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.

Virginia

• Joyce v. AC & s., Inc. (1984). Under Virginia law as stated in Locke, a personal injury is a single indivisible cause of action that accrues when the plaintiff was first hurt, so an earlier asbestos-related injury starts the limitations period for later-developing asbestos diseases.

Washington

• Deem v. Air & Liquid Systems Corporation (2023). Under maritime law a plaintiff must show actual exposure to the defendant's asbestos and that it was a substantial contributing factor, which requires substantial exposure for a substantial period when direct evidence is absent. The presence of a defendant's product at a shipyard is not enough.
• Behrmann v. Abb, Inc. (2021). Under maritime law, a plaintiff must show with evidence of the amount or duration of exposure that a defendant's asbestos product was a substantial factor in causing the disease; general evidence of possible exposure is not enough. A failure to warn claim fails when causation cannot be shown.
• Behrmann v. Abb, Inc. (2021). Maritime law applies to asbestos exposure on ships in drydock when the locality and connection tests are met, and under it a plaintiff must show substantial exposure to the defendant's asbestos for a substantial period. A court may defer summary judgment under Rule 56(d) when the nonmovant identifies specific facts it expects discovery to produce.
• Wineland v. Air & Liquid Systems Corp. (2021). Maritime law governed, and under it plaintiffs must show substantial exposure to asbestos from the defendant's own products, including the amount and duration of exposure. A manufacturer has no duty for third-party replacement parts unless its product required their use. State-law causation rules could not supplement maritime law where they conflict.
• Deem v. Air & Liquid Systems Corporation (2019). A party invoking admiralty jurisdiction must show by a preponderance of the evidence that some exposure occurred on a vessel on navigable waters and that the connection test is met. Coworker testimony about dusty work aboard ships in the shipyard met that burden. A plaintiff moving to apply maritime law has no general burden to show a conflict with state law.
• Hoffman v. Ketchikan Pulp Co. (2nd Division, 2019). The law of the case from an earlier appeal decided under the CR 12(b)(6) standard did not bar summary judgment. Under Alaska law, none of the exceptions to the repose statute (gross negligence, hazardous waste, foreign body) applied, so Alaska law conflicted with Washington law and governed, and the claim was barred.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington's Lockwood factors, a plaintiff can show product-specific causation by evidence of proximity, duration, handling, fiber release and other sources, and a jury may find that exposure to Bendix brakes was a causative factor in mesothelioma despite other possible exposures.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law, a plaintiff must show a reasonable connection between the injury, the product and the manufacturer, and the Lockwood factors must support a finding that exposure to the defendant's product caused the injury. General evidence of shipboard asbestos and of asbestos causing the disease is not enough.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law (Lockwood), a plaintiff must establish a reasonable connection between the injury, the product and the manufacturer, and must identify the particular manufacturer of the product that caused the injury; without admissible evidence identifying the defendant's product, summary judgment is proper.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law (Lockwood), a plaintiff must offer admissible evidence connecting the injury, the defendant's product and the defendant; without the excluded affidavit and expert opinion, causation could not be found.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). Under Washington law, a plaintiff may use circumstantial evidence, such as sales records showing which machines received a defendant's asbestos-containing products and the plaintiff's work on those machines, to let a jury infer exposure and causation without direct identification of the product.
• Mikelsen v. Air & Liquid Systems Corporation (2018). Maritime law did not apply because the worker's exposure was mainly in a land-based shipyard machine shop, so Washington law governed. A jury could find causation even without proof the worker handled the defendant's product, and the government contractor defense was not shown as a matter of law.
• Hoffman v. General Electric Company (2nd Division, 2016). On a CR 12(b)(6) motion, facts alleged and hypothetical facts are taken as true. Hoffman's allegations could bring his claims within exceptions to Alaska's statute of repose (defective product as to GE, gross negligence as to both defendants), so there might be no conflict with Washington law and dismissal was improper.
• Sprague v. Pfizer, Inc. (2015). Applying Washington law as it predicted, Restatement (Second) of Torts § 400 applies only to defendants in the chain of distribution who "put out" the product; a parent-subsidiary relationship and shared logos alone do not make the parent an apparent manufacturer.
• Nelson v. Air & Liquid Systems Corporation (2014). Under maritime law, an asbestos plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. A manufacturer is not liable for replacement parts it did not place in the stream of commerce.
• Bouchard v. CBS Corporation (2012). Under New York contract law, the phrase "obligations and commitments" under contracts, leases and agreements covers contractual obligations only, not tort duties, so a purchaser under the agreement did not assume tort liability for asbestos exposure. Washington's general rule is that an asset purchaser is not liable for the seller's liabilities unless an exception applies.
• Macias v. Saberhagen Holdings, Inc. (2012). The general rule that a manufacturer must be in the chain of distribution of the asbestos-containing product (Simonetta, Braaten) does not bar a failure-to-warn claim against respirator makers, because their own products, used and cleaned as intended, inherently involve asbestos exposure. The WPLA applies when substantially all exposure occurred on or after July 26, 1981.
• Stevens v. CBS Corporation (2012). Circumstantial evidence can let a jury reasonably infer that a worker was exposed to a defendant's original or replacement asbestos-containing parts. Where the facts are disputed, summary judgment is not available on causation, the government contractor defense or assumption of risk. Under maritime law, Washington substantive law applies because it does not conflict with maritime law.
• Payne v. Saberhagen Holdings, Inc. (1st Division, 2008). A buyer of a company's assets or parent for cash is not liable as successor by de facto merger without evidence of continuity of ownership. The product line exception requires proof that the buyer actually sold the same product line and that it is fair to impose the seller's burden, given good will carried over.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2007). Once Washington courts applied strict product liability under Restatement § 402A to the parties in earlier asbestos exposure cases, it applies retroactively to all later litigants whose exposure predates its adoption; selective prospective application and the Chevron Oil test are unavailable under Robinson.
• Viereck v. Fibreboard Corp. (1st Division, 1996). The 1981 Washington products liability act does not apply to a mesothelioma claim where substantially all the injury-producing asbestos exposure occurred before the act's effective date, even if the disease was diagnosed afterward. The applicable law is the law in effect when the exposure causing the harm occurred.

Wyoming

• Johnson v. Allis-Chalmers Corp. Prod. Liab. Trust (2014). In an asbestos case, a plaintiff must offer competent evidence that the defendant's product or conduct was a substantial factor in causing the harm. Witnesses who admit in deposition that they lack personal knowledge of what the insulation contained, or who made it, cannot supply that evidence. The court also applied Pennsylvania's 12-year construction statute of repose, in the alternative, to Bechtel, CBS and GE.
• Johnson v. Allis-Chalmers Corporation Product Liability Trust (2014). Under the substantial-factor causation test, a plaintiff must have admissible, personal-knowledge evidence linking a particular defendant's asbestos to the plaintiff's exposure. Witnesses' deposition testimony that contradicts their earlier affidavits is treated as more reliable at summary judgment, and a real-property-improvement statute of repose can bar claims over permanent improvements.