Wrongful Death and Survival in Asbestos Cases

Decisions in our library in which the court ruled on wrongful death and survival actions: 760 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.

About this issue

When a person dies of mesothelioma or another asbestos disease, two kinds of claims usually follow:

• A wrongful death claim is brought for the benefit of the survivors a state's statute names. In most states it compensates them for losses caused by the death, such as lost financial support, services and, where allowed, companionship. Remedies vary substantially; Alabama's wrongful death statute, for example, allows only punitive damages.
• A survival claim continues the person's own claim after death, usually through the estate's personal representative or another person the law authorizes, not simply any relative. It can cover medical expenses, lost earnings, and in many states pain and suffering before death. Whether a claim survives, and which damages survive with it, depends on the state; in some states an injury claim that was never filed does not survive.

Decisions in this section deal with who may bring each claim, which damages each allows, whether an earlier lawsuit or settlement by the person bars a later death claim (see settlements and releases), and deadlines. The two claims' deadlines must be checked separately: a wrongful death deadline often runs from the date of death, while a survival claim stays subject to the person's own limitations period, and some states require that the person could still have sued when they died.

Alabama

• Bobo v. Tennessee Valley Authority (2015). Applying Alabama law as it predicted, the court held that an employer owes a duty of reasonable care to an employee's household member exposed to asbestos carried home on work clothes, and that substantial factor causation applies to asbestos negligence claims involving multiple exposures. It also held that TVA was not shielded by the discretionary function doctrine because it violated mandatory rules.
• Kruse v. Vanderbilt Minerals, LLC (2015). A summary judgment cannot rest on a failure of the non-movant's proof that the motion did not raise, because no burden shifts to the non-movant on an issue the motion does not challenge. Evidence of Vanderbilt's shipments and daily use of its talc where the worker was repeatedly present was enough on exposure.
• Bobo v. Agco Corporation (2013). The discretionary function doctrine applies to TVA's power-generation activities, but it does not shield TVA from claims that it violated mandatory OSHA regulations or its own mandatory policies, or that it negligently carried out safety procedures it had adopted. Decisions not to warn employees' spouses and on the content of training are discretionary and protected.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos personal injury claims based on last exposure before May 19, 1979 were barred under the last-exposure rule and were not revived by the later discovery-rule statute. A plaintiff must also show post-1979 exposure to the specific defendant's product with evidence beyond speculation to benefit from the discovery rule.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 were time-barred and not revived by the later discovery-rule statute. A plaintiff cannot create a fact dispute by relying on evidence that contradicts his own sworn testimony.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 are time-barred. The court predicted Alabama would adopt the bare metal defense, under which a pump maker is not liable for third-party asbestos gaskets and packing it did not make, sell or distribute.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 were time-barred under the old last-exposure rule and were not revived by the later discovery statute. To use the discovery rule, a plaintiff must show post-1979 exposure to the specific defendant's product, and speculation about brand does not suffice.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on a last exposure before May 19, 1979 are time-barred and not revived by the later discovery-rule statute. A plaintiff relying on the discovery rule must show post-1979 exposure to the specific defendant's asbestos-containing product, and speculation or guesswork does not meet that burden.
• Bradberry v. Carrier Corporation ET AL. (2011). The Bankruptcy Code's automatic stay halts proceedings only against the debtor and not against solvent codefendants, and a trial court need not formally sever or dismiss the debtor before proceeding against the others. Proceeding against solvent joint tortfeasors does not impermissibly split a wrongful-death action.
• Henderson v. MeadWESTVACO Corporation (2009). Under Alabama's wrongful-death statute, a personal representative suing in Alabama must show the decedent could have brought a personal-injury action had he lived, and that is judged by Alabama's statute of limitations under the lex fori rule, not another state's longer period.
• General Motors Corp. v. Kilgore (2002). The Federal Locomotive Inspection Act occupies the field of locomotive equipment and safety, so state-law tort claims against locomotive manufacturers over asbestos-containing components are preempted, even absent a specific federal asbestos regulation.
• Greene v. CSX Transp., Inc. (2002). The Urie-Kubrick latent-injury discovery rule applies only to discovery by railroad employees themselves, not to personal representatives bringing 45 U.S.C. § 59 personal-injury survival claims; such a claim accrues no later than the employee's death.
• Hogland v. Celotex Corp. (1993). Under King v. National Spa & Pool Institute, which overruled Elam, a personal injury action does not abate when the plaintiff dies as a result of the defendant's alleged wrongful act, so the personal representative could amend to add a wrongful death claim.

Alaska

• In re Estate OF Maldonado (2005). A surviving spouse's interest in wrongful death proceeds is not property owned at the decedent's death, so it is not counted in the augmented estate for the elective share. Proceeds from the decedent's own survivorship claims are probate assets and are counted.

Arizona

• Coulbourn v. Crane Co. (2018). Under Arizona law, where several defendants' asbestos products may have caused an indivisible injury, a defendant's product is a causal factor if it was a substantial factor, meaning it was independently sufficient to cause the disease. Evidence that a manufacturer knew its gaskets would expose workers to fatal dust can support punitive damages.
• Quiroz v. Alcoa Inc. (2018). In Arizona, duty rests only on recognized special relationships or public policy (chiefly statutes), not on foreseeability or presumed risk creation. An employer therefore owes no duty to a worker's child for take-home asbestos, and the Third Restatement's duty framework is rejected.
• City of Phoenix v. Glenayre Electronics, Inc. (1st Division, 2016). Arizona's construction statute of repose, A.R.S. § 12-552(A), applies to governmental entities despite the nullum tempus doctrine, and indemnity obligations in City permits are claims 'based in contract' under the statute.
• Quiroz v. Alcoa Inc. (1st Division, 2016). Under Arizona law, which does not use foreseeability to decide whether a duty exists, an employer owes no duty of care, based on relationship or public policy, to an employee's child who was exposed to asbestos carried home on the employee's work clothes.
• Pounders v. Enserch E & C, Inc. (2013). For a long-latency disease such as mesothelioma, the place of injury under Restatement (Second) of Conflict of Laws § 175 is where the disease first manifests. The place of injury is only one factor, and the law of the state with the most significant relationship governs.
• Pounders v. Enserch E & C, Inc. (1st Division, Dept. A, 2012). For choice of law, a person exposed to asbestos is injured where the exposure first takes effect, not where the disease later appears. New Mexico's statute of repose shields designers and installers of customized improvements to real property even when they supplied the defective asbestos materials as integral components.
• Leabo v. Allied Signal, Inc. (2011). Under Arizona law, which a federal court must apply to a state judgment, a state court's dismissal with prejudice of a second, identical action as time-barred is a judgment on the merits that bars the first-filed action by claim preclusion, even though the first action was begun earlier.
• Perez v. Southern Pacific Transp. Co. (2nd Division, Dept. A, 1993). Strict liability for abnormally dangerous activity must be decided under the Restatement (Second) of Torts § 520 factors as of the time the defendant engaged in the activity, not under the products-liability "hindsight" test of Dart v. Wiebe. The statute of repose, A.R.S. § 12-551, is unconstitutional and cannot bar the products claim.

Arkansas

• Burnett v. American International Industries (2020). Arkansas does not recognize willful and wanton conduct or punitive damages as independent causes of action, and a fraud claim against multiple defendants must meet Rule 9(b) by stating each defendant's role with particularity.
• Hendrix v. Alcoa, Inc. (2016). Because the Workers' Compensation Act covers asbestos-related claims, a claim barred by the three-year statute of repose in section 11-9-702(a)(2)(B) still falls within the Act's coverage, so the exclusive-remedy provision bars a common-law tort suit against the employer.

California

• Dunlavey v. 3M Company (2024). A defendant removing under the federal-officer statute must show with competent proof that the claims concern conduct done while acting under a federal officer, and an "other paper" must make removability unequivocally clear and certain from its face; an ambiguous email did not.
• Bader v. Johnson & Johnson (1st Appellate District, 4th Division, 2022). A trial court's gatekeeping of expert opinion under Sargon is reviewed for abuse of discretion, and Rutherford's 'substantial factor contributing to the risk' causation standard may be applied to a fibrous talc theory where the same causation uncertainties exist as in asbestos cancer cases. Instructional and evidentiary errors that are assumed but not shown to have affected the verdict do not require reversal.
• Hahn v. New York Air Brake LLC (1st Appellate District, 5th Division, 2022). Under Code of Civil Procedure section 474, whether a plaintiff may substitute a Doe defendant depends on the facts the plaintiff actually knew when filing the complaint, not facts the plaintiff should have known; there is no duty of reasonable diligence.
• Darden v. Western Asbestos Settlement Trust (In re Western Asbestos Settlement Trust) (2022). Under California law, a third party not named in a release may enforce it if a reasonable person in the releasor's position would understand it was intended to cover that party, and claim preclusion under the primary rights theory bars a second asbestos claim against a predecessor in privity with the released defendant. A trust that compensates asbestos exposure claims need not pay heirs' wrongful death claims when no underlying compensable claim exists.
• Darden v. Western Asbestos Settlement Trust (In re Western Asbestos Co.) (2021). A California wrongful death claim belongs to the heirs, so a decedent's release does not bind them. A confirmed plan and trust documents are a contract, and where they unambiguously compensate only claimants who were exposed to asbestos and have a covered disease, the trust need not pay heirs' independent wrongful death claims.
• Irani v. Exxon Mobil Corporation (2nd Appellate District, 7th Division, 2021). A company has no tort duty to protect refinery workers from asbestos where it did not own, possess or control the premises or asbestos sources, and a contractual guarantee of an operating company's performance to the government creates neither a J'Aire duty nor a special relationship.
• Khosravan v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2021). A defendant owes no duty to protect workers from asbestos at premises it did not own, possess or control. A 1954 agreement guaranteeing the operating companies' performance did not create a duty to refinery workers, either through a special relationship or under the Biakanja/J'Aire factors.
• Viale v. Foster Wheeler, LLC (2021). Plaintiffs must present non-speculative evidence that the defendant's asbestos-containing product or conduct was a substantial factor in causing the disease; a hirer of an independent contractor is presumptively not liable absent affirmative contribution to the injury, such as supplying unsafe equipment or exercising retained control.
• Anderson v. Johnson & Johnson (2020). The court approved the parties' stipulation dismissing the wrongful death action against Johnson & Johnson and Johnson & Johnson Consumer Inc. without prejudice, with the limitations period tolled until after the state appeal ends.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2020). A plaintiff may prove past medical expenses through an expert's testimony on billed amounts where there is no evidence the lienholder or insurer would accept less, and a trial court has wide discretion to allocate prior settlement proceeds to future wrongful death claims when computing a nonsettling defendant's credit.
• Sabetian v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2020). A defendant that did not own, possess or control the premises owes no premises or negligence duty to workers there, and a guarantee in a contract not intended to benefit the workers does not create a duty under the J'Aire/Biakanja factors.
• Harris v. Triple A Machine Shop, Inc. (1st Appellate District, 5th Division, 2019). In an asbestos case a plaintiff must show a probability, not merely a possibility, of exposure, and circumstantial evidence that supports a reasonable inference of exposure creates a triable issue that defeats summary judgment. An expert declaration giving a more detailed explanation of re-entrainment does not contradict his deposition.
• Linsowe v. Hennessy Indus. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A special verdict whose findings cannot be reconciled with one another is against the law, so a new trial is required; an appellate court may not choose between inconsistent answers, and the rule of reconciliation applies only to conflicts between general and special verdicts. Because of the inconsistencies, the court could not order JNOV on liability for either side.
• Mettias v. The Pep Boys Manny, Moe & Jack of California (Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A party is entitled to instructions on every theory supported by substantial evidence, but not to general negligence instructions when the only supported negligence theory was the defendant's duty as a supplier, which specific instructions already covered. Any instructional error was harmless because the jury's special verdict findings made a different result not reasonably probable.
• Rickert v. American Honda Motor Co., Inc. (2nd Appellate District, 4th Division, 2019). A California court deciding a forum non conveniens motion to stay a case brought by a nonresident weighs private and public interest factors, and the "seriously inconvenient" standard does not apply to a stay; the ruling is reviewed for abuse of discretion.
• Viale v. Air & Liquid Systems Corp. (2019). A proposed amended complaint is deemed filed on the date the motion for leave is filed, so the amendment was timely. The defendant's arguments about its federal forum went to the effect of the amendment on jurisdiction, not to whether the pleading could be filed.
• Hubbard v. California Water Service Company (1st Appellate District, 3rd Division, 2018). Under Kinsman, the party asserting the exception to a hirer's general non-liability for a contractor's employees bears the burden of proving that the contractor neither knew nor could reasonably be expected to know of the concealed hazard. The contractor's actual or constructive knowledge is an essential element of the failure-to-warn claim.
• Marteney v. Elementis Chemicals Inc. (2nd Appellate District, 4th Division, 2018). A pending appeal from the original plaintiffs' judgment did not strip the trial court of jurisdiction over the heirs' separate wrongful death claims, and a nonsettling defendant gets a section 877 credit for settlements the heirs did not sign only if those settlements bind the heirs.
• Sanchez v. Air & Liquid Systems, Corporation (2018). To remove under the federal officer statute, a defendant must show a colorable federal defense; a government-contractor defense is not colorable where the contractor offers no evidence that it warned the government of dangers it knew of that the government did not.
• Williams v. the Pep Boys Manny Moe & Jack OF California (1st Appellate District, 4th Division, 2018). Damages in a survival action by a decedent's personal representative or successor in interest are limited to loss the decedent sustained or incurred before death and exclude 'lost years' damages. A Doe amendment relates back only if the plaintiff was actually ignorant of the facts establishing a claim against the defendant when the original complaint was filed.
• Alfaro v. Imerys Talc America Inc. (2nd Appellate District, 4th Division, 2017). Under Evidence Code section 801, a trial court acting as gatekeeper may exclude expert opinion built on samples with serious chain-of-custody gaps, because such samples cannot reasonably be relied on, and an expert may not rest an opinion on assumed facts that lack evidentiary support.
• DeLOOF v. Ace Hardware Corp. (2nd Appellate District, 4th Division, 2017). A defendant can meet its summary judgment burden by showing through factually devoid discovery responses that the plaintiff cannot prove exposure to its asbestos-containing product, and by expert testimony that no respirable fibers were released. The plaintiff must then produce evidence of a triable issue, and causation cannot rest on speculation.
• Duty v. Trz Realty, LLC (1st Appellate District, 3rd Division, 2017). A physician with long experience reviewing epidemiological studies need not be an epidemiologist or gastroenterologist to be qualified to opine on asbestos causation of colon cancer, and a trial court acting as gatekeeper may not resolve scientific disputes over the studies or weigh competing opinions.
• Paulus v. JM Manufacturing Co., Inc. (2nd Appellate District, 4th Division, 2017). A party must promptly move to seal inadvertently disclosed privileged material; where it waited about three years and the document had already circulated widely, denying a sealing order was not an abuse of discretion. Unsealed documents remain subject to the attorney-client privilege and inadmissible over objection.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 4th Division, 2017). A spouse who could have sought postdeath loss of consortium damages in the injured spouse's earlier personal injury trial is barred by res judicata from claiming them in a later wrongful death action. Unallocated settlements may be credited against a wrongful death economic damages award, and an overbroad allocation is not reversible where a smaller allocation would still offset the whole award.
• Zanowick v. Baxter Healthcare Corporation (2017). Rule 25(a)(1)'s 90-day substitution deadline does not require dismissal with prejudice; a district court has discretion to allow late substitution or to dismiss without prejudice, and may grant a Rule 41(a)(2) voluntary dismissal without prejudice.