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.

Pennsylvania

• Novelli v. Johns-Manville Corp. (1990). Loss of consortium damages run only from the spouse's injury to death; after death the surviving spouse must recover under a wrongful death statute. Because loss of consortium is part of the total compensable damages from the injury, Rule 238 delay damages may be added to a consortium award.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.

Rhode Island

• Turcotte v. 3M Company (2018). Under Rhode Island's interest-weighing approach, the law of the state with the most significant relationship governs, and depecage applies to issues rather than to individual defendants. In a multi-defendant asbestos case involving a single injury, different states' laws cannot be applied defendant by defendant.
• Jones v. 84 Lumber Company (2015). Once a court has decided that another state's law governs, it must take judicial notice of that state's statutes and cases. Rules on damages, fault allocation and seller liability are substantive, so Tennessee law applies to them.

South Carolina

• Jolly v. Fisher Controls International, LLC (2024). A trial court may grant a new trial nisi additur when a verdict is inadequate but not grossly so, giving substantial deference to the jury and stating compelling reasons. A setoff judge must make a reasonable allocation of settlement funds among the claims and may set off only settlements for the same injury.
• Edwards v. Scapa Waycross, Inc. (2022). Testimony that cumulative asbestos dose raises disease risk is not an 'each and every exposure' theory, and regular handling of asbestos-containing dryer felts supported a jury finding of substantial-factor causation. A nonsettling defendant gets setoff credit but cannot force reallocation of a plaintiff's settlement proceeds, and trust claims are offers to compromise excluded by Rule 408, SCRE.
• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.
• Keene v. Cna Holdings, LLC (2019). A maintenance contractor's employee is not a statutory employee of the plant owner under S.C. Code § 42-1-400 merely because the maintenance was important or essential to the owner's operations; the work must actually be part of the owner's own trade, business or occupation.

Tennessee

• Davis v. 3M Company (2020). The trial court should first reduce noneconomic damages by the plaintiff's (or decedent's) percentage of fault if under 50%. If the result still exceeds the statutory cap, it should reduce the award to the cap and apportion that amount among all persons found at fault, including settled nonparties, by percentage of fault.
• Payne v. CSX Transportation, Inc. (2015). In a FELA case a jury verdict of negligence per se stands unless the evidentiary and instructional errors were substantial, and FELA bars reducing damages for the employee's contributory negligence where the railroad violated a safety regulation. Experts need not have specific dose information to testify on causation, particularly where the railroad never monitored exposure, and a differential diagnosis is a reliable method.
• Russell v. Illinois Central Railroad Company (2015). Expert causation opinions based on differential diagnosis and a qualitative assessment of workplace exposure can be reliable and admissible even when the dose of the exposure was not quantified. Under 45 U.S.C. § 55 and the railroad health and welfare agreement, a railroad may set off medical benefits the plan paid, even though the employee paid part of the premium.
• Lively EX rel. Lively v. Union Carbide Corporation (2013). When an employee is incapacitated from work by an occupational disease and later dies of that same disease, the date of death is not a new and separate date of injury, so a dependent's death benefits are calculated under the maximum benefit in effect on the earlier date of incapacity, less amounts already paid to the employee.
• Kelley v. Union Carbide Corporation (2011). A surviving spouse's workers' compensation death-benefit claim is independent of the employee's lifetime settlement, and the word "barred" in Tenn. Code Ann. § 50-6-306(a) refers only to the time limit for filing, not to a bar created by the employee's settlement.
• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.
• Mackie v. Young Sales Corp. (2001). An employee's voluntary retirement does not preclude workers' compensation benefits for an occupational disease arising out of and in the course of employment, and benefits may be computed on the maximum weekly rate where the record supports it.
• Denton v. Southern Ry. Co. (Eastern Section, 1993). Under FELA, the employee's causation burden is slight and other causes do not reduce recovery against a negligent employer, and a plaintiff with asbestosis may present evidence of reasonable fear of cancer and future cancer-monitoring costs, with federal law governing the measure of damages.

Texas

• Andrews v. John Crane, Inc. (14th District, 2020). General maritime law preempts state law for a Navy sailor's asbestos products claims against a gasket maker, and DOHSA does not bar a general maritime survival recovery for the decedent seaman's pre-death pain and suffering.
• Goodyear Tire & Rubber Company v. Rogers (5th District, 2017). Gross negligence can rest on an employer's awareness that low-level asbestos exposure can cause mesothelioma, without knowledge of the particular dose. Under the Texas exemplary damages cap, pecuniary loss findings count as economic damages only to the extent evidence shows actual monetary loss.
• Ford Motor Company v. Miller (14th District, 2008). Under Michigan law, as answered by the Michigan Supreme Court, a property owner owed no duty to a household member of an independent contractor's employee for asbestos fibers carried home on clothing, and benign asymptomatic pleural plaques with only an increased future cancer risk is not a present compensable injury.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Owens-Corning Fiberglas Corp. v. Schmidt (9th District, 1996). A defendant seeking a settlement credit must prove the settled claim compensated the same damages. A defendant that timely elects a dollar-for-dollar credit under Chapter 33 cannot later switch to a pro rata credit, and prejudgment interest must be calculated after settlement credits.
• Srite v. Owens-Illinois, Inc. (1993). A jury's award of zero damages is reviewed under the great-weight-and-preponderance standard, not a per se rule requiring damages whenever liability is found. For pre-1987 Texas cases, prejudgment interest on asbestos-disease damages runs from six months after the worker's last workplace exposure.
• Keene Corp. v. Gardner (5th District, 1992). A plaintiff's evidence of frequent, regular work near a defendant's asbestos product can support a finding of exposure, and a Texas court may not order mediation over a party's request for the statutory ten-day period to object.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.
• Migues v. Nicolet Industries, Inc. (1980). In a Texas-law diversity case involving an industry-wide asbestos tort among strictly liable producers, the non-settling defendant that went to trial receives a credit for the settlement amount rather than pro rata apportionment among settling defendants. An excessive verdict requires remittitur or a new trial.

Utah

• Riggs v. Georgia-Pacific LLC (2015). Under Utah Code section 78B-3-106, a wrongful death action is an independent cause of action that is not barred because the decedent won a judgment in a related personal injury suit during her lifetime; double recovery of the same damages is not permitted.

Virginia

• John Crane, Inc. v. Hardick (2012). In a general maritime survival action based on a seaman's death, courts look to the Jones Act, so the decedent seaman's estate may recover damages for pre-death pain and suffering. DOHSA does not bar this where the decedent was a seaman.
• John Crane, Inc. v. Hardick (2012). Nonpecuniary damages are not recoverable in a wrongful death action for a seaman, whether under DOHSA, the Jones Act, or general maritime law, and a Navy sailor who contributed to the function of vessels and had a substantial connection to them is a seaman. Arguments not briefed under Rule 5:27 are waived.
• John Crane, Inc. v. Jones (2007). General maritime law applies to a shipyard worker's asbestos injury when the location and connection tests are met, including where the manufacturer marketed its products for marine use. Virginia courts decide whether a verdict is excessive from the facts of each case, not by comparing it with verdicts in other cases.
• Chesapeake & Potomac Tel. v. Williams (1990). For an occupational disease, the average weekly wage under Code § 65.1-6 is based on the 52 weeks of wages from the last employment that exposed the claimant to the cause of the disease, not the wages at the date of diagnosis.

Washington

• Sorrentino v. Ammco Tools, Inc. (1st Division, 2024). In a pre-WPLA failure-to-warn claim, a jury may infer a plaintiff would have heeded an asbestos warning from evidence he read manufacturer materials and would have heeded intermediary warnings. The substantial factor causation test applies in asbestos cases where it is hard to identify the exact source of harm, and personal jurisdiction over a foreign manufacturer was proper given its importer agreement requiring marketing in Washington.
• Coogan v. Borg-Warner Morse Tec Inc. (2021). An appellate court may set aside a jury's damages verdict supported by substantial evidence only if the record unmistakably shows it was based on passion, prejudice or another improper consideration; the size of the verdict alone is not enough.
• Coogan v. Borg-Warner Morse Tec Inc. (2nd Division, 2020). A trial court acts as gatekeeper and abuses its discretion by excluding an expert opinion because it disagrees with the conclusion rather than because the foundation is inadequate. A noneconomic damages verdict can be set aside under CR 59(a)(5) when it shocks the court's conscience, even without a finding of passion or prejudice.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may not order a new trial on damages unless it has a firm conviction the jury erred, and may not grant judgment as a matter of law where substantial evidence, including admissible expert testimony on causation and exposure, supports the verdict.
• Varney v. Air & Liquid Systems Corporation (2018). A complaint stating the disease, the timeframe and place of exposure, and a theory of causation is sufficient under Rule 8. Allegations that defendants placed asbestos products into Washington's stream of commerce make a prima facie showing of specific personal jurisdiction.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• Krivanek v. Fibreboard Corp. (1st Division, 1993). The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.
• Sofie v. Fibreboard Corp. (1989). A statutory limit on noneconomic damages that reduces a jury's damages finding violates article 1, section 21 of the Washington Constitution, because determining damages is part of the jury's protected fact-finding role. The asbestos case also fell within the hazardous-substances exception to the limit on joint and several liability.
• Sorenson v. Raymark Industries (2nd Division, 1988). Evidence of increased cancer risk from asbestos exposure is admissible to show the reasonableness of the plaintiff's fear of contracting cancer, which is a compensable damage element. A quotient-style verdict is not juror misconduct where jurors did not agree in advance to be bound by the calculation.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.