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 York

• Kofler v. AW Chesteron (2009). A manufacturer seeking summary judgment must show its product could not have contributed to the injury. Conflicting testimony about dates and packaging, and no proof that its asbestos products were no longer sold or used in the marketplace after production stopped, leaves a triable issue of fact.
• Matter of Anne Lautenschuetz v. AP Greene Industries, Inc. (3rd Dept., 2008). Under Workers' Compensation Law § 29(5), a settlement made more than three months earlier can be approved nunc pro tunc only if the amount is reasonable, the delay was not the petitioner's fault or neglect, and the carrier was not prejudiced; failure to seek approval for avoidable reasons bars approval.
• Barbara Commarata v. Cook, Inc. (3rd Dept., 2005). Substantial evidence supported the Board's finding that Merchants was the employer's workers' compensation carrier in 1965, with coverage presumed to continue absent proof of cancellation or refusal to renew.
• IN the Matter of Cammarata v. Caldwell & Cook, Inc. (3rd Dept., 2005). In an occupational disease claim, liability falls on the last employer in the employment that caused the disease, so the carrier at risk during that employment pays. A carrier's coverage is deemed to continue absent evidence of cancellation or non-renewal. The Board may rely on the claimant's expert on causation when there is no contrary evidence.
• Langhorne v. Amchem Prods., Inc. (1st Dept., 2005). Release language covering any and all present and future asbestos claims is plain and unambiguous and bars later claims, including a later mesothelioma claim, absent evidence of duress, illegality, fraud, or mutual mistake about the scope of the release.
• DeMeyer v. DaimlerChrysler Corp. (Matter of Asbestos Litig) (Wayne, 2005). New York applies the Frye general acceptance standard rather than Daubert; once the challenger makes a prima facie showing that an expert's methodology is not generally accepted, the proponent must prove general acceptance by a fair preponderance of the credible evidence, typically at a hearing with sworn witnesses.
• Matter of Conway v. Cbi Services, Inc. (3rd Dept., 2003). Where the medical evidence does not show a dust disease, liability falls under Workers' Compensation Law § 44 on the last employer in the kind of employment that caused the disease, and notice to the employer is imputed to its carrier. A settlement of the disability claim's third-party action does not bar the separate death claim.
• Matter of Drewes v. Steel (3rd Dept., 2003). A carrier ordered to contribute a share of compensation benefits is liable for compensation and so holds a lien under Workers' Compensation Law § 29(1) on third-party settlement proceeds, and its written consent to the settlements is required. The Board could rationally put the duty to obtain consent on the State Insurance Fund.
• Perry v. City of New York (1st Dept., 1998). Under General Municipal Law § 50-e (6), a defect or omission in a notice of claim, such as a missing diagnosis date, may be corrected in the court's discretion where it was made in good faith and the municipality was not prejudiced.
• In re Waterman SS Corp. (1996). The claims bar date, not the plan confirmation date, decides whether an asbestos claim was discharged. A wrongful death claim is derivative and accrues when the underlying asbestosis claim accrued, and the claimants carry the burden of proving when their disease manifested.
• 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.
• Kreppein v. Celotex Corp. (1992). Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.
• Kulzer v. Pittsburgh-Corning Corp. (1991). Under New York's 1986 revival statute, a wrongful death claim is not revived if the decedent had any employment-related asbestos exposure within three years of death, since accrual follows the last-date-of-exposure rule and does not depend on whether that last exposure proximately caused the death.
• Barnett v. City of Yonkers (1990). Under New York law a school board is liable like a private landowner only if it had actual or constructive notice of the hazard, an owner out of possession without control is not liable, and an architect is liable only for professional negligence judged by the standards of the time his services ended.
• 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.
• Smith v. Bell Aerospace (3rd Dept., 1987). The Special Fund's liability under the dust disease provision does not depend only on the immediate cause of death; it turns on whether a dust disease such as asbestosis contributed to or precipitated the death. A Board decision that looks only at the direct cause of death, despite undisputed proof that asbestosis precipitated the cancer, is irrational.
• Matter of Steinhardt v. Johns-Manville Corp. (4th Dept., 1980). A personal injury claim accrues when the harmful substance is inhaled, not when the injury is discovered, so the limitations period ran from the injury and not from the later diagnosis. Strict products liability claims sounding in tort carry the same limitations period as negligence.
• Matter of LA Gattuta v. Baldwin Ehret-Hill, Inc. (3rd Dept., 1971). Liability for an occupational disease award falls on the carrier on the risk on the date of disablement, since the disablement, not the contraction of the disease, is the industrial accident. The board's finding of asbestos exposure at the site was supported by substantial evidence.

North Carolina

• Pike v. Dempster Industries, Inc. (2024). Under North Carolina law, an asbestos plaintiff must show exposure to the defendant's product with frequency, regularity and proximity (the Lohrmann test), which also applies in mesothelioma cases; general expert evidence that every exposure contributes does not satisfy it. Without compensatory liability, punitive damages fail.
• Walls v. Ford Motor Company (2022). A party may not use supplementation to bolster an expert's opinions. A supplemental report that applies a previously disclosed analysis to a hypothetical to answer criticisms is not a proper supplement.
• Hill v. Mallinckrodt LLC (2020). A party is not a required party under Rule 19(a) merely because it could help a defendant show that someone else controlled the worksite. Joint tortfeasors need not be sued together, and a settled party's interests are already protected.
• Smith v. 3M Company (2019). Under North Carolina law, a premises owner is liable only if it controlled the place and the work, and an asbestos plaintiff must show exposure to a specific product with frequency, regularity and proximity; vague testimony that insulation dust was inhaled does not suffice.
• Connor v. Norfolk Southern Railway Company (2018). Under North Carolina law, an asbestos plaintiff must show exposure to a specific defendant's product on a regular basis over an extended period in proximity to where the plaintiff worked (the Lohrmann frequency, regularity and proximity test), and this applies to mesothelioma cases too; speculative coworker testimony does not meet it.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Gaunt v. Guy M. Beaty & Co., Inc. (2018). A death-benefits claim under N.C. Gen. Stat. § 97-38 is a distinct claim from the worker's underlying compensation claim, so a court setting a § 97-10.2(j) lien need not weigh prospective third-party recoveries tied to the worker's separate claim. The court's lien decision is reviewed for abuse of discretion.
• Stewart v. Aurora Pump Company (2017). Under North Carolina law, the wrongful death statute encompasses loss of consortium in cases of a loved one's death, so a separate common law loss of consortium claim by the surviving spouse fails and must be brought under that statute.
• Smith v. American Honda Motor Co., Inc. (2016). Under North Carolina law, compliance with federal labeling standards does not conclusively show a warning was adequate, and proximate cause is ordinarily for the jury. Design defect under N.C. Gen. Stat. § 99B-6 does not require expert testimony on a feasible alternative design, and punitive damages require clear and convincing evidence of willful and wanton conduct by corporate officers, directors or managers.
• Taylor v. Alcatel-Lucent USA, Inc. (2014). Colorado River abstention applies only where federal and state suits are parallel, meaning substantially the same parties and issues. Suits based on distinct factual allegations of asbestos exposure are not parallel, and filing related suits in different forums was not abuse of process or sanctionable.
• 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.
• Payne v. Charlotte Heating & Air Cond. (2005). The time limit in the fourth paragraph of N.C. Gen. Stat. § 97-61.6, which gave asbestosis and silicosis death claims a shorter period than other latent occupational diseases, violates the Equal Protection Clause under rational basis review. The Commission's findings on asbestosis, causation and last injurious exposure were supported by competent evidence and so were binding.

North Dakota

• Black v. Abex Corp. (1999). Even assuming market share liability were recognized, a plaintiff must present admissible evidence that the defendants' products were fungible and carried equivalent risks of harm. Alternative liability does not apply when the plaintiff has not joined all possible manufacturers.
• Puppe By Puppe v. AC and S., Inc. (1990). After Hopkins v. McBane, North Dakota law allows punitive damages in wrongful death actions, and neither multiple punitive awards nor the interests of future plaintiffs create a due process bar to punitive damages in asbestos-type toxic tort litigation.

Ohio

• Keiser v. Donald Mckay Smith, Inc. (2023). A removing defendant shows fraudulent joinder only if there is no colorable basis for recovery against the in-state defendants; an argument that would defeat the claims against all defendants equally does not establish fraudulent joinder.
• State EX rel. Koepf v. Industrial Commission of Ohio (10th Appellate District, 2019). A claimant seeking loss-of-use compensation under R.C. 4123.57(B) must show with medical evidence a permanent total loss of use for all practical purposes. For a decedent, the evidence must show the loss would have persisted had he survived the disease. Mandamus is unavailable where some evidence supports the commission's denial.
• Schwartz v. Honeywell Internatl., Inc. (2018). Under R.C. 2307.96, a theory of causation based only on cumulative exposure to various asbestos-containing products cannot show that exposure to a particular defendant's product was a substantial factor in causing the disease. The plaintiff must show this through the manner, proximity, frequency and length of exposure to that defendant's asbestos.
• Dennis v. Gen. Motors Corp. (3rd Appellate District, 2016). Asbestos-related lung cancer is not 'asbestosis' under R.C. 4123.68, so the pulmonary-function-test requirements of R.C. 4123.68(Y) do not apply to it. Resolution R03-1-02 applies only to 'injured workers,' not to surviving-spouse claimants.
• Burkhart v. HJ Heinz Co. (2014). Under Evid.R. 804(B)(1), former testimony is admissible against a party only if that party or its predecessor-in-interest (one in privity, from whom it received a right, title, interest or obligation) had an opportunity and similar motive to examine the witness; merely sharing an interest in the facts and outcome is not enough.
• 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.
• Burkhart v. HJ Heinz Co. (6th Appellate District, 2013). A deposition from a prior asbestos suit is admissible as former testimony under Evid.R. 804(B)(1) when a party in the earlier case had a similar motive and opportunity to examine the witness (the Lloyd test). Properly authenticated business records, medical-history statements, and interrogatory answers from other cases may be considered on summary judgment, and disputes over whether the material was asbestos present fact questions.
• State EX rel. Roger Bacon High School v. Indus. Comm. OF Ohio (10th Appellate District, 2011). Under the last injurious exposure rule, responsibility goes to the employer that last provided an injurious exposure. A commission finding supported by some medical evidence is not an abuse of discretion, and the commission weighs conflicting evidence.
• Fagerholm v. Gen. Elec. Co., Inc. (8th Appellate District, 2009). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk or that asbestos is dangerous is not enough. A trial court may limit discovery of corporate knowledge to the products and conditions present at the plaintiff's facility.
• 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.
• Oglesby v. Consol. Rail Corp. (6th Appellate District, 2009). Ohio Civ.R. 10(D)(2), which requires a merit affidavit with a medical claim, is procedural and constitutional, and a plaintiff who substitutes real parties for John Doe defendants after the one-year service period cannot use relation back where the limitations period has run.
• Werts v. Goodyear Tire & Rubber Co. (8th Appellate District, 2009). Out-of-court experiments need not duplicate the plaintiff's exact working conditions if they are designed to show the relevant exposure and differences are acknowledged; such differences go to weight. Admitting a proof-of-claim form to show liability violated Evid.R. 408 but was harmless error.
• Gomcsak v. US Steel Corp. (9th Appellate District, 2008). A trial court does not abuse its discretion by limiting an expert to the opinions in his written report under a local rule, or by denying a new trial where competent, credible expert testimony supports the jury's finding that asbestos did not cause the cancer.
• Louden v. AW Chesterton Co. (8th Appellate District, 2008). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk, or acting negligently or recklessly, is not enough, and an employer that provided respirators and permitted their use did not meet that standard.
• Vince v. Crane Co. (8th Appellate District, 2007). Under Horton v. Harwick, a plaintiff must show that exposure to a particular defendant's product was a substantial factor in causing the injury. Merely placing a defendant's asbestos product in a plant where relatives worked, without evidence of how the second-hand exposure contributed to the disease, does not meet that burden.
• Anderson v. AC & S., Inc. (8th Appellate District, 2003). Under FELA, a release is valid only if it settles an accrued claim for a known injury; a 1986 release for asbestosis could not bar a later-diagnosed mesothelioma claim that had not yet accrued, and Section 55 voids such a release to that extent.
• 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.