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.

New York

• Defazio v. Chesterton (2011). A manufacturer may have a duty to warn about third-party asbestos components such as packing and insulation when it knew or should have known its product would foreseeably be used with them. Rastelli and Berkowitz are consistent applications of that foreseeability principle.
• Tedrick v. Colgate-Palmolive Co. (Matter of Nyc Asbestos Litig.) (2011). Under New York choice-of-law rules, a damages cap is a loss-allocating law, and for a latent disease the place of injury is where the plaintiff became ill, not where first exposure occurred. Applying the third Neumeier rule, the law of Oregon, where she was domiciled and fell ill, governed.
• Crowder V AW Chesterton Co. (2009). A foreign statute of repose is substantive, so New York courts apply a choice-of-law analysis rather than automatically applying CPLR 202. Under the Neumeier rules, the law of the locus state (Indiana) governed, and applying its repose statute did not violate New York public policy.
• IN the Matter of United States Lines Inc. (2006). A bankruptcy court's rolling bar date order is interpreted as a claims-administration order rather than a statute of limitations, so the court may use New York's physical-manifestation approach to decide when injury manifested. Timeliness is a core issue decided without a jury, and the claimant bears the ultimate burden once the objector shows the claim is untimely.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Falise v. American Tobacco Co. (2000). A RICO plaintiff relying on mail or wire fraud must show reliance, which is less demanding for a broad scheme aimed at the public, and must show proximate cause under the Holmes factors. The Trust could not show its own reliance for the settlement and litigation theories, but could show the claimants' reliance for the direct payment theory.
• Chrabas v. Owens-Illinois (Matter of Eighth Judicial District Asbestos Litigation) (4th Dept., 2000). Where parties are domiciled in different jurisdictions with conflicting loss allocation rules, the law of the place of the tort normally applies unless displacing it would advance the relevant substantive law purposes without impairing the multi-state system or creating great uncertainty. The court found no persuasive reason to displace New York law where the parties' interrelationship was centered in New York.
• Matter of Midland Insurance Company (1st Dept., 2000). Under New York law, an excess asbestos liability policy covering an "occurrence" defined as continuous or repeated exposure is triggered by inhalation exposure during the policy period, whether first or later, but not by exposure "in residence" or manifestation.
• Consorti v. Owens Corning Fiberglas Corp. (In Re Joint Eastern and Southern Dist. Asbestos) (1998). On remand after Gasperini, a federal court in a diversity case tests a jury's damages award against New York's "deviates materially from reasonable compensation" standard, comparing it to awards in similar New York state cases and using a totality-of-circumstances approach rather than a fixed monthly multiplier.
• Penny v. United Fruit Co. (1994). New York's long-arm statute, CPLR 302(a)(3)(ii), requires that the defendant expect or reasonably expect its act to have consequences in New York. British shipowners could not foresee a British crewman later moving to New York and developing mesothelioma there. A parent is liable as employer under the Jones Act only if the subsidiary is its mere instrumentality, which requires actual domination.
• In re Prudential Lines, Inc. (1992). Under New York law, injury-in-fact during the policy period triggers coverage under a yearly P & I policy, and a policy deductible applies once per occurrence (the underlying event), not once per claim. Where medical evidence cannot apportion injury among triggered policies, each triggered policy is liable up to its limit.
• Swogger v. Waterman SS Corp. (1st Dept., 1989). When a seaman on commercial vessels is allegedly injured by asbestos exposure on the high seas, admiralty law rather than state law applies to the related third-party contribution and indemnity claims, so New York General Obligations Law § 15-108 does not bar contribution.

North Carolina

• Pike v. Dempster Industries, Inc. (2024). Under North Carolina law, an asbestos plaintiff must show exposure to the defendant's product with frequency, regularity and proximity (the Lohrmann test), which also applies in mesothelioma cases; general expert evidence that every exposure contributes does not satisfy it. Without compensatory liability, punitive damages fail.
• Walls v. Ford Motor Company (2023). Under North Carolina law, applied in a federal diversity case, settlement credits under N.C. Gen. Stat. § 1B-4(1) are applied against an aggregate judgment that includes costs, so costs are subject to setoff.
• Barkley v. 4520 Corp., Inc. (2022). Under North Carolina law, a plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is responsible. Prior depositions from cases in which the defendant was not present cannot be used against it, and an affidavit lacking personal knowledge or contradicting earlier deposition testimony may be disregarded.
• Walls v. Ford Motor Company (2022). Under North Carolina law, an asbestos plaintiff can show causation with direct or circumstantial evidence of regular exposure to a defendant's product over an extended period, without expert testimony specific to that defendant. Punitive damages require clear and convincing evidence that corporate managers actually understood the specific risk.
• Bell v. American International Industries (2021). Under North Carolina law a corporation that buys another's assets is not liable for the seller's liabilities unless one of four exceptions applies; neither de facto merger nor mere continuation was shown, and North Carolina does not recognize the product line exception.
• Brock v. Air & Liquid Systems Corporation (2021). Under North Carolina law, a plaintiff with mesothelioma must still show exposure to a specific defendant's asbestos product frequently, regularly and in close proximity to where he worked (the Lohrmann test); presence of a defendant's product or business at the workplace is not enough.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to a specific defendant's asbestos product (Lohrmann test), and a contractor owes no duty to the spouse of a non-employee for take-home exposure absent a special relationship involving control.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is legally responsible (the Lohrmann test). Contracts and passing hearsay mentions of a contractor did not supply that evidence.
• Reed v. Reichhold Liquidation, Inc. (2021). Predicting Iowa law, the court held that the Iowa Supreme Court would abandon the 'sole proximate cause' defense after adopting the Restatement (Third) of Torts in Thompson v. Kaczinski. Even if the defense existed, disputed facts about the employer's conduct would prevent summary judgment.
• Settlemyer v. Borg-Warner Morse Tec, LLC (2021). Under North Carolina law, a plaintiff must show exposure to the defendant's own asbestos-containing product with frequency, regularity and proximity (Lohrmann). A truck or trailer assembler is not liable for third parties' replacement parts, and North Carolina has no exception for parts the assembler specified or recommended.
• Smith v. Schlage Lock Company, LLC (2021). Under North Carolina law an asbestos plaintiff must show actual exposure, and an expert opinion built on speculation cannot supply it. A landowner that hires an independent contractor and does not retain control over the work is not liable for dangers incident to that work.
• Vinson v. Armstrong International, Inc. (2021). In a North Carolina asbestos case, including one for mesothelioma, the plaintiff must show actual exposure to the defendant's asbestos-containing product with frequency, regularity and proximity (the Lohrmann test). Presence of the product at a large workplace is not enough.
• Whitehead v. Air & Liquid Systems Corporation (2020). Under North Carolina law, an asbestos plaintiff must show exposure to a specific defendant's product on a regular basis over an extended period in proximity to where the plaintiff worked (the Lohrmann frequency, regularity and proximity test). The court applied this test to mesothelioma cases and rejected a modified, lower standard.
• Woolard v. Carrier Corporation (2020). Under North Carolina law, an asbestos plaintiff must show actual exposure to the defendant's own asbestos-containing product, on a regular basis over an extended period and near where he worked; the court applied this same test to mesothelioma. A manufacturer was not liable for third-party asbestos parts used with its equipment absent evidence that such use was intended or foreseeable.
• Zurich American Insurance Company v. Covil Corporation (2020). Under South Carolina law (Crossmann), a loss from progressive injury spanning several policy periods is allocated pro rata by each insurer's time on the risk, with the insured bearing uninsured years. A federal court should not decide hypothetical coverage questions and declines declaratory jurisdiction where they are not tied to a concrete claim.
• Garlock Sealing Technologies, LLC v. Simon Greenstone Panatier Bartlett, A Professional Corporation (2015). A statute of limitations defense, Noerr-Pennington and state litigation privileges cannot be decided on a motion to dismiss unless all necessary facts appear on the face of the complaint. Litigation conduct is not shielded from RICO, and the complaint adequately pleaded fraud, conspiracy and RICO.
• Logan v. Air Products and Chemicals, Inc. (2014). Under North Carolina law (Wilder), a plaintiff must first prove actual exposure to the defendant's product, and the Lohrmann frequency, regularity and proximity test cannot be relaxed so as to dispense with that proof, even in a mesothelioma case.
• Logan v. Air Products and Chemicals, Inc. (2014). A plaintiff meets the Lohrmann frequency, regularity and proximity test with evidence of repeated work on or near the defendant's asbestos-containing products over an extended period. North Carolina's products liability statute of repose does not apply to disease claims, under Hyer.

Ohio

• Shaffer v. AW Chesterton Co. (9th Appellate District, 2019). A state court hearing Jones Act and unseaworthiness claims must apply federal maritime substantive law, not Ohio's asbestos causation statute and Schwartz; the Jones Act uses a relaxed 'however slight' causation standard. A trial court also may not grant summary judgment on a ground the movant did not raise.
• Bowens v. Sager Corp. (In re All Cases Against Sager Corp.) (2012). Whether a dissolved foreign corporation can be sued is determined by the law of its state of incorporation, and Full Faith and Credit requires Ohio to honor that law. A receiver therefore cannot be appointed to accept service and marshal unexhausted liability insurance for a corporation that can no longer be sued.
• Bartel EX rel. Estate, Rich v. AC Prod. Liab. Tr. (2006). Asbestos exposure on navigable waters falls under admiralty jurisdiction and federal maritime law, but land-based exposure at a refinery fails the locality and maritime-connection tests and is governed by state law. A joined admiralty claim and non-admiralty claim may be tried to one jury.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, duty of care depends on foreseeability and policy considerations; where the husband's exposure was intermittent and non-occupational, take-home harm to his wife was not foreseeable as a matter of law and no duty was owed.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, a manufacturer owes no duty to warn a worker's wife who was exposed only by laundering his work clothes, because she is not a foreseeable user. The negligence duty of care also failed because take-home harm from the boilers was not foreseeable on this record.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.

Oregon

• Ibarra v. CH Murphy/clark-Ullman, Inc. (2024). Under California law, where the complaint alleges work-related injuries by an employer, workers' compensation coverage is presumed and the plaintiff bears the burden of showing the exclusive remedy rule does not apply. Plaintiff's evidence of noncompliance with Labor Code section 3702.8 did not meet that burden on summary judgment.

Other federal courts

• Savoie v. Huntington Ingalls, Incorporated (2016). Under the federal officer removal statute, negligence claims about safety measures the government did not control show no causal nexus, but pre-1996 Louisiana strict liability claims based on the mere use of asbestos required by government contract specifications do show one, and removal of the whole case is proper if a single claim qualifies.
• Williams v. Georgia-Pacific (In re Asbestos Products Liability Litigation (NO. VI)) (2014). Under South Carolina's frequency, regularity, and proximity test, a plaintiff must show exposure to a specific asbestos-containing product, and speculation about whether the product Williams used contained asbestos cannot defeat summary judgment.
• 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.
• Sybron Transition Corp. v. Security Ins. (2001). Applying New York law as interpreted by the Second Circuit, insurers' shares of a long-latency asbestos loss are allocated by time on the risk, with a one-month policy counted as one month. Time the insured self-insured stays in the denominator, and the insured may not stack policies to exceed a single per-occurrence limit.
• Guaranty Nat. Ins. Co. v. Azrock Industries Inc. (2000). Under an Erie guess of Texas law, an umbrella CGL insurer's duty to defend asbestos personal injury suits is triggered by exposure to the insured's products during the policy period, not by manifestation or diagnosis of disease. Property damage claims are still governed by the manifestation theory.
• Sybron Transition v. Sec. Ins. Co. of Hartford (1997). Under New York law, which governed the Hartford policies and Sybron's defenses to late notice, a 22-month notice delay without valid excuse is unreasonable as a matter of law, and lack of prejudice, waiver, estoppel or bad faith did not excuse it.
• Georgine v. Amchem Products, Inc. (1996). A class certified only for settlement must satisfy Rule 23(a) and Rule 23(b)(3) as if it were going to be litigated; a class of this size and diversity cannot meet the typicality, adequacy, predominance and superiority requirements.
• Consorti v. Armstrong World Industries, Inc. (1995). In a diversity case, state law governs whether a compensatory damages award is excessive, so New York's 'deviates materially from reasonable compensation' standard applied. Consolidation of asbestos cases is within a trial court's discretion unless it causes confusion or prejudice that prevents the jury from deciding on the evidence.
• Stonewall Ins. Co. v. Asbestos Claims Management (1995). Under New York and Texas law, occurrence-based liability policies are triggered throughout a progressive disease process when the evidence shows injury-in-fact recurring at each point; the insured bears pro rata responsibility for years it chose to go uninsured but not for years after 1985 when asbestos insurance was unavailable, and each installation of asbestos building products is a separate occurrence for per-occurrence deductibles.
• 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.
• Johnstone v. American Oil Co. (1993). Under Louisiana's risk-utility test for a product that is unreasonably dangerous per se, a court may not grant JNOV by disregarding admitted utility evidence as irrelevant. The product's danger and utility are weighed as to society as a whole, and the evidence here left a jury question.
• Carey Canada, Inc. v. Columbia Cas. Co. (1991). Extrinsic evidence of the parties' intent may be used only if the contract term is ambiguous, and ambiguity must be shown by objective evidence of industry or public usage, not just the parties' own negotiations or disputes over meaning.