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

• Storer v. Crown Cork & Seal Company, Inc. (2017). Whether lost earnings and loss of support include income the decedent would have earned through his company is a question of fact that cannot be resolved on summary judgment. If the plaintiffs prove their tort claims, the factfinder determines the damages proximately caused.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Bell v. Foster Wheeler Energy Corp. (2016). Under maritime law, a manufacturer is not liable merely because its product might foreseeably be used with asbestos; liability depends on whether it added the asbestos, took part in design integration, negligently entrusted a component, or negligently recommended asbestos use. The court rejected both the Sixth Circuit's absolute bare metal defense and the broader exceptions other courts have adopted.
• Blow v. OneBEACON America Insurance Company (4th Circuit, 2016). The 1989 amendment adding "only" to the Direct Action Statute's venue provision is interpretive and procedural and applies to causes of action arising before it, so venue exceptions do not apply; when venue is improper, transfer rather than dismissal is required unless the plaintiff knowingly filed in the wrong venue.
• Boudreaux v. Bollinger Shipyard (4th Circuit, 2016). A trial court does not abuse its discretion in excluding an expert's causation opinion under Daubert-Foret when the proponent offers no independent evidence that the methodology is generally accepted. Without that expert, plaintiffs cannot prove cause-in-fact and summary judgment is proper.
• Davidson v. Georgia-Pacific, LLC (2016). A motion to remand is a dispositive matter on which a magistrate judge may only recommend, subject to de novo district court review. Improper joinder requires the defendant to show no possibility of recovery against the in-state defendant, and a mere absence of plaintiff's evidence does not meet that standard.
• Murphy v. Alcatel-Lucent USA Inc. (2016). A non-diverse defendant is improperly joined if the plaintiff has no reasonable, as opposed to merely theoretical, possibility of recovery against it; filing exceptions in state court and asking for a hearing, without a merits ruling, does not waive the right to remove.
• Hayes v. Asbestos Corp. Ltd. (2015). Under Louisiana law a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; the mere physical presence of asbestos or speculation that a gasket contained asbestos is not enough to defeat summary judgment.
• Jordan v. Thatcher Street, LLC (2nd Circuit, 2015). A premises owner is entitled to summary judgment on negligence and custody-based strict liability claims when the plaintiff offers no evidence that the owner knew of or specified the asbestos, directed the work, or had garde over the asbestos. A defendant may seek summary judgment early, and the court need not delay it for discovery where the plaintiffs had a fair opportunity and show no probable injustice.
• Landry v. Columbia Casualty Company (2015). Under Louisiana law, the injury-causing event for bystander (Lejeune) damages is the asbestos exposure, not the later progression of mesothelioma, so family members who observed the disease years later cannot recover bystander damages.
• Laurent v. New Orleans City (2015). Under Louisiana law, a plaintiff must show with specific evidence that the claimant was significantly exposed to the defendant's asbestos-containing product; the physical presence of such products at a workplace, or work in a ship's engine spaces, is not enough to defeat summary judgment.
• Laurent v. New Orleans City (2015). The law in effect at the time of death controls a wrongful death claim, and at the time of the 2013 death the Louisiana Workers' Compensation Act immunized employers from tort actions, including wrongful death actions, absent an intentional tort.
• Laurent v. New Orleans City (2015). A plaintiff opposing summary judgment must produce evidence that the decedent was exposed to asbestos from the specific defendant's products; a belief that all types of cars passed through the workplace is not enough. A request for more discovery requires a Rule 56(d) affidavit.
• Meyers v. Chesterton (2015). Plaintiffs' verified, binding disclaimer of strict-liability and design-defect claims was effective, and for failure-to-warn claims a federal officer removal defendant must show direct government control that prevented it from giving warnings, which was not shown.
• Vedros v. Northrop Grumman (2015). Under Louisiana Civil Code article 2315.6 and Lejeune, bystander mental anguish damages require that the claimant witness the injury-causing event or come upon its scene soon after; watching a relative's disease progress does not qualify.
• Comardelle v. Pennsylvania General Insurance Company (2014). Buy-back agreements that released and voided the insurers' policies did not amount to an explicit, clear written assumption by Avondale of the insurers' obligations, so Avondale was not liable under Louisiana Civil Code articles 1821-1823. Plaintiffs also could not claim as third-party beneficiaries of policies that were dissolved before they made any claim.
• Comardelle v. Pennsylvania General Insurance Company (2014). Under Louisiana law (Lejeune and La. Civ. Code art. 2315.6), bystander mental anguish damages require that the claimant viewed the injury-causing event or came upon the scene soon after; watching a latent asbestos disease progress years after exposure does not qualify.
• Davidson v. Georgia Pacific LLC (2014). Under Louisiana law, a voluntary dismissal of an earlier suit erases any interruption of prescription it caused, so a claim that prescribed before the decedent's death cannot support a survival action. A dismissal filed by the decedent's counsel after his death still counted as voluntary.
• Davidson v. Georgia Pacific, LLC (2014). Under Rule 37(c)(1), a court weighs the explanation, prejudice, possible cure by continuance, and the importance of the testimony in deciding whether to strike an expert for deficient disclosures. Expert reports from a prior proceeding that evolved over time and lack required details do not satisfy Rule 26(a)(2)(B).
• Landry v. Columbia Casualty Company (2014). A non-diverse defendant is fraudulently joined when the plaintiff cannot establish a cause of action against it, and fraudulently joined defendants need not consent to removal. Letters from defense counsel can be an "other paper" that starts a new removal period, because the voluntary-act rule does not apply to fraudulent joinder.
• Laurent v. City of New Orleans (2014). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and has a colorable federal defense; it need not prove the defense at the removal stage.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• Radosta v. Lorillard Tobacco Co. (2014). Under 28 U.S.C. § 1446(b)(3), the 30-day removal period runs from receipt of an "other paper" that lets the defendant first ascertain that the case is removable. Deposition transcripts that say nothing about the viability of the claims against the non-diverse defendants do not start that period.
• Sarradet v. the Dow Chemical Company (2014). A removing party must show improper joinder by clear and convincing evidence that there is no reasonable basis to predict recovery against the in-state defendants; the court may pierce the pleadings to make that determination, and corporate officers are personally liable only if they breached a personal duty under the Canter v. Koehring criteria.
• Smith v. Union Carbide Corp. (2014). Under Louisiana law, a premises owner owes a direct duty of reasonable care to a contractor's employees, and a fact issue on breach can exist without proof the owner handled the asbestos. Strict liability under Article 2317 failed because the owners lacked custody of the asbestos during installation and the dusty construction conditions were a temporary hazard, not a defect.
• Whatley v. Eagle, Inc. (2014). Under the derivative jurisdiction doctrine, a federal court on removal under § 1442 acquires only the jurisdiction the state court had, and a tort claim against the United States or its agencies may be brought only in federal court, so the court lacked jurisdiction over the claim against the VAMC. When removal jurisdiction is doubtful, remand is appropriate.
• White v. Entergy Gulf States Louisiana (1st Circuit, 2014). A survival action permits recovery only for the victim's own damages from injury to death, and a trial court's general damage award is disturbed only for clear abuse of its vast discretion. Here the award was high but not an abuse of discretion.
• Cook v. Asbestos Corporation Ltd. (5th Circuit, 2013). Under amended La. C.C.P. art. 966, only evidence formally admitted at the summary judgment hearing may be considered, including on de novo appeal; evidence merely attached to the motion or opposition is not considered.
• Garrie v. Aiu Insurance Company (2013). A settlement with a non-diverse defendant can make a case removable only if it was binding at the time of removal; under Louisiana law, counsel need express authority to compromise a client's claim, and tentative negotiations without final authority do not create a binding settlement.
• Landry v. Avondale Industries, Inc. (4th Circuit, 2013). A plaintiff must show significant exposure to the particular defendant's asbestos product such that it was a substantial factor in causing the disease, and this burden is not relaxed in a multi-defendant case. Where the evidence leaves genuine factual questions about the amount of exposure and its causal contribution, summary judgment for the plaintiff is improper.
• Phillips v. Abb Combustion Engineering, Inc. (2013). Where the nonmovant first raises a serious choice-of-law question in her opposition, so that the law governing the time bar is in dispute, summary judgment on prescription and peremption is not well suited until the movants adequately brief the issue and support it with competent evidence.
• Phillips v. Abb Combustion Engineering, Inc. (2013). After removal, the sufficiency of a complaint is judged under the federal Rule 8 plausibility standard rather than Louisiana's fact-pleading standard, and a Rule 12(e) motion is disfavored where the complaint gives fair notice of the claim.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Bougere v. Northrop Grumman Systems Corp. (5th Circuit, 2012). A wrongful death claim does not arise until the victim dies, so the 1976 amendment to La. R.S. 23:1032, which gives executive officers tort immunity, applies when death occurs after the amendment even if the asbestos exposure came before it. Rando, which allowed a worker's own pre-1976 mesothelioma tort claim, does not change this for wrongful death claims.
• Davidson v. Georgia Pacific, LLC (2012). A court deciding improper joinder should pierce the pleadings only for discrete and undisputed facts, not a full summary-judgment-type contest over the merits. Disputed facts are resolved in the plaintiffs' favor, and allegations sufficient to state a claim against the non-diverse defendants defeat removal.
• Pierre v. Northrop Grumman Shipbuilding, Inc. (4th Circuit, 2012). An attorney's statutory privilege under La. R.S. 37:218 runs only against the attorney's own client and that client's settlement proceeds. It does not let the attorney interfere with or nullify settlements by other plaintiffs who were never the attorney's clients, and a party plaintiff cannot intervene in her own suit.
• Bozeman v. Union Carbide Corporation (2nd Circuit, 2011). Rando v. Anco Insulations, which held that mesothelioma was not a covered occupational disease under the pre-1975 Workers' Compensation Act and so not subject to its exclusive remedy, applies retroactively. A partial judgment not designated final remains open to revision at any time.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be granted only on issues raised in the motion. A motion that challenges only exposure to the defendant's asbestos does not put medical causation at issue, and circumstantial evidence that a manufacturer bought the supplier's asbestos can create a fact question on exposure. A raw-asbestos supplier also owes the general duty of reasonable care.
• Brumley v. Akzona, Inc. (4th Circuit, 2010). Under La. C.C.P. art. 123(B), a trial court has discretion to dismiss for forum non conveniens, and the bias toward a plaintiff's choice of forum applies only to plaintiffs domiciled in Louisiana. The court may rule on forum non conveniens without first deciding venue exceptions.
• Marcel v. Delta Shipbuilding Co. (4th Circuit, 2010). Under the law in effect when Delta dissolved in 1946, dissolution did not extinguish an accrued cause of action, so it did not bar a direct action against the dissolved corporation's insurer. The 1988 direct action amendments apply only to causes of action accruing on or after January 1, 1989.
• Marcel v. Delta Shipbuilding Company (4th Circuit, 2010). Under the pre-1969 Louisiana corporate law, a corporation's dissolution did not extinguish an accrued cause of action, only the right to sue the dissolved corporation itself, so the claim could still be brought directly against the corporation's former insurer.
• Marchand v. Asbestos Defendants (4th Circuit, 2010). Under Cole v. Celotex's significant exposure test, a long-latency asbestos claim accrues when the repeated exposure occurs, so the survival claim accrued in 1943-45, before the 1989 Direct Action Statute amendments and the 1969 corporate-law cutoff. The wrongful death claim accrues at death and is subject to the peremptive bar on claims against dissolved corporations.
• Boudreaux v. Able Supply Co. (3rd Circuit, 2009). The automatic bankruptcy stay under 11 U.S.C. § 362 applies only to the debtors who filed for bankruptcy and does not extend to non-bankrupt co-defendants, so an appeal may proceed against them.
• Danos v. Avondale Industries, Inc. (4th Circuit, 2008). Conflicting testimony about whether the defendant's boilers were on the vessels where the worker was exposed creates a genuine issue of material fact that precludes summary judgment on product exposure.
• Spillman v. Anco Insulations, Inc. (1st Circuit, 2008). A cause of action for a long-latency occupational disease accrues once there has been a significant tortious exposure, not at diagnosis. Under this circuit's precedent, mesothelioma was not covered by workers' compensation before the 1975 amendment, so the employer's immunity defense, on which the employer bears the burden, failed for a claim that accrued before 1952.
• Mouton v. Morton International, Inc. (3rd Circuit, 2007). A survivor under La. C.C. art. 2315.1 can be the 'legal successor' under La. C.C.P. art. 801 only if the action survives in the survivor's favor. Here the plaintiff's suit had been settled before his death, so the succession representative was the proper party to dismiss it.
• Palermo v. Port of New Orleans (4th Circuit, 2007). A port authority that leases wharves to stevedores owes no duty to their employees to provide a safe workplace unless the premises are defective and it knew or should have known of the defect. Ship repairers are liable only if the evidence shows their work was a substantial factor in the plaintiff's asbestos exposure.
• Terrance v. Dow Chemical Company (1st Circuit, 2007). Mesothelioma was not a compensable occupational disease under the pre-1975 Louisiana workers' compensation statute, so the tort claim against a premises owner was not barred. A defendant seeking a credit for a settling party's fault must prove that party's fault at trial; settlement documents are not admissible to prove it.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Palermo v. Port of New Orleans (4th Circuit, 2006). A port authority that leased its wharves to stevedores owed no duty to their employees absent a known defect in the premises. A plaintiff must also show that a particular defendant's work was a substantial factor in the exposure; the generally substantial exposure from handling asbestos cargo does not supply that proof.