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.

Washington

• Sorrentino v. Ammco Tools, Inc. (1st Division, 2024). In a pre-WPLA failure-to-warn claim, a jury may infer a plaintiff would have heeded an asbestos warning from evidence he read manufacturer materials and would have heeded intermediary warnings. The substantial factor causation test applies in asbestos cases where it is hard to identify the exact source of harm, and personal jurisdiction over a foreign manufacturer was proper given its importer agreement requiring marketing in Washington.
• Deem v. Air & Liquid Systems Corporation (2023). Under maritime law a plaintiff must show actual exposure to the defendant's asbestos and that it was a substantial contributing factor, which requires substantial exposure for a substantial period when direct evidence is absent. The presence of a defendant's product at a shipyard is not enough.
• Lewis v. Washington State Department OF Labor and Industries (2nd Division, 2023). Under RCW 51.12.102 and Gorman, a worker or beneficiary who may have a claim under the Longshore and Harbor Workers' Compensation Act receives only temporary, interim state benefits, not permanent benefits. That reading does not unconstitutionally chill the jury trial right or violate equal protection.
• Perkins v. United States (2023). Under the FTCA's discretionary function exception, the government must show no mandatory directive governed the challenged conduct and that the decision was susceptible to policy analysis. Mandatory Navy directives on coveralls for asbestos ripout work removed that claim from the exception, while the laundry and warning decisions were discretionary and policy-based.
• Deem v. William Powell Co. (2022). A wrongful death claim under maritime law cannot accrue before the decedent's death, so the three-year limitations period under 46 U.S.C. § 30106 starts on the date of death (or later if the cause of death is not then known), not when the seaman learned of his illness.
• Hickson v. Air & Liquid Systems Corporation (1st Division, 2022). To survive summary judgment, an asbestos plaintiff must show a genuine issue of fact on exposure to asbestos and on causation under the Lockwood factors; potential exposure and an expert's conditional hypothetical opinion, without evidence of actual exposure, require speculation and are not enough.
• Atchinson v. Howmet Aerospace, Inc. (2021). Under Walston v. Boeing, asbestos exposure does not meet the Washington Industrial Insurance Act's "deliberate injury" exception because exposure is not certain to cause disease, so a plaintiff must show the employer knew he was certain to be injured.
• Coogan v. Borg-Warner Morse Tec Inc. (2021). An appellate court may set aside a jury's damages verdict supported by substantial evidence only if the record unmistakably shows it was based on passion, prejudice or another improper consideration; the size of the verdict alone is not enough.
• Casey v. Alcoa Corporation (2020). Under the WIIA's deliberate-intention exception as applied in Birklid and Walston, an employer is not liable outside workers' compensation unless it had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. Awareness of asbestos risks, or of other workers' asbestos-related conditions, does not show that.
• Clevenger v. John Crane, Inc. (1st Division, 2020). A party is entitled to an instruction that lets her argue her theory of the case when substantial evidence supports it. In this asbestos case, a proximate cause instruction limited to mesothelioma was misleading because the evidence supported either mesothelioma or an asbestos-related lung cancer as the cause of death.
• Coogan v. Borg-Warner Morse Tec Inc. (2nd Division, 2020). A trial court acts as gatekeeper and abuses its discretion by excluding an expert opinion because it disagrees with the conclusion rather than because the foundation is inadequate. A noneconomic damages verdict can be set aside under CR 59(a)(5) when it shocks the court's conscience, even without a finding of passion or prejudice.
• Cameron v. Atlantic Richfield Company (1st Division, 2019). The date of substantial completion of construction determines which version of the construction statute of repose applies, and the 2004 amendment is not retroactive. The 1967 statute bars claims arising from covered construction activities but not claims based on a defendant's activities as a premises owner.
• Clayton v. Air & Liquid Systems Corp. (2019). A scheduling order may be modified for good cause; good cause existed because discovery closed before a wrongful death claim was added to the case, so the defendant had no notice it would need discovery on cause of death.
• Deem v. Air & Liquid Systems Corporation (2019). Under maritime law, the three-year limitations period for a wrongful death claim runs from when the decedent knew or should have known of his injury and its cause, not from the date of death.
• Deem v. Air & Liquid Systems Corporation (2019). Under the law of the case doctrine, the court would not reconsider its earlier decision granting summary judgment on Washington statute of limitations grounds to similarly situated defendants, and applied it to Cleaver-Brooks.
• Deem v. Air & Liquid Systems Corporation (2019). Under Deggs, a wrongful death claim against a defendant is barred when the decedent's personal injury claim against that defendant was not filed within the three-year limitations period, even if that period ran after his death.
• Jack v. Dco, LLC (2019). Under Washington law a manufacturer of asbestos products can have a continuing post-sale duty to warn, but a claim based on it fails where there is no evidence the plaintiff would have acted on a warning in a way that materially reduced his exposure, because that causal chain is speculative.
• Leren v. Kaiser Gypsum Company, Inc. (1st Division, 2019). The product line doctrine of successor liability can apply to a distributor of raw asbestos, not only to manufacturers, where the successor acquired the distributor's assets and goodwill and held itself out as its continuation. The dissolved-corporation limitations statute (RCW 23B.14.340) does not bar such a successor liability claim.
• Yaw v. Air & Liquid Systems Corporation (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b)(4), and the plaintiff's husband's death just before the deadline met that standard. Because DeVries announced a new maritime-law duty-to-warn standard after briefing, the court required supplemental briefing before deciding summary judgment.
• Brandes v. Brand Insulations, Inc. (1st Division, 2018). A wrongful death claim is barred where the decedent, after injury, pursued prior litigation to judgment against the same defendant, but not against defendants who were not parties to or in privity with parties in that litigation. Res judicata, double recovery and joinder concerns did not bar the claims against the non-party defendants.
• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Varney v. Air & Liquid Systems Corporation (2018). A complaint stating the disease, the timeframe and place of exposure, and a theory of causation is sufficient under Rule 8. Allegations that defendants placed asbestos products into Washington's stream of commerce make a prima facie showing of specific personal jurisdiction.
• Barabin v. AstenJOHNSON, Inc. (2017). The court granted the parties' stipulated motion and continued the initial disclosure, Rule 26(f) conference and joint status report deadlines until one month after it rules on Plaintiff's motion to remand.
• Rublee v. Carrier Corporation (1st Division, 2017). Under Restatement (Second) of Torts § 400, assumed to be adopted in Washington, a defendant is liable as an apparent manufacturer only if the evidence satisfies a reliance or enterprise test. Under the objective reliance test, a reasonable purchaser in the position of the actual (industrial) purchaser is the relevant viewpoint.
• Woo v. General Electric Company (1st Division, 2017). A manufacturer generally has no duty to warn of asbestos in other makers' products used with its equipment, but a fact issue on duty exists where the evidence shows the equipment required asbestos-containing insulation, gaskets and packing to function as designed and the plaintiff was exposed to original gaskets and packing the manufacturer supplied.
• Rublee v. Carrier Corp. (1st Division, 2016). Under Restatement (Second) of Torts § 400, apparent manufacturer liability was assessed from the viewpoint of a reasonable purchaser in the position of the actual purchaser, and the evidence failed under the objective reliance, actual reliance and enterprise liability tests.
• McCROSSIN v. Imo Industries, Inc. (2015). Summary judgment fails where plaintiff offers testimony and expert opinion creating a genuine dispute whether the defendant's asbestos materials were on the ship and were a substantial factor in causing mesothelioma, under either state or maritime law. A defendant's superseding-cause and derivative sovereign immunity defenses also fail at this stage where factual disputes remain.
• Barabin v. AstenJOHNSON, Inc. (2014). A non-diverse defendant is fraudulently joined on a limitations ground only if the bar is obvious under settled state law. Under Washington law, it is unsettled whether a wrongful death claim is barred when the decedent's personal injury limitations period ran before death, so that showing was not made.
• Kimball v. Asbestos Corporation Ltd. (1st Division, 2008). Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.
• Herring v. Texaco, Inc. (2007). A debtor need not give actual notice of its bankruptcy to a claimant's union when the debtor had no knowledge of the particular claimant's claim. An unknown creditor is only entitled to publication notice, and notice to the union would not be actual notice to the claimant.
• Bashore v. Fraser's Boiler Service, Inc. (1st Division, 2006). Asbestos plaintiffs can establish exposure to a defendant's products through circumstantial evidence, and evidence called to the trial court's attention, including supplemental submissions responding to an issue first raised in reply, is properly before the appellate court.
• Miller v. Foster Wheeler Co. (1st Division, 1999). Under the Jones Act/FELA, a personal injury survival claim accrues at the time of injury and is barred if not filed within three years of that date, even if the separate wrongful death claim, filed within three years of death, is timely.
• Kilpatrick v. Dept. of Labor and Industries (1994). A survivor's claim is derivative of the worker's claim for purposes of the benefit schedule, but each separate asbestos-related disease has its own date of manifestation. Survivor's benefits are therefore set by the schedule in effect when the disease that caused death manifested.
• Krivanek v. Fibreboard Corp. (1st Division, 1993). The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.
• Bowers v. Fibreboard Corporation (2nd Division, 1992). Jury instructions are not erroneous if they let each party argue its theory, are not misleading, and properly inform the jury of the law when read as a whole. A surviving spouse's wrongful death damages may be shown with evidence of the pre-illness relationship, and a government-published ship history over 20 years old may be admitted as an ancient document.
• White v. Johns-Manville Corp. (1985). The discovery rule applies to wrongful death and survival actions, so a claim accrues when the personal representative (or the decedent, for survival claims) knew or should have known the causal link between asbestos exposure and the death or disease; the date of death does not fix accrual as a matter of law.

West Virginia

• Murphy v. ST. Gobain Ceramics & Plastics, Inc. (2024). A statutory presumption of occupational pneumoconiosis is rebuttable and disappears once contrary evidence is credited; the Occupational Pneumoconiosis Board's finding that occupational disease was not a material contributing cause of death is given great deference and need not identify the actual cause of death.
• Swiger v. AR Wilfley & Sons, Inc. (2020). A case does not become removable on a tentative, unwritten settlement with the non-diverse defendant when court approval of a wrongful death settlement is required, and a pending summary judgment dispute cannot establish fraudulent joinder under the high Fourth Circuit standard.
• Bennett v. West Virginia Office OF Insurance Commissioner, W Va: Supreme Court of Appeals 2016 (2016). Dependent's benefits turn on whether the disease contributed in any material degree to the death. The agency's findings on the date of last exposure and the chargeable employer stand where no persuasive evidence challenges them.
• Moore v. Aker Oil and Gas US, LLC, W Va: Supreme Court of Appeals 2015 (2015). A claimant seeking dependent's benefits for a death from mesothelioma must show the decedent was exposed to asbestos hazards in the course of employment in West Virginia, whether the claim is treated as occupational pneumoconiosis or as an occupational disease.
• Ratliff v. Norfolk Southern Ry. Co. (2009). A release signed in connection with a voluntary separation program, rather than in settlement of a specific FELA claim, is void under 45 U.S.C. § 55 unless it reflects a bargained-for settlement of a known claim for a specific injury.
• Lamphere v. Consolidated Rail Corp. (2001). A trial judge may weigh the evidence and assess credibility in ruling on a new trial motion and may set aside a verdict against the clear weight of the evidence, even if supported by substantial evidence; the decision is reviewed only for abuse of discretion.
• Powell v. State Workmen's Compensation Com'r (1980). Lung cancer can be a compensable occupational disease under W.Va. Code § 23-4-1 even though it also occurs in the general public, and the claimant need not prove an intermediate occupational disease such as asbestosis or negate all non-occupational causes such as smoking.

Wisconsin

• Nooyen v. Wisconsin Elec. Power Co. (2020). Under Mair, the construction statute of repose bars safe place claims resulting from structural defects, including airborne asbestos released during original construction. The statute applied to a mesothelioma claim that arose on diagnosis after 1994 without improper retroactivity, and it did not violate the constitutional right to a remedy.
• Kappel v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act does not bar claims based on community or environmental asbestos exposure, and a complaint that alleges the specific diagnosis and date of death need not be dismissed for lack of specificity. The nuisance claims were time-barred, as the court had held in the related Kilty and Spatz cases.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Ahnert v. Brand Insulation Inc. (2015). Under Wisconsin claim preclusion law, a prior dismissal with prejudice of an asbestosis suit bars a later mesothelioma suit against the same defendants where the plaintiff knew of the mesothelioma diagnosis before the earlier dismissal and could have added it; the Sopha exception did not apply.
• Arendt v. Owens-Illinois, Inc. (2015). A dismissal with prejudice of an earlier suit, in which the plaintiff conceded that a non-malignant asbestos claim was time-barred, can be given preclusive effect. Under Wisconsin's two-disease rule, a non-malignant diagnosis starts the three-year limitations period for non-malignant claims, so a later suit for non-malignant disease is barred where no malignancy ever developed.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Peter v. Sprinkmann Sons Corp. (2015). "Damages" in the statute of repose's pre-April 29, 1994 exception means legally actionable damages, not physical injury at exposure; but routine daily repair and maintenance of insulation is not an "improvement to real property" and so is not covered by the construction statute of repose.