Compensatory Damages in Asbestos Cases

Decisions in our library in which the court ruled on amount of compensatory damages: 350 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

Compensatory damages pay for the harm caused. They usually include:

• economic damages: medical bills, lost earnings and earning capacity, lost financial support, household services, funeral costs;
• noneconomic damages: pain and suffering, mental anguish, loss of enjoyment of life, and, where the law allows, a family's loss of companionship.

Decisions in this section deal with:

• verdicts claimed to be excessive, where a court may order a new trial or offer the plaintiff a reduced award instead (remittitur), and verdicts claimed to be inadequate, which may lead to a new trial;
• state caps on noneconomic damages;
• collateral source rules on whether payments from independent sources, such as health insurance, reduce what a defendant owes. Payments from settling defendants and trusts are a different question; see settlement credits;
• how future losses are calculated;
• what can be recovered after the person dies, which depends on the difference between survival and wrongful death claims; see wrongful death and survival.

Alabama

• Bobo v. Tennessee Valley Authority (2017). Predicting Alabama law, the court held that an employer has a duty to prevent take-home asbestos exposure of an employee's household members when the injury is foreseeable and public policy supports a duty. The court also held that medical charges written off by providers under insurer agreements are not recoverable as damages.
• Bobo v. Tennessee Valley Authority (2015). Applying Alabama law as it predicted, the court held that an employer owes a duty of reasonable care to an employee's household member exposed to asbestos carried home on work clothes, and that substantial factor causation applies to asbestos negligence claims involving multiple exposures. It also held that TVA was not shielded by the discretionary function doctrine because it violated mandatory rules.

Arizona

• Coulbourn v. Crane Co. (2018). Under Arizona law, where several defendants' asbestos products may have caused an indivisible injury, a defendant's product is a causal factor if it was a substantial factor, meaning it was independently sufficient to cause the disease. Evidence that a manufacturer knew its gaskets would expose workers to fatal dust can support punitive damages.
• DeStories v. City of Phoenix (1st Division, Dept. A, 1987). Under Arizona law, exposure to asbestos that creates only an increased risk of future disease, with no present physical harm or medically identifiable effect, is not a compensable injury and does not support damages for emotional distress. Future medical surveillance costs also require evidence that they are reasonably necessary.

California

• Brooks v. Mission Stucco Company (2nd Appellate District, 3rd Division, 2024). A special verdict that finds a single design defect both was and was not a substantial factor in causing harm is irreconcilably inconsistent, and the reviewing court cannot choose between the answers. A new trial may be limited to liability on that theory and fault allocation, leaving the total damages intact.
• 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.
• 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.
• 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.
• 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.
• Kramer v. Amcord Inc. (1st Appellate District, 3rd Division, 2020). A trial court does not abuse its discretion under Evidence Code section 721(b)(3) where an expert's acknowledgment that a publication is generally reliable does not establish it as a reliable authority on the causation issue, and an economic damages award stands if supported by substantial evidence.
• Linsowe v. Hennessy Indus. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A special verdict whose findings cannot be reconciled with one another is against the law, so a new trial is required; an appellate court may not choose between inconsistent answers, and the rule of reconciliation applies only to conflicts between general and special verdicts. Because of the inconsistencies, the court could not order JNOV on liability for either side.
• Williams v. the Pep Boys Manny Moe & Jack OF California (1st Appellate District, 4th Division, 2018). Damages in a survival action by a decedent's personal representative or successor in interest are limited to loss the decedent sustained or incurred before death and exclude 'lost years' damages. A Doe amendment relates back only if the plaintiff was actually ignorant of the facts establishing a claim against the defendant when the original complaint was filed.
• 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.
• Hanson v. Collins Electrical Co. (1st Appellate District, 1st Division, 2016). Under Potter v. Firestone, medical monitoring damages in a negligence action do not require present physical impairment. The question is whether expert evidence shows monitoring is a reasonably certain and reasonable consequence of the toxic exposure.
• Kelly v. CBS Corporation (2015). Defendants may not base a sophisticated user defense on the Navy's knowledge imputed to the plaintiff; they must show that the plaintiff himself received information that made him know, or should have made him know, of the asbestos dangers.
• Soto v. BorgWarner Morse Tec Inc. (2nd Appellate District, 4th Division, 2015). A punitive damages award cannot stand without meaningful evidence of the defendant's financial condition, and revenue figures alone are not enough. A minor is 'dependent' under Code Civ. Proc. § 377.60(c) only if financially reliant on the decedent for the necessaries of life, not merely for niceties.
• Izell v. Union Carbide Corp. (2nd Appellate District, 3rd Division, 2014). In an asbestos cancer case, a plaintiff must show exposure to the defendant's asbestos, and then in reasonable medical probability that the exposure was a substantial factor in increasing the risk of disease. A reduction of compensatory damages does not by itself require a new trial on punitive damages; the award is tested under the State Farm due process guideposts.
• 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.
• Ward v. Goss-Jewett Co. OF Northern California (1st Appellate District, 3rd Division, 2014). A defendant served with a statement of damages is entitled to actual notice a reasonable period of time before default, not a fixed 30 days. A default judgment cannot exceed the amounts in the operative statement of damages.
• Bankhead v. ArvinMeritor, Inc. (1st Appellate District, 4th Division, 2012). Punitive damages need not be measured against a defendant's net worth, and no 10 percent of net worth ceiling exists; a roughly 2.4-to-1 punitive-to-compensatory ratio for highly reprehensible conduct did not violate federal due process.
• Bankhead v. Pneumo Abex LLC (1st Appellate District, 4th Division, 2012). A defendant that stonewalls discovery on its financial condition cannot complain about the exclusion of its unverified financial statement. Indemnity evidence admitted for a limited purpose, even if erroneous, does not require reversal when substantial evidence of the defendant's own wealth supports the punitive award.
• 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.
• Kelemen v. John Crane, Inc. (2nd District, Division 2, 2011). Punitive damages require evidence of the defendant's financial condition, and a defendant that refuses a court order to produce its financial records cannot then argue the plaintiff lacked such evidence. A future pain and suffering award is excessive when it is based on life expectancy without the disease rather than the plaintiff's actual short prognosis.
• Collins v. Plant Insulation Company (1st Appellate District, 1st Division, 2010). Federal sovereign immunity under the FTCA's discretionary function exception is an immunity from suit, not a determination that the government owes no duty or is not at fault, so fault may be apportioned to the Navy under Proposition 51.
• Davis v. Leslie Controls, Inc. (2nd Appellate District, 7th Division, 2010). A party who does not request an instruction defining the ordinary consumers for the consumer expectations test forfeits that claim. A design defect finding independently supports the judgment, so the court did not decide whether the sophisticated user defense applies when the employer is the sophisticated user. A non-economic damages award that is excessive as a matter of law requires remittitur or a new trial.
• 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.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2009). When a plaintiff accepts a remittitur reducing non-economic damages, the ratio of economic to total damages must be recalculated, which increases the settlement credit against the defendant's joint liability for economic damages under Civil Code section 1431.2 and Greathouse.
• 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.
• Clemmer v. John Crane, Inc. (1st Appellate District, 4th Division, 2008). A remittitur may be used only when a new trial is warranted solely because damages are excessive, not to correct an improper apportionment of fault. Counsel's closing argument urging that two separate companies were the same entity, after counsel conceded they were separate, was misconduct that could justify a new trial.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2007). A raw-asbestos supplier is not relieved of its duty to warn merely because the buyer-employer knew or should have known of asbestos hazards or was subject to OSHA rules. A noneconomic damages award that is grossly disproportionate to the evidence and was influenced by improper argument may be reduced or retried on appeal.
• 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.
• Quarles v. Advocate Mines Limited (1st Appellate District, 2nd Division, 2006). A supplier of raw asbestos fiber that is used in a finished product can be liable for design defect under the consumer-expectations test, and substantial evidence supported the jury's findings on liability, exposure, causation and damages.
• Taylor v. John Crane, Inc. (1st Appellate District, 4th Division, 2003). Under Proposition 51, fault may be allocated to an entity that is immune from paying for its tortious acts, but not to an entity whose conduct has been declared non-tortious. Fault could therefore be allocated to the Navy even assuming it was immune.
• Ehret v. Congoleum Corp. (2nd Appellate District, 4th Division, 2001). Under Code of Civil Procedure section 685.020(a), which continued prior practice, postjudgment interest runs from the original judgment on the verdict when an appellate decision only modifies the judgment rather than reversing it.
• 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.
• Gutierrez v. Cassiar Mining Corp. (1st Appellate District, 2nd Division, 1998). Under Potter, a plaintiff may recover medical monitoring costs only for monitoring additional to or different from what preexisting conditions such as smoking already require, and a defendant is entitled on request to a jury instruction saying so when the evidence supports it.
• Buttram v. Owens-Corning Fiberglas Corp. (1997). For deciding whether Proposition 51 can be applied prospectively, a cause of action for a latent disease like mesothelioma accrues when the plaintiff is diagnosed or otherwise discovers the illness or injury, not when undetected cellular changes began.
• 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.
• Morton v. Owens-Corning Fiberglas Corp. (1st Appellate District, 2nd Division, 1995). The consumer expectations test for design defect can apply to asbestos insulation products. Evidence of what the scientific community knew about asbestos dangers is irrelevant under that test, which looks to ordinary consumers' expectations.
• Williamson v. Plant Insulation Co. (1st Appellate District, 3rd Division, 1994). Under former Probate Code section 573(c), pain and suffering damages and unincurred future economic losses do not survive a plaintiff's death before judgment, and neither section 669 nor nunc pro tunc entry applies when the plaintiff dies during trial before the case is ready for judgment. Under Code of Civil Procedure section 340.2, substantial evidence supported the jury's finding that the asbestosis claim was timely.
• General Foundry Service v. Workers'comp. Appeals BD. (1986). For an employee with a progressive occupational disease, the Board may tentatively rate permanent disability, order advances, and reserve jurisdiction for a final rating until the condition is permanent and stationary or the disability is total. Vocational rehabilitation should be considered before the final permanent disability rating, rather than applying the odd lot doctrine.
• JT Thorp, Inc. v. Workers'comp. Appeals BD. (3rd Appellate District, 1984). An employee with an occupational disease such as asbestosis may claim and receive workers' compensation for medical treatment before the statutory 'date of injury' (onset of disability), and such an award does not trigger the five-year limit on later awards for disability or further medical care. The board need not 'defer' a disability finding; a finding of no disability suffices.
• Johns-Manville Products Corp. v. Superior Court (1980). Workers' compensation is the exclusive remedy for an employee's initial injury, including injury from an employer's knowing failure to make the workplace safe. An employee may still sue at law for aggravation of the disease caused by the employer's fraudulent concealment of the condition and its work-related cause.

Connecticut

• Estate OF Frederick v. General Dynamics Corp. (1997). A surviving dependent spouse and the estate of an employee who died of an occupational disease are entitled to benefits under §§ 31-306 and 31-307 even if the decedent had not worked for the employer in the twenty-six weeks before the disease manifested, following Green v. General Dynamics Corp.
• BellSouth Telecommunications v. WR Grace (1996). Under the Connecticut Product Liability Act, an asbestos abatement claim accrues when the plaintiff knows or should know of actual contamination and of the causal link between the defendant's product and that contamination; it does not wait until the full extent of the loss is known.