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.

New York

• Castro v. Colgate-Palmolive Co. (2021). Under New York's borrowing statute, a nonresident plaintiff's out-of-state claim is subject to the shorter of New York's or the accrual state's limitations period, and Virginia's two-year period ran from the mesothelioma diagnosis. A loss of consortium claim is derivative and fails when the primary claims are dismissed.
• Castro v. Colgate-Palmolive Co. (2021). A New York court treats the statute of limitations as procedural but, under CPLR 202, applies the shorter of New York's or the accrual state's period to a nonresident's claim. Virginia's two-year period therefore barred the claims, which accrued when mesothelioma was diagnosed.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (1st Dept., 2020). Expert testimony that visible dust from gaskets known to contain 50% to 85% asbestos necessarily contained enough asbestos to cause mesothelioma can establish specific causation without a quantified exposure level. The court treated Matter of New York City Asbestos Litig. (Juni) as turning on its own particular record.
• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its product did not contribute to the disease, and conflicting expert opinions on general and specific causation raise fact issues. A consortium claim fails where the exposure preceded the marriage.
• Epstein v. Port Authority of New York & New Jersey (In re New York City Asbestos Litigation) (2019). A premises owner is liable under Labor Law § 200 and common law negligence only if it controlled the means and methods of the work, and conflicting testimony and evidence of that control raises fact issues. An owner outside the manufacturing, selling or distribution chain cannot be held strictly liable for products.
• Mercatante v. PACCAR (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof; it must show its product could not have contributed to the disease, and conflicting evidence on exposure raises fact issues. A consortium claim fails where the injury-causing exposure occurred before the marriage.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof, and conflicting expert evidence on general and specific causation raises fact issues for trial. New York does not recognize an independent cause of action for civil conspiracy.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2019). A jury's findings of exposure and recklessness stand if supported by legally sufficient evidence, but damages awards that deviate materially from reasonable compensation under CPLR 5501(c) must be reduced or retried.
• New York City Asbestos Litig (2019). A party relying on a seaman's release must show it was executed freely and with full understanding of his rights under Garrett's heightened admiralty standard, and where the release does not clearly cover a later mesothelioma and the record is silent or ambiguous on consideration and advice, summary judgment is inappropriate.
• Olson v. Brenntag N. AM. Inc. (2019). Due process bars punishing a defendant for harm to nonparties, so punitive-damages evidence must be tied to the conduct that harmed the plaintiff; post-injury conduct that could not have harmed plaintiffs is inadmissible, while out-of-state conduct and advertisements that are part of the same course of wrongful conduct may be admitted to show reprehensibility.
• Germain v. Johnson & Johnson (In re New York City Asbestos Litigation) (2018). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof, and conflicting expert evidence on whether talc contained asbestos and caused mesothelioma raises fact issues for a jury. Plaintiffs need only show facts from which liability may be reasonably inferred.
• Rothlein v. Johnson & Johnson (In re New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the plaintiff's illness, and conflicting expert evidence on whether talc products contained asbestos and caused the disease raises fact issues for trial. Unsworn expert reports may be considered in opposition if other admissible evidence is also submitted, and a court may consider late sworn affidavits absent prejudice.
• Prokocimer v. R.J. Reynolds Tobacco Co. (In re New York City Asbestos Litigation) (2018). Summary judgment is denied where the plaintiff's evidence raises triable issues of fact on whether defendants knew or should have known of asbestos hazards. Unopposed loss of consortium claim may be dismissed.
• Black v. Imerys Talc America (In re New York City Asbestos Litigation) (2018). New York courts may exercise specific jurisdiction under CPLR 302(a)(1) over a non-domiciliary talc supplier that sold and shipped asbestos-contaminated talc into New York for use in a product that allegedly caused the plaintiff's injury. Dismissal for forum non conveniens is not warranted where there is a substantial nexus to New York and the movant does not meet its heavy burden.
• Robaey v. Air & Liquid Sys. Corp. (2018). Repeated exposure to visible dust from a defendant's asbestos gaskets, shown by its consistency, duration and intensity, can supply enough evidence of exposure to support an expert's specific-causation opinion under Parker; Juni does not require mathematical modeling or product-specific studies. A recklessness finding based on knowledge of asbestos hazards and failure to warn is not a finding of solely intentional conduct.
• Shulman v. Brenntag N. AM., Inc. (2018). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's illness, and speculative or conclusory expert affidavits fail that burden. Conflicting expert evidence on whether talc was contaminated with asbestos raises fact issues for trial.
• Brown v. Bell & Gossett Co. (2015). An owner is not liable under Labor Law § 200 for work-method hazards unless it supervised or controlled the injury-producing work. Specifications requiring asbestos-containing materials did not by themselves show such control or create a dangerous condition.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (2015). A verdict is set aside as a matter of law only where no valid line of reasoning could support it. Testimony on cumulative asbestos exposure, together with evidence of exposure to the defendant's equipment, can establish causation under New York's Frye standard. Awards that deviate materially from reasonable compensation must be reduced.
• Brown v. Bell & Gossett Co. (2014). Under Labor Law § 200, a premises owner is not liable for injuries from the method and manner of a contractor's work unless it actually supervised or controlled that work. General supervision, inspection, and contract specifications that listed asbestos materials are not enough.
• McCloskey v. AO Smith Water Prods. (2014). A verdict will be set aside as a matter of law only if no valid line of reasoning could lead rational jurors to it. A defendant found reckless is liable for the full verdict regardless of apportionment, and a defendant bears the burden of proving the equitable shares of other entities.
• Barawa v. Acker Drill Co. (2013). Plaintiff's testimony of exposure over twenty-plus years to new and old clutches and head gaskets, with documents showing Ford sold asbestos-containing components from suppliers, lets a jury reasonably infer exposure to original Ford parts. An unsupported affidavit first submitted in reply cannot meet the defendant's burden.
• McCormick v. Burnham (In re Asbestos Litigation) (2013). Where Kansas is the plaintiff's domicile and place of injury and the parties agree, Kansas law governs, so comparative fault allocates each defendant's liability by percentage and statutory caps on non-economic damages are applied by the court, not disclosed to the jury.
• Gennone v. AJ Eckert Company, Inc. (2010). A corporation that buys another's assets is not liable for the seller's torts unless one of four exceptions applies (express or implied assumption, merger, mere continuation, fraud). A party seeking more discovery under Rule 56(f) must show how it would create a genuine factual issue, and speculation is not enough.
• Batista v. A.O. Smith Water Prods. (Matter of New York City Asbestos Litig.) (2010). A court has discretion under CPLR 602(a) to join asbestos cases that share common questions, and it weighs factors such as worksite, occupation, time of exposure and type of disease. When a party dies, the action is stayed until a personal representative is substituted, and a spouse's consortium claim depends on the decedent's claim.
• Flynn v. AO Smith Water Prods. (2009). Questions of fact about whether ship owners had actual or constructive knowledge of asbestos hazards preclude summary judgment on a Jones Act claim, and a vessel with friable asbestos can be unseaworthy regardless of the Coast Guard's insulation requirements.
• IN Matter of New York City Asbestos Litigation (2007). A finding of reckless disregard that removes the limit on a defendant's share of liability under CPLR 1602(7) is supported where the record shows the defendant knew of asbestos dangers to people like the plaintiff and did not warn. A jury's damages verdict is upheld if it does not deviate materially from reasonable compensation in comparable cases.
• IN the Matter of New York City Asbestos Litig. (2007). A jury's finding that a defendant acted with reckless disregard, which makes it liable for the full verdict under CPLR 1603(7), stands where the record shows the defendant knew of asbestos dangers and failed to warn. A damages award is reviewed for whether it deviates materially from reasonable compensation, and the jury's verdict receives great deference.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (1997). A defendant asserting the military contractor defense to a design defect claim must prove every Boyle element, including warnings to the government, and merely raising some elements is not enough. New York does not recognize a child's claim for loss of parental consortium, and filing a proof of claim with the Manville Trust is not a settlement that supports a set-off under General Obligations Law § 15-108.
• Consorti v. Owens Corning (1995). In toxic substance exposure cases, the tortious injury is deemed to occur as a matter of law when the toxic substance is introduced into the body, so a spouse has no loss of consortium claim if the exposure preceded the marriage, even if disease appeared later.
• Consorti v. Owens-Corning Fiberglas Corp. (1995). The Second Circuit did not decide the appeal; it certified to the New York Court of Appeals the question whether a spouse's loss of consortium claim is valid when mesothelioma arose after the marriage from asbestos exposure before it, and kept jurisdiction pending the answer.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1993). Epidemiological evidence showing a weak, inconsistent association between asbestos and colon cancer, combined with only a differential diagnosis, is insufficient to show that asbestos more likely than not caused the cancer, so a jury verdict resting on it cannot stand.
• Barnett v. City of Yonkers (1990). Under New York law a school board is liable like a private landowner only if it had actual or constructive notice of the hazard, an owner out of possession without control is not liable, and an architect is liable only for professional negligence judged by the standards of the time his services ended.

North Carolina

• 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.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Stewart v. Aurora Pump Company (2017). Under North Carolina law, the wrongful death statute encompasses loss of consortium in cases of a loved one's death, so a separate common law loss of consortium claim by the surviving spouse fails and must be brought under that statute.

Ohio

• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Beany v. Ohio State Univ. (2009). Under R.C. 2745.01 and the common-law Fyffe test, an employer is liable for an intentional workplace tort only if it acted with intent to injure or knew that injury was substantially certain; knowing of a risk is not enough.

Oklahoma

• Angelo v. Armstrong World Industries, Inc. (1993). A trial court does not abuse its discretion by trying asbestos cases in reverse bifurcated format (damages, causation and disease first, liability second) when the issues are separable, it serves economy, and it is not unfair. Objections not raised at trial are reviewed only for plain error.

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.
• Hoff v. Certainteed Corp. (2021). A plaintiff need not prove exposure to the defendant's asbestos-containing product at a particular job site. It is enough that the evidence supports a reasonable inference that, more likely than not, he was exposed to it at one or more sites. A judgment does not violate ORCP 67 C where it is below the amount in the complaint's prayer, and the defendant never sought to clarify an inconsistent figure in the body of the complaint.
• McKenzie v. AW Chesterson Co. (2016). Under Oregon's strict liability statute (ORS 30.920) and the Restatement (Second) of Torts § 402A comments it incorporates, the product at issue is the pump as sold to the Navy with its asbestos-containing parts, so the bare-metal or no-duty defense does not bar a failure-to-warn claim as a matter of law. Plaintiff's evidence also sufficed on causation and foreseeability for negligence.

Other federal courts

• McClain v. Owens-Corning Fiberglas Corp. (1998). A district court does not abuse its discretion by ordering a new trial on wrongful death damages alone when the award is palpably inadequate and damages are separable from liability. Under Illinois law, a surviving spouse's cohabitation is irrelevant to loss of consortium damages and may be excluded.
• 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.
• Rotondo v. Keene Corp. (1992). Under Pennsylvania's Eckenrod standard, circumstantial evidence placing a defendant's pipecovering in the same boiler room where the plaintiff worked, near the pipecoverers and used about half the time, was enough for a jury to infer exposure and causation. The jury could also infer that dust from sawed asbestos covering contained asbestos.
• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.

Pennsylvania

• Rogers v. AO Smith Corp. (2022). Under maritime law a plaintiff must show exposure to each defendant's asbestos-containing product that was a substantial factor in causing the injury. Under DeVries, the bare metal defense defeats a claim over asbestos insulation added to a turbine unless the turbine required that asbestos insulation.
• 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.
• Gorton v. Air & Liquid Systems Corporation (2019). A foreign corporation registered to do business in Pennsylvania consented to general jurisdiction in Pennsylvania courts under 42 Pa. C.S. § 5301, and Daimler does not change that. A complaint with only conclusory allegations, or that does not say which corporate entity owned or made the product, fails the Rule 8 and 12(b)(6) pleading standard.