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.

California

• Williamson v. Plant Insulation Co. (1st Appellate District, 3rd Division, 1994). Under former Probate Code section 573(c), pain and suffering damages and unincurred future economic losses do not survive a plaintiff's death before judgment, and neither section 669 nor nunc pro tunc entry applies when the plaintiff dies during trial before the case is ready for judgment. Under Code of Civil Procedure section 340.2, substantial evidence supported the jury's finding that the asbestosis claim was timely.
• Clark v. Workers'comp. Appeals BD. (2nd Appellate District, 7th Division, 1991). The limitations period in Labor Code section 5406.5 for an asbestos worker's death benefits is tolled until the dependent knows, or reasonably should know, that the death was work-related. A dependent's death benefits claim is independent of the worker's own claim, not an amendment to it.
• Chevron USA v. Workers'comp. Appeals BD. (1st Appellate District, 5th Division, 1990). Where two separate and distinct occupational disease processes from a single period of asbestos exposure manifest at different times, each has its own date of injury under Labor Code section 5412, which is used to calculate the statutory death benefit rate.
• Hughes v. Western MacArthur Co. (1st Appellate District, 4th Division, 1987). A plaintiff must plead facts showing the defendant is a successor to the corporation that injured her. But a plaintiff who does not allege an employment relationship need not plead the dual capacity exception to workers' compensation exclusivity, because a complaint cannot be attacked by matters in the answer.
• Johns-Manville Products Corp. v. Superior Court (1980). Workers' compensation is the exclusive remedy for an employee's initial injury, including injury from an employer's knowing failure to make the workplace safe. An employee may still sue at law for aggravation of the disease caused by the employer's fraudulent concealment of the condition and its work-related cause.
• Arndt v. Workers'comp. Appeals BD. (1st Appellate District, 1st Division, 1976). A dependent's workers' compensation death claim for a worker's death from an industrially caused disease must be filed within one year of the date of death or of the date the applicant knew, or reasonably should have known, that the death was industrially caused. The 240-week limit runs from the date of injury, which is when the disease was discovered or should have been discovered as work-related, not from the last exposure.

Colorado

• Church v. Dana Kepner Company, Inc. (2013). Confidentiality agreements do not shield settlement information from discovery, but under Colorado's apportionment statutes settlement amounts with nonparties are not relevant to apportioning fault or calculating damages; only the fact of settlement is discoverable.
• Church v. Dana Kepner Company, Inc. (2012). Under Colorado's innocent seller statute, a plaintiff need only plead facts plausibly showing the seller had actual knowledge of a product defect to sue a non-manufacturer seller. Allegations of knowledge and distribution without adequate warnings also suffice to plead civil conspiracy.
• Fibreboard Corp. v. Fenton (1993). State-of-the-art evidence is admissible in strict liability failure-to-warn claims to show a product was not defective and unreasonably dangerous because the risk was not known or knowable. Under the pre-1986 set-off statute, settlement amounts must actually be collected before they can be set off against a joint judgment.
• Rice v. Armstrong World Industries, Inc. (1987). Under the Colorado Products Liability Act, a seller who relabels a product is treated as a manufacturer if it had actual knowledge of a defect or did not disclose the actual manufacturer, and a seller's non-manufacturer status bars only strict liability claims, not negligence, warranty or gross negligence claims.

Connecticut

• Estate OF Rock v. University of Connecticut (2016). An estate is not a legal entity and is not a "legal representative" under General Statutes § 31-294c, so it cannot bring a claim for any form of workers' compensation benefits under the act.
• Brochu v. Aesys Technologies (2015). A trial court may dismiss an action for lack of diligence under Practice Book § 14-3 when the plaintiff's representative, without explanation, waits years after the original plaintiff's death to substitute in, leaving the case dormant and prejudicing the defendants.
• Lafayette v. General Dynamics Corp. (2001). A final federal Longshore Act administrative decision that actually and necessarily decided that the worker's death was work-related precludes the employer from relitigating causation in a state workers' compensation survivor-benefits proceeding. The federal burden of proof was the same as the state burden, and the judge did not apply the abolished 'true doubt' rule.
• Estate OF Frederick v. General Dynamics Corp. (1997). A surviving dependent spouse and the estate of an employee who died of an occupational disease are entitled to benefits under §§ 31-306 and 31-307 even if the decedent had not worked for the employer in the twenty-six weeks before the disease manifested, following Green v. General Dynamics Corp.
• Green v. General Dynamics Corp. (1996). Under the statutes then in force, dependent's death benefits for an occupational disease are based on average weekly wages earned in the 26 weeks before the date of incapacity. A decedent with no wages in that period has no average weekly wage, so no benefits are payable, and the later statute (§ 31-310c) does not apply retroactively.
• Bauer v. Johns-Manville Corp. (1984). The Connecticut products liability limitations statute (three years), amended to cover wrongful death, applies to products liability suits brought after October 1, 1979, so it governs this suit. A spouse cannot recover consortium damages for the death itself, but can recover for consortium loss caused by the decedent's injuries before he died.

Delaware

• Salvemini v. Air & Liquid Systems Corporation (2025). Under maritime law a plaintiff must show exposure to the particular defendant's product and that it was a substantial factor in the injury, and vague testimony that cannot separate that defendant's product from others fails. General maritime law did not reach a spouse's land-based take-home exposure when the plaintiffs did not show the maritime connection test was met.
• Burhenn v. Celotex Asbestos Settlement Trust (2024). A claim against an asbestos settlement trust is governed by the trust plan's own filing deadline (three years from first diagnosis), and tolling under the plan applies only if the trust claim was timely filed. Even under ordinary limitations law, via Delaware's borrowing statute, the claim was time-barred, and cross-jurisdictional tolling does not apply where the original foreign filing was untimely.
• C&d Contractors, Inc. v. McLaughlin (2023). Under 19 Del. C. § 2350(f), a claimant whose Board position is affirmed on appeal may recover a reasonable fee, which includes paralegal services; costs are not covered by § 2350(f) but may be awarded under 10 Del. C. § 5101.
• Cox v. Foster Wheeler (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must show exposure to the defendant's product that was a substantial factor in causing the injury, and a manufacturer may owe a duty to warn about third-party replacement parts when its product requires them, it knows or has reason to know of the danger, and it has no reason to believe users will realize that danger. Disputed facts on these elements and on the Boyle elements preclude summary judgment.
• Cox v. Nash Engineering Co. (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must first show exposure to the specific defendant's product before substantial factor causation is reached; without product identification evidence, strict liability, wrongful death, consortium and punitive damages claims fail.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (2020). Under Vermont law, a plaintiff shows substantial factor causation with evidence of more than de minimis exposure, and a right to recover that vested through exposure before the 1967 enactment of the asbestos-related statute of repose is not barred by it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2020). A jury's damages verdict is not disturbed unless it results from passion, prejudice, partiality or corruption, or manifestly disregards the evidence or law, or is so grossly excessive that it shocks the court's conscience and sense of justice.
• Vocciante v. Air & Liquid Systems Corporation (2020). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Minimal exposure, or mere presence of the product somewhere at the workplace, does not suffice without evidence of frequency, regularity or proximity.
• Evans v. John Crane, Inc. (2019). General maritime law and state survival statutes can supply survival damages where an asbestos injury is indivisible across the high seas and territorial waters, so DOHSA does not bar them. DOHSA does limit the wrongful death claim itself to pecuniary damages. An expert's lack of experience with the specific products or documents goes to weight, not admissibility.
• Weddle v. BP Amoco Chemical Company (2019). Delaware treats each asbestos-related disease as a separate accident, so a workers' compensation settlement of an earlier disease cannot waive compensation for a different disease that had not yet manifested; such a waiver is void.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (2018). Indiana's general negligence "but for" causation standard applies to asbestos cases, so a substantial contributing factor opinion that concedes it does not meet that standard cannot defeat summary judgment.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (2018). Under 10 Del. C. § 8121 the shorter Louisiana one-year limit applied, and wrongful death and survival claims filed after that period are supplemental rather than amended pleadings, so under Delaware procedural rules they do not relate back to the original complaint.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable for an independent contractor's negligence absent inherently dangerous work or control over the contractor's methods, and strict liability requires custody of the defective thing, which mere presence on the premises does not establish.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable to a contractor's worker without evidence that it knew of the asbestos risks, specified asbestos use, or had custody or control of the asbestos product. Strict liability also requires custody of the thing that caused the harm.
• Tetteh v. Alcatel-Lucent USA, Inc. (2016). Under Georgia law and Restatement (Second) of Torts § 324A, a parent corporation that gives its subsidiary safety recommendations and guidance has not assumed the subsidiary's duty to protect the subsidiary's employees. The plaintiff also failed to satisfy any of the § 324A(a), (b) or (c) requirements.
• Dana Companies, LLC v. Crawford (2011). A trial court must assess the adequacy of each damages award (survival pain and suffering, wrongful death) separately on the evidence for that claim, consistent with the jury instructions, and may not uphold an award by reference to other awards shared by the same beneficiaries.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (2011). Under Delaware's borrowing statute the shorter Delaware limitations period applied to the survival claim. A wrongful death claim accrues no earlier than the decedent's death. In a multi-defendant asbestos case, but-for causation does not apply, and the Utah Supreme Court was not expected to apply it.
• Hopkins v. Plant Insulation Co. (2006). A district court sitting in the bankruptcy case may abstain under the discretionary abstention provision rather than transfer a related personal injury and wrongful death action under 28 U.S.C. § 157(b)(5). Here the debtor's opposition and the lack of precedent for using § 157(b)(5) against a debtor/plaintiff's chosen forum supported abstention.

District of Columbia

• Jackson v. Colgate-Palmolive Company (2019). An expert's asbestos testing opinion is unreliable and excluded where the method skipped a required confirmatory step and the results cannot be verified, and a specific causation opinion fails where it rests on an unreliable control group and ignores other reported exposure; gaps in chain of custody for talc samples go to weight where adulteration is reasonably eliminated.
• Fearson v. Johns-Manville Sales Corp. (1981). A claim for lung cancer accrues when the cancer is diagnosed, not when earlier, separate asbestosis was diagnosed. A voluntary compensation settlement never approved by a deputy commissioner, judge or board is not an "award in a compensation order" that assigns the claimant's third-party rights to the employer under § 33(b).

Florida

• Ripple v. CBS Corporation (2024). A spouse who married the decedent after the injury but who outlived the decedent is a "surviving spouse" under Fla. Stat. 768.21(2), and the common law "marriage before injury" rule for loss of consortium does not bar that statutory wrongful death recovery.
• Gallo v. Carnival Corporation (2023). With the plaintiffs' disclaimer of recovery for exposures during years covered by arbitration agreements, those agreements do not "relate to" the claims for Convention-based removal. The removing party bears the burden of showing jurisdiction, and Carnival did not give enough information to interpret the arbitration agreement's reach under the governing contract law.
• Ripple v. CBS Corporation (4th District, 2022). A spouse who married the decedent after the injury cannot recover consortium-type damages under section 768.21(2) of the Wrongful Death Act because the Act does not abrogate the common-law marriage-before-injury rule. Because the defendants successfully argued the wife was not a surviving spouse for that purpose, the adult children may recover under section 768.21(3).
• Union Carbide Corporation v. Font (3rd District, 2020). A defendant may present evidence of alternative causes, such as a decedent's own sworn asbestos claims against non-parties, without proving those non-parties' fault by expert testimony; and a learned intermediary instruction must let the jury understand that reasonable reliance on an intermediary fulfills or discharges the duty to warn.
• Kelly v. Georgia-Pacific, LLC (4th District, 2017). The Florida Wrongful Death Act does not clearly abrogate the common law rule that a spouse must be married to the injured person before the injury to recover consortium damages, so a spouse who married after the injury cannot recover consortium-type damages in a wrongful death suit. The rule applies even when the injury is latent.
• Northrop Grumman Systems Corporation v. Britt (3rd District, 2017). A suggestion of death must be filed with the court and served to start Florida's 90-day substitution period under Rule 1.260(a)(1). Competent, substantial evidence of causation may support a mesothelioma verdict even without precise dose quantification, particularly where the premises owner did not monitor airborne asbestos.
• Dugas v. 3M Company (2016). Where the parties do not dispute that the decedent died of the injury at issue, the surviving spouse's loss of consortium claim must be brought through the personal representative's wrongful death action under Florida law, not as a separate individual claim. The wrongful death statute requires pleading only the identity and relationship of survivors, not their ages or dependency.
• Rich v. Kaiser Gypsum Company, Inc. (4th District, 2012). Florida Statute 90.804(2)(a) does not require strict privity between a party and a "predecessor in interest" for former testimony of an unavailable witness to be admitted; it is enough that the earlier party had an opportunity and similar motive to develop the testimony.
• ACandS, Inc. v. Redd (3rd District, 1997). A spouse's loss of consortium claim is derivative and abates when the injured spouse's personal injury action abates on his death from the injuries, so recovery lies only under the Wrongful Death Act. Prejudicial testimony and an excessive verdict also warranted a mistrial or new trial.
• Snoozy v. US Gypsum Co. (3rd District, 1997). A defendant that wants non-parties placed on the verdict form for apportionment of fault must produce evidence of the specifics of the different asbestos products, how often they were used, and their toxicity as used. Minor children cannot be awarded zero damages for a parent's wrongful death when the record shows undisputed evidence of their loss.
• Chesterton v. Fisher (3rd District, 1995). A party may use medical treatises to cross-examine an expert who does not recognize them as authoritative, and must be allowed to establish their authoritativeness through other experts or judicial notice. On retrial, the jury must be able to apportion fault among all alleged tortfeasors, including settled nonparties, under Fabre v. Marin.
• Davies v. Owens-Illinois, Inc. (3rd District, 1994). Knowledge that an officer or director acquires within the scope of his authority is imputed to the corporation, so a deposition showing a director's knowledge of asbestos dangers should not have been excluded as non-imputable to the defendant.
• Baione v. Owens-Illinois, Inc. (2nd District, 1992). When facts support both negligence and strict liability, a plaintiff may proceed on either or both, so dismissing strict liability counts in an asbestos case was error. A claim for punitive damages cannot be struck as a matter of law only because the defendant was previously assessed punitive damages in other cases.
• Hammer v. Rosenthal Jew. Sup. Corp. (4th District, 1990). Ordering exhumation and autopsy was warranted despite the widow's sincere religious objection, because it would likely yield relevant information, and dismissal for refusing was upheld. Given the severity of dismissal as a sanction, the widow was allowed a final chance to comply.