Expert Testimony in Asbestos Cases

Decisions in our library in which the court ruled on admissibility or sufficiency of expert testimony (Daubert: 785 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.

Georgia

• 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. 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.
• Hoffman v. AC&S, Inc. (2001). A plaintiff in an asbestos case must present non-speculative evidence that the defendant's asbestos-containing product was used at the job site while the exposed person was nearby; testimony that a defendant's products were used at the site at some unspecified time during the 1960s is insufficient. An expert's general opinion that workers were exposed to asbestos products does not supply the missing link to a particular defendant.
• John Crane, Inc. v. Wommack (1997). A jury verdict approved by the trial judge must be affirmed if any evidence supports it. Here there was evidence that the manufacturer knew or should have known of asbestos hazards, owed a duty to warn, that its packing released respirable fibers in foreseeable use, and that it contributed to the plaintiff's disease.

Hawaii

• Cabasug v. Crane Company (2014). Under maritime law a plaintiff must show exposure to the particular defendant's asbestos product as a substantial factor, and a manufacturer is not liable for replacement parts it did not supply. A parent corporation or its successor is not liable for a subsidiary's acts absent a showing supporting veil-piercing.

Idaho

• Stephens v. Union Pacific R. Co. (2019). Under Idaho's substantial-factor test, applied as in the Ninth Circuit's asbestos cases, a plaintiff must show substantial exposure to the defendant's asbestos over a substantial period. Expert opinions that rest on assumptions the record does not support cannot create a genuine factual dispute.

Illinois

• Pelton v. John Crane, Inc. (2024). Under maritime law, a plaintiff may show substantial-factor causation through admissible general expert testimony plus circumstantial evidence of substantial exposure over a substantial period, without expert testimony specific to the defendant's product. The Second Restatement's consumer-expectations test still governs maritime strict liability, and punitive damages remain available as a remedy even though willful and wanton conduct is not a separate cause of action.
• McNamara v. Ico Polymers North America, Inc. (1st District, 2nd Division, 2023). A trial court abuses its discretion when it arbitrarily requires a witness with documented hardships to testify in person when remote video testimony is permitted under Supreme Court Rule 241. A pre-suit evidence deposition is not admissible against defendants who had no notice and whose motive to cross-examine differed from that of those present.
• Johnson v. Orton (2021). Under Krik v. Exxon Mobil, an expert's 'cumulative exposure' causation opinion that ignores the amount and duration of exposure to each defendant's product is unreliable under Rule 702 and Daubert. Experts may rely on facts established by other experts, and chain-of-custody gaps go to weight, not admissibility.
• Johnson v. Orton (2021). Under Illinois negligence law, a manufacturer's duty to warn depends on what it knew or should have known, judged by industry knowledge. A pyrometric cone maker that used vermiculite only as packing filler is not a vermiculite manufacturer and is held to the knowledge standard of the ceramics industry.
• Jones v. Pneumo Abex LLC (5th District, 2021). A civil conspiracy based on circumstantial evidence must be proved by clear and convincing evidence of a knowing agreement. Evidence consistent with innocence, parallel conduct, or a conspiracy that ended before the plaintiff's exposure does not establish it.
• Daniels v. ArvinMeritor, Inc. (1st District, 4th Division, 2019). A trial court may use the standard Illinois pattern proximate-cause instruction in an asbestos case, and need not give a 'substantial factor' instruction. A manufacturer that actually knew of the danger is not entitled to a 'state of the art' instruction, and settled defendants need not appear on the verdict form.
• McKinney v. Hobart Bros. Co. (4th District, 2018). A manufacturer owes no duty to warn of a hazard that was unknown to its industry when the product was made, and knowledge that raw asbestos was dangerous does not show knowledge that a product with encapsulated asbestos was dangerous. A plaintiff must also present evidence that exposure to the defendant's product was a substantial factor in causing the disease.
• Krik v. Exxon Mobil Corp. (2017). A district court may exclude expert testimony that every asbestos exposure, whether framed as "each and every" or "cumulative" exposure, is a substantial contributing factor, because it is not tied to dose and shifts the burden of proof on causation. A new trial for improper juror-related contact requires a showing of prejudice.
• Startley v. Welco Mfg. Co. (1st District, 2nd Division, 2017). Under Illinois's frequency, regularity and proximity test, which is less rigid for mesothelioma, testimony that a worker used a defendant's joint compound on some jobs, backed by expert evidence that low exposures contribute to the disease, can let a jury find a substantial factor. The injury occurred in Illinois, so Illinois law presumptively applies.
• Bell v. Abb Group, Inc. (2015). An occupational medicine physician who is a B Reader was qualified to give diagnosis and causation opinions, and an expert's reliance on an "every exposure" theory does not make testimony inadmissible under Daubert and Rule 702, given Illinois's frequency, regularity and proximity standard and Seventh Circuit precedent.
• Bell v. Abb Group, Inc. (2015). An expert's reliance on an 'every exposure' theory does not make his testimony inadmissible under Rule 702 and Daubert, where Illinois law and Seventh Circuit precedent allow a jury to find that minor exposures can be a substantial factor, and the expert considered the plaintiff's occupational history.
• Kochera v. General Electric Company (2015). A physician board certified in occupational medicine and certified as a B Reader is qualified to give diagnosis and causation opinions on asbestos disease. Under Illinois law and Seventh Circuit precedent, an expert's reliance on an "every exposure" theory does not by itself make the testimony inadmissible under Rule 702 and Daubert.
• McALVEY v. Atlas Copco Compressors, LLC (2015). An exposure expert's opinion built on a worker's history, historical exposure levels for comparable trades and scientific literature is admissible under Rule 702. Inability to state the dose or the specific manufacturer goes to credibility, not admissibility.
• Neureuther v. Atlas Copco Compressors, LLC (2015). A physician board certified in occupational medicine and a certified B Reader may testify on asbestosis diagnosis and causation, and reliance on an 'every exposure' theory does not make the testimony inadmissible under Illinois's frequency, regularity and proximity rule and Seventh Circuit precedent.
• Neureuther v. Atlas Copco Compressors, LLC (2015). An occupational medicine physician who reads x-rays for asbestos is qualified to opine on asbestosis diagnosis and causation. Under Illinois law and Seventh Circuit precedent, reliance on an 'every exposure' theory does not make such testimony inadmissible under Daubert.
• Krik v. Crane Co. (2014). Expert opinion that any or every exposure to asbestos causes disease, offered without analysis of the plaintiff's actual exposure level, is not reliable under Rule 702 and Daubert. Under Illinois and maritime law, more than minimal exposure is required to show causation.
• 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.
• Quirin v. Lorillard Tobacco Company (2014). Under Rule 702 and Daubert, an expert's fiber-release testimony and work practice study using a similar joint compound in a sealed chamber are admissible, since differences from actual work conditions go to weight rather than admissibility.
• Quirin v. Lorillard Tobacco Company (2014). An expert's opinion that rests on test data whose methods cannot be evaluated does not meet Rule 702 and Daubert, and the proponent bears the burden of showing reliability. Flaws in data that has a rational connection to the opinion go to weight and are for cross-examination, and an expert's bare 'bottom-line' endorsement of other experts' work is not admissible.
• Quirin v. Lorillard Tobacco Company (2014). An expert who opines that only significant exposures, not any minimal exposure, to asbestos in joint compound contributed to mesothelioma offers admissible testimony under Rule 702 and Daubert. Disputes over fiber potency, dose and epidemiological gaps go to weight, not admissibility.
• Quirin v. Lorillard Tobacco Company (2014). Under Rule 702 and Daubert, challenges to the age and condition of the tested cigarettes and to inconsistent test results go to the weight of an expert's evidence, not its admissibility. A differential diagnosis using the Helsinki Criteria is an accepted method for attributing mesothelioma to asbestos.
• 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.
• Burgess v. Abex Corp. EX rel. Pneumo Abex (4th District, 2000). Parallel conduct among asbestos manufacturers is not enough by itself to prove the agreement element of civil conspiracy; there must be other evidence of an agreement to suppress or misrepresent asbestos hazards. Such evidence existed against Abex but not against Pittsburgh Corning.
• 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.
• McClure v. Owens Corning Fiberglas Corp. (4th District, 1998). Evidence of parallel conduct, if persuasive enough, can alone support a jury finding of civil conspiracy among asbestos manufacturers (the antitrust rule on parallel conduct does not apply). Once a conspiracy is shown by clear and convincing evidence, proximate cause need only be shown by a preponderance.
• 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.
• Costa v. Dresser Industries, Inc. (3rd District, 1994). Expert testimony from a witness disclosed months before trial was properly admitted under Illinois Rule 220 even though the plaintiff never served Rule 220 interrogatories, and consulting experts are discoverable only on a showing of exceptional circumstances. An instruction that mere presence of a product at a work site is insufficient to show exposure was erroneous but harmless where the jury found no mesothelioma.
• Hartman v. Pittsburgh Corning Corp. (5th District, 1994). Circumstantial evidence of regular exposure to the defendant's asbestos product over several months, together with medical evidence, can support an inference that the product probably caused mesothelioma. Trial courts keep discretion over sanctions for late expert disclosure under Rule 220, and a settlement may be allocated to a spouse who signed the releases, so that part is not set off against the verdict.
• US Gypsum Co. v. Admiral Ins. Co. (1st District, 5th Division, 1994). Under Illinois law, an insured's liability in the underlying cases need not be re-proved in the coverage action; asbestos-building-material property damage is covered, the own-product exclusions do not bar removal costs, and coverage is triggered continuously rather than at discovery. The number of occurrences depends on the cause of damage, and all triggered primary coverage must be exhausted before excess policies attach.
• Kurrack v. American Dist. Telegraph Co. (1st District, 5th Division, 1993). A strict liability claim based on an inherent defect in an asbestos-containing product requires proof that the product left the defendant's control in an unreasonably dangerous condition, such as releasing friable asbestos; the presence of asbestos alone does not establish a defect. A failure-to-warn claim requires proof the defendant knew or should have known of the danger.
• State Farm Mut. Auto. Ins. Co. v. WR Grace & Co. (1993). The Illinois construction statute of repose protects a product manufacturer only if it substantially participated in construction activities or custom-made and installed its product for the project, and only for claims arising from those construction activities, not manufacturing-related negligence such as failure to warn.
• Betts v. Manville Personal Injury Trust (4th District, 1992). A new trial was required because of plaintiffs' counsel's prejudicial tactics, an undisclosed expert, speculative cancer-risk evidence, evidence from another plant not shown to be similar, and over-broad collateral estoppel against Grefco. A prior finding fixing when a plaintiff learned of her injury can bar a later suit on limitations grounds, and a plaintiff who gets no allocation of an earlier settlement bears the burden on the setoff.
• Thacker v. Unr Industries, Inc. (1992). In asbestos cases a plaintiff must show frequency, regularity and proximity of exposure to the defendant's asbestos. Fiber drift evidence can meet the proximity element, and it need not come from expert testimony.
• Thacker v. Unr Industries, Inc. (4th District, 1991). Evidence that asbestos dust from all sources drifted through the plant, combined with testimony that slight contact with asbestos could cause cancer, created a jury question on whether Manville asbestos was a proximate cause. Claims of error not raised in the post-trial motion in a jury case are waived under Rule 366(b)(2)(iii).
• Wehmeier v. Unr Industries, Inc. (4th District, 1991). In asbestos cases Illinois courts apply the Lohrmann frequency, regularity and proximity test for causation. Expert fiber-drift evidence can establish the proximity prong but cannot alone support an inference of causation.
• H & H Plumbing Co. v. Indus. Comm'n (5th District, 1988). The Commission's finding of asbestos exposure and an occupational disease could rest on lay testimony, circumstantial evidence and a test of a similar blanket, and was not against the manifest weight of the evidence. The employer in whose employment the worker was last exposed is liable even if earlier exposure also contributed.
• Zurich Ins. Co. v. Raymark Industries, Inc. (1st District, 1986). Under comprehensive general-liability policies, coverage for asbestos claims is triggered both by exposure (bodily injury) and by manifestation (disease), but not by the intervening period; each triggered insurer owes full indemnity and defense to the insured, and the duty to defend ends when policy limits are exhausted by payment of judgments or settlements.

Indiana

• Hostetler v. Johnson Controls, Inc. (2021). An ELA claim under Indiana law recovers cleanup costs, and the plaintiff must have incurred removal or remedial costs before suing. A company that signed a voluntary remediation agreement with the state is also protected from ELA suits unless it fails to complete the remediation in accordance with the approved work plan.
• Hostetler v. Johnson Controls, Inc. (2020). Experts opining on an individual's increased risk of future harm cannot rely on exceedance of regulatory values or a no-safe-dose theory without a reliable basis tied to that person's actual dose and duration of exposure. Such opinions do not satisfy Rule 702.

Iowa

• Beeman v. Manville Corp. Asbestos Fund (1993). Evidence of cancer risk from asbestos is admissible to show a manufacturer's duty to warn and the reasonableness of a plaintiff's fear of cancer, and proof of exposure plus cumulative-effect expert testimony can create a jury question on proximate cause. Knowledge sufficient to trigger a duty to warn does not by itself support punitive damages, and Iowa law does not allow a separate award for lost opportunity to live out a full life expectancy.

Kansas

• Little v. Budd Company (2018). General-causation expert testimony that asbestos causes mesothelioma and is dose-responsive is admissible under Rule 702 and Daubert when the expert offers no opinion on the plaintiff's specific causation. A historian of asbestos knowledge may describe the development of knowledge about its hazards but may not testify about what a particular defendant knew or should have known.
• Little v. the Budd Company (2018). A party seeking to add an expert after the scheduling order's deadline must first show good cause under Rule 16(b)(4), which requires diligence. The Tenth Circuit's four-factor test from Summers and Rimbert does not displace that showing, and even under that test the factors favored denial here.

Kentucky

• Williams v. Schneider Electric USA, Inc. (2023). Duty turns on foreseeability, not on labels like bystander, and household members who regularly and repeatedly came into close contact with a worker's asbestos-contaminated clothes over an extended period are owed a duty where the take-home danger was foreseeable by the late 1960s. A brief, unrelated stint of employment does not make workers' compensation exclusivity bar the non-work-related claims.