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.

New Jersey

• Landrigan v. Celotex Corp. (1991). Under Rubanick, an expert's causation opinion in toxic-tort cases is admissible if based on sound, reliable methodology, and a qualified non-physician such as an epidemiologist may testify to specific causation; a plaintiff may proceed on both strict liability and negligence without being forced to elect.
• Seckular v. Celotex (1986). Under Florida law, the place of diagnosis does not necessarily determine where an asbestos-related cause of action arose for borrowing-statute purposes; that can be a fact question. A New Jersey court with no interest in the case should defer to the Florida courts as a matter of comity and allow voluntary dismissal without prejudice.
• 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

• Farris v. Avon Products, Inc. (2024). A wrongful death settlement must be approved under Local Civil Rule 83.2(b) and N.Y. EPTL 5-4.6 as fair, reasonable and adequate, and a contingency fee of up to one-third of the recovery is deemed reasonable under New York rules.
• Matter of Lucano (Queens, 2024). Sealing court records requires a written finding of good cause, meaning a likelihood of significant and concrete harm and compelling circumstances. Confidentiality is the exception, and an unopposed motion or a confidentiality clause in the settlement does not alone satisfy that burden.
• 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.
• Matter of Miller v. Mo Maier Ltd. (3rd Dept., 2022). The Board's decision whether to reopen a claim in the interest of justice is reviewed only for abuse of discretion, and none was found where the carrier failed to appear at the hearing and failed to properly seek review.
• Mrjaj v. Air & Liquid Sys. Corp. (Erie, 2021). A defendant is entitled to summary judgment where plaintiffs offer no evidence creating a reasonable inference that the decedent was exposed to and inhaled asbestos fibers from that defendant's product, even if the company named in a document is presumed to be the defendant.
• Paroni EX rel. Estate OF Paroni v. General Electric UK Holdings Ltd. (2021). A New York federal court lacks specific jurisdiction under C.P.L.R. 302(a)(1) or due process where asbestos injuries from 1960s-80s California exposure do not arise from a 2015 corporate acquisition, and a parent's contacts are not imputed to a subsidiary absent alter-ego control. Under 28 U.S.C. § 1406(a), a court may transfer rather than dismiss to cure lack of personal jurisdiction.
• Corcione v. Amchem Prods., Inc. (2020). A corporation that buys another's assets is not liable for the seller's torts unless an exception applies (assumption of liability, merger, mere continuation, or fraud). Product exposure testimony that is guesswork about the brand and about asbestos content does not raise a triable issue.
• Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation) (Erie, 2020). Defendants moving for summary judgment in an asbestos case must offer admissible evidence that their products could not have contributed to the injury; pointing to gaps in plaintiff's proof is not enough. Interrogatory answers sworn under oath but made on information and belief are acceptable, especially where the injured person is deceased.
• Germain v. The Neslemur Co. (In re New York City Asbestos Litigation) (2020). A dissolved foreign corporation that was previously authorized to do business in New York may be served through the Secretary of State under BCL § 306(b) for liabilities incurred in New York before dissolution, and service mistakenly made under the stricter BCL § 307 is not fatal. New York courts may exercise specific jurisdiction under CPLR 302(a)(1) and (2) where the claim arises from the defendant's New York business and in-state tortious conduct.
• Mauro v. Kennedy Electrical Supply, Corp. (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the injury, and a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. Deposition testimony taken without notice to a later-added defendant is inadmissible hearsay against it, but other evidence can still raise a fact issue.
• Mauro v. Consolidated Edison of New York (In re New York City Asbestos Litigation) (2020). Under Labor Law § 200, liability may attach to a party that controls the work through specifications directing the means and methods of using asbestos-containing products, monitors compliance, and can stop work; conflicting testimony on control raises credibility issues that preclude summary judgment.
• Matter of Gimber v. Eastman Kodak Co. (3rd Dept., 2020). Under Workers' Compensation Law § 44, apportionment to a prior employer requires evidence of when the occupational disease was contracted; unquantified prior exposure and speculative medical opinions do not establish that the disease began during the prior employment.
• Billok v. Union Carbide Corp. (3rd Dept., 2019). Under CPLR 3117, a deposition taken in another action may not be used against a party who was not present or represented at it, and a witness who never testified in this action cannot be impeached with a different deposition. Admitting the 2007 testimony on the central issue was not harmless error.
• Epstein v. Port Authority of New York & New Jersey (In re New York City Asbestos Litigation) (2019). A premises owner is liable under Labor Law § 200 and common law negligence only if it controlled the means and methods of the work, and conflicting testimony and evidence of that control raises fact issues. An owner outside the manufacturing, selling or distribution chain cannot be held strictly liable for products.
• Licul v. Mario DiBono Plastering Co. (In re New York City Asbestos Litigation) (2019). On summary judgment in an asbestos case, the plaintiff need only show facts from which the defendant's liability may be reasonably inferred, and a witness's inability to give exact details or contradictory testimony raises credibility issues for the trier of fact.
• 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.
• Pogacnik v. AO Smith Water Prods. Co. (2018). A notice of claim against the Port Authority is jurisdictional and strictly construed; using "approximately" for the exposure dates cannot stretch the claim to cover years several years beyond the stated period, and lack of prejudice to the Port Authority is immaterial.
• Pogacnik v. AO Smith Water Products Co. (2018). A defendant moving for summary judgment in an asbestos case must first show that its product's asbestos could not have contributed to the plaintiff's mesothelioma, or that the exposure was too low to do so. It cannot shift that burden to the plaintiff, and expert opinions resting on unsupported assumptions or on discrediting the plaintiff's testimony do not meet it.
• Brown v. Consolidated Edison Co. of New York (In re New York City Asbestos Litigation) (2017). Where a non-party employer appears on the verdict sheet only as a manufacturer that failed to warn, and the plaintiff was exposed to its products before working for it, the workers' compensation bar does not remove it from CPLR article 16 apportionment, so its share is not shifted to a co-defendant.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). Texaco, which bore the burden in this admiralty case, did not show that a 1997 asbestos release covered a later mesothelioma claim; even under the more lenient Third Circuit (Wicker) test, the release did not show that South understood and knowingly released the actual risk of mesothelioma.
• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2017). A defendant seeking summary judgment must first show prima facie that the decedent could not have been exposed to its products or their asbestos; the decedent's inability to identify the defendant's product as a source of exposure does not meet that burden.
• Seabridge v. Kelsey-Hayes Co. (Albany, 2017). In an asbestos case, a plaintiff opposing summary judgment need not show the precise cause of the injury, only facts and conditions from which the defendant's liability may be reasonably inferred.
• Holzworth v. Alfa Laval Inc. (2016). Whether New York or New Jersey law applies, a plaintiff must show exposure to the defendant's product at levels known to cause the disease. A single one-to-three-hour exposure within a long career of exposure is insufficient, and the wrongful death claims fail with the underlying claims.
• Holzworth v. Alfa Laval Inc. (2016). A plaintiff must show exposure to the defendant's own asbestos-containing product, and a pump maker has no duty to warn about third-party asbestos parts used with its pumps absent evidence it had an active role, interest or influence in their use. Under maritime and New York law alike, wrongful death claims fail if the underlying liability claims fail.
• South v. Texaco (In re New York City Asbestos Litigation) (2016). Under the Jones Act and general maritime law, the party relying on a seaman's release bears the burden of showing it was fairly made and fully understood, and a release of future claims is not enforced where the proof beyond its language does not show the seaman understood he was releasing a future mesothelioma claim, whether the Sixth Circuit or Third Circuit standard applies.
• Acosta v. Avocet Enterprises (Matter of New York City Asbestos Litig.) (2016). Under CPLR 602(a), a court may consolidate asbestos actions for joint trial when they share common questions of law or fact and consolidation does not prejudice a substantial right of the defendants. No single factor, such as a common worksite or occupation, is dispositive.
• Unterberg v. ExxonMobil Oil Corp. (2016). A Jones Act claim lies only against the seaman's employer, and a parent company is treated as the employer or vessel owner only if the subsidiary is its mere instrumentality or alter ego, which requires actual domination rather than mere stock ownership or some overlap of personnel and offices.
• Relyea v. Borg-Warner Corp. (2015). An expert's causation opinion that brake dust exposure caused mesothelioma is admissible under Rule 702 and Daubert when based on peer-reviewed literature, the Helsinki Criteria and exposure estimates; challenges to how she applies them go to weight, not admissibility.
• Dorfman v. Air & Liquid Sys. Corp. (2014). Where a plaintiff worked daily on a site's construction and was exposed to debris from various trades, and documents show the defendant's asbestos-containing equipment was installed there at that time, a jury may infer exposure to the defendant's product even without specific product identification.
• Langhorne v. Aerofin Corp. (2014). A personal jurisdiction defense not raised in the first responsive pleading or a pre-answer motion is waived. Prior sworn testimony from related federal litigation is admissible if the party had the same motive and opportunity to cross-examine, and circumstantial evidence can support an inference of exposure to a defendant's product.
• Matter of Miller (Erie, 2014). A wrongful death distribution goes to distributees based on their pecuniary loss from the death, so a distributee with no contact or support for decades may be allotted nothing; a presumption of death from absence requires proof of a diligent search.
• Mtr OF Nyc Asbestos Litig. (2014). Under the Port Authority notice-of-claim statute, a notice of claim for personal injuries is a sufficient notice for a wrongful death claim where the injured person dies after the notice is served but before suit begins.
• 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.
• Kelly v. Airco Welders Supply (2013). In an asbestos case a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. A movant seeking summary judgment must itself prove, with admissible evidence, that its valves' original packing was asbestos-free.
• 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.
• Matter of New York City Asbestos Litig. (1st Dept., 2013). Compliance with the 60-day pre-suit notice of claim requirement in the Port Authority's suability statute is a mandatory jurisdictional condition that is strictly construed, with no substantial compliance exception, so a prematurely served complaint cannot confer jurisdiction.
• Vadi v. AO Smith Water Prods. Co. (2013). To defeat summary judgment, plaintiffs need only show facts from which the defendant's liability may be reasonably inferred, with all reasonable inferences drawn in their favor. Testimony identifying the defendant's joint compound as a source of exposure meets that standard.
• Garner v. Ngc Bodily Injury Trust (2012). Under New York CPLR 214-c, a personal injury claim accrues when the physical condition or symptoms of the latent disease appear, not when its cause is discovered. The earlier ruling on the accrual date therefore barred relitigation by collateral estoppel, and the claims were time-barred in any event.
• Lovaglio v. AW Chesterton Co. (2012). Deposition testimony that may be inadmissible at trial against a party can be considered in opposing summary judgment if it is not the sole basis for the ruling, and corroborating evidence can create a triable issue of fact. Whether the defendant could have cross-examined the dying plaintiff in time was itself a material issue.
• Matter of Kirisits v. Durez Plastics/occidental (3rd Dept., 2012). A claim for death benefits is separate from the decedent's original disability claim, so where the death claim rests on a new occupational disease (mesothelioma) with no shown causal link to the earlier established disease (pleural asbestosis), the seven-year period in Workers' Compensation Law § 25-a is not triggered and liability does not shift to the Special Fund.
• McDonald v. AC &S., Inc. (2012). In asbestos cases, a plaintiff opposing summary judgment need only show facts from which exposure to the defendant's product may reasonably be inferred. Internal inconsistencies in a witness's testimony go to weight, not admissibility, and are for the trier of fact.
• Bernard v. Brookfield Prop. Corp. (2010). A plaintiff's death from a previously diagnosed disease is not a new fact supporting renewal under CPLR 2221(e), and the workers' compensation exclusivity bar on claims against the employer still applied; a third party may seek contribution from the employer only in a separate action.
• Fleming v. Advance Auto Parts, LLC (2010). Identifying a manufacturer's product by circumstantial evidence cannot rest on speculation; the plaintiff must show it is reasonably probable, not merely possible, that the defendant was the source of the offending product.
• Batista v. A.O. Smith Water Prods. (Matter of New York City Asbestos Litig.) (2010). A court has discretion under CPLR 602(a) to join asbestos cases that share common questions, and it weighs factors such as worksite, occupation, time of exposure and type of disease. When a party dies, the action is stayed until a personal representative is substituted, and a spouse's consortium claim depends on the decedent's claim.
• Nostrom v. AW Chesterton Co. (2010). Vicarious liability under Labor Law § 241 (6) cannot rest solely on violations of Industrial Code part 12 regulations; a part 12 rule can support the claim only where it is specifically incorporated into part 23, as in unventilated confined areas under 12 NYCRR 23-1.7 (g).
• Flynn v. AO Smith Water Prods. (2009). Questions of fact about whether ship owners had actual or constructive knowledge of asbestos hazards preclude summary judgment on a Jones Act claim, and a vessel with friable asbestos can be unseaworthy regardless of the Coast Guard's insulation requirements.