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

• Adams v. Asbestos Corp. Ltd. (2nd Circuit, 2005). Under the 1952 version of La. R.S. 23:1031.1, asbestos is a compound of oxygen and of metals other than lead, so a disease resulting from contact with it is a covered occupational disease and workers' compensation is the exclusive remedy.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.
• Graves v. Riverwood Intern. Corp. (2nd Circuit, 2004). A contract benefiting a third party must clearly stipulate that benefit, and a stipulation pour autrui is never presumed. A parent corporation may be liable for undertaking a duty of safety owed by its subsidiary, and under Louisiana fact pleading the petition's allegations of an assumed duty were sufficient.
• Landry v. Avondale Industries, Inc. (2004). Louisiana's comparative fault law (Act 431 of 1979) applies prospectively, and for a wrongful death claim the key relevant event is the death itself. A death after August 1, 1980 is therefore governed by comparative fault, even if the asbestos exposure came earlier.
• Roberts v. Owens-Corning Fiberglas Corp. (1st Circuit, 2004). A trial court cannot substantively change a final judgment by a second judgment without a proper procedure, so the change is an absolute nullity. A premises owner that knew or should have known asbestos exposure caused serious lung disease and cancer is liable for mesothelioma even without specific knowledge of that disease.
• Vodanovich v. AP Green Industries, Inc. (4th Circuit, 2004). A plaintiff in an asbestos case must show exposure to asbestos released by the defendant's activities that was a substantial factor in causing the injury; without direct or circumstantial evidence of such exposure, summary judgment for the defendant is proper.
• Ewing v. Armstrong World Industries, Inc. (3rd Circuit, 2003). Since the 1976 amendment to La.R.S. 23:1032, workers' compensation is the exclusive remedy against executive officers, so survivors' loss of consortium claims arising after 1976 are barred. The 1999 reenactment of La.Civ.Code art. 2315 did not retroactively apply the 1982 loss of consortium amendment.
• Faulkner v. McCarty Corp. (4th Circuit, 2003). A port authority that leased warehouses to stevedores with complete control, and that did not know asbestos was stored there, owed no duty under duty-risk analysis or La. R.S. 9:3221 and was not strictly liable under La. C.C. arts. 2317 and 2322. The Louisiana Supreme Court has rejected the public duty doctrine.
• Hughes v. Olin Corporation (2nd Circuit, 2003). Under Louisiana's one-year prescription and the discovery rule, prescription on an asbestos-related mesothelioma claim began only when the plaintiff learned of a definitive mesothelioma diagnosis, not when cancer was suspected or probable.
• Jefferson v. Cooper/T. Smith Corp. (4th Circuit, 2003). On de novo review of summary judgment, a premises owner owes a duty of reasonable care to persons on its premises, and genuine factual disputes about what it knew or should have known about asbestos dangers and facility adequacy precluded summary judgment.
• Landry v. Avondale Industries, Inc. (2003). A loss of consortium claim accrues only when the injured person's condition deteriorates enough that the family is actually deprived of consortium, but applying the 1982 amendment to art. 2315 to pre-1982 conduct is an impermissible retroactive application of a substantive law. Because the claim arose after 1975-1976, employers and executive officers are also immune under La. R.S. 23:1032.
• Landry v. Avondale Industries, Inc. (4th Circuit, 2003). For a wrongful death claim arising from a long-latency occupational disease, the "events" in Act 431 § 4 mean the incidents of exposure, so the Comparative Fault Act does not apply where the exposure occurred before its effective date.
• Mazoue v. Avondale Industries, Inc. (4th Circuit, 2003). The right to continue a tort action begun before the victim's death belongs only to the beneficiaries listed in La. C.C. art. 2315.1, which is strictly construed. Grandchildren cannot step into the shoes of a deceased parent when a surviving child exists.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Dufrene v. Avondale Industries, Inc. (4th Circuit, 2001). When a tort suit was filed before the victim's death, the abatement and substitution articles govern, and where Article 2315.1 beneficiaries such as a spouse and children exist, they take preference as legal successors; grandchildren are not listed beneficiaries and cannot step into a deceased parent's shoes.
• Callaway v. Anco Insulation, Inc. (4th Circuit, 1998). A survival action is governed by the workers' compensation law in effect at the time of exposure, and a wrongful death action by the law in effect at death. Workers' compensation exclusivity bars a negligence wrongful death claim but not a survival claim based on pre-1975 exposure; an intentional tort claim needs evidence of intent, not just allegations that the employer knew or should have known.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1998). A wrongful death claim is governed by the law in effect when it accrued at the decedent's death, not at the time of exposure. Under either the Louisiana Workers' Compensation Act or the LHWCA, an employer is liable in tort only for an intentional tort, which requires intent to cause the harm.
• Meredith v. Asbestos Corp., Ltd. (4th Circuit, 1998). A wrongful death action arises at the time of death, so the workers' compensation exclusivity law in effect on the date of death governs, barring tort wrongful death suits against the employer even where the asbestos exposure occurred before the 1976 amendment. A pre-death settlement reserving rights against other defendants does not preclude a survival action against defendants not named in the earlier suit.
• Scott v. Metropolitan Life Ins. Co. (4th Circuit, 1998). Asbestos claims in Louisiana are subject to a one-year prescriptive period that runs once the disease manifests with enough certainty to support a cause of action. Prescription was not suspended where the plaintiff was diagnosed with mesothelioma and was told it is caused by asbestos more than a year before suit.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1997). A wrongful death action arises only when the victim dies, so the law at the time of death governs. Because the death came after the 1976 amendment to La. R.S. 23:1032, survivors cannot sue executive officers for negligence, only for intentional acts.
• Gautreaux v. Rheem Mfg. Co. (4th Circuit, 1996). Under former La. R.S. 23:1031.1(A)(1)(d), it was not established as a matter of law that asbestos is an "oxygen compound", so the employer could not show on an exception of no cause of action that workers' compensation was the exclusive remedy for the lung cancer death.
• Johnson v. Ashland Oil, Inc. (1st Circuit, 1996). Under the pre-1975 Louisiana workers' compensation statute, an employee's tort claim for a disease not listed in the statute and caused by a substance not listed (here mesothelioma from asbestos) is not barred by workers' compensation exclusivity.
• Coates v. AC and S, Inc. (1994). Pre-comparative-fault law and equal ("by heads") apportionment governed the wrongful death claim because the significant exposures came before August 1, 1980. The court refused to rule asbestos products unreasonably dangerous per se as a matter of law, admitted the OSHA and EPA publications, and denied Owens-Corning's three motions.
• Bergeron v. Celotex Corp. (1991). Under Louisiana law a wrongful death action arises at the decedent's death, so the post-1976 workers' compensation exclusivity statute barred tort claims against the employer even though the exposure came earlier. A post-prescription amendment adding a new plaintiff does not relate back where the defendant had no notice of that plaintiff and no duty to look for her.
• Halphen v. Johns-Manville Sales Corp. (1986). In Louisiana strict products liability, a manufacturer is liable for a product that is unreasonably dangerous per se or in construction or composition even if it did not and could not have known of the danger. Knowledge available to the manufacturer matters only under failure-to-warn and alternative-design theories.
• Halphen v. Johns-Manville Sales Corp. (1985). The en banc Fifth Circuit certified a question to the Louisiana Supreme Court asking whether a strict products liability manufacturer may avoid liability by showing it did not and could not have known of its product's danger; it did not decide the appeal between Halphen and Johns-Manville.

Maine

• Bernier v. Raymark Industries, Inc. (1986). In a failure-to-warn claim under Maine's strict liability statute, the manufacturer's actual or constructive knowledge at the time of sale is relevant, and wrongful death damages are available. An asbestos claim does not arise until physical injury manifests itself, not at inhalation, so the statute applies if the disease manifested after its October 3, 1973 effective date.
• Austin v. Johns-Manville Sales Corp. (1981). Under the LHWCA's exclusive liability provision, a compensation-paying employer is immune from third-party contribution or indemnity claims unless it specifically intended to injure the employee. Allegations of reckless misconduct, fraud about workplace hazards, or negligent medical care furnished under the Act do not overcome that immunity.

Maryland

• Basil-Flippen v. General Electric Company (2024). Strict products liability requires that the product have left the seller's possession or control. A seller that is also contractually obligated to install the product retains control until installation is complete, so strict liability does not apply to injuries arising during installation.
• Irwin Industrial Tool Company v. Pifer (2022). Items bought online and offered as exemplars are authenticated under Maryland Rule 5-901 if a reasonable juror could find by a preponderance of the evidence, from circumstantial evidence, that they are what the proponent claims, and no chain of custody back to manufacture is required. An appellate court ordinarily reviews a summary judgment only on the grounds the trial court explicitly relied on.
• Staubs v. CSX Transportation, Inc. (2021). The separate disease (two-disease) rule applies to toxic-exposure claims under FELA, so a judgment on a claim for one exposure-related disease does not bar a later claim for a different disease from the same exposure unless that disease was or could have been raised in the first action.
• Curtin v. Cyprus Amax Minerals Co. (2020). A court lacking personal jurisdiction dismisses without prejudice, and under Rule 41(a)(2) a voluntary dismissal without prejudice should not be denied absent substantial prejudice to the defendant; loss of a statute of limitations defense does not by itself bar it.
• Ament v. John Crane-Houdalille, Inc. (2019). Under Maryland Rule 5-702, an expert's opinion needs a sufficient factual basis, and a trial court does not abuse its discretion in striking causation testimony when the expert cannot tie the fact witnesses' testimony to the defendant's product. The appellant must pinpoint specific errors on appeal.
• Colvin v. Eaton Corporation (2019). A discovery plan approved by the court that did not require the plaintiff to produce non-party fact witnesses for deposition could not support a dismissal with prejudice for failure to produce them. Under the scheduling orders, defendants could locate and subpoena those witnesses themselves.
• Pinner v. Pinner (2019). Filing and prosecuting one Maryland tort suit did not make it constitutionally reasonable to exercise specific personal jurisdiction over a North Carolina resident on collateral claims. Under Maryland's strict privity rule, a non-client who is not an intended third-party beneficiary cannot sue a lawyer for malpractice, and lawyers acting within the scope of representation cannot be liable to non-clients for aiding and abetting a client's tort.
• Stein v. Pfizer Inc. (2016). Under the objective reliance test, the actual reliance test, and the enterprise liability test alike, a parent company is not an "apparent manufacturer" of a subsidiary's industrial product where the sophisticated purchaser knew it bought from the subsidiary and the parent did not substantially participate in the design, manufacture or distribution.
• Haney v. 3M Company (2015). Under Maryland's frequency, regularity and proximity test for bystander asbestos exposure, a worker who passed through areas where panels were installed eight to ten times for three to five minutes each time did not show substantial-factor causation. Claims a plaintiff does not defend in response to a summary judgment motion are treated as abandoned.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Georgia-Pacific Corporation v. Benjamin (2006). The discovery rule applies to wrongful death actions for occupational disease under § 3-904(g)(2). A claimant is on inquiry notice once they know the person was diagnosed with mesothelioma and was exposed to asbestos at work. In a survival action, the decedent's own knowledge can start the limitations period.
• John Crane, Inc. v. Puller (2006). A claim for asbestosis and a claim for mesothelioma are separate claims, so the voluntary dismissal of the earlier asbestosis suit did not bar the later suit by collateral estoppel because no fact was actually litigated. In asbestos cases a loss of consortium claim arises when the underlying injury claim arises (the exposure test), so Maryland's non-economic damages cap does not apply to it when it does not apply to the underlying survival action.
• Benjamin v. Union Carbide Corporation (2005). In a survival action the decedent's own knowledge governs inquiry notice, and knowing of a mesothelioma diagnosis plus asbestos exposure suffices. In a wrongful death action each beneficiary's own knowledge governs, and knowledge of the disease alone ordinarily does not give inquiry notice.
• Owens-Illinois, Inc. v. Hunter (2005). A witness's testimony is not stripped of probative value because of conflicts or inconsistencies on peripheral points. In asbestos cases a loss of consortium claim arises with the underlying injury and is not capped if the last exposure was before July 1, 1986. A trial judge may consider the ratio between survival-action and consortium damages when deciding remittitur, and the cap applies to a wrongful death claim that arose at death after the cap took effect.
• Crane, Inc. v. Scribner (2002). For the Maryland cap on non-economic damages, the court may look to the plaintiff's last exposure to the defendant's asbestos product; if that exposure was undisputedly before July 1, 1986, the cap does not apply. The plaintiff bears the burden of showing the cause of action arose before the cap date, and a genuine factual dispute goes to the jury.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• Owens-Corning Fiberglas Corp. v. Garrett (1996). A bystander's proof of substantial-factor causation is judged by the frequency, regularity and proximity of exposure to the defendant's product. Punitive damages in a products case require clear and convincing evidence of actual knowledge of the defect and a bad-faith decision to market the product in conscious disregard of the danger. A defendant found not liable at trial is not a joint tort-feasor, so no settlement offset applies.
• ACandS, Inc. v. Asner (1995). A punitive damages claim in a products liability case goes to the jury if the plaintiff offers evidence that could clearly and convincingly show actual malice (actual knowledge of the hazard and conscious disregard of it). Exposure to the products of non-party companies is irrelevant to whether a defendant's product was a substantial factor. A spouse's death ends the measure of consortium damages but not the consortium claim, and solatium damages may also be recovered.
• Eagle-Picher Industries, Inc. v. Balbos (1990). A jury's negligence verdict was upheld despite arguably inconsistent findings, and a defendant's failure to warn was a cause-in-fact of harm to bystander shipyard workers, with expert evidence of asbestos fibers drifting supporting the inference that bystanders were exposed. Suppliers could not rely on the employer as a sophisticated purchaser. Punitive damages require direct evidence of substantial knowledge that the product itself was dangerous and gross indifference to that danger.
• Vaughn v. Marine Transport Lines, Inc. (1989). A shipowner that settles a seaman's unseaworthiness claim may obtain indemnity from a manufacturer whose asbestos-containing product made the vessel unseaworthy, by showing potential liability, contribution of the product, and a reasonable settlement. A good-faith settlement with other manufacturers extinguishes contribution claims and does not reduce the non-settling manufacturer's liability.
• Knauer v. Johns-Manville Corp. (1986). Maryland's three-year filing period in its Wrongful Death Act is a condition precedent to the claim, so federal Rule 15(c) relation back cannot save a late wrongful death claim in a diversity case. The general three-year limitations period for survival claims is an ordinary statute of limitations, so the survival claims relate back to the original filing.
• Trimper v. Porter-Hayden (1985). The Maryland wrongful death limitation period runs three years from death with no discovery rule. For survival actions on latent disease, a cause of action accrues at discovery or at death, whichever comes first.