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.

Tennessee

• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.
• Lynch v. CF Industries, Inc. (2004). A party claiming workers' compensation death benefits must prove by a preponderance of the evidence, usually through expert medical testimony, that the death was due to a compensable injury or occupational disease; a trial court may credit one expert over another.
• Mackie v. Young Sales Corp. (2001). An employee's voluntary retirement does not preclude workers' compensation benefits for an occupational disease arising out of and in the course of employment, and benefits may be computed on the maximum weekly rate where the record supports it.
• Potts v. Celotex Corp. (1990). A cause of action for a separate and distinct asbestos-related disease does not accrue under TCA § 28-3-104 until that disease becomes manifest, and the single-injury rule does not make the earlier diagnosis of asbestosis start the clock on a later mesothelioma claim.

Texas

• United Refining Co. v. Dorrion (2023). Under the Bankruptcy Code's broad definition of claim and the Fifth Circuit's prepetition-relationship test, a worker's asbestos exposure by the debtor before the bankruptcy filing created a contingent prepetition claim that was discharged, even though mesothelioma appeared decades later, if notice was adequate.
• United Refining Company v. Dorrion (2023). Under the prepetition-relationship test followed in the Fifth Circuit, a former employee exposed to asbestos before the debtor's bankruptcy filing held a contingent prepetition claim that was discharged by a confirmed plan, even though mesothelioma appeared decades later, where adequate notice was given.
• Fisher v. BNSF Railway Company (2nd District, 2022). A FELA release given in settlement of an existing asbestos claim that clearly covers future asbestos-related cancer is enforceable under Section 5, whether tested under the Wicker rule or the Mendoza-Gomez analysis. Once the employer shows the release, the party attacking it must produce evidence of invalidity.
• Payne v. BNSF Ry. Co. (2nd District, 2022). A release of known and unknown future claims, including cancer, given as part of settling an existing FELA asbestosis claim is not barred by FELA Section 5 and is enforceable where it shows the parties' intent to cover such claims. Once the release is shown, the plaintiff bears the burden of raising a fact issue on its invalidity.
• Felix v. Novelis Corporation (2021). Under the Texas borrowing statute, a nonresident plaintiff must sue within the Texas limitations period, and the Texas savings statute (§ 16.064) only suspends a limitations period that has not already run, so it cannot revive claims that expired before the first filing's dismissal.
• In re United Refining Company (2021). A claim based on prepetition asbestos exposure is a prepetition bankruptcy claim even if the disease appears after confirmation, and with no official record the Confirmation Order's findings of proper notice are accepted as uncontroverted evidence that the claim was discharged.
• Andrews v. John Crane, Inc. (14th District, 2020). General maritime law preempts state law for a Navy sailor's asbestos products claims against a gasket maker, and DOHSA does not bar a general maritime survival recovery for the decedent seaman's pre-death pain and suffering.
• Bell Helicopter Textron, Inc. v. Dickson (5th District, 2019). Gross negligence must be shown by clear and convincing evidence that the employer's act involved an extreme degree of risk viewed prospectively and that the employer was actually, subjectively aware of that risk to the plaintiff. General knowledge of asbestos hazards, and later studies, did not show Bell's awareness of an extreme risk to this worker.
• Jefferson County v. Farris (2018). Notice under the Tort Claims Act runs from the last incident essential to the claim, which in a latent asbestos disease case is the diagnosis or symptom manifestation. The Local Government Code presentment requirement is not a jurisdictional statutory prerequisite under Gov't Code section 311.034.
• Jefferson County v. Farris (1st District, 2018). Under the Texas Tort Claims Act, the six-month notice period runs from the incident giving rise to the claim, here the last asbestos exposure. Wrongful-death and survival claims are derivative of the decedent's own claim and are barred by immunity to the extent his claim would have been barred.
• Abutahoun v. Dow Chemical Company (2015). Chapter 95 of the Texas Civil Practice and Remedies Code applies to all independent contractor negligence claims against a property owner, including claims based on the owner's own contemporaneous negligent activity, when the claim arises from the condition or use of an improvement the contractor constructs, repairs, renovates, or modifies.
• Union Carbide Corporation v. Synatzske (2014). The Chapter 90 safety valve requires that pulmonary function testing be relevant to the physician's diagnosis of functional pulmonary impairment, so decades-old normal tests do not qualify. Applying that requirement to a claim that accrued before Chapter 90 took effect is not unconstitutionally retroactive, given the compelling public interest and the claimants' lack of settled expectations.
• Union Carbide Corporation v. Synatzske (1st District, 2011). Texas Civil Practice and Remedies Code section 90.010(f)(1)(B)(ii), which requires verification of pulmonary function testing, violates the Texas Constitution's ban on retroactive laws as applied to claimants whose decedent died before Chapter 90 took effect and could not be tested. The court applied the Robinson three-factor test.
• Darden v. Union Carbide Corporation (14th District, 2010). Following Ross v. Union Carbide (which overruled Perez v. Todd Shipyards), the court rejected the arguments that a pre-death release could not cover a later gross negligence claim, that it was limited to product liability claims, or that it was void as covering work-related injuries.
• Uop, LLC v. Kozak (1st District, 2010). Under former section 150.002, a certificate of merit is mandatory and cannot be waived by the trial court. It is required for a negligence-based failure-to-warn claim against an engineering firm when the claim rests on the firm's engineering knowledge and expertise, whether the firm is sued as designer or as general contractor.
• In re EI DU Pont DE Nemours and Company (2009). A trial court abuses its discretion when it sets aside a jury verdict and grants a new trial without specifically stating its reasons, following In re Columbia Medical Center of Las Colinas. The court does not presume the trial court limited itself to the grounds in the motion.
• Ross v. Union Carbide Corporation (14th District, 2009). A survivors' exemplary-damages claim under Texas Constitution art. XVI, § 26 or Labor Code § 408.001(b) is derivative of the Wrongful Death Act, so a worker's pre-death release of the tortfeasor bars it. An invalid workers' compensation waiver in a broad release can be severed without voiding the rest.
• Kozak v. Guard-Line, Inc. (2008). A removing defendant must show there is no reasonable basis to predict the plaintiff might recover against the in-state defendant, and ambiguity in state law is resolved for the plaintiff. A removing defendant also cannot add new grounds for improper joinder in opposing remand that were not in its notice of removal.
• Satterfield v. Crown Cork & Seal Co., Inc. (3rd District, 2008). A common law cause of action that has accrued and is pending is a vested right, and a statute that retroactively eliminates it without a grace period violates the Texas Constitution's ban on retroactive laws (art. I, § 16), and the police power does not override that ban.
• Gilcrease v. Garlock, Inc. (8th District, 2006). A venue determination made before a nonsuit fixes venue for a refiled suit on the same claims against the same party. Family members asserting derivative claims are a single claimant for Chapter 33 settlement credits, Settlement credits under Chapter 33 apply only to actual damages, not to exemplary damages, and the jury's actual damages award still supports the exemplary award even if the credits offset it.
• In re Fluor Enterprises, Inc. (3rd District, 2006). Section 90.010(b) does not create a right to transfer asbestos cases filed after September 1, 2003 to the MDL court independent of the MDL rules, and section 90.010(d) does not require the MDL court to keep cases not transferred under those rules. Even if such a right existed, the defendants waived it by waiting until the eve of trial.
• Todd Shipyards Corporation v. Perez (2000). The Texas Supreme Court denied Todd Shipyards' petition for review, leaving in place the court of appeals' reversal of summary judgment for Todd and in favor of Garcia's daughters; Justices Hecht and Owen dissented from the denial.
• Perez v. Todd Shipyards Corp. (1999). A surviving family's gross negligence claim for exemplary damages under the Texas Constitution and Labor Code is not derivative of the decedent's rights. Because the children had no pre-petition relationship with the debtor, they held no bankruptcy 'claim' that was discharged before the plan was confirmed.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.
• Click v. Owens-Corning Fiberglass Corp. (1995). In an asbestos case, a plaintiff can survive a directed verdict with circumstantial evidence that the worker frequently and regularly worked in proximity to the defendant's products so that he likely inhaled its fibers. Direct proof that the worker handled the defendant's product is not required.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Gaulding v. Celotex Corp. (1989). A plaintiff must prove the defendant supplied the product that caused the injury. On these facts (unidentified asbestos board bought at a salvage yard), alternative liability, concert of action, enterprise liability and market share liability did not apply, and neither joint and several liability nor res ipsa loquitur relieved that burden.
• Pecorino v. Raymark Industries, Inc. (9th District, 1988). Under Texas law as applied by the court, exposure to asbestos gives rise to a single cause of action that accrues when the first injury (here asbestosis) occurs, so a later mesothelioma claim from the same exposure cannot be split off and is time-barred. A broad release of all present and future claims from the exposure is also enforceable.
• Flatt v. Johns-Manville Sales Corp. (1980). Under federal law, offensive collateral estoppel based on Borel could bar defendants from relitigating whether asbestos-containing products are defective and unreasonably dangerous and whether asbestos dust can cause mesothelioma and asbestosis. State-of-the-art evidence is irrelevant in a strict liability action.

Utah

• Riggs v. Georgia-Pacific LLC (2015). Under Utah Code section 78B-3-106, a wrongful death action is an independent cause of action that is not barred because the decedent won a judgment in a related personal injury suit during her lifetime; double recovery of the same damages is not permitted.
• Kilpatrick v. Bullough Abatement, Inc. (2008). Dismissal as a discovery sanction requires a factual finding of willful noncompliance (intentional failure, not mere prejudice or unintentional noncompliance); 'fault' does not include unintentional behavior.
• Luckau v. Board of Review (1992). Under the 1988 Last Injurious Exposure Rule, an employer is liable if the employee was exposed to substances that did or could have contributed to the disease in an amount sufficient to cause or contribute to it to any degree; the statute does not require a substantial dose or lengthy duration.
• Tisco Intermountain v. Industrial Com'n of Utah (1987). Under the last-injurious-exposure rule, an award against an employer must rest on competent evidence of exposure during employment with that employer. An unsworn offer of proof is hearsay and cannot support the award, and liberal construction of the statute cannot fill the gap.

Vermont

• Carpin v. Vermont Yankee Nuclear Power Corporation (2024). Under 12 V.S.A. § 518(a), the "last occurrence" to which a latent injury is attributed is the most recent proximate cause, here the last asbestos exposure, not the latent cellular changes preceding diagnosis; the twenty-year repose period is a permissible legislative policy choice under Article 7.

Virginia

• Mullinex v. John Crane, Inc. (2022). When a defendant's answer neither admits nor denies material allegations of the complaint, those allegations are deemed admitted under Rule 8, and a plaintiff may obtain judgment on the pleadings on liability. Damages allegations are not admitted by a failure to deny.
• Quisenberry v. Huntington Ingalls Incorporated (2018). Under general negligence principles, an employer whose conduct allegedly let asbestos fibers be regularly carried from the workplace to an employee's home owes a duty of ordinary care to household members within that recognizable risk of harm. Whether the employer actually caused the harm is a question of proof, not duty.
• Cole v. Norfolk Southern Railway Company (2017). A release does not violate § 5 of FELA if it is executed for valid consideration as part of a negotiated settlement and is limited to risks known to the parties when it was signed (the "risk of harm" test). The question is whether the employee intended to release the known risk, a fact question.
• Gibbs v. Newport News Shipbuilding and Drydock Company (2012). The Virginia Workers' Compensation Act's exclusivity bar does not apply to an active-duty service member's estate, because the Navy could not be subject to the Act. The Navy was therefore not the Shipyard's statutory employer, and the member had no right to compensation under the Act.
• John Crane, Inc. v. Hardick (2012). In a general maritime survival action based on a seaman's death, courts look to the Jones Act, so the decedent seaman's estate may recover damages for pre-death pain and suffering. DOHSA does not bar this where the decedent was a seaman.
• John Crane, Inc. v. Hardick (2012). Nonpecuniary damages are not recoverable in a wrongful death action for a seaman, whether under DOHSA, the Jones Act, or general maritime law, and a Navy sailor who contributed to the function of vessels and had a substantial connection to them is a seaman. Arguments not briefed under Rule 5:27 are waived.
• Garlock Sealing Technologies, LLC v. Little (2005). Federal maritime tort law governs an asbestos claim based on exposure during repair and construction of vessels in navigable waters, and a party that induced the jury's apportionment among non-parties cannot then complain about how it was applied.
• McCormick v. CE Thurston & Sons, Inc. (1997). A Navy vessel is not a federal enclave, and federal officer removal fails without a colorable federal defense; the government contractor defense is not available in failure-to-warn cases in this district.
• Roller v. Basic Const. Co. (1989). In an occupational disease case, the employer's and employee's rights under the Workers' Compensation Act become fixed when the diagnosis is first communicated to the employee, so the statute in effect on that date governs. A repealed five-year limit from last injurious exposure therefore created no vested right of repose and the 1983 amendment applied without unconstitutional retroactivity.
• Caudle-Hyatt, Inc. v. Mixon (1979). The conclusive presumption of total dependency under Code § 65.1-66 arises once actual dependency, even if only partial, is shown. Under Code § 65.1-52, an exposure is injurious if reasonably calculated to bring on the disease, which can be shown by actual causation or by exposure of a duration and intensity that generally causes the disease.