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.

Pennsylvania

• Gorton v. Air & Liquid Systems Corporation (2022). Under Federal Rule of Civil Procedure 5(a)(2), a pleading asserting a new claim against a party in default for failing to appear must be served under Rule 4, so a default judgment entered without such service is void.
• Gorton v. Gardner Denver, Inc. (2022). A plaintiff's notice of voluntary dismissal filed under Rule 41(a)(1)(A)(i) before the defendant serves an answer or summary judgment motion automatically dismisses the claims without prejudice. No court order or signed stipulation is needed, and the court then lacks subject-matter jurisdiction over those claims.
• Data v. AO Smith Corporation (2021). Under Pennsylvania law, a worker whose occupational disease first appears more than 300 weeks after his last exposure may bring common law claims against his employer, and a foreign corporation registered in Pennsylvania when the asbestos cause of action accrued (at injury) consents to general jurisdiction under 42 Pa.C.S. § 5301.
• Shields v. General Electric Co. (2020). The Locomotive Inspection Act preempts state-law negligence, wrongful death and survival claims that would impose state duties and standards of care on the manufacture and maintenance of locomotive equipment, including traction motors being refurbished for return to service.
• Kardos v. Armstrong Pumps, Inc. (2019). A non-movant may use a properly executed affidavit and a deceased plaintiff's deposition testimony to oppose summary judgment where the deposition arguably meets the former-testimony hearsay exception because defendants had an opportunity to cross-examine him.
• Campbell v. AO Smith Corporation (2016). An adult child must prove pecuniary loss, meaning a reasonable expectation of continuing financial benefit such as consistent gifts or services from the decedent, to share in wrongful death proceeds under Pennsylvania law. Court approval and apportionment between survival and wrongful death claims is required to finalize a settlement even after funds are received.
• Herbert v. American Biltrite (2016). Under Virginia law, an asbestos cause of action accrues once, when a physician first communicates a diagnosis of asbestosis or another listed disease, and a later mesothelioma diagnosis does not start a new limitations period. The accuracy of the first diagnosis does not matter, and the diagnosis need not be of a 'disabling' disease.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• Stellar v. Allied Signal, Inc. (2015). A state-law claim against an employer for asbestos exposure is not completely preempted by LMRA § 301 where the duty arises from state common law independent of the collective bargaining agreements and resolving the claim does not require interpreting any CBA provision.
• Wygant v. General Electric Company (2015). After Neiman struck down Act 152, 42 Pa.C.S. § 5524(8) remained operative, and its two-year limitations period for asbestos injury or death claims runs from the physician's diagnosis of the afflicted person, including for wrongful death actions.
• Scott v. Duquesne Light Company (2014). Where an occupational disease such as mesothelioma does not manifest within 300 weeks of the last workplace exposure, the Workers' Compensation Act does not apply and its exclusivity provision does not bar a common law tort suit against the employer (following Tooey).
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2012). Under the Third Circuit's four-corners test, the 30-day removal period starts only when the pleading or other paper shows with substantial specificity that federal jurisdiction exists. Defendants who submit evidence of Navy control and a colorable government contractor defense satisfy the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action theory, so the limitations period for all asbestos-related claims begins at the first physician diagnosis of any asbestos-related disease. The 1985 amendment, Va. Code § 8.01-249(4), did not abolish that theory.
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action rule, and the 1985 amendment (Va. Code § 8.01-249(4)) did not replace it with the separate disease rule. The limitations period for all asbestos-related claims therefore begins at the first physician diagnosis of any asbestos-related disease.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• Weible v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test, a plaintiff must show more than the presence of asbestos in the workplace. Evidence that the plaintiff was regularly near the defendant's identified product when it was used is enough to let a jury infer causation, and the court need not disregard product identification testimony merely because it responded to leading questions.
• Rudy v. A-Best Products Company (2005). A possessor of land is generally not liable to an independent contractor's employee unless the plaintiff meets the Gutteridge/Summers test or shows the peculiar risk or superior knowledge exception; a defendant that did not occupy the land with intent to control it is not a possessor.
• Chicano v. General Electric Company (2004). Under Pennsylvania law, a component manufacturer's duty to warn turns on factors including foreseeability and whether the part was designed for a particular finished product, so a turbine maker that knew its turbines would be insulated with asbestos may owe a duty to warn; the government contractor defense fails at summary judgment where a fact issue exists on conformity to specifications.
• Hutchinson v. AP Green Industries, Inc. (2004). Under New Jersey law (Millison), an employer's knowing exposure of employees to asbestos does not meet the "intentional wrong" exception, so workers' compensation is the exclusive remedy for the resulting occupational disease.
• Wilson v. AP Green Industries, Inc. (2002). In an asbestos case, including mesothelioma, a plaintiff must show she worked regularly in physical proximity to the defendant's product so that a reasonable inference arises that she inhaled its fibers; vague testimony and answers to improper leading questions do not meet this standard.
• Sporio v. Wcab (Songer Const.) (1998). Because the Act lists asbestosis and asbestos-related cancer together as one occupational disease, a worker who received lifetime benefits for asbestosis could have his widow collect death benefits for asbestos-related mesothelioma. This applied even though the disease and death fell outside the 300-week manifestation period.
• Baumgart v. Keene Bldg. Products Corp. (1995). Because the Court was evenly divided, the Superior Court's order was affirmed without a majority rationale. The opinion supporting affirmance reasoned that the discovery rule does not toll the two-year limitations period when the injury and its cause were reasonably ascertainable within that period.
• Fisk v. Wcab (general Elec.) (1993). In occupational disease cases under the Pennsylvania Workmen's Compensation Act, the date of injury for calculating benefits is the date of last exposure, not the date the disease manifests. Penalties against an employer cannot be imposed without proof of a violation of the Act or of department or Board rules.
• Marinari v. Asbestos Corp., Ltd. (1992). Pennsylvania follows a separate-disease rule in asbestos cases: discovery of a nonmalignant asbestos-related condition such as pleural thickening does not start the limitations period for a later, separately diagnosed lung cancer. Asymptomatic pleural thickening is itself an injury that supports a cause of action.
• Moran v. G. & WH Corson, Inc. (1991). Under Charles v. Giant Eagle Markets, where releases reduce the verdict only by the settling tortfeasor's pro rata share, non-settling defendants must pay their shares even if the settlements exceed the verdict, and this applies to strict liability cases not governed by the Comparative Negligence Act. Punitive damages require evidence that the defendant knew or had reason to know of the hazard, and vague awareness of newspaper reports was not enough.
• Vigiolto v. Johns-Manville Corp. (1986). Predicting Pennsylvania law, the court held that enterprise liability requires a small number of manufacturers or delegation of safety functions to a trade association, and that market share liability, although likely to be recognized in an appropriate case, is not suited to asbestos cases.
• Asbestos Insul. Co. v. Wcab (McGOVERN) (1983). Section 301(c)(2) is satisfied by competent medical testimony that the claimant was exposed to the hazard after June 30, 1973 and that the whole of his exposure caused the disability or death. A physician need not separate the causal contribution of exposure in different periods.
• Christman v. Dravo Corp. (1983). Under 33 U.S.C. § 905(a), an employee or his representative may sue the employer at law only if the employer failed to secure payment of compensation; an employer that has secured insurance but contests a particular claim remains protected by the Act's exclusivity provision.
• Grabowski v. Turner & Newall (1980). Under Pennsylvania law the limitations period begins when the plaintiff knows or should know that the injury was caused by asbestos exposure. A plaintiff's ignorance of the legal basis for a claim, or a lawyer's failure to advise suit, does not delay the start of the period.

Rhode Island

• McCarthy v. Warren Pumps (In re Asbestos Litigation) (2017). A decedent's sworn statement made in good faith, on personal knowledge, before the action began is admissible under R.I. R. Evid. 804(c) and may be considered on summary judgment. Product identification is judged case by case using factors such as dates, proximity and frequency of contact, and is sufficient here to leave exposure and causation for the jury.
• Santos v. AC McLOON Oil Co. (2015). A nonmovant cannot rely on allegations to defeat a properly supported summary judgment motion, but because summary judgment is a drastic remedy, the court may stay the motion to allow further discovery where plaintiff says competent evidence is forthcoming.
• Santos v. AC McLOON Oil Co. (2013). A Rhode Island court may exercise specific personal jurisdiction over out-of-state buyers who voluntarily bought boats from a Rhode Island builder, and allegations that they specified asbestos products in those boats are enough at the pleading stage for negligence, failure to warn, strict liability, implied merchantability and wrongful death claims, though not for express or fitness warranty claims lacking reliance or particular-purpose allegations.
• Cera v. AW Chesterton Company (2012). An employee who has not preserved his common-law rights under the waiver-of-rights provision is barred by the exclusivity provision from suing his employer in tort where workers' compensation benefits are appropriate. The 'casual employee' exception applies only if the employment is both casual and outside the employer's trade or business.
• Carlson v. 84 Lumber Company (2011). Under Rhode Island's interest-weighing choice-of-law approach, the place of injury for a latent disease like mesothelioma is where the disease was diagnosed and symptoms began, and the state with the most significant relationship governs. Rule 44.1 notice of intent to apply foreign law need not include argument and sets no definite deadline.
• Plympton v. American Standard (inc.) (2008). Rhode Island's statute of repose for improvements to real property, § 9-1-29, does not protect manufacturers and suppliers who were not directly involved in specific construction or improvement projects; whether Kaiser qualified as a protected materialman was a question of fact.
• Westfall v. Whittaker, Clark & Daniels (1983). Amendments to Rhode Island's wrongful death limitations period do not apply retroactively, and the discovery rule concerns discovery of the wrongful act, not of a particular defendant. In a federal diversity case, John Doe pleading under R.I.Gen.Laws § 9-5-20 is allowed, but only if the fictitious defendants are duly served within a reasonable time.

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.
• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• 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.
• Keene v. Cna Holdings, LLC (2021). Whether work is part of an owner's trade, business or occupation under S.C. Code § 42-1-400 turns first on the owner's legitimate business decision about the scope of its business, not on whether the work was merely important or necessary. An owner that outsources work for legitimate reasons, and not to avoid insurance costs, does not make the contractor's worker its statutory employee.
• Robertson v. Air & Liquid Systems Corp. (2021). Under the Lohrmann 'frequency, regularity, and proximity' test, applied the same way under South Carolina and North Carolina law, a plaintiff must show exposure to the defendant's product on a regular basis over an extended period. Testimony that could not say how often or how much of the work involved the defendant's product did not meet that standard.
• Robertson v. Air & Liquid Systems Corp. (2020). Under the Lohrmann "frequency, regularity, and proximity" test, a plaintiff must show regular exposure over an extended period to a specific defendant's asbestos-containing product near where the plaintiff worked. Speculative co-worker testimony and documents that do not place the plaintiff near that product are not enough.
• 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.
• Bostic v. 3M Company (2018). A removing defendant must show no possibility that the plaintiff could establish a claim against the in-state defendant. A slight possibility of success defeats fraudulent joinder and keeps the in-state defendant in the case, which destroys complete diversity.

Tennessee

• Welch v. Welch (2021). Settlement proceeds from a decedent's lifetime personal injury and loss of consortium suit are not wrongful death proceeds, and under West Virginia's wrongful death statute a decedent who compromised his injury claim before death extinguished any wrongful death action by his heirs.
• 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.
• Blackmon v. Illinois Central Railroad Company (2014). Under the Wicker approach, a FELA release is valid only if given for valid consideration in a settlement and limited to risks known to the parties when it was signed. A boilerplate release listing asbestos and mesothelioma among many hazards, with no other evidence of the employee's knowledge, does not conclusively bar a later claim at summary judgment.
• 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.
• Satterfield v. Breeding Insulation Company, Inc. (2007). An employer owes a duty of care, under Tennessee's foreseeability-based balancing test, to members of employees' households who routinely come into close contact with contaminated work clothing over an extended period. The duty does not extend to people whose contact is sporadic or unpredictable.