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.

Ohio

• State ex rel. Hubbard v. Indus. Comm. (2002). Mesothelioma is a cancer distinct from asbestosis, so the statutory and commission-resolution requirement of a specialist medical exam for asbestosis and dust diseases did not apply to it, and the widow could pursue the decedent's accrued benefits despite his death.
• State ex rel. Maynard v. Indus. Comm. (2002). Following its earlier decisions in Zupp and Pickrel, the court held that R.C. 4123.59(B) did not entitle the widow to have her weekly death benefit raised to the statutory maximum, so mandamus was denied.
• State ex rel. Thompson v. Ohio Edison Co. (1999). Although mesothelioma's long latency creates 'special circumstances' under R.C. 4123.61, the average weekly wage set by the commission was still substantially just because the decedent had no future compensation to lose. Denying a maximum award did not violate equal protection because the claimant was not similarly situated to claimants whose decedents lost income due to death.
• Estate of Orecny v. Ford Motor Co. (8th Appellate District, 1996). Under R.C. 4123.65 as amended in 1993, a settlement between a self-insuring employer and a claimant that is binding and dismissed with prejudice in the common pleas court does not abate when the claimant dies, and the Industrial Commission's abatement regulation does not apply to it.
• Baechel v. Sears, Roebuck & Co. (1994). A claimant for an occupational disease must show an injurious exposure to asbestos in the course of employment at the last employer, and basic proximate-cause principles allow a dual-causation instruction when employment and environmental exposures combine to cause the disease.

Oklahoma

• In re Imerys Talc America, Inc. (2019). Bankruptcy 'related to' jurisdiction over a suit between non-debtors does not arise from indemnification or insurance agreements with the debtor when the defendant has not shown they apply and a separate later lawsuit would be needed to enforce them. The court also stated it would remand on equitable grounds under 28 U.S.C. § 1452(b).
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.
• Olsen v. Oklahoma Gas and Elec. Co. (4th Division, 2012). Oklahoma's 10-year statute of repose for improvements to real property (12 O.S. § 109) does not apply where the worker was exposed to asbestos insulation on pipes before they were installed, because the item was still personal property. Section 109 also does not bar premises liability or negligent-supply-without-warning claims.
• Zinc Corp. OF America v. Reeder (2nd Division, 2007). The 60-day exposure requirement in Oklahoma's workers' compensation statute applies only to silicosis and asbestosis, not mesothelioma, so the general last-injurious-exposure rule applies, under which the last employer is liable without a minimum quantity of exposure.
• Fautheree v. McCaffrey (3rd Division, 2005). Oklahoma's workers' compensation limitations exception for asbestosis, silicosis and nuclear radiation exposure does not extend to mesothelioma or other asbestos-related diseases, so a claim not filed within two years of last exposure is barred.

Oregon

• Sheldon v. Cleaver-Brooks, Inc. (2021). For diversity purposes, a decedent's legal representative is deemed a citizen of the decedent's state, and a non-party beneficiary's citizenship does not count, because only the personal representative may bring an Oregon wrongful death action.
• Laux v. Akebono Brake Industry Co., Ltd. (2015). The voluntary-involuntary rule, under which a case not removable when filed can become removable only through the plaintiff's voluntary act, applies to removals under both 28 U.S.C. § 1446(b)(1) and § 1446(b)(3). The involuntary dismissal of the non-diverse defendant did not make the case removable.
• Mason v. Mt. St. Joseph, Inc. (2009). A 'product liability civil action' under ORS 30.900 lies only against a manufacturer, distributor or seller of the defective product that caused the harm. A party that only directed or reused asbestos products occasionally and noncommercially is not such a defendant, so the asbestos-specific limitations period in ORS 30.907 does not apply.
• Dahlke v. Cascade Acoustics, Inc. (2007). A claim against a dissolved corporation exists only as the statute provides, and the trust fund doctrine gives a remedy only to an existing creditor with an otherwise cognizable claim. A corporation that bought only some of another's assets is not its successor under Oregon law, and the court declined to expand successor liability for product cases.
• Union Bank OF California, NA v. Copeland Lumber Yards, Inc. (2007). Under ORS 30.020(1), a wrongful death claim is derivative and requires that the decedent could have maintained an action at the time of death; a decedent's prior judgment for the same wrongful act bars a later wrongful death action.
• Beneficiaries of Estate of Strametz v. Spectrum (1997). Under the last injurious exposure rule, an employer is not responsible for an occupational disease if it proves that conditions of its employment could not have caused the disease, including where the disease's latency period shows the exposure there could not have been the cause.
• Matter of Fossum (1980). A widow's claim for death benefits under ORS 656.807(2) is an independent claim that may be filed within 180 days after the worker's death, and it is not barred because the worker did not file within five years after his last exposure. Any ambiguity in the statute is resolved in favor of compensation.
• Matter of Fossum (1980). Under ORS 656.807, an occupational disease claim must be filed within five years after last exposure in covered employment. The 180-day death-claim provision only extends that period by 180 days from death and does not revive an already barred claim.

Other federal courts

• Boyd v. Warren Pumps, LLC (2016). A pump maker can be liable only for asbestos-containing products it manufactured or supplied. Circumstantial evidence that spare asbestos packing and gaskets were supplied with original pumps and disturbed during servicing while the plaintiff was aboard was enough to reach a jury, while evidence tying the makers to the replacement parts was not.
• McINDOE v. Huntington Ingalls Incorporated (2016). Custom-built naval warships not distributed commercially are not "products" for strict products liability under maritime law, and a negligence claim requires proof of substantial exposure to the defendant's asbestos for a substantial period, which an "every exposure" expert opinion cannot replace.
• Savoie v. Huntington Ingalls, Incorporated (2016). Under the federal officer removal statute, negligence claims about safety measures the government did not control show no causal nexus, but pre-1996 Louisiana strict liability claims based on the mere use of asbestos required by government contract specifications do show one, and removal of the whole case is proper if a single claim qualifies.
• Barraford v. T&N Limited (2015). A bankruptcy reorganization plan that unconditionally allows a trust to sue the debtor in the ordinary course terminates the automatic stay for those claims, which starts the thirty-day window under Code § 108(c)(2). Without plan language that tolls limitations periods, the claims are time-barred once that window closes.
• Bath Iron Works Corp. v. US Dept. of Labor (2003). Whether a claimant became aware, or with reasonable diligence should have become aware, of the link between employment, disease and death under 33 U.S.C. § 913(b)(2) is a fact-intensive question reviewed only for substantial evidence. If the ALJ found the claimant had no reason to suspect a link, no separate diligence findings are needed.
• Blanding v. Director, Owcp (1999). An employer or carrier that fails to rebut the 33 U.S.C. § 920(b) presumption of notice is treated as having notice, so its failure to file the required § 930(a) report tolls the limitations period under § 930(f). The Board may not substitute its own factual findings for the ALJ's findings supported by substantial evidence.
• Brown & Root, Inc. v. Sain (1998). Under the LHWCA a latent-disease claimant becomes a "person entitled to compensation" when he learns of the disease and its disabling effect, not at exposure. For the section 33(g) forfeiture comparison, the gross amount of third-party settlements is compared with disability compensation only, excluding medical benefits.
• Chism v. WR Grace & Co. (1998). Under Missouri law, an asbestos plaintiff needs expert evidence that each defendant's product directly contributed to the death as a substantial factor, and must show frequency, regularity and proximity of exposure to that product. Showing exposure to a product that is not shown to contain asbestos does not meet this requirement.
• 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.
• Cretan v. Bethlehem Steel Corp. (1993). Family members who settle third-party tort claims before a worker's death are persons "entitled to compensation" under both section 33(f) and section 33(g) of the LHWCA, so the set-off and written-approval requirements apply to them even though the death had not yet occurred.
• Miller v. American President Lines, Ltd. (1993). Punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. Indemnity and contribution among maritime tortfeasors, including product makers, are decided by comparative fault rather than the active-passive negligence rule.
• 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.
• Rohrbaugh v. Owens-Corning Fiberglas Corp. (1992). Under Oklahoma manufacturer's products liability law, the duty to warn extends only to ordinary consumers and users, and arises only when the manufacturer knew or should have known of the hazard; a wife exposed through her husband's work clothes was not owed a duty to warn.
• Force v. Director, Owcp, Dept. of Labor (1991). Under 33 U.S.C. § 933(f), an employer may offset the claimant's entire third-party recovery, including non-economic and punitive damages, but only the portion attributable to the claimant. The employer bears the burden of proving that apportionment in a multi-party settlement.
• 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.
• Slaughter v. Southern Talc Co. (1991). Under Texas law a plaintiff must show that he more probably than not breathed asbestos fibers from the defendant's product, which can be shown circumstantially by frequent, regular work near where the product was likely installed. Wrongful death substitution by spouses already in the suit relates back to the original complaint and is not barred by limitations.
• White v. Celotex Corp. (1990). A plaintiff must produce evidence of exposure to a particular defendant's asbestos product, and market share liability, adopted for fungible DES, is inappropriate in asbestos litigation and unlikely to be adopted by Arizona.
• Smith v. US (1989). The two-year limit in the Suits in Admiralty Act is jurisdictional and cannot be extended or tolled, and the Clarification Act bars suit by a seaman's survivor until the administrative claim is disallowed, so a premature first suit and a late second suit were both properly dismissed.
• Bauer v. Raymark Industries, Inc. (1988). A denial of a new trial motion based on the verdict being against the weight of the evidence is not reviewable on appeal, and a judgment n.o.v. is proper only where there is a complete absence of supporting evidence or overwhelming evidence for the movant. Because plaintiff bore the burden of proof, the jury could reasonably find she did not show exposure to the defendants' products rather than those of nondefendants.
• Dykes v. Raymark Industries, Inc. (1986). Tennessee's Contribution Among Tort-Feasors Act excludes only intentional tortfeasors, so a punitive award for willful and wanton conduct may be set off by settlements paid by co-defendants. Post-exposure documents may be admitted on punitive damages if relevant to pre-injury conduct.
• Silver v. Johns-Manville Corp. (1986). N.C.G.S. § 1-50(6), insofar as it is a statute of repose, has no application to claims arising out of a disease, so it does not bar a wrongful death action alleged to result from asbestos-related disease.
• Gifford v. National Gypsum Co. (1985). A trial court's findings after a bench trial, including resolution of conflicting testimony on product use and identification, are reviewed for clear error under Rule 52(a) and stand unless the appellate court has a definite and firm conviction of mistake.
• Graffagnino v. Fibreboard Corp. (1985). Under Texas law, asbestos exposure gives rise to a single cause of action covering all resulting diseases, so a valid release of that claim bars a later action for a disease diagnosed afterward, and a release's assignment of remaining claims is valid and bars suit against unreleased parties.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Rosenberg v. Celotex Corp. (1985). Under New York law a representative may bring a wrongful death action only if the decedent could still have sued at the time of death, so a time-barred underlying injury claim defeats it. Texas's foreign wrongful death statute requires an existing right of action under the foreign state's law, which was lacking here.
• Murphree v. Raybestos-Manhattan, Inc. (1982). Under Tennessee law the vested rights doctrine no longer bars application of the 1979 amendment exempting asbestos-related disease actions from the ten-year sale-based limitations ceiling. Proximate cause requires only that the defendant's product be a substantial factor, not the sole cause.
• Wilson v. Johns-Manville Sales Corp. (1982). Under the discovery rule, a diagnosis of one asbestos-related disease (asbestosis) does not start the limitations period for a separate and distinct disease (mesothelioma) from the same exposure until that second disease becomes manifest.
• Clutter v. Johns-Manville Sales Corp. (1981). Under Ohio law, a claim for an insidious disease caused by asbestos exposure accrues when the disease manifests, not at the date of last exposure.
• Vaughan v. Johns-Manville Corp. (1981). Under the Executive Jet criteria admiralty jurisdiction is present over asbestos product claims by a Navy boiler tender, and the limitation period is governed by the doctrine of laches rather than a strict application of the state statute of limitations.
• 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

• 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.
• Shellenberger v. Kreider Farms (2023). An employer owes an employee, as a business invitee, a duty to protect against dangers that could be discovered with reasonable care, not just known dangers. Whether the employer should have known of asbestos hazards and breached that duty is a jury question when there is evidence the dangers were generally known.