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.

Ohio

• Lavelle v. Owens-Corning Fiberglas Corp. (1987). A plaintiff with asbestosis but no cancer cannot present evidence of increased risk of cancer because it is speculative, but may present evidence of reasonable fear of developing cancer as a claim of serious emotional distress.

Oregon

• Hoff v. Certainteed Corp. (2021). A plaintiff need not prove exposure to the defendant's asbestos-containing product at a particular job site. It is enough that the evidence supports a reasonable inference that, more likely than not, he was exposed to it at one or more sites. A judgment does not violate ORCP 67 C where it is below the amount in the complaint's prayer, and the defendant never sought to clarify an inconsistent figure in the body of the complaint.
• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.

Other federal courts

• CSX Transp., Inc. v. Hensley (2009). Under Norfolk & Western R. Co. v. Ayers, a trial court must, on a defendant's request, instruct the jury in a FELA asbestosis case that fear-of-cancer damages require proof that the fear is genuine and serious. Sufficiency-of-the-evidence review does not replace that instruction.
• Conwed Corp. v. Union Carbide Corp. (2006). Under Minnesota law, after a Naig settlement the jury's allocation of fault to the employer is applied once, to the lesser of the verdict or the workers' compensation benefits paid and payable, and a verdict on warnings in a mesothelioma trial does not collaterally estop litigation of warnings for asbestosis claims where the issue was not necessarily determined.
• Norfolk & Western R. Co. v. Ayers (2003). Under the FELA, a railroad worker who has asbestosis may recover, as part of pain and suffering, for a genuine and serious fear of developing cancer. The FELA does not require apportioning damages among other tortfeasors, so a negligent railroad is liable for the full damages and must seek contribution elsewhere.
• Cimino v. Raymark Industries, Inc. (1998). Under Texas law, causation and damages in asbestos injury suits must be determined for each individual plaintiff, not for groups, and a class or consolidation procedure cannot change that or remove the Seventh Amendment jury right. A raw-material supplier selling non-defective asbestos to a sophisticated manufacturer has no duty to warn the manufacturer's end users.
• McClain v. Owens-Corning Fiberglas Corp. (1998). A district court does not abuse its discretion by ordering a new trial on wrongful death damages alone when the award is palpably inadequate and damages are separable from liability. Under Illinois law, a surviving spouse's cohabitation is irrelevant to loss of consortium damages and may be excluded.
• Metro-North Commuter R. Co. v. Buckley (1997). Under FELA, a worker exposed to asbestos who has no symptoms or disease cannot recover for negligently inflicted emotional distress, because mere exposure is not a "physical impact". FELA also does not support an unqualified tort rule of lump-sum medical monitoring damages for an asymptomatic worker.
• Consorti v. Armstrong World Industries, Inc. (1995). In a diversity case, state law governs whether a compensatory damages award is excessive, so New York's 'deviates materially from reasonable compensation' standard applied. Consolidation of asbestos cases is within a trial court's discretion unless it causes confusion or prejudice that prevents the jury from deciding on the evidence.
• Dunn v. Hovic (1993). Under Virgin Islands law and the Due Process Clause, successive punitive damages awards in asbestos cases are not barred as such. A defendant must show with evidence what it has actually paid and what it can pay, and a court weighs multiple claims when setting the amount.
• Sealover v. Carey Canada Inc. (1993). A claimant who has merely a claim against the Manville Trust, and has not settled with or released it, does not have a settled defendant for molding a verdict. Under Pennsylvania Rule 238, a continuance requested by plaintiff's counsel counts as plaintiff-caused delay and is excluded from delay damages.
• Watkins v. Fibreboard Corp. (1993). Under Texas law as stated in Dartez, a plaintiff may recover for mental anguish caused by asbestos exposure even without a present asbestos disease, if the fear is reasonable. Apparently conflicting jury answers are reconciled where possible, and under Rule 49 an omitted causation issue is deemed found consistent with the judgment.
• Borman v. Raymark Industries, Inc. (1992). Under Pennsylvania law as predicted from Martin v. Owens-Corning Fiberglas, evidence that an insulator's lung disease was caused by both asbestos and smoking, with experts unable to assign percentages, gives no reasonable basis to apportion damages. A lost-earnings claim may go to the jury even where the proof of the decedent's personal maintenance cost is sparse.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• Ocasek v. Manville Corp. Asbestos Comp. Fund (1992). Under Johns-Manville's confirmed reorganization plan, which binds claimants under 11 U.S.C. § 1141(a), the ban on interest for Class Four asbestos claimants applies to post-filing judgments, and the narrow exception covers only claims disposed of by an order before the Filing Date. The plan's terms control over state and federal post-judgment interest statutes.
• Tragarz v. Keene Corp. (1992). Under Illinois law, direct testimony of working with or near a defendant's asbestos product can support a finding of probable exposure without naming specific job sites. The frequency, regularity and proximity test is less rigid in mesothelioma cases, and release of asbestos dust inside a workplace can count as a 'discharge into the environment' that keeps joint and several liability.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• O'brien v. National Gypsum Co. (1991). Circumstantial evidence can suffice to prove exposure to a particular defendant's asbestos product. A very rare disease with asbestos as its only known cause, plus testimony that products were used interchangeably at the only exposure site, supports a jury finding of liability.
• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.
• Whatley v. Armstrong World Industries, Inc. (1988). Under Texas comparative causation (Duncan), a non-settling defendant must prove the liability of settling defendants to reduce the plaintiff's recovery by their shares. Where that proof fails for some settling defendants, no reduction is allowed for them, and the non-settling defendant stays jointly and severally liable for that portion.
• Herber v. Johns-Manville Corp. (1986). Under New Jersey law, as predicted by the court, a plaintiff with asbestos-caused pleural thickening cannot recover for increased risk of a possible future cancer alone. He can recover the cost of future cancer monitoring and emotional distress from fear of cancer, without proof of a physical manifestation of that fear. Excluding that evidence under Rule 403 was an abuse of discretion.
• Jackson v. Johns-Manville Sales Corp. (1986). Predicting Mississippi law, the court held that punitive damages are available in strict liability and mass tort cases. It also held that a plaintiff who has asbestosis may recover for the reasonable probability of future cancer and for present, reasonable fear of getting cancer.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Rocco v. Johns-Manville Corp. (1985). Under the Pennsylvania Joint Tortfeasors Act, settlement payments by defendants not determined to be joint tortfeasors do not reduce a verdict, while a pro rata release of a joint tortfeasor who later files for bankruptcy still reduces the verdict. Pennsylvania delay damages may be assessed against a non-settling defendant only on its proportionate share of the verdict.
• Belton v. Fibreboard Corp. (1984). Evidence of co-defendant settlements may be admitted for a non-liability purpose such as explaining their absence, but telling the jury the settlement amounts so it bases its award on them violates Rule 408. A judge also may not comment on the ultimate fact of damages or steer the jury toward a verdict.
• Hansen v. Johns-Manville Products Corp. (1984). Applying Texas law, the court held that Texas courts would not bar punitive damages in a mass asbestos products case, that punitive damages in a private suit do not raise double jeopardy, and that no government specification defense was recognized or applicable. Awards found excessive must be reduced to the maximum the jury could properly have awarded.
• White v. Johns-Manville Corp. (1981). Asbestos products liability claims by shipyard workers satisfy the Executive Jet locality and maritime-nexus tests when the products were designed, advertised and marketed as maritime asbestos products, so admiralty jurisdiction applies. Laches, not the state statute of limitations, then governs timeliness.
• Borel v. Fibreboard Paper Products Corporation (1973). Under Texas law and section 402A of the Restatement (Second) of Torts, a manufacturer of asbestos insulation can be strictly liable for failing to warn insulation workers of foreseeable dangers, and a warning given only to intermediary contractors does not by itself end that duty. Defendants whose products each caused some indivisible injury are jointly and severally liable, and assumption of risk is a defense only if the plaintiff's conduct was both voluntary and unreasonable.

Pennsylvania

• Constantine v. Lenox Instrument Co., Inc. (2024). A trial court may limit a toxicologist who is not a physician and has no experience diagnosing patients to general causation. Under Pa.R.Civ.P. 238, delay damages are excluded only for delay the plaintiff caused, not for administrative or COVID-related court delays. A Supreme Court reading of the Workers' Compensation Act that lets a mesothelioma claim proceed in tort does not take away a vested defense.
• Pine v. John Crane, Inc. (2023). Under maritime law, a plaintiff needs evidence of exposure to the defendant's product high enough to make substantial-factor causation more than conjectural, and coworker testimony that only the defendant's gaskets were used can meet that. Survival, non-pecuniary and punitive damages are not available under general maritime law against a non-employer manufacturer in a seaman's death claim.
• 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.
• Nelson v. Airco Welders Supply (2013). Following Betz v. Pneumo Abex, expert testimony that each and every asbestos exposure is a substantial contributing factor to mesothelioma is inadmissible. Plaintiff's counsel also may not suggest a specific dollar value for non-economic damages, and the instructions here did not cure that suggestion.
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• 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.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Coward v. Owens-Corning Fiberglas Corp. (1999). Where a warning is required to make a product non-defective and none was given, the plaintiff may use a rebuttable presumption that he would have followed an adequate warning, and the defendant must produce evidence that a warning would not have been heeded. Product-identification sufficiency (regularity, frequency, proximity) is separate from the jury's causation question, which asks whether exposure was a substantial contributing factor.
• Greenleaf v. Garlock, Inc. (1999). Under Pennsylvania law, a state jury's damages verdict in a reverse-bifurcated trial can be final enough to bar relitigation of damages in a later federal action, even though it was not immediately appealable. Eckenrod's "frequency, regularity and proximity" language is not a required jury instruction in asbestos cases.
• Simmons v. Pacor, Inc. (1996). Asymptomatic pleural thickening without physical impairment is not a compensable injury, so damages for increased risk of cancer and fear of cancer are not recoverable. The plaintiffs may sue later if cancer or impairing disease develops, and medical monitoring costs are recoverable if sought.
• Kirk v. Raymark Industries, Inc. (1995). Forcing a party to use peremptory challenges on jurors who should have been excused for cause impairs its statutory right under 28 U.S.C. § 1870, and that impairment requires reversal without any showing of prejudice. A federal court sitting in diversity may award Pennsylvania Rule 238 delay damages.
• Busfield v. AC & S., Inc. (1994). Under Marinari and Morrison, a plaintiff with a non-malignant asbestos disease cannot recover damages for fear of future cancer in the first suit, and under Giffear asymptomatic pleural thickening gives no cause of action at all.
• DiDio v. Philadelphia Asbestos Corp. (1994). Under Giffear, asymptomatic pleural thickening is not compensable and claims for fear and risk of cancer cannot support recovery where cancer is not present. A bankruptcy filing automatically stays an appeal against the debtor, and a severance of cross-claims makes the judgment on the main claim final and appealable.
• 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.
• Dempsey v. Pacor, Inc. (1993). Under the separate disease rule adopted in Marinari, a plaintiff with a non-cancerous asbestos condition cannot recover damages for fear of cancer or increased risk of cancer. The rule applies retroactively to cases pending on appeal where the defendants preserved the underlying concerns.
• Fisk v. Wcab (general Elec.) (1993). In occupational disease cases under the Pennsylvania Workmen's Compensation Act, the date of injury for calculating benefits is the date of last exposure, not the date the disease manifests. Penalties against an employer cannot be imposed without proof of a violation of the Act or of department or Board rules.
• Giffear v. Johns-Manville Corp. (1993). Asymptomatic pleural thickening, without disabling consequences or manifest physical symptoms, is not a compensable injury and gives no cause of action. Damages for fear or increased risk of cancer are not recoverable where cancer is not present, because of the separate disease rule.
• Sealover v. Carey Canada (1992). Where several asbestos defendants combined to cause a single indivisible harm such as mesothelioma death, their liability is joint and several under Pennsylvania law, and the Manville Trust is treated as a settling defendant with a straight pro rata share deducted before delay damages are calculated.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Moran v. G. & WH Corson, Inc. (1991). Under Charles v. Giant Eagle Markets, where releases reduce the verdict only by the settling tortfeasor's pro rata share, non-settling defendants must pay their shares even if the settlements exceed the verdict, and this applies to strict liability cases not governed by the Comparative Negligence Act. Punitive damages require evidence that the defendant knew or had reason to know of the hazard, and vague awareness of newspaper reports was not enough.