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.

Louisiana

• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, wrongful death damages compensate beneficiaries only for injuries suffered from the moment of the victim's death onward, so pre-death lost earnings and out-of-pocket expenses are not recoverable in the wrongful death action.
• Cortez v. Lamorak Insurance Company (2022). A defendant asserting the Louisiana statute of repose, La. Rev. Stat. § 9:2772, bears the burden of showing it was a contractor rather than a seller, with specific record citations. Under Louisiana law, even a short exposure can be a substantial factor in causing mesothelioma if a jury could find the plaintiff inhaled the defendant's asbestos fibers.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law a duty to household members for take-home exposure can exist before 1972 without an OSHA rule, and Article 2317 custody can be shared. A seller is a professional vendor, liable like a manufacturer, only if it held the product out as its own and had sufficient size and volume of sales.
• Cortez v. Lamorak Insurance Company (2022). Under Federal Rule of Civil Procedure 25(a)(1), an action by a deceased party must be dismissed if no motion for substitution is made within 90 days after service of a statement noting the death.
• Gooding v. Liberty Mutual Ins. Co. (2022). Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos product and that the exposure was a substantial factor in causing the mesothelioma; substantial factor is a jury question unless reasonable people could not differ.
• Gooding v. Liberty Mutual Ins. Co. (2022). Under Louisiana law an insurer is liable for asbestos injuries only if the injured person was exposed to harmful conditions during the policy period, and speculation that he was present at the insured's premises during that period cannot defeat summary judgment.
• Matherne v. Huntington Ingalls Incorporated (2022). Under the Louisiana Insurance Guaranty Association law, a claim made after the claim filing deadline set by the insolvent insurer's liquidation court is not a 'covered claim' for which LIGA must pay. A claim against LIGA vests when the insurer becomes insolvent, not when the exposure occurred.
• Reulet v. Lamorak Ins. Co. (2022). An insurer's liability under the exposure theory is co-extensive with its insured's liability for harmful exposure during the policy period. Plaintiffs must offer evidence beyond speculation that the decedent was near the insured's products during that period, even if the exposures were slight.
• Reulet v. Lamorak Ins. Co. (2022). Plaintiffs need only show a reasonable jury could find it more likely than not that the decedent inhaled the defendant's asbestos fibers, even from slight exposures; credibility determinations are not made at summary judgment. A purchase agreement expressly assuming the predecessor's litigation liabilities can make the buyer a successor to those liabilities.
• Reulet v. Lamorak Ins. Co. (2022). Under Louisiana law, a plaintiff need only show that mesothelioma was a substantial factor in the decedent's death, not the sole cause, even if other medical conditions contributed.
• Stansbury v. McCARTY Corporation (2022). Under Federal Rule of Civil Procedure 25(a)(1), if no motion for substitution is made within 90 days after service of a statement noting a party's death, the action by or against the decedent must be dismissed.
• Tabor v. William B. Reily & Co., Inc. (2022). A defendant must remove within 30 days of service when the initial pleading affirmatively reveals removability, and a federal officer removal defendant must show a causal nexus between its work under federal direction and the plaintiff's claims, supported by evidence.
• Williams v. Boeing Company (2022). Under Louisiana law, a plaintiff need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, and a court may not draw inferences against the non-movant on summary judgment. Wrongful death and survival actions are separate causes of action, so a late wrongful death claim by new plaintiffs does not relate back to the decedent's original suit.
• Barrosse v. Huntington Ingalls Incorporated (2021). The post-1972 LHWCA applies to a long-latency asbestos disease based on the date the disease manifested. For covered shipyard workers in the 'twilight zone', the LHWCA's exclusivity provision preempts state-law negligence claims against the employer, and retroactive application does not violate due process.
• Dempster v. Lamorak Insurance Co. (2021). Under Louisiana law, a release of future claims is narrowly construed and applies only if the parties' intent to release the specific claim is clear. Where doubt exists, extrinsic evidence of intent may be considered, and a factual dispute over intent precludes summary judgment on res judicata.
• Krutz v. Huntington Ingalls Inc. (2021). Under Louisiana law, an asbestos plaintiff must show significant exposure to the defendant's product that was a substantial factor in causing the disease; even when a summary judgment motion is unopposed, the movant must show it is entitled to judgment, and here the record lacked such evidence.
• Lege v. Union Carbide Corporation (4th Circuit, 2021). A jury's allocation of fault and general damages is reviewed for manifest error or abuse of discretion, and exposure need not be long if it was significant enough to be a substantial factor. A non-settling tortfeasor gets a credit for a released party's share only if it proves that party's fault at trial, even when solidary liability was already found.
• Lindsay v. Ports America Gulfport, Inc. (4th Circuit, 2021). La. R.S. 9:396 does not automatically bar compelling a sibling to give DNA, but the party seeking testing must first show a reasonable possibility of paternity at an evidentiary hearing with cross-examination, so that due process is protected.
• Roy v. Colgate Palmolive Co. (2021). A removing defendant must show no reasonable possibility of recovery against the non-diverse defendant. Under pre-1988 Louisiana law, a retailer could be liable as a professional vendor or if it should have known the product was defective, so the in-state retailer was properly joined.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Calamia v. Parish of Jefferson (5th Circuit, 2020). A suit filed in an improper venue interrupts prescription only as to a defendant properly served within the prescriptive period. Plaintiffs did not show proper venue or proper service on the Parish in the earlier Orleans Parish suit, so prescription was not interrupted.
• Gooding v. Liberty Mutual Insurance Co. (2020). A party moving for summary judgment on an issue where the other side bears the burden of proof may succeed by showing an absence of evidence; here, undisputed affidavits showed no policies were issued, and the cross-claimants offered no contrary evidence.
• Joseph v. Huntington Ingalls Incorporated (2020). A compromise worded in general terms, releasing present and future occupational lung disease and all other personal injury claims from the employment, can bar a later survival action for a disease not named in it. The survival beneficiaries are the injured person's legal successors for res judicata purposes, so they are bound by his release.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana law, a premises owner is not liable, directly or vicariously, for asbestos hazards inherent in an independent contractor's work absent operational control or authorization of unsafe practices. Strict liability under article 2317 also fails where the contractor, not the owner, had custody of the injurious material.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana Code of Evidence art. 804(B)(1), a deceased plaintiff's deposition can be used against a defendant who was absent if other defendants present, such as gasket and packing makers, had a similar motive and opportunity to cross-examine. Testimony about exposure and an expert's opinion that above-background exposures were a substantial cause create a fact question on causation.
• McAllister v. McDERMOTT, Inc. (2020). Under general maritime law and the Jones Act, a decedent's pre-death pain and suffering is treated as a pecuniary loss recoverable by the estate, and loss of support or household services damages go only to survivors who show they received such support or services.
• Calamia v. Parish of Jefferson (5th Circuit, 2019). Documents merely attached to memoranda are not evidence, and a trial court cannot grant an exception of prescription based on pleadings that were not properly offered and admitted into evidence.
• Courville v. Lamorak Insurance Company (4th Circuit, 2019). A post-injury settlement between an insurer and its insured that limits or annuls coverage cannot be enforced against third-party tort victims, because Louisiana public policy bars post-injury reformation of coverage and La. R.S. 22:1262 voids retroactive annulment of liability policies.
• Lee v. American Supply Co. (3rd Circuit, 2019). A claim prescribes only from when damage has manifested itself with enough certainty to support a cause of action, judged by what the plaintiff was reasonably told and knew. A patient told his condition was benign and needed only monitoring was not charged with knowledge of an asbestos-caused mesothelioma until a malignancy was diagnosed.
• Lopez v. McDERMOTT, Inc. (2019). Under Louisiana law, alleged children have standing to bring survival and wrongful death claims if they are the decedent's biological children, shown by clear and convincing evidence. A survival action is a single shared claim, so a prior dismissal with prejudice binds later-joined beneficiaries, while each wrongful death beneficiary has an individual claim that others cannot settle.
• Michel v. Ford Motor Co. (2019). The Louisiana Workers' Compensation Act bars wrongful death tort claims against an employer for mesothelioma because such claims arise at death, after mesothelioma became a covered disease in 1975. Plaintiffs may plead employer and premises liability in the alternative under Rule 8(d)(3).
• Michel v. Ford Motor Co. (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b), and then Rule 15(a) leave is freely given. Prejudice to the opposing party can be cured by a continuance, and futility is judged by the Rule 12(b)(6) standard.
• Michel v. Ford Motor Company (2019). Plaintiffs must show exposure to asbestos from the defendant's products and an injury substantially caused by that exposure. Whether a particular exposure was a substantial contributing factor in causing mesothelioma is a question of fact for the jury.
• Savoie v. Huntington Ingalls (2019). Wrongful death claims by the survivors of a shipyard worker covered by the LHWCA are barred by the Act's exclusivity provisions, and the court did not need to decide whether an intentional tort exception exists because the intentional tort claims had already been dismissed.
• Savoie v. Huntington Ingalls, Inc. (2019). Under Louisiana law, releases of future claims are narrowly construed, but a release that expressly names the claim (or future asbestos-related cancer), signed by a represented party, shifts the burden to the opposing party to show no meeting of the minds, fraud or ill practices. Where release language leaves doubt about covering a future claim, it is construed not to cover it.
• Succession OF Adams (2nd Circuit, 2019). Under La. C.C. arts. 2315.1 and 2315.2, wrongful death and survival claims pass by statute to designated relatives, not through the victim's succession, so a will cannot bequeath a share of a pending tort claim to a non-relative.
• Leech v. 3M Company (2018). A defendant moving for summary judgment may show an absence of evidence of exposure to its product, and an unopposed motion with merit may be granted. Under Louisiana law, plaintiffs must show the defendant exposed the decedent to asbestos and that the exposure was a substantial factor in causing the injury.
• Leech v. 3M Company (2018). Where the movant shows an absence of evidence and the non-movant files no opposition, summary judgment is proper; under Louisiana law plaintiffs must show the defendant exposed the decedent to asbestos and that the exposure was a substantial factor in causing the injury.
• Michel v. Ford Motor Company (2018). A non-diverse defendant is improperly joined when the removing party shows through summary-type evidence that the plaintiff has no reasonable possibility of recovering against it; the 30-day removal period runs from the 'other paper' that first shows the case is removable, here the final expert deposition transcript.
• Rivera v. Huntington Ingalls, Inc. (2018). A court decides a motion to remand under the federal officer removal statute on the claims pleaded at the time of removal, so a post-removal disclaimer of strict liability claims does not defeat the causal nexus. Avondale showed a colorable government contractor defense, and strict liability claims based on mere use of asbestos satisfy the causal nexus requirement.
• Uzee v. Huntington Ingalls Incorporated (2018). Under Fifth Circuit precedent, federal officer removal's causal nexus is met for strict liability claims based on mere use of asbestos required by government contracts, but not for negligent failure to warn, train or adopt safety procedures; plaintiffs who disclaim strict liability cannot be forced into such claims.
• Bell v. Foster Wheeler Energy Corp. (2017). Under Louisiana's choice-of-law articles 3515 and 3542, Louisiana's policies would be most seriously impaired if its survival law were not applied to a Louisiana domiciliary's claim, and article 3545 requires Louisiana law, including on punitive damages, for a wrongful death claim by a Louisiana domiciliary injured in Louisiana by a product.
• Bell v. Foster Wheeler Energy Corp. (2017). Under Louisiana's choice of law rules, each issue is analyzed separately; the survival claim, a loss-compensating rule, follows the decedent's Louisiana domicile, while punitive damages, a conduct-regulating rule, follow the place where the conduct occurred.
• Bell v. Foster Wheeler Energy Corp. (2017). Where a seaman's asbestos exposure occurred both on the high seas and in territorial waters, DOHSA does not bar a survival action, which proceeds under general maritime law. Under general maritime law a seaman's survivors may recover only pecuniary losses, but pre-death pain and suffering is treated as pecuniary.
• Coleman v. Anco Insulations, Inc. (2017). Rule 30(b)(6) topics must be relevant and proportional; general 'dust' topics were cumulative of the asbestos-specific topics, and post-employment information was not shown to be relevant because the tortious exposure period was during the decedent's employment.
• Coleman v. Anco Insulations, Inc. (2017). Under Rule 25(a)(1) and Louisiana law, a motion to substitute heirs for a deceased party is supported by an affidavit of death and heirship, and affiants who state they were personally acquainted with the decedent show enough personal knowledge.
• Coleman v. Anco Insulations, Inc. (2017). In a diversity case, a complaint must allege citizenship as domicile for individuals and as state of incorporation and principal place of business for corporations; alleging that defendants are 'foreign corporations' is not enough.
• Leech v. 3M Company (2017). Under the plain language of 28 U.S.C. §§ 1441(b)(2) and 1446(b)(2), the forum defendant rule and rule of unanimity apply only to defendants "properly joined and served," so a non-forum defendant may remove before any defendant is served.
• Legendre v. Huntington Ingalls Inc. (2017). Under Fifth Circuit law (Bartel, Savoie, Zeringue), a Louisiana wrongful death claim against a shipyard sounds in negligence, and the government's requirement to use asbestos does not create a causal nexus to the shipyard's discretionary safety decisions, so federal officer removal fails.
• Savoie v. Pennsylvania General Insurance Co. (2017). Under Louisiana law, a signed compromise that expressly releases future mesothelioma, wrongful death and survival claims gives rise to res judicata. The party attacking it bears the burden of proving it invalid, and a small payment, claimed lack of understanding or missing master-settlement documents does not defeat it.