Choice of Law in Asbestos Cases

Decisions in our library in which the court ruled on which state's law applies: 374 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.

Delaware

• Rogers v. Nosroc Corp. (In re Asbestos Litigation) (2019). Under Delaware law a plaintiff must show a product nexus between exposure to the defendant's product and his injury, and under maritime law that the defendant's product was a substantial factor in causing the injury; a plaintiff who identifies no exposure to the defendant's product cannot meet either test.
• Richards v. Copes-Vulcan, Inc. (2019). Under Ohio law, Ohio Rev. Code § 2307.96 and its manner-proximity-frequency factors address only whether exposure to each defendant's asbestos was more than minimal. A plaintiff must still offer expert medical evidence of specific causation to survive summary judgment.
• Thomas-Fish v. Avborne Accessory Group, Inc. (2019). Under federal pleading standards, a complaint that makes collective allegations against all defendants, without facts tying a particular defendant to the exposure or to successor liability, fails to state claims for strict liability, negligence, warranty, failure to warn, conspiracy, or punitive damages. Marketing an 'ultra-hazardous product' is not an independent cause of action under New Jersey law.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (2018). Indiana's general negligence "but for" causation standard applies to asbestos cases, so a substantial contributing factor opinion that concedes it does not meet that standard cannot defeat summary judgment.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (2018). A party seeking to supplement an expert report after summary judgment must show good cause or excusable neglect, and plaintiffs who never sought leave before judgment was entered did not do so.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (2018). Under 10 Del. C. § 8121 the shorter Louisiana one-year limit applied, and wrongful death and survival claims filed after that period are supplemental rather than amended pleadings, so under Delaware procedural rules they do not relate back to the original complaint.
• Charlevoix v. Caterpillar, Inc. (2017). Under both maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; mere presence of a product, or minimal exposure, is not enough.
• Evans v. CBS Corp. (2017). Under maritime law (and Colorado law for land-based claims), a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury, and a manufacturer is not liable for asbestos parts it did not make or distribute (the bare metal defense). Even an unopposed summary judgment motion requires the court to find the undisputed facts warrant judgment.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (2017). Applying Rhode Island law, the court used the frequency, regularity, proximity test for asbestos causation. It held that disputed facts about product identification and exposure, including whether the testimony was contradictory, are for the factfinder.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable for an independent contractor's negligence absent inherently dangerous work or control over the contractor's methods, and strict liability requires custody of the defective thing, which mere presence on the premises does not establish.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable to a contractor's worker without evidence that it knew of the asbestos risks, specified asbestos use, or had custody or control of the asbestos product. Strict liability also requires custody of the thing that caused the harm.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner owes no duty for hazards inherent in an independent contractor's work, and strict liability requires custody, meaning direction, control or ownership, of the defective thing. The plaintiff offered no record evidence of either.
• Shaw v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Connecticut law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury, and even an unopposed summary judgment motion requires the court to find that the undisputed facts warrant judgment.
• Harris v. Deere & Co. (In re Asbestos Litigation) (2017). Under North Carolina law, a plaintiff must show actual exposure to an asbestos-containing product made, sold or distributed by the defendant; without evidence beyond speculation that the replacement parts were Deere's and contained asbestos, summary judgment is proper.
• Charlevoix v. John Crane (In re Asbestos Litigation) (2017). Under maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Evidence that does not show regular exposure over an extended period does not meet this test. A failure to respond to a summary judgment motion does not alone justify judgment.
• In re Asbestos Litigation Charlevoix v. CBS Corporation (2016). Under maritime and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; with no evidence identifying such a product, summary judgment is proper even when unopposed.
• In re Viking Pump, Inc. (2016). Under New York law, anti-assignment clauses do not bar assignment of insurance rights for losses that occurred before the assignment. Whether defense costs are covered, and whether they erode limits, depends on each policy's language, with ambiguities construed against the insurer. Asbestos injury is a continuous process that begins at significant exposure and continues, so it is not limited to the period of exposure.
• Shaw v. Andritz Inc. (2016). Maritime law applies only if the exposure meets both a locality test and a connection test; a submarine still under construction is not a vessel, so the locality test fails and state law governs.
• Tetteh v. Alcatel-Lucent USA, Inc. (2016). Under Georgia law and Restatement (Second) of Torts § 324A, a parent corporation that gives its subsidiary safety recommendations and guidance has not assumed the subsidiary's duty to protect the subsidiary's employees. The plaintiff also failed to satisfy any of the § 324A(a), (b) or (c) requirements.
• Winhauer v. Air & Liquid Systems Corporation (2016). Under Mississippi's frequency, regularity and proximity test, a plaintiff must show exposure to a particular defendant's asbestos-containing product with sufficient frequency, regularity and proximity to support causation. Under the bare metal defense, a manufacturer is not liable for asbestos products made by others that were used with its product.
• Davis v. Ace Hardware Corporation (2014). Florida's Asbestos Act requirement that a plaintiff file a prima facie medical report with the complaint applies to an asbestos action filed in Delaware and removed to federal court. Federal Rule 8 directly conflicts with it, but applying Rule 8 would alter a state-created substantive right, so the Florida requirement governs.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (2014). Under New Jersey law a plaintiff must show frequent and regular exposure in close proximity to friable asbestos from the named defendant's product, and a handful of brake jobs over several years does not support that inference even for mesothelioma. Reargument requires a misapprehended law or fact that would change the outcome.
• Pavlick v. AM General (In re Asbestos Products Liability Litigation) (2014). Speculation that a worker may have worked on a defendant's vehicles does not create a genuine dispute of fact on product identification; being the Army's prime contractor for the truck types does not imply exclusivity.
• Mine Safety Appliances Company v. Aiu Insurance Company (2014). The expected/intended policy language functions as an exclusion, so once the insured shows a prima facie case the insurers bear the burden to prove it applies. It applies only if the insured was substantially certain that a known failure of its product would cause the plaintiff's injury, not merely aware of general disease hazards.
• RT Vanderbilt Co. Inc. v. Galliher (2014). A trial court must instruct the jury on the substance of the governing law, here the employer's duty of care under Ohio law, when the defendant blames the employer. A new trial is required where an expert's inadmissible hearsay about the defendant's lying and bribery is not cured.
• Phillips v. Hoffman/New Yorker (In re Asbestos Litigation Phillips) (2013). Under Virginia law as applied by this court (following Merritt), a manufacturer's duty of care can extend to exposure from replacement parts made by a third party. A court has discretion to deny summary judgment when the record is confusing or insufficiently developed.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (2012). Applying Pennsylvania law, the court predicted that the Pennsylvania Supreme Court would hold that an employer or premises owner owes no duty to an employee's spouse for take-home asbestos exposure, based on a weighing of the relationship, social utility, foreseeability, consequences and public interest factors.
• Martinez v. EI DuPont De Nemours and Co. (2012). A parent corporation cannot be sued for its subsidiary's workplace conduct without specific pleaded facts of its own tortious acts. An absent foreign subsidiary that employed the worker and owned the plant is an indispensable party under Rule 19. Delaware forum non conveniens dismissal was warranted where the defendant was wrongly named in place of the foreign employer.
• Pease v. Ford Motor Company (2012). A transferee MDL court's earlier summary judgment ruling rejecting the bare metal defense stood, and a defendant that did not seek reargument there could not relitigate the same arguments on remand. The MDL ruling would have been the same under Delaware or maritime law.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (2011). Under Louisiana substantive law, a plaintiff must show that a defendant's product was a substantial factor in causing disease, and Delaware courts do not allow a plaintiff to proceed on speculative exposure to a defendant's product; conflicting, speculative product identification testimony does not create a genuine factual dispute.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (2011). Under North Carolina law, a product's mere presence at a worksite does not show exposure, but a worker's testimony that he regularly used a brand's brakes, together with supporting context, can raise a triable issue of frequent, regular exposure over an extended period, without proof of specific instances.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (2011). Under Louisiana law, a plaintiff must show exposure to asbestos from the specific defendant's product; a belief based on general "common knowledge" that shingles contained asbestos, against unrebutted evidence that the particular product was asbestos-free, is speculation that cannot defeat summary judgment.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (2011). Under Georgia law, a plaintiff must show a defendant's asbestos-containing product was a contributing factor to the injury, which requires proof of proximity to its use; he need not recall a specific time, job, or incident if he offers product identification, proximity, and supporting expert testimony. A movant that ignores the controlling jurisdiction's authority cannot show it is entitled to judgment as a matter of law.
• James v. Albany Int'l (In re Asbestos Litigation) (2011). Under Washington law, the Lockwood and Berry approach to inferring exposure from a product's presence at a worksite presupposes that the product contained asbestos; where there is no evidence the product the worker used contained asbestos, an inference of exposure to the defendant's asbestos product is speculative and cannot survive summary judgment.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (2011). Under Delaware's borrowing statute the shorter Delaware limitations period applied to the survival claim. A wrongful death claim accrues no earlier than the decedent's death. In a multi-defendant asbestos case, but-for causation does not apply, and the Utah Supreme Court was not expected to apply it.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (2011). Under Texas law (Borg-Warner v. Flores), a plaintiff must offer defendant-specific evidence of at least an approximate dose of exposure to prove substantial-factor causation; evidence of some exposure, or of its frequency and regularity, is not enough.
• Olson v. Crane Co. (In re Asbestos Litigation) (2011). Applying Idaho law, the court predicted that Idaho would not impose a duty to warn on a manufacturer for hazards arising from asbestos-containing products or replacement parts that it did not manufacture, distribute, or sell, even if its own product incorporated similar components.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (2011). Under North Carolina law a plaintiff must show actual exposure to the defendant's asbestos-containing product; conflicting evidence about the product's dates and packaging, turning on a witness's credibility, is a jury question that precludes summary judgment.
• In re Grossman's, Inc. (2009). Under Third Circuit precedent (Frenville and Schweitzer), a bankruptcy claim arises when the underlying state-law cause of action accrues, and asbestos injury claims do not arise until the injury manifests. Warranty claims accruing at delivery in 1977 under N.Y. UCC § 2-725 accrued prepetition and were discharged.
• In re WR Grace & Co. (2009). Under California law, and as the court predicted for Delaware, an asbestos-in-building property damage tort claim does not accrue until physical injury from contamination (release of fibers) occurs, not on mere knowledge of asbestos's presence; the discovery rule only delays accrual, and the defendant bears the burden of proving contamination outside the limitations period.
• Viking Pump, Inc. v. Century Indemnity Company (2009). Under New York law, post-loss assignments of insurance rights are not barred by anti-assignment clauses. Where policies contain non-cumulation and prior insurance provisions, they are read to require all-sums allocation, and any remaining ambiguity is construed against the insurer.
• In re Grossman's Inc. (2008). Under Third Circuit law (Frenville, Schweitzer) and New York law, an asbestos personal injury claim arises when the injury manifests, so a claim that manifested years after plan confirmation was not discharged by the plan or barred by the confirmation injunction.
• In re Federal-Mogul Global Inc. (2005). For the limited purpose of formulating a reorganization plan and trust, a court may estimate aggregate asbestos personal injury liability under 11 U.S.C. § 502(c) by using the debtor's own claims history and the more reliable expert method, without mathematical precision and without adjudicating individual claims.
• In re Federal-Mogul Global, Inc. (2005). In estimating aggregate asbestos liability under 11 U.S.C. § 502(c) to fund a personal injury trust, the court may choose the estimation methodology it finds more reliable. The estimate rests on the debtor's own claims history, a disease-incidence model, and adjusted discount and inflation rates, rather than on mathematical precision.

District of Columbia

• Carey Canada Inc. v. California Union Ins. Co. (1989). Where an insurance exclusion for "asbestosis" is ambiguous, extrinsic evidence of the parties' objective intent may show it was used generically; the insurers proved by clear and convincing evidence that it excluded all asbestos-related disease claims, not just the single disease asbestosis.
• Carey Canada v. California Union Ins. Co. (1989). Whether a contract term is ambiguous is a question for the trial judge, and where an insurance exclusion for "asbestosis" is ambiguous, extrinsic evidence may be admitted to show the parties' intent, so summary judgment is inappropriate when intent remains disputed.

Florida

• Gallo v. Carnival Corporation (2023). With the plaintiffs' disclaimer of recovery for exposures during years covered by arbitration agreements, those agreements do not "relate to" the claims for Convention-based removal. The removing party bears the burden of showing jurisdiction, and Carnival did not give enough information to interpret the arbitration agreement's reach under the governing contract law.
• Oneal v. Alfa Laval, Inc. (2014). A maker of a product that contains no asbestos is not liable for injuries from asbestos that others supplied or used with its product (the bare metal defense), and plaintiffs must show exposure to asbestos the defendant itself made or supplied. Maritime law governed claims of exposure aboard Navy ships.
• Faddish v. Buffalo Pumps (2012). Under maritime law, applying Florida substantive law, a manufacturer that sold 'bare metal' equipment and was not in the chain of distribution of the asbestos-containing insulation, gaskets or packing used with it has no duty to warn, in negligence or strict liability, about hazards from those third-party products.
• Matter of Celotex Corp. (1997). Under Illinois law, timely and reasonable notice is a condition precedent to excess coverage, and a sophisticated insured must give notice when a reasonably prudent insured would believe the excess layers would be affected; the debtor bore the burden of proving notice and did not.