmobil Oil Corp. (2nd Appellate District, 4th Division, 2011). Trial testimony that contradicts clear admissions in a party's deposition is not substantial evidence, so it cannot defeat a nonsuit; without evidence of exposure there is no causation.