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.

Pennsylvania

• Hassell v. Budd Company (2019). The Locomotive Inspection Act preempts state strict liability and negligence claims about asbestos in locomotive equipment, including pipes originating in the locomotive and brake-system insulation on passenger cars, but not pipes self-contained to a railcar. The Safety Appliance Act preempts only the specific equipment it lists, and pipe insulation is not listed.
• Youse & Youse v. Johnson & Johnson (2019). Complete diversity exists where the party challenging it offers no evidence that a corporate defendant is a citizen of the forum state. Under Bane, registration to do business in Pennsylvania is sufficient for general personal jurisdiction, absent Third Circuit or Supreme Court direction to the contrary after Daimler.
• Mehnert v. Agilent Technologies, Inc. (2018). Timeliness of removal is judged by what the complaint and other papers objectively state, not what defendants knew or could have found out. A complaint that did not identify the worksite as a federal enclave did not start the 30-day removal clock; the later interrogatory answers did.
• Rabovsky v. Air & Liquid Systems Corporation (2016). Under Pennsylvania's common-law joint and several liability rule and Charles v. Giant Eagle, a non-settling joint tortfeasor must pay its full apportioned share of the verdict and gets no further set-off for settlements. A defendant gets a set-off only for settlements by parties found to be joint tortfeasors, not for unadjudicated asbestos bankruptcy trust claims. Delay damages under Rule 238 do not cover a loss of consortium award.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• Stellar v. Allied Signal, Inc. (2015). A state-law claim against an employer for asbestos exposure is not completely preempted by LMRA § 301 where the duty arises from state common law independent of the collective bargaining agreements and resolving the claim does not require interpreting any CBA provision.
• Graver v. Foster Wheeler Corp. (2014). The 12-year statute of repose for improvements to real property (42 Pa.C.S. § 5536) applies to asbestos personal injury claims against those who design or construct such improvements; the Abrams dictum that no repose exists in asbestos cases does not displace it.
• Summers v. Certainteed Corp. (2005). Under the Giffear/Simmons line and Quate, asymptomatic asbestos-related changes are not a compensable injury, and a plaintiff cannot recover where other conditions such as smoking-related lung disease make it impossible to tie shortness of breath or impairment to asbestos. The affirmance rests on an evenly divided court.
• Smalls v. Pittsburgh-Corning Corp. (2004). Evidence of a later product warning is admissible to impeach a defendant's claim that its product created no dust, and an expert's 'each and every breath' causation opinion is admissible; a verdict unsupported by the evidence of injury and loss of consortium is excessive and warrants a new trial on damages.
• Behrendt v. GAF Corp. (1993). A jury award that bears no reasonable relation to uncontradicted losses warrants a new trial, and it cannot be upheld as a compromise verdict where the special interrogatories show the jury resolved the liability dispute and the dispute was all-or-nothing. A new trial may be limited to damages where liability was fairly determined, the trial was free from error, and the evidence supports liability.
• Novelli v. Johns-Manville Corp. (1990). Loss of consortium damages run only from the spouse's injury to death; after death the surviving spouse must recover under a wrongful death statute. Because loss of consortium is part of the total compensable damages from the injury, Rule 238 delay damages may be added to a consortium award.
• Staiano v. Johns-Manville Corp. (1982). Under the discovery rule, the two-year limitations period starts when the plaintiff knows or reasonably should know of his injury, its operative cause, and the causal link between them; it does not wait until he learns which manufacturers made the products. A later-developing related disease from the same exposure does not start a new period.

Rhode Island

• Wallace v. Trane Company (2021). Under Maine law, an asbestos plaintiff must show product nexus, meaning exposure to asbestos that originated with the defendant's own product, before medical causation is reached. Evidence of third-party sealants or replacement materials used on a defendant's boilers does not establish that nexus.
• Wallace v. Trane Company (2020). Applying Maine law, a plaintiff must show exposure to asbestos that originated with the defendant's product (product nexus). Evidence that the defendant's catalog sold the same kind of third-party sealant is not enough without proof that the actual sealant used was sold or recommended by the defendant.
• Carson v. 3M Company (2018). Mesothelioma is an occupational disease under the Rhode Island Workers' Compensation Act, and an employee who did not preserve his common-law right to sue is barred by the exclusivity provision from suing his employer; a derivative loss of consortium claim fails with it.
• Nichols v. Allis Chalmers Product Liability Trust (2018). Under Rhode Island's ad hoc duty analysis, an employer owes a duty to a member of an employee's household who is exposed to asbestos dust on the employee's work clothes, where the harm was foreseeable. At summary judgment, the frequency, regularity, proximity test is met by evidence of regular exposure and an expert opinion on cumulative exposure.
• Stevens v. Air & Liquid Systems Corporation (2017). Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.
• Hostetter v. Air & Liquid Systems Corporation (2014). Under Rhode Island law, circumstantial product identification must show it is reasonably probable, not merely possible, that the defendant was the source of the product. Evidence that the defendant was one of several brake suppliers for the trucks does not meet that standard, and the resulting chain of inferences cannot support causation.
• LaPOINTE V 3M Company (2007). Summary judgment on product identification was premature where the defendant had not fully answered court-approved discovery and its employee's unsupported affidavit left a genuine factual issue about whether its products contained asbestos.
• LaPOINTE v. 3M Company (2007). Installing burners is an improvement to real property under the Rhode Island statute of repose, but servicing, repairing and maintaining them is not, so claims based on repair exposure are not repose-barred. Whether the burners contained asbestos and whether a duty to warn existed are jury questions.
• Lapointe v. 3M Company (2007). Summary judgment on product identification is premature where the plaintiffs cannot learn whether the defendant made the boilers the worker serviced until the defendant gives responsive answers to court-approved discovery requests.

South Carolina

• Jolly v. Fisher Controls International, LLC (2024). A trial court may grant a new trial nisi additur when a verdict is inadequate but not grossly so, giving substantial deference to the jury and stating compelling reasons. A setoff judge must make a reasonable allocation of settlement funds among the claims and may set off only settlements for the same injury.
• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Keene v. Cna Holdings, LLC (2019). A maintenance contractor's employee is not a statutory employee of the plant owner under S.C. Code § 42-1-400 merely because the maintenance was important or essential to the owner's operations; the work must actually be part of the owner's own trade, business or occupation.
• Murphy v. Owens-Corning Fiberglas Corp. (2003). For a latent disease tort claim by a nonresident against a foreign corporation, the Door Closing Statute is satisfied if the corporation's activities that allegedly exposed the victim to the harmful substance, and the exposure itself, occurred in South Carolina, even if injury appeared after the plaintiff left the state.
• Murphy v. Owens-Corning Fiberglas Corp. (2001). Under South Carolina's Door Closing Statute, a cause of action 'arises' where the act or omission giving rise to the claim originated (here, the asbestos exposure), even though it does not 'accrue' until diagnosis elsewhere. An order dismissing some but not all defendants under Rule 12 is directly appealable.

Tennessee

• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.
• Daniels v. Combustion Engineering, Inc. (Eastern Section, 1978). A court may exclude evidence of asbestos-related cancers where the plaintiff has only mild asbestosis and no cancer. Prior deposition testimony from different cases with different plaintiffs and no privity is not admissible. A charge on unavoidably unsafe products is proper where the plaintiff's own complaint put failure to warn in issue.

Texas

• Ross v. Union Carbide Corporation (14th District, 2009). A survivors' exemplary-damages claim under Texas Constitution art. XVI, § 26 or Labor Code § 408.001(b) is derivative of the Wrongful Death Act, so a worker's pre-death release of the tortfeasor bars it. An invalid workers' compensation waiver in a broad release can be severed without voiding the rest.
• Alcoa, Inc. v. Behringer (5th District, 2007). A negligence duty depends chiefly on foreseeability judged by what the defendant knew or should have known at the time. In the 1950s, the danger of non-occupational (take-home) asbestos exposure was neither known nor reasonably foreseeable to an employer that used asbestos, so no duty existed.
• Alcoa, Inc. v. Behringer (5th District, 2007). An employer owes no legal duty for take-home asbestos exposure unless the risk was foreseeable at the time; in the 1950s the danger of non-occupational exposure on workers' clothes was not known or reasonably foreseeable to Alcoa.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.

Washington

• Behrmann v. Abb, Inc. (2021). A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.
• Coogan v. Borg-Warner Morse Tec Inc. (2021). An appellate court may set aside a jury's damages verdict supported by substantial evidence only if the record unmistakably shows it was based on passion, prejudice or another improper consideration; the size of the verdict alone is not enough.
• Coogan v. Borg-Warner Morse Tec Inc. (2nd Division, 2020). A trial court acts as gatekeeper and abuses its discretion by excluding an expert opinion because it disagrees with the conclusion rather than because the foundation is inadequate. A noneconomic damages verdict can be set aside under CR 59(a)(5) when it shocks the court's conscience, even without a finding of passion or prejudice.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may not order a new trial on damages unless it has a firm conviction the jury erred, and may not grant judgment as a matter of law where substantial evidence, including admissible expert testimony on causation and exposure, supports the verdict.
• Brandes v. Brand Insulations, Inc. (1st Division, 2018). A wrongful death claim is barred where the decedent, after injury, pursued prior litigation to judgment against the same defendant, but not against defendants who were not parties to or in privity with parties in that litigation. Res judicata, double recovery and joinder concerns did not bar the claims against the non-party defendants.
• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Sofie v. Fibreboard Corp. (1989). A statutory limit on noneconomic damages that reduces a jury's damages finding violates article 1, section 21 of the Washington Constitution, because determining damages is part of the jury's protected fact-finding role. The asbestos case also fell within the hazardous-substances exception to the limit on joint and several liability.