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.

Pennsylvania

• Betz v. Pneumo Abex LLC (2010). A Frye challenge requires the trial court first to find that the challenged evidence is novel scientific evidence and then to decide whether its methodology is generally accepted. A trial court may not exclude causation testimony on scientific theories the parties never raised and no expert supported, and extrapolation from higher to lower doses and the absence of supporting epidemiology do not by themselves defeat general acceptance.
• Curry v. American Standard (2010). Under New York law, a plaintiff must show exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Testimony that pumps were torn apart in a full ship overhaul, together with expert evidence of asbestos-containing Buffalo pumps in the same room, raised a genuine issue of fact on exposure.
• Faddish v. CBS Corporation (2010). Under Florida law, a plaintiff need only raise a genuine factual issue that the defendant's product was a substantial factor in causing the asbestos injury. Whether a sophisticated intermediary such as the Navy discharged a manufacturer's duty to warn is a jury question that weighs several factors.
• Faddish v. General Electric Co. (2010). The government contractor defense applies to failure-to-warn claims. A contractor need not show the government expressly prohibited warnings; it must show the government exercised discretion over warnings, the contractor complied, and the government knew as much or more about the hazards.
• Faddish v. Warren Pumps, LLC (2010). Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.
• Gitto v. AW Chesterton Co., Inc. (2010). Under New York law a plaintiff must show exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Testimony about destructive work on ships, together with an uncontroverted expert report that Crane valves were aboard those ships and Crane's own admission that some valves had asbestos-containing gaskets, packing or disks, raised a genuine fact issue.
• Travis v. Globe Mfg. Co. (In re Asbestos Products Liability Litigation) (2010). Under New York law, a plaintiff must produce evidence that he was exposed to the specific defendant's asbestos-containing product and that the exposure was a substantial factor in causing his injury; speculation that he wore a fire suit made with asbestos material is not enough.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (2010). Expert testimony is admissible under Rule 702 if the expert's method is reliable and fits the case; disagreement among experts or the existence of contrary studies goes to weight and credibility for the jury, not admissibility. Epidemiology is not always required, and differential diagnosis is an accepted method.
• JM Manufacturing/formosa Plastics Corporation v. Workers'compensation Appeal Board (2010). Under Gibson, a witness's testimony that a workplace item contained asbestos must rest on personal knowledge or specialized knowledge, not on what others said; without first-hand evidence of asbestos at the workplace, an occupational disease claim under Section 301(c)(2) fails.
• 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.
• Peter & Elpis Constantinides v. Alfa Laval, Inc. (2010). Under Florida law a plaintiff must show that asbestos exposure from the defendant's product was a substantial contributing factor; a bare-metal defense not squarely argued before the magistrate panel is waived. Circumstantial and expert evidence of the defendant's valves aboard ship and work on their packing and gaskets can create a genuine issue on product identification.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law a plaintiff must show that the defendant's product was a substantial factor in causing the injury. Whether a sophisticated intermediary such as the Navy discharged a supplier's duty to warn of asbestos is a jury question that weighs several factors.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law, a plaintiff must show a defendant's product was a substantial factor in the injury, and a sophisticated intermediary's knowledge does not automatically end a supplier's duty to warn, which is a jury question weighing several factors.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Evidence that Leslie valves were among only two valve types in the boiler room, were specified for asbestos gaskets, packing and insulation, and were likely worked on near the plaintiff raised a genuine fact issue on causation. The unsettled Florida law on the bare-metal defense was left to the transferor court.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Expert and co-worker testimony that Leslie valves were in the boiler room, used asbestos gaskets, packing and insulation, and were worked on near the plaintiff raised a genuine fact issue on causation. Whether a Florida component maker is liable for asbestos added by others was left for the transferor court.
• Summers v. Certainteed Corp. (2010). A plaintiff survives summary judgment when a sufficiently supported expert opinion attributes his condition to both asbestos and non-asbestos causes, because competing medical evidence on causation is for the jury. An appellate court reviewing summary judgment must apply de novo review to the question whether any genuine issue of material fact exists.
• Breedlove v. CSX Transp. Corp. (2009). Under Georgia law, an insurance salesman who regularly came onto a railroad's shops with management's permission to sell insurance to its employees was not shown to be a licensee as a matter of law, because of the mutuality of interest. The strict Blackston product-identification standard for asbestos products cases does not apply to a premises liability claim.
• Burger v. Owens-Illinois, Inc. (2009). A plaintiff opposing summary judgment in an asbestos case must produce evidence that he inhaled asbestos fibers from the particular defendant's product, and the presence of asbestos in the workplace is not enough. A party may supplement the record with an affidavit, but the trial court may disregard it if it is not wholly credible. A plaintiff who lacks standing cannot challenge the constitutionality of the statute limiting Crown Cork's successor liability.
• Estate of Hicks v. Dana Companies, LLC (2009). Under Gregg's flexible frequency, regularity and proximity test, forty years of direct exposure to a defendant's asbestos gaskets and packing, with expert testimony that cumulative low-dose exposure contributed to mesothelioma, was enough for the jury, and conflicting expert opinion on dose did not support JNOV. OSHA and EPA exposure standards are inadmissible in a Pennsylvania strict liability case to show lack of defect, or lack of causation, because they inject negligence concepts.
• Gregg v. VJ Auto Parts Co. (2009). At summary judgment, courts apply the frequency, regularity and proximity factors in an evaluative way (the Tragarz approach) to decide whether a jury could infer that the defendant's product caused the harm. Generalized expert opinions do not create a jury question where exposure to the defendant's product is minimal.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, exposure to a distributor's asbestos product may be shown by circumstantial evidence, but the evidence must make it probable rather than merely possible. A general distribution area and franchise, without evidence of deliveries to the plant, does not suffice when another distributor is shown to have delivered the product.
• Vanaman v. Dap, Inc. (2009). Plaintiffs who were not directly affected by the statute lacked standing to challenge the constitutionality of the Crown Cork successor-liability statute. Under the frequency, regularity and proximity test, only minimal exposure to a defendant's product does not create a fact issue on substantial-factor causation.
• Kummer v. Allied Signal, Inc. (2008). Under general maritime law, using the Pennsylvania-based "regularity, frequency and proximity" test, direct evidence that the decedent worked on a defendant's asbestos-insulated turbine is enough to create a fact question on causation, and a design defect theory can survive summary judgment where the product was specified to use asbestos insulation.
• Weible v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test, a plaintiff must show more than the presence of asbestos in the workplace. Evidence that the plaintiff was regularly near the defendant's identified product when it was used is enough to let a jury infer causation, and the court need not disregard product identification testimony merely because it responded to leading questions.
• Wright v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test of Eckenrod, as applied in Gregg, a plaintiff defeats summary judgment if the evidence would let a jury reasonably infer he inhaled fibers shed by the defendant's product. Co-worker testimony can supply that evidence even if the plaintiff cannot identify the product or its maker.
• 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.
• Gregg v. VJ Auto Parts Company (Eastern District, 2007). At summary judgment, courts may assess the frequency, regularity and proximity of the claimed exposure, applied flexibly, whether the exposure evidence is direct or circumstantial. Generalized expert opinions that any exposure is a substantial factor do not create a jury question where exposure to the defendant's product is minimal.
• Young v. Wcab (zinc Corp. OF America) (2006). Under Section 301(c)(2) of the Pennsylvania Workers' Compensation Act, liability for asbestos-related cancer falls on the employer of last exposure within the 300-week period before disability or death. The claimant need not prove which exposure period actually triggered the cancer. A claimant with an occupational disease may also recover medical expenses without any loss of earnings.
• Summers v. Certainteed Corp. (2005). Under the Giffear/Simmons line and Quate, asymptomatic asbestos-related changes are not a compensable injury, and a plaintiff cannot recover where other conditions such as smoking-related lung disease make it impossible to tie shortness of breath or impairment to asbestos. The affirmance rests on an evenly divided court.
• Chicano v. General Electric Company (2004). Under Pennsylvania law, a component manufacturer's duty to warn turns on factors including foreseeability and whether the part was designed for a particular finished product, so a turbine maker that knew its turbines would be insulated with asbestos may owe a duty to warn; the government contractor defense fails at summary judgment where a fact issue exists on conformity to specifications.
• 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.
• Gutteridge v. AP Green Services, Inc. (2002). A plaintiff can defeat a manufacturer's summary judgment motion with co-worker testimony that he worked close to where the defendant's asbestos products were used, and credibility cannot be decided at that stage. A landowner that has superior knowledge of a hazard owes a duty to warn an independent contractor's employees, even if it is out of possession.
• Wilson v. AP Green Industries, Inc. (2002). In an asbestos case, including mesothelioma, a plaintiff must show she worked regularly in physical proximity to the defendant's product so that a reasonable inference arises that she inhaled its fibers; vague testimony and answers to improper leading questions do not meet this standard.
• 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.
• Coward v. Owens-Corning Fiberglas Corp. (1999). Where a warning is required to make a product non-defective and none was given, the plaintiff may use a rebuttable presumption that he would have followed an adequate warning, and the defendant must produce evidence that a warning would not have been heeded. Product-identification sufficiency (regularity, frequency, proximity) is separate from the jury's causation question, which asks whether exposure was a substantial contributing factor.
• Greenleaf v. Garlock, Inc. (1999). Under Pennsylvania law, a state jury's damages verdict in a reverse-bifurcated trial can be final enough to bar relitigation of damages in a later federal action, even though it was not immediately appealable. Eckenrod's "frequency, regularity and proximity" language is not a required jury instruction in asbestos cases.
• Sharpless v. Owens-Corning Fiberglas (1997). In a strict-liability asbestos case, the plaintiff's expert must testify with a reasonable degree of medical certainty that asbestos exposure was a substantial contributing factor to the disease. The relaxed 'increased risk of harm' standard does not apply, and pleural thickening or plaques without a discernible physical symptom, functional impairment or disability is not actionable.
• Blase v. Allied Signal Inc. (1996). Where causation of a disease from asbestos exposure requires expert medical testimony, a plaintiff whose experts are precluded or lack an adequate factual basis cannot show asbestos was a substantial contributing factor, and summary judgment is proper.
• McNeil v. Owens-Corning Fiberglas Corp. (1996). Asbestos-related cancer and non-malignant conditions are separate claims, so a jury's final finding on the cancer claim bars relitigating it. A new trial ordered for error on discrete issues is limited to those issues. A party must make a specific objection to preserve a challenge to a jury charge.
• Ace Robbins, Inc. v. Wcab (bullock) (1994). A self-employed claimant is not an employe under the Act and so has no employer; the last employer in whose employment the claimant was exposed for at least one year is liable, and the 'substantial contributing factor' test applies to work-related versus non-work-related causes, not to choosing between employers.
• Behrendt v. GAF Corp. (1993). A jury award that bears no reasonable relation to uncontradicted losses warrants a new trial, and it cannot be upheld as a compromise verdict where the special interrogatories show the jury resolved the liability dispute and the dispute was all-or-nothing. A new trial may be limited to damages where liability was fairly determined, the trial was free from error, and the evidence supports liability.
• Zenson v. Owens Corning Fiberglas Corp. (1993). Under Pennsylvania law, an asbestos plaintiff must show frequency, regularity and proximity of exposure to the specific defendant's product; the presence of asbestos in the workplace or fiber drift alone does not meet that burden.
• Taliferro v. Johns-Manville Corp. (1992). An expert may rely on epidemiological studies that do not match the plaintiff's exposure or account for smoking, and such gaps go to the weight of the testimony rather than its sufficiency. Asymptomatic pleural thickening may be a compensable injury, and whether it is one is a jury question.
• Ierardi v. Lorillard, Inc. (1991). Under Pennsylvania law as stated in Walton v. Avco, no post-sale duty to warn is imposed where the defect cannot be remedied, the product is no longer in use, users cannot practicably be identified, and a warning would not have prevented the plaintiff's harm.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Maher v. Wcab (BP Oil Corp.) (1989). Under section 301(c)(2), a claimant need only prove that his disease was caused by exposure to the hazard and that he was exposed after June 30, 1973; he need not prove that post-1973 exposure was itself a causative factor, and a referee cannot find as fact that the disease was caused entirely by earlier exposure.
• Eckenrod v. GAF Corp. (1988). To defeat summary judgment in an asbestos case, a plaintiff must present evidence that the decedent inhaled fibers shed by the specific defendant's product, which requires more than the presence of asbestos in the workplace; circumstantial proof depends on frequency of use and regularity of work near the product.
• Marcucci v. Wcab (BP Oil Co.) (1986). Exposure to the hazard after June 30, 1973 is a jurisdictional requirement for compensation under the Workmen's Compensation Act, but a claimant need not prove that this later exposure played a causal role in the disease or death.
• 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.