Loss of Consortium in Asbestos Cases

Decisions in our library in which the court ruled on loss of consortium: 241 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.

About this issue

A loss of consortium claim belongs to the injured person's spouse, and in some states to children or parents. It compensates for the loss of companionship, affection, help and, for spouses, the marital relationship during the person's illness.

It is a separate claim, but it rests on the defendant's liability for the underlying injury, so it usually requires proof of that injury, and some defenses to the injured person's claim may also affect it. Which defenses, releases and deadlines apply to it depends on the state. Asbestos cases raise particular questions:

• Must the couple have been married when the person was exposed, or only when the injury appeared? Because exposure and diagnosis can be decades apart, courts have answered this differently.
• Who is the defendant? Workers' compensation may bar a consortium claim against the injured worker's employer, but generally not against other responsible companies.
• Which family members may bring the claim?
• After the person dies, consortium losses during their life and the survivors' wrongful death losses after the death are usually recovered separately, without double recovery.

California

• Marcus v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs can reach a jury on substantial-factor causation with testimony about the work done on a product, evidence the product contained asbestos, and expert estimates of exposure from that work, without relying on an "every exposure" theory. The government contractor defense does not apply to federal maritime claims, and loss of consortium and punitive damages are unavailable under maritime law.
• Smargisso v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs must show actual exposure to the defendant's asbestos products and that the exposure was a substantial contributing factor; circumstantial shipmate and records evidence can meet this. Non-pecuniary damages are not recoverable in a maritime wrongful death action based on negligence and strict liability absent historical support.
• Watts v. Pneumo Abex, LLC (1st Appellate District, 2nd Division, 2024). A directed verdict against a defendant on the sophisticated user defense is improper when, viewing the evidence most favorably to the defendant, a jury could find the plaintiff knew or should have known of the product's hazards as a member of the class of sophisticated users.
• Marcus v. Air & Liquid Systems Corporation (2023). A defendant removing under the federal officer removal statute must show by a preponderance of the evidence that it acted under a federal officer's direction and has a colorable government contractor defense; it need not prove the defense is meritorious. Defendants' evidence of Navy specifications, control over warnings and Navy knowledge of asbestos hazards met that standard.
• Wilgenbusch v. Metalclad Insulation LLC (1st Appellate District, 3rd Division, 2023). Under Proposition 51, noneconomic damages are apportioned between separate products, but defendants in the same chain of distribution of a single product remain jointly and severally liable for the harm that product caused. A judgment may be entered consistent with an ambiguous special verdict as read with the instructions and evidence.
• Elorreaga v. Rockwell Automation, Inc. (2022). Under the Atlantic Sounding and Batterton framework, punitive damages are unavailable under general maritime law where plaintiffs show no historical basis for them, and Ninth Circuit precedent (Smith v. Trinidad) bars loss of consortium damages under general maritime law.
• Khosravan v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2021). A defendant owes no duty to protect workers from asbestos at premises it did not own, possess or control. A 1954 agreement guaranteeing the operating companies' performance did not create a duty to refinery workers, either through a special relationship or under the Biakanja/J'Aire factors.
• Morgan v. JM Manufacturing Co., Inc. (2nd Appellate District, 1st Division, 2021). A plaintiff seeking punitive damages against a corporation must offer clear and convincing evidence that an officer, director or managing agent had the required state of mind, whether shown directly or by piecing together managing agents' knowledge and acts; the company's size does not relax that burden.
• Phipps v. Copeland Corporation LLC (2nd Appellate District, 7th Division, 2021). A defendant bears the burden at trial of proving the percentage of fault attributable to others, and on appeal must show the evidence compelled a more favorable apportionment as a matter of law; on a new trial motion for excessive damages, Code Civ. Proc. sections 657 and 658 bar the court from considering a survey of other verdicts outside the minutes of the court.
• Sabetian v. Fluor Enterprises, Inc. (2nd Appellate District, 7th Division, 2021). A jury's asbestos causation finding stands if substantial evidence shows exposure to the defendant's product substantially contributed to the plaintiff's aggregate dose. An expert may rely on case reports for a very rare disease, and a request to apply foreign law must be timely. Under California's governmental interest test, California law governed compensatory damages.
• Spurlin v. Air & Liquid Systems Corporation (2021). Under federal maritime law, a manufacturer has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. Punitive damages and loss of consortium are not available in a maritime negligence action.
• Webb v. General Cable Corp. (1st Appellate District, 1st Division, 2021). A plaintiff must prove threshold exposure to the defendant's asbestos-containing product, and evidence showing only a possibility or speculation of such exposure is not substantial evidence. Without it there is no causation and no liability.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2020). A plaintiff may prove past medical expenses through an expert's testimony on billed amounts where there is no evidence the lienholder or insurer would accept less, and a trial court has wide discretion to allocate prior settlement proceeds to future wrongful death claims when computing a nonsettling defendant's credit.
• Pizarro v. Astra Flooring Company (2020). A defendant may remove an entire action under 28 U.S.C. § 1442(a)(1) if it shows by a preponderance of the evidence a colorable government contractor defense to a failure-to-warn claim, and declarations from a retired Navy admiral can suffice at the removal stage under Leite v. Crane Co.
• Sabetian v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2020). A defendant that did not own, possess or control the premises owes no premises or negligence duty to workers there, and a guarantee in a contract not intended to benefit the workers does not create a duty under the J'Aire/Biakanja factors.
• Malek v. Chevron U.S.A. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A defendant that did not own, operate or control a premises, was not a joint venturer or principal of the operator, and did not undertake responsibility for worker safety owes no duty of care; workers who only incidentally benefit from a contract are not intended third party beneficiaries.
• Duty v. Trz Realty, LLC (1st Appellate District, 3rd Division, 2017). A physician with long experience reviewing epidemiological studies need not be an epidemiologist or gastroenterologist to be qualified to opine on asbestos causation of colon cancer, and a trial court acting as gatekeeper may not resolve scientific disputes over the studies or weigh competing opinions.
• Sandoval v. American Appliance Manufacturing Corp. (2nd Appellate District, 4th Division, 2017). Under Kesner, employers and property owners owe a duty to prevent take-home asbestos exposure to household members, and a defendant seeking summary judgment for lack of exposure evidence must show the plaintiff cannot obtain it. A dissolved corporation is not shielded from punitive damages claims, and a strict liability claim can rest on a bystander theory for defective components of the defendant's own product.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 4th Division, 2017). A spouse who could have sought postdeath loss of consortium damages in the injured spouse's earlier personal injury trial is barred by res judicata from claiming them in a later wrongful death action. Unallocated settlements may be credited against a wrongful death economic damages award, and an overbroad allocation is not reversible where a smaller allocation would still offset the whole award.
• Ballard v. Ameron International Corporation (2016). A removing defendant bears the burden of showing jurisdiction. Conclusory claims of federal enclave status do not suffice, and enclave jurisdiction is concurrent so all defendants must join in removal. Federal officer removal requires a showing of federal direction, a federal defense and a causal nexus.
• Lopez v. Allied Packing & Supply Inc. (2016). Under California law an action is commenced when the original complaint is filed, and amending it (including to add wrongful death claims and new plaintiffs after the original plaintiff's death) does not restart the one-year limit on diversity removal under 28 U.S.C. § 1446(c)(1).
• Collin v. Calportland Company (3rd Appellate District, 2014). A plaintiff must show exposure to the specific defendant's asbestos-containing product, and a defendant can shift the burden on summary judgment with comprehensive discovery and factually devoid responses; the sophisticated user defense turns on what the class of users knew or should have known about the particular product's dangers.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff can prove legal causation in an asbestos cancer case through expert testimony that respirable exposures contribute to cancer risk, but exposure to one supplier's asbestos cannot rest on speculation where a manufacturer had several suppliers. A large reduction of compensatory damages does not by itself require retrial of punitive damages, and an award of about 4.6 times the defendant's share of compensatory damages, against a net worth of $4.2 billion and highly reprehensible conduct, satisfies due process.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff must show exposure to the defendant's asbestos beyond speculation, and then that the exposure was a substantial factor contributing to his risk of cancer. A large cut in compensatory damages does not by itself require a new trial on punitive damages. The question is whether the resulting ratio and the defendant's reprehensibility satisfy due process.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the aggregate dose causing disease; equivocal product-identification testimony and evidence of corporate knowledge of asbestos hazards create fact disputes that preclude summary judgment, including on punitive damages.
• Jones v. John Crane, Inc. (2nd Appellate District, 7th Division, 2013). A federal dismissal with prejudice of a decedent's personal injury suit, and of his spouse's loss of consortium claim, is a final judgment on the merits. Under res judicata and collateral estoppel it bars the later survival and wrongful death claims by the estate, the spouse and the heirs, who are in privity with the decedent.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• Farag v. ArvinMeritor, Inc. (2nd Appellate District, 3rd Division, 2012). A section 998 offer may be made jointly to husband and wife without allocation, because a personal injury cause of action is community property and either spouse can accept on behalf of the community. The court also noted the argument was not properly raised in the trial court.
• Leonard v. John Crane, Inc. (1st Appellate District, 5th Division, 2012). A spouse has a valid loss of consortium claim where the other spouse's injury was not discovered or discoverable until after the marriage and so accrued during the marriage, even if the defendant's negligent conduct (such as asbestos exposure) occurred before the marriage.
• Vanhooser v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2012). In latent asbestos disease cases, the marriage element of a loss of consortium claim is satisfied if the couple was married before the spouse's symptoms were discovered or the disease diagnosed, even if the marriage came after the asbestos exposure. Zwicker, which involved an immediate injury, does not control.
• Fontes v. Interstate Brands Corporation (2nd Appellate District, 5th Division, 2011). A defendant can shift the burden on summary judgment by showing through discovery responses and deposition testimony that plaintiffs cannot prove asbestos was present at the work site. An expert declaration lacking foundation for that point is properly excluded, and a new trial motion based on excluded expert opinions fails because the evidence is not material.
• Smith v. Pneumo Abex LLC (2nd Appellate District, 3rd Division, 2010). A trial court cannot, after the verdict, reduce a lump-sum medical-expense award that includes future expenses without speculating about the future portion, so the Hanif-Nishihama reduction could not be applied here. Settlement credits against economic damages are calculated by a three-step method, and the court need not accept the settling parties' allocations to wrongful death claims.
• Clemmer v. Thorpe Insulation Company (1st Appellate District, 4th Division, 2009). A plaintiff may prove exposure to a defendant's asbestos product through circumstantial evidence that the product was sufficiently prevalent at the work site to support a reasonable inference of exposure.
• Mahoney v. Georgia-Pacific, LLC (1st Appellate District, 1st Division, 2009). Under Rutherford, an asbestos plaintiff need not quantify dose; evidence of repeated, close exposure to a dusty product, plus expert testimony of substantial contribution to risk, supports causation. A trial court may grant a new trial limited to medical expenses when noneconomic damages are separable from them.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A manufacturer is not strictly liable for failure to warn or design defect from asbestos products it did not make, supply or place in the chain of distribution, even if their use with its product was foreseeable. The component parts doctrine also bars liability absent proof that the defendant's own component caused the injury.
• Merrill v. Leslie Controls, Inc. (2nd Appellate District, 3rd Division, 2009). A valve manufacturer that did not make or supply the asbestos-containing packing, gaskets or insulation that caused the plaintiff's exposure is not in the chain of distribution of those products and has no strict liability duty to warn of their hazards. The same reasoning bars the design defect claim, and the component parts doctrine supports it.
• Short v. Sequoia Ventures, Inc. (1st Appellate District, 3rd Division, 2009). A plaintiff claiming negligent design or construction of a complex facility generally must offer expert evidence of the standard of care and the defendant's deviation from it, and a declaration that does not address the standard of care does not suffice.
• Taylor v. Elliott Turbomachinery Co. Inc. (1st Appellate District, 5th Division, 2009). Under California law, a manufacturer has no duty to warn, in strict liability or negligence, of asbestos hazards in replacement gaskets, packing or insulation made or supplied by others and used with its equipment. The duty arises only when the manufacturer's own product causes or creates the risk of harm.
• Whitlock v. Foster Wheeler, LLC (1st Appellate District, 3rd Division, 2008). An order granting a new trial for juror misconduct, with a statement of reasons, is reviewed for abuse of discretion, including the prejudice finding. A juror's injection of outside specialized knowledge is misconduct that raises a presumption of prejudice.
• Brumley v. Fdcc California, Inc. (1st Appellate District, 1st Division, 2007). The relation-back doctrine applies to the five-year trial rule (section 583.310), so claims added by amendment that do not relate back to the original complaint are not dismissed for failure to reach trial within five years of the original filing. Wrongful death and loss of consortium claims by heirs, and a later-arising cancer claim, do not relate back.
• Cadlo v. Metalclad Insulation Corporation (1st Appellate District, 5th Division, 2007). When a trial court validly enters a judgment nunc pro tunc to a date before the plaintiff's death, that date decides whether Code of Civil Procedure section 377.34 bars pain-and-suffering and future economic damages. A verdict exceeding a plaintiff's section 998 offer is prima facie evidence the offer was reasonable.
• Garcia v. Duro Dyne Corporation (1st Appellate District, 1st Division, 2007). A nonsettling defendant is not entitled to a Code of Civil Procedure section 877 offset for settlement monies until they are actually paid, and cost-waiver releases with defendants who would have prevailed at trial have offset value, with the burden of proving that value on the settling plaintiffs.
• Kinsman v. Unocal Corporation (2005). A landowner that hires an independent contractor may be liable to the contractor's employee, even without retained control, if it knew or should have known of a concealed preexisting hazard, the contractor did not know and could not reasonably discover it, and the landowner failed to warn.
• Cadlo v. Owens-Illinois, Inc. (1st Appellate District, 5th Division, 2004). A former manufacturer that sold its product line before the plaintiff's exposure is not liable in fraud, concert of action or strict liability for the successor's later-made product absent any role in the design, manufacture, distribution or marketing of the product that exposed him.
• Cossman v. DaimlerChrysler Corp. (1st Appellate District, 1st Division, 2003). Under California's borrowing statute (Code Civ. Proc. § 361), a nonresident's claim that arose in another state is barred in California if it is time-barred there, and the exception for California citizens requires citizenship at the time the claim accrued.
• Hackett v. John Crane, Inc. (1st Appellate District, 1st Division, 2002). When a jury awards economic damages and loss of consortium damages and pre-verdict settlements cover those claims, the trial court must apportion the settlements using the jury's ratio of economic to total damages, including consortium. The court keeps discretion to allocate part of the settlements to claims the jury did not decide, such as heirs' potential wrongful death claims.
• Ashdown v. Ameron International Corp. (1st Appellate District, 3rd Division, 2000). A latent asbestos-disease claim accrues, for deciding whether the 1982 amendment to Labor Code section 3602 applies, when the employee was diagnosed or discovered the disease, not at first exposure. The pre-1982 dual capacity exception therefore did not apply, and the fraudulent concealment exception requires the employer's actual knowledge of the injury.
• Wilson v. John Crane, Inc. (1st Appellate District, 4th Division, 2000). Civil Code section 1431.2 (Proposition 51) applies to strict products liability claims, so a defendant's liability for noneconomic damages is several only and proportional to its fault. Settlement sums allocated to loss of consortium and potential wrongful death claims are not credited against a personal injury judgment.
• Overly v. Ingalls Shipbuilding, Inc. (1st Appellate District, 2nd Division, 1999). A personal injury plaintiff may recover lost earnings, including pension, Social Security and household-services benefits, for the period by which his life expectancy was shortened. No deduction for his expected personal consumption during that period is required.
• Kellogg v. Asbestos Corp. Ltd. (1st Appellate District, 4th Division, 1996). When a plaintiff dies after submission of a bench trial but before final judgment, the court may still render judgment under CCP section 669, but under former Probate Code section 573(c) the judgment cannot include damages for pain and suffering. A defendant who seeks to reduce its share under Proposition 51 bears the burden of proving others' fault.