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.

Maryland

• Eagle-Picher Industries, Inc. v. Balbos (1990). A jury's negligence verdict was upheld despite arguably inconsistent findings, and a defendant's failure to warn was a cause-in-fact of harm to bystander shipyard workers, with expert evidence of asbestos fibers drifting supporting the inference that bystanders were exposed. Suppliers could not rely on the employer as a sophisticated purchaser. Punitive damages require direct evidence of substantial knowledge that the product itself was dangerous and gross indifference to that danger.

Massachusetts

• Burleigh v. Alfa Laval, Inc. (2018). Under the Restatement (Second) of Conflict of Laws §§ 145-146, the law of the place of injury applies unless another state has a more significant relationship. Maine, where the decedent lived, worked and was exposed, had that relationship on the issues decided, even though the defendant's conduct occurred in Massachusetts.
• Letteney's (dependent's) Case (1999). Only employment covered by the Massachusetts workers' compensation act's definition of employee (G. L. c. 152, § 1 (4)) may be used to determine the average weekly wage under § 35C for an employee who becomes eligible five or more years after the injury.
• Thayer v. Pittsburgh-Corning Corporation (1997). Under Vassallo, a defendant is not liable under the implied warranty of merchantability for failure to warn of risks not reasonably foreseeable at the time of sale, so state of the art evidence is relevant. Lack of privity is judged by the date of injury, not the date of exposure or sale.

Minnesota

• Conwed v. Union Carbide Chem. and Plastics (2001). An employer's third-party subrogation claim under Minn. Stat. § 176.061 depends on an employee's compensable injury and the employer's present duty to pay benefits, so it cannot rest on statistical projections of future illness. Prejudgment interest is available to the employer in such an action.
• Kath v. Burlington Northern R. Co. (1989). Failure to object at trial to a special verdict form or to refused instructions waives the objection on appeal. Averaging juror damage estimates is not misconduct without proof of an advance agreement to be bound by the average.
• Crepeau BY Crepeau v. Krost Insulation Co. (1983). Liability falls on the insurer covering the employer at the time of the employee's last substantial asbestos exposure. A surviving spouse's dependency benefits are based on the daily wage at the time of the injury, and a full-time employee who deliberately limited his earnings is still treated as full-time under the statute.

Mississippi

• Illinois Central Railroad Company v. Oakes EX rel. Hagan (2018). Under FELA, a railroad defendant is entitled to a dollar-for-dollar (pro tanto) setoff against a verdict for money already paid to the plaintiff for the same injuries; Ayers bars apportioning fault to nonparties but does not bar setoffs.
• Union Carbide Corporation v. Nix (2014). A manufacturer's compliance with the OSHA warning wording does not make its warning adequate as a matter of law, and expert testimony is not required where a warning's adequacy is within a layperson's understanding. A judge's comments suggesting the compensatory award was too low can taint a punitive award submitted right after.
• Geske v. Williamson (2006). The collateral source rule applies only when the other compensation is for the same injury as the damages sought, and it is not violated when the evidence is offered for a purpose other than reducing damages. Here the asbestos settlement was for a separate injury and was relevant to the claimed emotional distress.

Missouri

• Ingham v. Johnson & Johnson (Eastern District, 2nd Division, 2020). Specific personal jurisdiction must be shown separately for each non-resident plaintiff's claim, and a parent corporation's jurisdictional contacts can be attributed to it from a subsidiary only through proven agency or alter ego. Expert testimony was admissible under section 490.065, and the evidence supported submitting causation and punitive damages to the jury.
• Poage v. Crane Co. (Eastern District, 2nd Division, 2017). A plaintiff can show a valve maker's product was a substantial factor in causing mesothelioma through a co-worker's testimony about shared work on the valves, and the maker owes a duty to warn and to design safely where its valves required or specified asbestos gaskets and packing. Missouri's statutory cap on punitive damages does not apply to this wrongful death action, and a defendant's setoff under § 537.060 is limited to settlements actually reached, not possible future asbestos trust recoveries.
• Urbach v. the Okonite Company (Eastern District, 2017). Under Wisconsin substantive law, co-worker testimony and expert bystander-exposure evidence can support a jury finding that a defendant's asbestos product was a substantial factor in causing mesothelioma. Wisconsin's wrongful-death cap applies after fault is apportioned, and the Wisconsin statute requiring assignment of asbestos trust claims before collecting a judgment is procedural, so Missouri law governs it.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.
• Hoskins v. Business Men's Assurance (Western District, 2003). Punitive damages were properly submitted where clear and convincing evidence showed the manufacturer knew its sprayed asbestos product was dangerous to those who would later remove it. Prejudgment interest under section 408.040.2 cannot be awarded on punitive damages because its purposes are compensation and encouraging settlement, not punishment.
• Clayton Center Assoc. v. WR Grace & Co. (Eastern District, 2nd Division, 1993). A building owner may recover in strict liability and negligence for asbestos contamination of the building from a fireproofing product. A claim accrues when asbestos fibers are released and a substantial, unreasonable risk of harm can be ascertained, and the economic loss doctrine does not bar recovery for damage to property other than the product itself.

Montana

• Baeth v. Liberty NW Ins. Corp. (2014). Where an occupational disease involves successive employers, the last employer is liable if the claimant's work there was of the same type and kind as the conditions that could have caused the disease. Pursuing civil suits against other parties for the same exposure does not judicially estop a claimant from a workers' compensation claim.
• Monroe v. Maco Workers Comp Trust (2014). Where an occupational disease has not previously been adjudicated against any employer, the "potentially causal" standard applies, so liability falls on the employer of the last employment with exposure of the type and kind that could have caused the disease. The one-year claim period for an occupational disease runs from when the claimant knew or should have known the condition resulted from that employment.
• Johnson v. Liberty Northwest Insurance Corporation (2009). Under the last injurious exposure rule, the insurer for the last employer in whose employment the worker was injuriously exposed is liable for the whole occupational disease; about eight years of asbestos exposure at the last employer was enough to be injurious and sufficient to cause the disease.

Nebraska

• In re Estate of McConnell (2020). Wrongful death proceeds are not estate property and are not waived by a premarital agreement unless its language specifically waives them. A spouse's wrongful death recovery is limited to pecuniary loss after the death, and pain and suffering before death belongs to the estate under a survival claim.
• Olivotto v. DeMarco Bros. Co. (2007). Under the last injurious exposure rule, liability for an occupational disease falls on the employer whose work exposed the employee in a way that could cause the disease. A worker who retired decades before disability suffered no loss of earning capacity and gets no weekly indemnity benefit.
• Osteen v. AC & S., Inc. (1981). Where an asbestos-related occupational disease develops over successive employments and its onset cannot be pinpointed, the employer of the last injurious exposure pays the entire award. That exposure need only be of a kind that could cause the disease, and the limitations period and benefit rate run from the date disability is first incurred.

New Jersey

• Kaenzig v. Charles B. Chrystal Company, Inc. (2015). In an asbestos failure-to-warn case, a plaintiff must prove product-defect causation and medical causation, and exposure is a substantial factor if it meets the frequency, regularity and proximity test. Discovery of a non-testifying consulting expert's facts or opinions requires exceptional circumstances.
• Buttitta v. Allied Signal, Inc. (2010). In a mesothelioma case, the frequency, regularity and proximity test is applied in light of expert evidence that the disease can follow minimal and infrequent exposure, so brief but regular work near a defendant's asbestos product can support a jury finding of medical causation.
• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• Thalman v. Owens-Corning Fiberglas (1996). A jury damages award may be set aside or reduced only on a carefully reasoned and articulated finding that it would be a manifest denial of justice; a remittitur based on speculation or an unexplained 'more reasonable number' was improper.
• Higgins v. Owens-Corning Fiberglas (1995). A jury may apportion fault only among parties to the suit, so placing a non-party that had not settled on the verdict sheet was reversible error. Future consequences of an existing injury are compensable if reasonably probable, and the plaintiff must be allowed to present expert evidence of probable progression of his asbestosis.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Schiavo v. Owens-Corning Fiberglas (1995). A 'day in the life' videotape is admissible once the trial judge finds it relevant, probative and an accurate depiction of the injuries, and error in admitting punitive-phase documents without foundation may be harmless where the punitive award was minimal.
• Goss v. American Cyanamid Co. (1994). A plaintiff must show exposure to the defendant's asbestos products with sufficient frequency, regularity and proximity, but may do so by circumstantial evidence, including a distributor's supply of the products to the plant. A trial court may not set aside a jury verdict and resubmit an issue when the evidence supports a reasonable inference for the jury's finding.
• Mauro v. Raymark Industries, Inc. (1989). A plaintiff with a present asbestos-related injury cannot recover damages for an enhanced risk of future cancer unless the cancer is reasonably medically probable. Medical surveillance costs and emotional distress damages remain recoverable, and a later suit is allowed if cancer develops.
• Fischer v. Johns-Manville Corp. (1986). Punitive damages may be pursued and awarded in a strict liability, failure-to-warn products case, including asbestos cases, when the manufacturer knew of or was culpably indifferent to an unnecessary risk and refused to reduce the danger. The standard is a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.
• Bush v. Johns-Manville Products Corporation (1977). Dependency benefits for death from occupational disease are computed on wages under the contract of hiring with the employer liable for compensation, at the time of exposure or employment, not on later wages or the date of death; any change to the wage base is for the Legislature.

New York

• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (1st Dept., 2025). Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (1st Dept., 2024). A plaintiff shows specific causation under Nemeth by expert testimony based on generally accepted methodologies that offers a scientific expression of exposure level, such as quantitative exposure estimates backed by epidemiological risk data. The pain and suffering award did not deviate materially from reasonable compensation.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2024). A pain and suffering award that deviates materially from reasonable compensation under CPLR 5501(c) must be reduced or retried, and under General Obligations Law § 15-108 settlement amounts paid by settling defendants are deducted from the total award, with specified offsets for a settling defendant on the verdict sheet.
• Matter of Reid v. National Grid (3rd Dept., 2023). The Board has great latitude in setting the date of disablement, and its finding is upheld if supported by substantial evidence. Where a worker never established a claim or was found disabled during his lifetime, the date of death may be used as the date of disablement for computing the average weekly wage.
• McWilliams v. AO Smith Water Prods. Co. (2023). A verdict is set aside as against the weight of the evidence only if no valid line of reasoning could lead rational jurors to it, and pain-and-suffering awards receive great deference. Counsel who submit false discovery responses and let an expert give false testimony uncorrected engage in sanctionable frivolous conduct under 22 NYCRR 130-1.1.
• Petro v. Aerco Intl., Inc. (2023). A jury verdict may be set aside only if no valid line of reasoning and permissible inferences could lead rational jurors to the result. Disputed facts, credibility and the weight of expert testimony are for the jury, and expert causation testimony needs enough specificity about exposure but not a precise numerical dose.
• Seen v. Kaiser Gypsum Co., Inc. (2023). A jury verdict in a toxic tort case stands where the experts tied the decedent's exposure to historical industrial hygiene data and studies showing sufficient exposure to cause mesothelioma, as Nemeth II requires. A pain-and-suffering award within the range of awards in similar cases is not excessive.
• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (4th Dept., 2020). A plaintiff need not quantify exposure precisely or use dose-response data to prove specific causation; evidence that the plaintiff was exposed to levels of the agent known to cause the harm, including expert opinion drawing on studies of similar work, suffices. A verdict sheet need not list loss of services and loss of society as separate items.
• 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.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• 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.
• Phelps v. CBS Corporation (2020). An expert may give specific-causation and exposure opinions in response to hypothetical questions based on facts established elsewhere at trial, and challenges to the factual assumptions go to weight rather than admissibility. Testimony from the worker, a naval expert and an industrial hygienist was enough to create a genuine factual dispute on whether exposure from Crane Co. valves was a substantial factor in causing mesothelioma.
• Ford v. AO Smith Water Products (1st Dept., 2019). An award for future pain and suffering that deviates materially from reasonable compensation may be reduced under CPLR 5501(c), where the jury found the decedent would live only one month. Expert testimony that the asbestos dust quantities were sufficient to cause mesothelioma was adequate, and a 25% liability allocation to the boiler maker was not against the weight of the evidence.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (Erie, 2019). A manufacturer has a duty to warn of dangers from the known and reasonably foreseeable use of its product with a third-party product needed for it to function as intended. Specific causation does not require precise quantification of dose, only evidence that the plaintiff was exposed to levels of the agent known to cause the harm.
• 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.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2018). A jury verdict is set aside only if it could not be reached on any fair interpretation of the evidence, but damages that deviate materially from reasonable compensation must be reduced. A boiler maker has a duty to warn of asbestos hazards from foreseeable removal of its boilers and the asbestos components used with them.
• 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.