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.

New York

• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). A manufacturer of a grinder used on asbestos-containing brake linings has a duty to warn of the latent danger from the foreseeable use of its product, and expert testimony that the grinder's use created asbestos dust sufficient to cause mesothelioma was adequate to establish causation.
• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (1st Dept., 2016). An owner that specifies the means and methods of work and coordinates the trades can be liable under Labor Law § 200, and a pre-1996 indemnification clause covering all losses arising from the work can require the contractor to indemnify the owner, including fees for defending the plaintiff's action but not for prosecuting the indemnity claim.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (2016). A party challenging a joint-trial order must assemble an adequate appellate record and must specifically object when circumstances change, such as after some cases settle, to preserve the challenge. The Court of Appeals has no power to review a claim that damages are excessive.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (2016). A manufacturer that knew its product would mainly be used with asbestos-containing brakes and designed it for that use may be held to have a duty to warn. Visible dust from an asbestos-containing product can support expert testimony on specific causation of mesothelioma without precise dose quantification.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). A manufacturer that promoted and sold asbestos insulation for its boilers, and for which insulation was a practical necessity, could be held to have a duty to warn of asbestos hazards. Unpreserved objections to jury instructions are not reviewed.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). Applying the Court of Appeals' 2016 standard, a manufacturer may be liable for failing to warn of asbestos hazards in insulation used with its products where it promoted and sold that insulation and its products needed insulation to operate safely and efficiently.
• Mtr OF Nyc Asbestos Litig. (2016). A manufacturer has a duty to warn of the danger from the known and reasonably foreseeable use of its product together with a third-party product that, by design, mechanics or economic necessity, is necessary for the manufacturer's product to function as intended. Foreseeability alone does not create the duty.
• Assenzio v. AO Smith Water Prod. (2015). A court may use its discretion to modify its earlier order and to stay proceedings, even without new facts. Here it extended the time to accept a reduced verdict until an appeal on how remittitur is evaluated is decided, because the potential prejudice to plaintiffs outweighed defendants' interest in knowing sooner.
• Assenzio v. AO Smith Water Prods. (2015). Reargument requires showing the court overlooked or misapplied law, and renewal requires new facts or a change in law; a pending appeal and a judgment-molding calculation under General Obligations Law § 15-108 do not qualify. The court may still grant a stay under its discretionary authority (CPLR 2201).
• 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.
• Hackshaw v. Crane Co. (In re New York City Asbestos Litigation) (2015). A verdict may be set aside only where no valid line of reasoning could support it. A manufacturer with a significant role, interest or influence in the asbestos components used with its products may owe a duty to warn, and evidence of that role supported the failure-to-warn and recklessness findings. Awards that deviate materially from reasonable compensation are reduced under CPLR 5501(c).
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (Erie, 2015). A trial court may set aside a damages award that deviates materially from reasonable compensation and order a new trial unless the defendant stipulates to a higher award. The jury's allocation of 100% fault to the defendant was a fair reading of the evidence, and New York law applied because the plaintiff lived in New York when first exposed.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (1st Dept., 2015). Under CPLR 3215(g)(1), a court may dispense with notice and a hearing on damages where the defendant failed to proceed to trial of an action reached and called for trial, so damages may be assessed without an inquest.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• 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.
• 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.
• Peraica v. Crane Co. (Matter of New York City Asbestos Litig.) (2013). Under New York law, whether a manufacturer of a bare-metal product had a duty to warn of asbestos insulation others applied to it after sale is a question of fact for the jury where the manufacturer knew or should have known the product would be used with asbestos-containing materials. A court may reduce a jury award that deviates materially from reasonable compensation.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (2012). A valve manufacturer may owe a duty to warn about asbestos gaskets, packing and insulation made by others when it meant its valves to be used with them or knew or should have known they would be. Under CPLR Article 16, the Navy is not counted in apportioning fault because Feres and the grave-injury rule bar suit against it.
• Tedrick v. Colgate-Palmolive Co. (Matter of Nyc Asbestos Litig.) (2011). Under New York choice-of-law rules, a damages cap is a loss-allocating law, and for a latent disease the place of injury is where the plaintiff became ill, not where first exposure occurred. Applying the third Neumeier rule, the law of Oregon, where she was domiciled and fell ill, governed.
• Penn v. Amchem Products (1st Dept., 2011). Viewed in the light most favorable to the prevailing plaintiffs, evidence that Kerr's name was on the liner boxes, that Kerr supplied such liners to the schools, and that Kerr did not test the liners' safety permitted the jury to find product identification, causation and a failure to warn. Objections to summation and to an allegedly inconsistent verdict that were not raised in time were unpreserved.
• Penn v. Amchem Products (1st Dept., 2010). Viewed in the light most favorable to the plaintiffs, evidence that boxes bore the defendant's name, that it supplied liners to the school, and that visible dust arose with expert testimony on dose was enough for the jury to find product identification, causation and failure to warn.
• Aguirre v. Long IS. Rail RD. Co. (2007). In a FELA case tried in state court, plaintiffs still need expert testimony to show causation, but under New York law (Parker v. Mobil Oil) exposure need not be quantified precisely if the expert's method is generally accepted. Awards that materially deviate from reasonable compensation may be reduced under CPLR 5501(c).
• Aguirre v. Long Island Railroad Co. (2007). In a FELA case tried in state court, plaintiffs still need expert proof of causation, but under New York law exposure need not be quantified precisely and may be shown through work history and qualitative evidence. A verdict stands if some valid line of reasoning could lead rational jurors to it.
• 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.
• Lustenring v. AC&S, Inc. (1st Dept., 2004). A jury could find causation from evidence that plaintiffs worked in dust raised by manipulating the defendant's asbestos packing and gaskets, and a defendant's factual disagreement with the plaintiffs' causation theory does not require a Frye hearing.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Hamilton v. Garlock, Inc. (2000). Evidence of exposure to the defendant's products, state-of-the-art notice and reckless concerted conduct supported the verdict. A defendant that offers no proof on allocating fault among joint tortfeasors forfeits any reduction for settling defendants' shares, so a directed verdict on allocation is proper.
• Consorti v. Owens Corning Fiberglas Corp. (In Re Joint Eastern and Southern Dist. Asbestos) (1998). On remand after Gasperini, a federal court in a diversity case tests a jury's damages award against New York's "deviates materially from reasonable compensation" standard, comparing it to awards in similar New York state cases and using a totality-of-circumstances approach rather than a fixed monthly multiplier.
• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (1st Dept., 1998). Evidence was sufficient for a jury to link a defendant's asbestos-containing components and products to the worker's injury. A government contractor defense charge was unwarranted without evidence of a conflict between state warning requirements and federal requirements. A defendant that challenges its share of fault must show the equitable shares of the settling defendants.
• 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.
• Mtr. OF Nyc Asbestos Litig. (1997). A jury may consider a manufacturer's actual knowledge of asbestos dangers in allocating relative culpability under CPLR article 16, and answers to interrogatories by settling defendants cannot be offered by a non-settling defendant who is no longer adverse to them. A recklessness finding must be set aside if no valid line of reasoning could support it.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• 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.
• Matter of New York City Asbestos Litig. (1st Dept., 1993). A defendant may be precluded from relitigating a substantive point conclusively established against it in prior litigation, as a matter of fairness. Additur awards stand if they do not deviate materially from reasonable compensation.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (1990). A federal court sitting in diversity applied New York law and held that a dismissal with prejudice of a decedent's lifetime personal injury claim for lack of exposure evidence bars his personal representative's later wrongful death claim against the same defendant, because she stands in the decedent's position. Circumstantial exposure evidence and medical testimony were enough to support the jury's verdict.
• Rummo v. The Celotex Corp. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1989). Under New York law, a living plaintiff with a fatal injury recovers lost future earnings based on the work-life expectancy he would have had without the injury, because a personal injury judgment bars any later wrongful death action.

North Carolina

• Finch v. Covil Corporation (2020). A jury instruction on substantial factor causation need not repeat Lohrmann verbatim, but must convey that the plaintiff proved more than de minimis exposure through regular, frequent proximity to the defendant's product. Under North Carolina law, wrongful death damages that are hard to quantify are not speculative and are left to the jury.
• Finch v. Covil Corporation (2019). A verdict for the plaintiff stands where the evidence permitted a jury to find that the defendant supplied asbestos insulation, that the worker was exposed to it, and that no warning was given. Under North Carolina law, a wrongful death verdict is excessive only if the record shows passion, prejudice or disregard of the law, not merely because it is large.
• Penegar v. United Parcel Service (2018). Under the last-injurious-exposure rule, a claimant need only show an exposure that augmented the disease to any extent, however slight. If the record has no evidence of asbestos exposure in later jobs, the employer must produce some evidence of it, and the claimant need not prove that no later exposure occurred.
• Johnson v. Covil Corporation (2011). In occupational disease cases the claim arises at diagnosis, so the maximum compensation rate for the year of diagnosis applies, and death benefits under N.C. Gen. Stat. § 97-38 are 66 2/3% of the average weekly wages. The Commission must also explain why the first method of computing average weekly wages would be unjust before using another method.
• Williams v. CSX Transportation, Inc. (2006). Under the FELA, the trial court acted within its discretion in its evidence rulings, its jury instructions and its handling of the trial. Conflicting expert testimony on causation properly went to the jury, so the post-trial motions were rightly denied.

Ohio

• State EX rel. General Motors Company v. Webster (10th Appellate District, 2014). Under R.C. 4123.61, a decedent's average weekly wage in an occupational disease death claim is measured from the date disability began, not the date of diagnosis. Where some evidence shows that the worker's departure from work was caused by the disease, the commission may find the retirement involuntary.
• City of Dayton v. AR Environmental, Inc. (2012). Under Ohio law, punitive damages for breach of contract are available where the breach is accompanied by an independent tort such as fraud committed with malice, including conscious disregard of public safety. Asbestos is a hazardous substance under CERCLA, and burying it is a release.
• Jackson v. AC Product Liability Trust (2009). A verdict is against the weight of the evidence when there is no testimony showing the plaintiff's actual, substantial asbestos exposure on the defendant's vessel. Expert hypotheticals must rest on facts in the record, and a verdict that shocks the conscience is excessive.
• State ex rel. Hiatt v. Indus. Comm. (2003). When a worker with a slow-onset occupational disease retired for unrelated reasons and was never disabled, the commission may use the statutory minimum death benefit because the average weekly wage for the year before disability is zero; the date of diagnosis does not set the disability date.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.