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.

Maryland

• Weinberg v. Johns-Manville Sales Corp. (1984). Under full faith and credit, a sister-state judgment has the effect it has in the rendering state. Under New York law, a dismissal because the decedent could not have sued at death (barred by limitations) is a failure to state a cause of action that bars a later suit, so it also bars a Maryland wrongful death action.
• Pierce v. Johns-Manville Sales Corp. (1983). When asbestos exposure first causes asbestosis and later causes lung cancer, a separate latent disease, and no tort recovery was sought for the asbestosis, the lung cancer cause of action accrues when the cancer is or reasonably should have been discovered.

Massachusetts

• Cook v. Foster Wheeler Energy Corporation (2023). Asbestos exposure claims arising from repair and maintenance aboard a Navy ship on navigable waters fall within admiralty jurisdiction, so substantive maritime law applies, with state law only supplementing where maritime law is silent. General maritime law does not bar loss of consortium, punitive or survival damages against a manufacturer in such a case.
• Pritt v. John Crane, Inc. (2023). Where a product manufacturer that was not the seaman's employer is sued over an indivisible injury from asbestos exposure on the high seas and in territorial waters, neither the Jones Act nor DOHSA applies. General maritime law then permits punitive damages, loss of consortium damages and survival remedies, so an amendment seeking them is not futile.
• Stearns v. Metropolitan Life Insurance Company (2018). The six-year statute of repose in G. L. c. 260, § 2B completely eliminates tort claims arising from deficiency or neglect in the design, planning, construction or administration of an improvement to real property once the period has run, with no exception for long-latency diseases or for a defendant with knowing control of the injurious instrumentality.
• Barraford v. T & N Limited (2014). A Chapter 11 plan confirmation with a discharge and channeling injunction lifts the automatic stay, so 11 U.S.C. § 108(c) gave only 30 days to sue after that. A tolling letter between class counsel and the CCR did not cover plaintiffs who were not that firm's clients, and equitable tolling did not apply.
• Letteney's (dependent's) Case (1999). Only employment covered by the Massachusetts workers' compensation act's definition of employee (G. L. c. 152, § 1 (4)) may be used to determine the average weekly wage under § 35C for an employee who becomes eligible five or more years after the injury.

Michigan

• Jaqua v. Canadian Nat. RR, Inc. (2007). A FELA release does not violate § 5 if it is executed for valid consideration as part of a settlement and its scope is limited to risks known to the parties when it was signed, so it can release known risks of future injury such as cancer. A settlement with the injured person also bars a later claim by his personal representative.
• Beaudrie v. Anchor Packing Co. (1998). Under the Michigan workers' compensation statute, all persons with a financial interest in a wrongful death recovery are "parties" for apportioning expenses of recovery. The lien-holder's reimbursement and its share of expenses are recalculated with each new recovery from a separate tortfeasor.
• Allen v. Owens-Corning Fiberglas Corp. (1997). Evidence of a plaintiff's exposure to other manufacturers' asbestos products is relevant to whether the defendant's product was a substantial factor in causing the injury, but its exclusion is harmless where the plaintiff's evidence independently showed substantial exposure to the defendant's product. A manufacturer who knew of asbestos harms must warn even if it did not know of the specific disease that resulted.
• Beaudrie v. Anchor Packing Co. (1994). Under Eddington, a workers' compensation carrier may seek reimbursement from the entire third-party recovery, whatever the type of damages, where the recipient is a compensation beneficiary; recoveries by non-beneficiaries are not subject to the lien.
• Marshall v. Celotex Corp. (1988). Under Michigan law as the court applied it, a plaintiff may not proceed on a concert of action theory where she cannot show that any defendant supplied the asbestos-containing products to which the decedent may have been exposed, absent joinder of a significant majority of the potentially responsible parties.
• Marshall v. Celotex Corp. (1987). The court's view was that under concert of action liability the burden of proof never shifts, so a plaintiff must identify the defendant who supplied the injury-causing asbestos to show proximate cause. It treated the requirement as an open question of Michigan law and certified it.
• Larson v. Johns-Manville Sales Corp. (1986). A Michigan asbestosis claim accrues when the claimant knew or should have known of the disease (the discovery rule), and a claimant who did not sue for asbestosis may sue for a later cancer within three years of discovering the cancer.
• Larson v. Johns-Manville Sales Corp. (1985). A wrongful death action is governed by the limitation period and accrual rules of the underlying liability theory, so a decedent's time-barred personal injury claim bars the wrongful death claim. The court also declined to adopt a discovery rule for latent-disease products liability claims, holding that the claim accrues when the wrongful act occurs.

Minnesota

• Palmer v. Walker Jamar Company (2020). An asbestos-related wrongful death claim accrues when the fatal disease manifests in a way causally linked to asbestos, or on the date of death, whichever is earlier. Minnesota does not apply a discovery rule requiring the plaintiff to know which product or defendant caused the disease.
• Palmer v. Walker Jamar Company (2019). A Minnesota asbestos wrongful-death claim accrues when the disease manifests in a way causally linked to asbestos, or at death if earlier, without the plaintiff needing to identify the specific defendant. Podvin bars claims against a dissolved corporation brought more than two years after dissolution, and the 2007 amendment to section 302A.781 does not apply retroactively.
• Rock v. Bucyrus Int'l (In re Minnesota Asbestos Litigation) (2009). Under the Minnesota Supreme Court's grant of broad managerial authority over asbestos litigation, the district court had authority under the 1994 case-management order to allow presuit discovery to identify potential defendants; the 2008 order only clarified this.
• Bunce v. Api, Inc. (2005). A defendant who settles with a plaintiff through a Pierringer release pays only its fair share and so has no accrued claim for contribution or indemnity against non-settling third-party defendants. A release that purports to reserve those claims cannot bind non-signatories, and the plaintiff's death does not change this.
• DeCosse v. Armstrong Cork Co. (1982). The Minnesota wrongful death statute's limitation period is subject to common-law tolling for fraudulent concealment, but not to a discovery rule. Asbestos-related wrongful death claims accrue on manifestation of the fatal disease causally linked to asbestos or on the date of death, whichever is earlier.

Mississippi

• Bedford v. American Honda Motor Co. (2019). A party's deposition may be prohibited in extraordinary circumstances, such as when an uncontested medical opinion shows the deposition creates a substantial risk to the witness's life and health, particularly where the requesting party delayed seeking it.
• Garlock Sealing Technologies, LLC v. Pittman (2010). A complaint filed in the name of a person who died before filing is a nullity, so Rule 17(a) substitution is unavailable and an amended complaint cannot relate back to it. The limitations defense was not waived because the defendants had not actively participated in the litigation.

Missouri

• Guthe v. Johnson & Johnson (2024). A petition must at least describe the type of product the decedent was exposed to and allege that the defendant made or distributed it; Missouri law recognizes no standalone products-liability tort of willful and wanton misconduct, though the allegations may be read as a punitive damages request.
• Accident Fund Insurance Company v. Casey (2018). An employer that accepts enhanced mesothelioma liability under section 287.200.4 and an insurer whose policy endorsement covers those benefits are liable for claims filed on or after January 1, 2014, regardless of the date of last exposure. The statute is not retrospective as applied, and it allows all children, not only dependents, to recover.
• MacCormack v. the Adel Wiggins Group (2017). Missouri's foreign corporation registration statute does not constitute consent to general personal jurisdiction, per State ex rel. Norfolk S. Ry. Co. v. Dolan, which is an intervening change in law justifying reconsideration; a global corporation with business in Missouri is not 'at home' there under Daimler.
• Urbach v. the Okonite Company (Eastern District, 2017). Under Wisconsin substantive law, co-worker testimony and expert bystander-exposure evidence can support a jury finding that a defendant's asbestos product was a substantial factor in causing mesothelioma. Wisconsin's wrongful-death cap applies after fault is apportioned, and the Wisconsin statute requiring assignment of asbestos trust claims before collecting a judgment is procedural, so Missouri law governs it.
• Wagner v. Bondex International, Inc. (Western District, 2012). Missouri requires but-for causation (the substantial factor test applies only in two-fires cases), and a plaintiff must identify the defendant's asbestos-containing product as the source of exposure. Section 537.060 reduces a judgment only by settlements actually made, not by trust payments the plaintiff never sought.
• State EX rel. Ford Motor Company v. Nixon (Western District, 2007). Workers' compensation is the exclusive remedy for workplace injury claims, and only the Labor and Industrial Relations Commission can decide whether an injury was accidental or intentional. A co-employee is not liable at common law unless he committed an affirmative negligent act beyond the employer's duty to provide a safe workplace.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.
• Hagen v. Celotex Corp. (1991). A plaintiff must show through expert testimony that each defendant's product was a substantial factor in causing the harm. Evidence showing only asbestos exposure in general, or that a defendant's product may have contributed, does not make a submissible case against that defendant.
• Hagen v. Rapid American Corp. (Eastern District, 4th Division, 1990). A party is aggrieved and may appeal only if a judgment prejudices its rights directly and immediately. Plaintiffs who stipulated to severing a defendant, and who feared only a remote contingent future loss, were not aggrieved by a without-prejudice dismissal for lack of personal jurisdiction.
• Speck v. Union Elec. Co. (Eastern District, 2nd Division, 1987). An employer's intentional conduct falls outside workers' compensation exclusivity if the employer acts with a specific purpose to injure, which includes being substantially certain that injury will result. The compensation statute still bars claims for the initial occupational disease, but a claim for intentionally withholding health information may proceed.

Montana

• Gallegos v. BNSF Railway Company (2024). A renewed motion asking the court to revisit an interlocutory ruling must comply with the local rule on reconsideration. Where evidence on negligence and punitive damages overlaps substantially, they are normally tried together, with only the amount of punitive damages bifurcated.
• Gallegos v. BNSF Railway Company (2023). Spoliation sanctions are not warranted for destruction of evidence the movant was not entitled to obtain; a Rule 35 autopsy request requires an affirmative showing of good cause, which BNSF did not make.
• Wells v. BNSF Railway Company (2023). Under Montana's comparative-fault statute, a defendant may not assign fault to an unsettled nonparty such as W.R. Grace, and must prove a settled party's negligence with expert testimony where the issues are beyond lay knowledge. The HMTA and FRSA do not preempt state-law claims over transporting asbestos-bearing vermiculite ore.
• Atchley v. Louisiana Pacific Corp. (2018). A claimant first proves an occupational disease by showing that employment significantly aggravated or contributed to it. Under the last injurious exposure rule, liability then falls on the employer or insurer at risk when the worker was last exposed to the type and kind of conditions that could have caused the disease, even if earlier exposures were larger.
• Monroe v. Maco Workers Comp Trust (2014). Where an occupational disease has not previously been adjudicated against any employer, the "potentially causal" standard applies, so liability falls on the employer of the last employment with exposure of the type and kind that could have caused the disease. The one-year claim period for an occupational disease runs from when the claimant knew or should have known the condition resulted from that employment.

Nebraska

• In re Estate of McConnell (2020). Wrongful death proceeds are not estate property and are not waived by a premarital agreement unless its language specifically waives them. A spouse's wrongful death recovery is limited to pecuniary loss after the death, and pain and suffering before death belongs to the estate under a survival claim.
• Olivotto v. DeMarco Bros. Co. (2007). Under the last injurious exposure rule, liability for an occupational disease falls on the employer whose work exposed the employee in a way that could cause the disease. A worker who retired decades before disability suffered no loss of earning capacity and gets no weekly indemnity benefit.

Nevada

• State Indus. Ins. System v. Jesch (1985). Nevada's occupational disease time limits for dust diseases do not bar compensation for latent asbestos-related mesothelioma, and the last injurious exposure rule applies to successive-employer claims, so the claimant need not prove which one employment caused the disease.

New Jersey

• Losurdo v. Viacomcbs Inc. (2025). Under maritime law and DeVries, a manufacturer's duty to warn turns on whether it directed incorporation of asbestos parts, knew the integrated product was dangerous, and had no reason to believe the sailors using it would know of the danger. Under Miles, punitive and loss-of-consortium damages are not available in a maritime wrongful death action.
• Fowler v. Akzo Nobel Chemicals, Inc. (2017). In an asbestos case, a plaintiff can show exposure to a particular defendant's asbestos through circumstantial evidence under the frequency, regularity and proximity test. Regular direct handling of asbestos, together with large documented deliveries by the defendant to the workplace, is enough to reach a jury.
• McClung v. 3M Company (2017). Under 28 U.S.C. § 1404(a) and Rule 21, a court may sever claims against one defendant and transfer them when the balance of private and public interest factors favors transfer and the events giving rise to the claim did not occur in the forum.
• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• Olivo v. Owens-Illinois, Inc. (2006). A landowner that owes a duty to workers on its premises for the foreseeable risk of asbestos exposure also owes a derivative duty to a spouse who handles the worker's contaminated work clothing, unless the hazard-incident-to-the-work exception for independent contractors' employees means no duty is owed to the worker.
• Olivo v. Exxon Mobil Corporation (2005). Under New Jersey's fairness-and-foreseeability duty analysis, a landowner that knew of asbestos hazards owed a duty to a worker's spouse who predictably came into contact with his asbestos-laden work clothes at home. The court limited the duty to the spouse and declined to extend it to unpredictable contacts such as car pool members.
• Thalman v. Owens-Corning Fiberglas (1996). A jury damages award may be set aside or reduced only on a carefully reasoned and articulated finding that it would be a manifest denial of justice; a remittitur based on speculation or an unexplained 'more reasonable number' was improper.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Schiavo v. Owens-Corning Fiberglas (1995). A 'day in the life' videotape is admissible once the trial judge finds it relevant, probative and an accurate depiction of the injuries, and error in admitting punitive-phase documents without foundation may be harmless where the punitive award was minimal.
• Goss v. American Cyanamid Co. (1994). A plaintiff must show exposure to the defendant's asbestos products with sufficient frequency, regularity and proximity, but may do so by circumstantial evidence, including a distributor's supply of the products to the plant. A trial court may not set aside a jury verdict and resubmit an issue when the evidence supports a reasonable inference for the jury's finding.