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.

Florida

• Celotex Corp. v. Meehan (1988). Florida's borrowing statute applies only if the significant-relationships test shows the cause of action arose in another state, and the place where the disease was discovered or diagnosed is just one factor. A wrongful death action is derivative of the injured person's own right to recover.
• Wood v. Harry Harmon Insulation (1st District, 1987). An exposure is 'injurious' under the last injurious exposure rule if, independent of other causes, it could over extended time lead to the disease; the claimant need not prove it actually caused the disease. The 350-week limit on death benefits for occupational disease does not unconstitutionally deny access to courts.
• Meehan v. Celotex Corp. (3rd District, 1985). For Florida's borrowing statute, a tort cause of action arises when the plaintiff knew or should have known of the cause of action or the invasion of his legal rights, not at the time of exposure; the prior Marano holding to the contrary was overruled.
• Nance v. Johns-Manville Sales Corp. (3rd District, 1985). Under Florida's borrowing statute, a tort claim arises where the last act necessary to establish liability occurs, which is where the plaintiff knew or should have known of the right to sue. Whether Florida's or Virginia's limitations period applies therefore turns on where that knowledge arose.

Georgia

• Union Carbide Corp. v. Brannan (2021). A plaintiff may voluntarily dismiss and refile under OCGA § 9-11-41(a) even though no proper substitution of a deceased party's representative was made within 180 days, so the prior pending action doctrine did not bar the refiled claims.
• Davis v. Louisiana-Pacific Corp. (2018). Under OCGA § 34-9-242, the 'accident' for an occupational disease is the exposure to asbestos, so where exposure occurred during employment under a contract made in Alabama for work exclusively there, Georgia's Board lacks jurisdiction even if diagnosis, disability and death occurred in Georgia.
• Butler v. Union Carbide Corporation (2011). A trial court does not abuse its discretion under OCGA § 24-9-67.1 and Daubert by excluding an expert's 'any exposure above background' specific causation opinion as unreliable, and without that expert evidence a toxic tort plaintiff cannot show specific causation to survive summary judgment.
• Adamson v. General Elec. Co. (2010). To survive summary judgment, a plaintiff must present evidence that the defendant's asbestos-containing product was used at the plaintiff's work location and that the plaintiff was in proximity to it while it was being used; generalized or speculative testimony is not enough.
• Flowers v. Union Carbide Corp. (2005). A party who induces an alleged trial error, or who declines a court's offered remedy, cannot complain of it on appeal. A trial court does not abuse its discretion by excluding former testimony of a witness whom the proponent never tried to subpoena, or by barring a non-physician epidemiologist from opining on individual medical records.
• John Crane, Inc. v. Highsmith (2004). The court followed the Georgia Supreme Court's decision in John Crane v. Jones in rejecting the requested "substantial" contributing factor charge. It also held that a jury verdict stands if any evidence supports it, and that the evidence of defect and exposure was sufficient.
• John Crane, Inc. v. Jones (2003). A trial court need not charge that exposure to a defendant's product must be a 'substantial' contributing factor; Georgia's joint tortfeasor rule requires only that the defendant's negligence be a contributing cause. A verdict will be upheld if any evidence supports it.

Illinois

• Daniels v. Venta Corp. (2nd District, 2022). An employer's directive to a worker to do work that violates a licensing statute makes the employment contract unenforceable, so the workers' compensation exclusive remedy does not bar the claim. An allegation that the employer deliberately directed the worker to remove asbestos, knowing it would injure him, pleads an intentional tort, and a landowner who knows of a dangerous condition may owe a duty to a business invitee.
• Krumwiede v. Tremco, Inc. (4th District, 2020). Under Illinois's frequency, regularity and proximity test, a plaintiff must show more than de minimis exposure to respirable asbestos fibers released from the defendant's product; proof of frequent contact with a product merely capable of releasing fibers is not enough.
• Longobardi v. Honeywell International Inc. (2020). A removal is invalid unless all properly joined and served defendants join in or consent to it, and a defendant that has settled but not been formally dismissed still remains a defendant for that purpose.
• Hubert v. General Electric Company (2016). A representative of a decedent's estate is deemed a citizen of the decedent's state for diversity purposes, so the complaint must allege the decedent's and the defendant's citizenship and clearly plead an amount in controversy above $75,000.
• Perez v. Air and Liquid Systems Corporation (2016). A surviving spouse may pursue a loss of consortium claim for injury to the marriage between the husband's injury and death as derivative of a Survival Act claim. Registering to do business and appointing an agent for service under Illinois law is not consent to general personal jurisdiction, and a global corporation is not "at home" in Illinois merely because it does business there.
• Folta v. Ferro Engineering (2015). Where an occupational disease is the type of injury within the scope of the Workers' Compensation Act and Workers' Occupational Diseases Act, the exclusive remedy provisions bar a common-law action against the employer even if the disease first appeared after the acts' time limits had expired and no benefits were available.
• Quirin v. Lorillard Tobacco Company (2015). A defendant owes no duty to a spouse for loss of consortium if the couple was not married when the asbestos exposure occurred, and insurance-policy 'continuous occurrence' cases do not create a continuous-exposure theory of liability.
• Folta v. Ferro Engineering (1st District, 5th Division, 2014). An asbestos-injured employee whose workers' compensation claim was barred by the statute of repose before he learned of his injury has an injury "not compensable under the Act," so the exclusivity provisions do not bar a common-law suit against the employer.
• Quirin v. Lorillard Tobacco Co. (2014). Under Illinois law, an asbestos plaintiff need only show through the frequency, regularity and proximity test that exposure to the defendant's product was a substantial factor contributing to the disease, not that it was sufficient alone to cause it. Evidence of the exact dose is not required.
• Stanley v. Ameren Illinois Co. (2013). An owner or general contractor owes a duty to a subcontractor's worker under the retained-control doctrine only if it controls the manner and methods of the work, not mere general oversight. Asbestos-containing thermal insulation installed in a new power plant is an improvement to real property, so the Illinois 10-year construction statute of repose bars claims over its installation.
• Simpkins v. CSX Transp., Inc. (2012). Whether a defendant owed a duty depends on whether it contributed to a risk of harm to the plaintiff and on four factors (foreseeability, likelihood, burden, consequences), without a separate 'direct relationship' requirement. A complaint that only conclusorily alleges the defendant knew or should have known of the danger is insufficient in a fact-pleading jurisdiction.
• Glein v. Boeing Company (2011). A defendant removing under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense, which includes evidence that the Navy prevented it from complying with state-law duties to warn. Doubts are resolved in favor of remand.
• Zickuhr v. Ericsson, Inc. (1st District, 6th Division, 2011). In an asbestos case a plaintiff shows causation by the frequency, regularity and proximity of exposure to the defendant's asbestos product, without proof of the exact quantity of fibers; the jury's credibility choices on product identification stand where evidence supports them.
• Funk v. AW Chesterton, Inc. (2009). A removed state-law claim only remotely related to a co-defendant's bankruptcy (through a potential indemnification claim) is a non-core matter, and a federal court may sua sponte remand it on permissive abstention and equitable grounds under 28 U.S.C. §§ 1334(c)(1) and 1452(b).
• Stephens v. AW Chesterton, Inc. (2009). A defendant removing under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense; affidavits without contracts or regulations showing the Navy prevented compliance with state-law warning duties are insufficient.
• Berry v. American Standard, Inc. (5th District, 2008). Under Illinois Supreme Court Rule 212(a)(5), a deceased party who gave a discovery deposition remains a party through the personal representative of his estate, so the deposition cannot be used as evidence at trial. The dying-declaration hearsay exception did not apply.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.
• Nolan v. Weil-McLain (4th District, 2006). Once a plaintiff meets the frequency, regularity and proximity test, the defendant is presumed a proximate cause and evidence of the decedent's other asbestos exposures is irrelevant; the defendant may rebut only by showing no exposure to its product, insufficient exposure, or too little asbestos in its product.
• Flanders v. California Coastal Communities (5th District, 2005). An Illinois court cannot exercise long-arm personal jurisdiction over a corporation on the basis that it might be a predecessor's corporate successor; the court must actually determine that the corporation is the successor before jurisdiction can rest on that status.
• Boldini v. Owens Corning (4th District, 2001). The Illinois construction statute of repose, section 13-214(b), applies to the activity of installing asbestos-containing materials but not to the related sales and distribution of those materials, even when the sales are incident to installation; this rule applies only to asbestos claims.
• Burgess v. Abex Corp. (4th District, 1999). A defendant who understands the general objectives of a conspiracy to conceal asbestos hazards, accepts them, and agrees explicitly or implicitly to further them is liable as a coconspirator. Plaintiffs must prove the conspiracy by clear and convincing evidence, reviewed under the manifest weight standard, and the jury's finding here had sufficient support.
• Spain v. Owens Corning Fiberglass Corp. (4th District, 1999). Once a plaintiff shows frequency, regularity and proximity of exposure to the defendant's asbestos product, the defendant is presumed a proximate cause and may not introduce evidence of other asbestos exposures unless it files contribution actions against those other manufacturers. Under amended Rule 213, the treating physician exception to opinion disclosure no longer exists.
• Westinghouse Airbrake Co. v. Indus. Com'n (3rd District, Industrial Commission Division, 1999). The Workers' Compensation Act, as amended in 1984, covers asbestos-caused injury and resulting death, but a claimant whose last exposure predated those amendments has no claim under it, and disease claims belong under the Occupational Diseases Act, whose section 1(f) limit does not apply to Workers' Compensation Act claims. A survivor's death-benefit claim is governed by the law in effect on the date of death.
• Risch v. Paul J. Krez Co. (1st District, 6th Division, 1997). Under the construction statute of repose, protection turns on the defendant's activities rather than its status. A defendant that was only an insulation installer working on a labor and material basis is protected, and evidence of paying sales-type taxes did not show distinct sales activity.
• Van Winkle v. Owens-Corning Fiberglas Corp. (4th District, 1997). When a jury asks an explicit question showing confusion on a substantive legal issue, the court must answer it with specificity and accuracy. A late-joining civil conspirator is liable for prior acts of coconspirators only if it knew of and approved those acts when it joined.
• Barry v. Owens-Corning Fiberglas Corp. (1st District, 1st Division, 1996). A jury damages award in a wrongful death and survival case will not be disturbed unless it results from passion or prejudice or falls outside the limits of reasonable compensation, and awards are not measured by comparison with other asbestos verdicts. A verdict form giving separate wrongful death amounts to each survivor was error under the Wrongful Death Act but was not prejudicial.
• Adcock v. Brakegate, Ltd. (1994). A defendant who answers after its motion to dismiss is denied waives pleading defects, and a verdict cures them (aider by verdict), unless no recognized cause of action is stated. Civil conspiracy is a recognized cause of action and requires an agreement plus a tortious act in furtherance, which may be intentional or negligent and may be committed by any conspirator.
• Keystone Steel and Wire Co. v. Costa (3rd District, 1994). A denial of summary judgment is merged into the trial and not reviewable where the defendant's own refusal to produce a witness led to a sanction judgment on liability. Section 2-1101 permits conditioning denial of a motion to quash on advance payment of expenses but does not authorize reimbursing expenses after production.
• Kieffer and Co., Inc. v. Industrial Com'n (2nd District, Industrial Commission Division, 1994). The Commission's findings on disputed facts stood because they were not against the manifest weight of the evidence: the denial of temporary total disability benefits was upheld, and the last employer, Kieffer, was liable for the widow's death benefits and medical costs.
• Adcock v. Brakegate, Ltd. (4th District, 1993). A civil conspiracy claim is actionable if properly pleaded and need not rest on an independent tortious act; the allegations here also sufficed as a fraudulent misrepresentation conspiracy. A trial court may enter a default judgment on liability when a party willfully refuses to produce relevant witnesses under Rule 237(b).
• Whitney v. Industrial Com'n (4th District, Industrial Commission Division, 1992). Section 1(f) of the Workers' Occupational Diseases Act acts as a statute of repose requiring disablement within three years of last asbestos exposure, and the 1984 extension of the death-claim filing period in section 6(c) did not displace that requirement.
• Leng v. Celotex Corp. (1st District, 1990). Illinois does not recognize market share liability in asbestos cases, so a plaintiff who cannot identify the manufacturers of the asbestos products that caused the injury fails to state a cause of action under that theory.
• Owens Corning Fiberglas v. Ind. Comm'n (4th District, 1990). Under section 7 of the Workers' Occupational Diseases Act, a widow has an independent cause of action for death benefits even if her husband received disability benefits during his life. The date of death is the date of injury for determining the applicable statute and minimum rate, and an employer's reimbursement right under section 5(b) reaches only recoveries by the employee or his personal representative.
• Blazek v. Nicolet, Inc. (1st District, 1988). A statute of repose cannot be applied retroactively to end a cause of action unless the plaintiff had a reasonable time after its effective date to sue. A strict liability suit filed about seven years after the effective date, and over 32 years after exposure, was not filed within a reasonable time.
• VaSalle v. Celotex Corp. (1st District, 1987). Under the discovery rule, asbestos-related lung cancer is a legal injury separate and distinct from earlier-diagnosed asbestosis, so its limitations period begins when the plaintiff knows or should know of the cancer and its wrongful cause, not at the asbestosis diagnosis.
• In re Unr Industries, Inc. (1985). Relief from the automatic stay for cause requires a showing that continuing the suit would not greatly prejudice the debtor or estate and that the plaintiff's hardship considerably outweighs the debtor's; here the court found that lifting the stay would undermine the stay's purposes and the claim was better liquidated in the bankruptcy with similar asbestos claims.
• Costello v. Unarco Industries, Inc. (4th District, 1984). Under the Illinois product liability statute of repose, which applies to causes of action accruing on or after January 1, 1979, an asbestos strict liability claim accrues on discovery of the injury, and the statute is constitutional. A negligence complaint in an asbestos case must plead the specific disease and each defendant's place in the chain of production.
• Froud v. Celotex Corp. (1983). The Illinois Survival Act does not allow common law claims for punitive damages to survive the death of the injured person; only punitive claims created by a regulatory statute, such as the Public Utilities Act, survive. Mattyasovszky remained controlling and was not overruled.
• Hobby v. Johns-Manville Sales Corp. (1983). Under Illinois law, survival-type and Family Expense Act claims are derivative and subject to the two-year personal injury limitations period running from the decedent's diagnosis, while loss of consortium in a wrongful death action is governed by the Wrongful Death Act's limitations period. The products liability repose period turns on when the disease manifested, a question for trial.