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.

Louisiana

• Storer v. Crown Cork & Seal Company, Inc. (2017). Whether lost earnings and loss of support include income the decedent would have earned through his company is a question of fact that cannot be resolved on summary judgment. If the plaintiffs prove their tort claims, the factfinder determines the damages proximately caused.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Landry v. Columbia Casualty Company (2015). Under Louisiana law, the injury-causing event for bystander (Lejeune) damages is the asbestos exposure, not the later progression of mesothelioma, so family members who observed the disease years later cannot recover bystander damages.
• Vedros v. Northrop Grumman (2015). Under Louisiana Civil Code article 2315.6 and Lejeune, bystander mental anguish damages require that the claimant witness the injury-causing event or come upon its scene soon after; watching a relative's disease progress does not qualify.
• Comardelle v. Pennsylvania General Insurance Company (2014). Under Louisiana law (Lejeune and La. Civ. Code art. 2315.6), bystander mental anguish damages require that the claimant viewed the injury-causing event or came upon the scene soon after; watching a latent asbestos disease progress years after exposure does not qualify.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• White v. Entergy Gulf States Louisiana (1st Circuit, 2014). A survival action permits recovery only for the victim's own damages from injury to death, and a trial court's general damage award is disturbed only for clear abuse of its vast discretion. Here the award was high but not an abuse of discretion.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Rando v. Anco Insulations Inc. (2009). Mesothelioma from asbestos contact was not a covered occupational disease under the 1952 version of La.Rev.Stat. 23:1031.1, so the Workers' Compensation Act's exclusive remedy provision did not bar a tort suit against the employer for it.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2008). The 1952 version of the Louisiana workers' compensation statute did not cover mesothelioma, so exclusivity did not bar a tort suit against the employer. The peremption exception for those in possession or control of an improvement applies to a contractor that controlled the construction, not just to owners, lessors and tenants.
• Tabor v. Anco Insulations, Inc. (3rd Circuit, 2008). An insurer must defend unless the underlying petition unambiguously excludes coverage, and the allegations are read liberally. Under the policy's defense clause, the insured can recover only the costs of defending the underlying claims, not the costs of pursuing claims against others.
• Terrance v. Dow Chemical Company (1st Circuit, 2007). Mesothelioma was not a compensable occupational disease under the pre-1975 Louisiana workers' compensation statute, so the tort claim against a premises owner was not barred. A defendant seeking a credit for a settling party's fault must prove that party's fault at trial; settlement documents are not admissible to prove it.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Thomas v. AP Green Industries, Inc. (4th Circuit, 2006). A premises owner can be directly liable for its own negligence toward a contractor's employee even if the independent contractor defense bars vicarious liability, and the substantial contributing factor test for causation applies to premises owners as well as product defendants.
• Roberts v. Owens-Corning Fiberglas Corp. (1st Circuit, 2004). A trial court cannot substantively change a final judgment by a second judgment without a proper procedure, so the change is an absolute nullity. A premises owner that knew or should have known asbestos exposure caused serious lung disease and cancer is liable for mesothelioma even without specific knowledge of that disease.
• Torrejon v. Mobil Oil Co. (4th Circuit, 2004). Under the Jones Act a seaman need only show the employer's negligence was a cause, however slight, of the injury, and the jury's finding of negligent asbestos exposure together with the stipulation that asbestos caused the mesothelioma left no reasonable basis for finding no causation. A defendant seeking to reduce liability for settling manufacturers' fault must prove their liability, and allegations in another suit's complaint do not do so.
• Bonnette v. Conoco, Inc. (2003). Louisiana law does not allow compensatory damages for a slightly increased risk of future asbestos disease on less proof than medical monitoring requires. Emotional distress damages without manifest physical injury require proof of a particular likelihood of genuine and serious mental distress. Punitive damages under former art. 2315.3 require wanton or reckless conduct.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A product is unreasonably dangerous per se if its danger-in-fact outweighs its utility, regardless of the manufacturer's knowledge. Working near contractors who cut the product is enough evidence of exposure to support liability.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Egan v. Kaiser Aluminum & Chemical Corp. (4th Circuit, 1996). A short exposure to a defendant's asbestos product can be a substantial contributing factor in mesothelioma, and circumstantial evidence can support an inference that the product came from that defendant. Louisiana law, which bars punitive damages here, governed a Louisiana resident's asbestos injury in Louisiana.
• Atkinson v. Celotex Corp. (3rd Circuit, 1994). A jury's general damage awards in asbestos injury cases are reviewed under a great-discretion standard and are disturbed only if beyond what a reasonable trier of fact could award. Where medical evidence supports two permissible views, the jury's choice is not manifestly erroneous.
• Coates v. AC and S, Inc. (1994). Pre-comparative-fault law and equal ("by heads") apportionment governed the wrongful death claim because the significant exposures came before August 1, 1980. The court refused to rule asbestos products unreasonably dangerous per se as a matter of law, admitted the OSHA and EPA publications, and denied Owens-Corning's three motions.
• White v. Johns-Manville Sales Corp. (5th Circuit, 1982). Under Louisiana's occupational disease compensation provision, the compensation rate is fixed at the date the disease manifests as disability, not the date of last injurious exposure. A claimant who shows he falls in the 'odd-lot' category shifts to the employer the burden of showing available work.

Maine

• In re Moorenovich (1986). Predicting Maine law, the court held that fear of cancer is a recoverable element of damages for present anxiety in asbestos exposure cases. The anxiety must be reasonable and proximately caused by exposure for which the defendants are legally responsible.

Maryland

• Dixon v. Ford Motor Company (2013). An expert's opinion that each exposure to asbestos contributed to mesothelioma need not undergo Frye/Reed review when it rests on evidence of repeated, high-intensity exposure to the defendant's product. A trial court abuses its Rule 2-535 discretion by overturning a jury verdict that the evidence reasonably supported.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Crane v. Linkus (2010). Expert testimony that a defendant's unencapsulated asbestos product released respirable fibers above ambient levels is not required; lay testimony of visible dust from regular handling, plus expert testimony on dose-response and no safe threshold, can let a jury infer substantial-factor causation. A defendant is not credited for payments from bankrupt entities absent proof of tortfeasor status or trust terms providing a reduction.
• John Crane, Inc. v. Puller (2006). A claim for asbestosis and a claim for mesothelioma are separate claims, so the voluntary dismissal of the earlier asbestosis suit did not bar the later suit by collateral estoppel because no fact was actually litigated. In asbestos cases a loss of consortium claim arises when the underlying injury claim arises (the exposure test), so Maryland's non-economic damages cap does not apply to it when it does not apply to the underlying survival action.
• Owens-Illinois, Inc. v. Cook (2005). Under the exposure approach, the noneconomic damages cap does not apply when the last asbestos exposure was before July 1, 1986, and this also covers a derivative loss of consortium claim. A premarital latent injury does not bar a consortium claim if neither spouse knew or could reasonably have known of it at marriage.
• Owens-Illinois, Inc. v. Cook (2005). A loss of consortium claim based on a latent premarital injury that neither spouse knew or could have known of at marriage accrues when the injury is discovered or reasonably discoverable. It is not subject to the damages cap when the underlying personal injury claim is not. A release reserving claims for mesothelioma is read as a whole under objective contract principles.
• Owens-Illinois, Inc. v. Hunter (2005). A witness's testimony is not stripped of probative value because of conflicts or inconsistencies on peripheral points. In asbestos cases a loss of consortium claim arises with the underlying injury and is not capped if the last exposure was before July 1, 1986. A trial judge may consider the ratio between survival-action and consortium damages when deciding remittitur, and the cap applies to a wrongful death claim that arose at death after the cap took effect.
• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Crane, Inc. v. Scribner (2002). For the Maryland cap on non-economic damages, the court may look to the plaintiff's last exposure to the defendant's asbestos product; if that exposure was undisputedly before July 1, 1986, the cap does not apply. The plaintiff bears the burden of showing the cause of action arose before the cap date, and a genuine factual dispute goes to the jury.
• Georgia-Pacific Corp. v. Pransky (2002). The Balbos frequency, proximity and regularity test for substantial-factor causation applies to any bystander, whether the exposure is occupational or non-occupational. A cause of action for an asbestos-related disease arises before July 1, 1986 if the last exposure was undisputedly before that date, so the non-economic damages cap does not apply.
• Owens-Illinois v. Gianotti (2002). Under Scribner, the Maryland noneconomic damages cap does not apply when the plaintiff's last asbestos exposure was before July 1, 1986. A loss of consortium claim is barred by a premarital injury only if the couple knew or should have known of the injury when they married.
• Royal Ins. Co. of America v. Miles & Stockbridge (2001). Expert testimony is required to show that a lawyer's settlement advice breached the standard of care, and a claimant whose own experts disclaim a breach cannot show negligence as a matter of law. A malpractice claimant must also prove that the lawyer's alleged error caused harm.
• Hollingsworth v. Connor (2000). A nonresident component maker that sold its product to another company outside the forum, and did not direct activity at the forum, lacks minimum contacts even if it knew the product would be sold there. For Maryland's noneconomic damages cap, a mesothelioma cause of action arises when the disease is contracted, not at the first cellular change.
• Owens Corning v. Bauman (1999). A cause of action for a latent asbestos-related disease such as mesothelioma "arises" under the noneconomic damages cap when the disease comes into existence, not when it is diagnosed or manifests symptoms. When that date is disputed, Article 23 of the Maryland Declaration of Rights requires the jury to decide it, upon a proper request.
• Owens Corning v. Walatka (1999). The plaintiff bears the burden of proving that a cause of action arose before the effective date of Maryland's noneconomic damages cap, and the cap does not violate the separation of powers clause. Under the proximity, frequency and regularity test, circumstantial evidence of a bystander's presence near a named product's use can support a finding of substantial causation.
• Porter Hayden Company v. Wyche (1999). The statutory cap on noneconomic damages applies presumptively, and plaintiffs bear the burden of producing probative evidence that the disease arose before the cap's July 1, 1986 effective date; a hedged expert estimate that did not show the cancer pre-dated that date was insufficient.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Ford Motor v. Wood (1998). A bystander plaintiff must show frequent, regular exposure to the defendant's own asbestos products, and a vehicle maker has no duty to warn about replacement brake parts it did not make, sell or place in commerce. Evidence of exposure to other asbestos products is admissible as an alternative cause only if the proffered exposures could have caused the disease.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• Owens-Corning Fiberglas Corp. v. Baltimore City (1996). To recover punitive damages in a non-intentional product case, the plaintiff must prove by clear and convincing evidence that the defendant actually knew, before the product left its control, that it posed a serious risk to the class of persons at issue; knowledge of danger to asbestos trade workers does not show knowledge of danger to ordinary building users.
• Owens-Illinois, Inc. v. Armstrong (1992). A trial judge may exclude a document that technically qualifies as a business record if the objecting party shows it lacks the usual reliability, though a heavy burden applies. A cause of action arises under the noneconomic damages cap when it comes into existence, not when it is discovered. The contribution statute does not reduce a nonsettling defendant's liability by another defendant's punitive damages settlement.