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.

Other federal courts

• Cochran v. EI DuPont de Nemours (1991). Admiralty tort jurisdiction requires both navigable-waters locality and a nexus to traditional maritime activity, and a sailor's exposure to dust from a land-usable nonskid deck coating lacked that nexus. Under Virginia law the claim accrued when the damage occurred, and the 1985 asbestos-diagnosis accrual provision was not applied retroactively to a claim that accrued earlier.
• Eagle-Picher Industries v. Liberty Mut. Ins. Co. (1987). Under the manifestation theory, the date an asbestos-related disease was reasonably capable of diagnosis may be estimated with a statistical rollback from the diagnosis date, but the insurer may rebut it in individual cases with clear and convincing medical evidence. Under Ohio law, the insurer owes interest from the time the judgment becomes final.
• In re Asbestos Litigation (1987). Common law decisions of a state's highest court are subject to equal protection review under the rational basis test, and New Jersey's denial of the state-of-the-art defense to asbestos manufacturers has a rational basis in risk-spreading, victim compensation and simplified trials.
• ACandS, Inc. v. Aetna Cas. and Sur. Co. (1985). Under Pennsylvania law as predicted by the court, exposure, exposure-in-residence and manifestation each count as 'bodily injury' that triggers liability coverage for asbestos claims, and a triggered policy is not prorated. The duty to defend ends when policy limits are exhausted, and it carries the insurer's right to defend.
• Commercial Union Ins. Co. v. Sepco Corp. (1985). Under the Fifth Circuit's Porter precedent, which the court treated as binding, asbestos-related "bodily injury" under liability policies is equated with exposure to asbestos, so coverage is triggered by exposure during the policy period.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Rosenberg v. Celotex Corp. (1985). Under New York law a representative may bring a wrongful death action only if the decedent could still have sued at the time of death, so a time-barred underlying injury claim defeats it. Texas's foreign wrongful death statute requires an existing right of action under the foreign state's law, which was lacking here.
• 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.
• 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.
• Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. (1982). Under these liability policies, an asbestos-related disease "results" (and so triggers coverage) when it becomes clinically evident, meaning reasonably capable of medical diagnosis, not at initial exposure or on actual diagnosis. Ambiguous policy language is construed in favor of the insured.
• Hardy v. Johns-Manville Sales Corp. (1982). Offensive collateral estoppel could not bind defendants who were not parties or privies in Borel, and it could not bind the Borel defendants because that judgment was ambiguous, inconsistent with other verdicts, and unfair. Courts also may not judicially notice that asbestos in all products is a competent producing cause of cancer.
• Clutter v. Johns-Manville Sales Corp. (1981). Under Ohio law, a claim for an insidious disease caused by asbestos exposure accrues when the disease manifests, not at the date of last exposure.
• Fusco v. Johns-Manville Products Corp. (1981). Under Texas law, the two-year limitations period for products liability personal injury claims begins when the plaintiff discovers, or with ordinary care should have discovered, the injury; a pending federal compensation claim neither delays accrual nor tolls the period, and there is no fraudulent concealment of facts the plaintiff knew.
• 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.
• Ins. Co. North America v. Forty-Eight Insulations (1980). Under standard comprehensive general liability policies, 'bodily injury' from asbestosis occurs when tissue damage begins on inhalation of fibers, not at manifestation, so every insurer on the risk during exposure is liable pro rata for indemnity and defense costs. The insured is treated as self-insured for uninsured years.
• Karjala v. Johns-Manville Products Corp. (1975). Under Minnesota law a manufacturer is held to the knowledge of an expert and must warn of dangers it knew or could have discovered through reasonable care. The six-year limitations period for a product injury begins when some harm or impairment manifests itself that can be shown to have been caused by the defendant's product.

Pennsylvania

• 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.
• 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.
• Gay v. AO Smith Corporation (2021). Under both Pennsylvania law (frequency, regularity and proximity) and Virginia law (actual and proximate cause), a plaintiff must produce specific evidence that the decedent inhaled asbestos fibers from the defendant's product. Evidence that the defendant sold asbestos-containing products in general does not meet that burden.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to a specific defendant's asbestos-containing product with sufficient frequency, regularity and proximity. Showing that the product was merely present at the workplace is not enough.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to the specific defendant's asbestos product with sufficient frequency, regularity and proximity; mere presence of the product at the workplace is not enough.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law (frequency, regularity and proximity) and maritime law (a high enough level of exposure), proof that a defendant's product was merely present at a worksite, with only de minimis exposure, does not show the product was a substantial factor in causing the disease.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to asbestos from the specific defendant's product with sufficient frequency, regularity and proximity; mere presence of the product or of asbestos at a workplace is not enough.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to the specific defendant's asbestos-containing product with sufficient frequency, regularity and proximity for a jury to infer that it was a substantial factor in causing the injury. The mere presence of the product at a workplace is not enough.
• Gorton v. Air & Liquid Systems Corporation (2020). Under Ohio law, which applied to the employment-based claims, workers' compensation exclusivity bars negligence and recklessness claims against an employer. It does not bar a plausibly pleaded intentional tort claim, or claims against the employer in its separate capacity as manufacturer and supplier to other employers.
• Herbert v. American Biltrite (2016). Under Virginia law, an asbestos cause of action accrues once, when a physician first communicates a diagnosis of asbestosis or another listed disease, and a later mesothelioma diagnosis does not start a new limitations period. The accuracy of the first diagnosis does not matter, and the diagnosis need not be of a 'disabling' disease.
• In re All Matters Related TO North American Refractories Company (2015). A party seeking a preliminary injunction must show irreparable harm; a purely monetary loss, even if unrecoverable, is not irreparable unless it causes special or serious harm to the movant. Honeywell also did not show a likelihood of success in interpreting the trust documents under Delaware law, because the record on the circumstances of the Trust's creation was insufficient.
• Schott v. Viad Corp. (In re Asbestos Products Liability Litigation) (2014). Under maritime law a plaintiff must show exposure to asbestos in a product the defendant made or supplied, and expert speculation that the defendant probably supplied original or replacement parts is not enough. A manufacturer is not liable for asbestos parts it did not make or supply.
• Cardaro v. General Electric Co. (In re Asbestos Products Liability Litigation (VI)) (2013). The 1990 amendment to Louisiana's statute of repose (La. R.S. 9:2772), which removed the failure-to-warn exception, is substantive and applies only prospectively, so it does not retroactively bar earlier failure-to-warn claims. Whether the premises owner knew or should have known of the asbestos hazard is a question of fact.
• Conner v. Alfa Laval, Inc. (2011). Maritime law governs asbestos product claims by sea-based Navy workers exposed to products made for use on vessels, because the locality and Sisson/Grubart connection tests are met. It does not govern claims by predominantly land-based Navy shipyard workers, where state law applies.
• Conner v. Alfa Laval, Inc. (2011). Maritime law governs asbestos claims by sea-based Navy workers where the allegedly defective product was made for use on a vessel, because the Sisson/Grubart locality and connection tests are met. It does not govern claims by predominantly land-based Navy shipyard workers.
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action theory, so the limitations period for all asbestos-related claims begins at the first physician diagnosis of any asbestos-related disease. The 1985 amendment, Va. Code § 8.01-249(4), did not abolish that theory.
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action rule, and the 1985 amendment (Va. Code § 8.01-249(4)) did not replace it with the separate disease rule. The limitations period for all asbestos-related claims therefore begins at the first physician diagnosis of any asbestos-related disease.
• Wagers v. Sgl Carbon, LLC (2011). Under North Carolina law, a premises owner owes an independent contractor's employees a general duty to warn of hidden dangers, but no breach occurs where the contractor already knew the danger. The owner also owes a nondelegable duty for inherently dangerous work, and whether the work was inherently dangerous is usually a jury question.
• Willis v. BW IP International Inc. (2011). To win summary judgment on the government contractor defense, a defendant must show no genuine factual dispute on all three Boyle elements, including that the government approved reasonably precise specifications reflecting considered judgment about warnings. Conflicting evidence on those points precludes summary judgment.
• Cowley v. Acands, Inc. (2010). Deposition testimony from an earlier case is inadmissible against a defendant who was absent from it when that testimony goes to product identification, because the earlier defendants lacked a similar motive to cross-examine. Under Maryland's frequency, regularity and proximity test, the plaintiff must then show some admissible evidence placing him near the defendant's asbestos work.
• 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.
• Travis v. United Gilsonite Laboratories (In re Asbestos Products Liability Litigation) (2010). Under Pennsylvania law a plaintiff must first show exposure to the particular defendant's asbestos product, and then show frequency, regularity and proximity of exposure; testimony identifying a different manufacturer does not raise a genuine issue as to the defendant's product.
• 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.
• In re Lindemann v. Edison (2010). Under Pennsylvania law, mere title to premises does not impose premises liability; the plaintiff must produce evidence that the owner had possession, meaning occupation of the land with intent to control it. Where a federal rule conflicts with a state procedural rule, the federal rule applies after removal.
• McGUFFIE v. Mead Corp. (2010). Under Alabama law, a shareholder or parent corporation is not liable for its subsidiary's acts absent alter-ego control or proof that it assumed a duty of workplace safety, and general safety oversight and correspondence do not show such an assumption.
• 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. 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.
• Shamir v. Agilent Technologies, Inc. (2010). Under New Jersey law's economic reality approach, an employee's tort claim is barred by workers' compensation exclusivity when, through a merger, the employer is the same corporate entity as the manufacturer of the injury-causing products; the dual capacity doctrine does not apply.
• 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.
• 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.