Trial Procedure and Discovery in Asbestos Cases

Decisions in our library in which the court ruled on discovery: 2,075 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.

About this issue

Asbestos litigation involves thousands of cases, dozens of defendants per case, and plaintiffs who are often seriously ill. Courts have developed special procedures to manage it, and many decisions deal with them:

• Discovery: depositions (sometimes urgent, before a plaintiff dies), document production, product lists, and disputes over privilege.
• Sanctions for discovery failures or misconduct.
• Consolidation: whether several plaintiffs' cases may be tried together. Courts apply their own rule (in federal court, a common question of law or fact) and weigh efficiency against the risk of confusing or prejudicing the jury; similar diseases, worksites and exposure periods are among the factors.
• Trial preference for plaintiffs who are dying.
• Jury instructions, evidence rulings at trial, and motions for a new trial or for judgment notwithstanding the verdict.

These decisions are often short, but they shape how quickly cases move and how they are tried.

Alabama

• Corley v. Long-Lewis, Inc. (2020). An order granting a plaintiff's Rule 41(a)(2) motion to voluntarily dismiss the rest of a complaint is a final judgment for appeal, and a court may refuse to consider a new choice-of-law (maritime law) argument first raised in a motion for reconsideration after summary judgment.
• Bobo v. Tennessee Valley Authority (2017). Predicting Alabama law, the court held that an employer has a duty to prevent take-home asbestos exposure of an employee's household members when the injury is foreseeable and public policy supports a duty. The court also held that medical charges written off by providers under insurer agreements are not recoverable as damages.
• Holland v. Airco, Inc. (2016). Under Alabama law a plaintiff must first prove exposure to an asbestos-containing product for which the defendant is responsible. Evidence that a defendant's equipment sometimes contained asbestos parts, without proof that the specific parts the worker encountered were the defendant's, is not enough.
• Bobo v. Tennessee Valley Authority (2015). The court concluded that Alabama law has no controlling answer on whether a premises owner owes a duty to workers' family members for take-home asbestos exposure, or on whether but-for or substantial-factor causation applies to multiple asbestos exposures, so it certified both questions to the state supreme court.
• Kruse v. Vanderbilt Minerals, LLC (2015). A summary judgment cannot rest on a failure of the non-movant's proof that the motion did not raise, because no burden shifts to the non-movant on an issue the motion does not challenge. Evidence of Vanderbilt's shipments and daily use of its talc where the worker was repeatedly present was enough on exposure.
• McGUFFIE v. Mead Corporation (2014). Predicting Alabama law, the court applied a two-injury rule so the mesothelioma claim was not time-barred by an earlier asbestosis diagnosis, but an unambiguous release of a company's former parents, stockholders and successors from future asbestos claims bars the suit, because inadequate consideration alone does not invalidate a written release.
• Bobo v. Agco Corporation (2013). The discretionary function doctrine applies to TVA's power-generation activities, but it does not shield TVA from claims that it violated mandatory OSHA regulations or its own mandatory policies, or that it negligently carried out safety procedures it had adopted. Decisions not to warn employees' spouses and on the content of training are discretionary and protected.
• Bobo v. Agco Corporation (2013). A motion to amend filed after a scheduling order deadline must meet Rule 16(b)'s good cause standard, which requires diligence; a plaintiff who knew the underlying facts earlier and gave no reason for delay fails it. The Authority is immune from punitive damages and plaintiffs have no jury right against it.
• Morgan v. Bill Vann Company, Inc. (2013). Rule 54(b) certification of a partial final judgment is allowed only in rare cases where delay would cause hardship or injustice. A wish to avoid a possible second trial, or overlapping facts between the decided and remaining claims, does not meet that standard.
• Brown v. the Boeing Company (2012). Under Rule 41(a)(2) in the Eleventh Circuit, voluntary dismissal without prejudice should generally be granted absent clear legal prejudice to the defendant, and losing a statute of limitations defense by refiling elsewhere is not such prejudice. The court may condition dismissal on payment of costs that will not benefit defendants in later litigation.
• Bradberry v. Carrier Corporation ET AL. (2011). The Bankruptcy Code's automatic stay halts proceedings only against the debtor and not against solvent codefendants, and a trial court need not formally sever or dismiss the debtor before proceeding against the others. Proceeding against solvent joint tortfeasors does not impermissibly split a wrongful-death action.

Arizona

• City of Phoenix v. Glenayre Electronics, Inc. (1st Division, 2016). Arizona's construction statute of repose, A.R.S. § 12-552(A), applies to governmental entities despite the nullum tempus doctrine, and indemnity obligations in City permits are claims 'based in contract' under the statute.
• Leabo v. Allied Signal, Inc. (2011). Under Arizona law, which a federal court must apply to a state judgment, a state court's dismissal with prejudice of a second, identical action as time-barred is a judgment on the merits that bars the first-filed action by claim preclusion, even though the first action was begun earlier.

Arkansas

• Kimmons v. Autozone, Inc. (2022). Cross-claims for indemnity, contribution, or allocation of fault are moot, with no live case or controversy, once every defendant asserting them has been dismissed from the lawsuit and no longer faces liability.
• Burnett v. American International Industries (2020). Arkansas does not recognize willful and wanton conduct or punitive damages as independent causes of action, and a fraud claim against multiple defendants must meet Rule 9(b) by stating each defendant's role with particularity.
• Thomas v. Borg-Warner Morse Tec LLC (2018). Under Arkansas law, a plaintiff must show frequent exposure to a defendant's asbestos product and causation, and market share liability is not allowed. A non-buyer warranty claimant must give the defendant pre-suit notice, and a design defect claim does not require proof of a safer alternative design.
• Hendrix v. Alcoa, Inc. (2016). Because the Workers' Compensation Act covers asbestos-related claims, a claim barred by the three-year statute of repose in section 11-9-702(a)(2)(B) still falls within the Act's coverage, so the exclusive-remedy provision bars a common-law tort suit against the employer.

California

• Holste v. 3M Company (2025). A plaintiff's waiver of government or military-based claims can defeat federal officer removal, and a removing defendant must offer evidence that the government directed the use of asbestos to show a causal nexus and a colorable government contractor defense. A cross-claim by a co-defendant does not support removal.
• Brooks v. Mission Stucco Company (2nd Appellate District, 3rd Division, 2024). A special verdict that finds a single design defect both was and was not a substantial factor in causing harm is irreconcilably inconsistent, and the reviewing court cannot choose between the answers. A new trial may be limited to liability on that theory and fault allocation, leaving the total damages intact.
• Marcus v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs can reach a jury on substantial-factor causation with testimony about the work done on a product, evidence the product contained asbestos, and expert estimates of exposure from that work, without relying on an "every exposure" theory. The government contractor defense does not apply to federal maritime claims, and loss of consortium and punitive damages are unavailable under maritime law.
• Sarjeant v. Foster Wheeler LLC (2024). A later declaration naming specific products does not count as a sham affidavit unless it clearly and unambiguously contradicts earlier testimony. Disputed evidence about whether a defendant's talc went into the products the plaintiff used is for the jury.
• Sarjeant v. Foster Wheeler LLC (2024). Under Rule 26 relevance and proportionality, records about a defendant's equipment on ships repaired at a shipyard where the plaintiff worked were discoverable, because the defendant identified no specific burden.
• Smargisso v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs must show actual exposure to the defendant's asbestos products and that the exposure was a substantial contributing factor; circumstantial shipmate and records evidence can meet this. Non-pecuniary damages are not recoverable in a maritime wrongful death action based on negligence and strict liability absent historical support.
• Watts v. Pneumo Abex, LLC (1st Appellate District, 2nd Division, 2024). A directed verdict against a defendant on the sophisticated user defense is improper when, viewing the evidence most favorably to the defendant, a jury could find the plaintiff knew or should have known of the product's hazards as a member of the class of sophisticated users.
• Williams v. JM Manufacturing Company, Inc. (1st Appellate District, 2nd Division, 2024). The limit in Kesner on the duty of care for take-home asbestos exposure, which reaches only household members, applies to negligence and premises claims. It does not bar a strict liability claim, which requires no proof of duty, by a non-household family member against a product supplier.
• Haeck v. 3M Company (2023). Under the Ninth Circuit's voluntary/involuntary rule, a case that was not removable becomes removable only through the plaintiff's voluntary act; a summary judgment for a California defendant granted over the plaintiff's objection does not remove the forum defendant bar.
• Ramirez v. Avon Prods. (Laosd Asbestos Cases) (2nd Appellate District, 8th Division, 2023). A corporate employee, including one previously designated as a person most qualified for deposition, is a lay witness whose declaration is limited to personal knowledge and admissible evidence. Hearsay documents with no shown exception cannot carry a summary judgment movant's initial burden.
• Ochoa v. Spx Cooling Technologies, Inc. (1st Appellate District, 1st Division, 2023). In an asbestos injury case, a plaintiff must show threshold exposure to the defendant's asbestos-containing products; evidence that the worker may have worked on some tower that might have had asbestos parts, without evidence that his work disturbed asbestos, is speculation and does not create a triable issue.
• Wilgenbusch v. Metalclad Insulation LLC (1st Appellate District, 3rd Division, 2023). Under Proposition 51, noneconomic damages are apportioned between separate products, but defendants in the same chain of distribution of a single product remain jointly and severally liable for the harm that product caused. A judgment may be entered consistent with an ambiguous special verdict as read with the instructions and evidence.
• Bader v. Johnson & Johnson (1st Appellate District, 4th Division, 2022). A trial court's gatekeeping of expert opinion under Sargon is reviewed for abuse of discretion, and Rutherford's 'substantial factor contributing to the risk' causation standard may be applied to a fibrous talc theory where the same causation uncertainties exist as in asbestos cancer cases. Instructional and evidentiary errors that are assumed but not shown to have affected the verdict do not require reversal.
• In re Bestwall LLC (2022). A third party who produces data in response to a subpoena must show the data is privileged or trial-preparation material to invoke Rule 45's claw-back protection. HIPAA regulations and CDC guidelines did not create such a privilege here, and the protective order allows confidentiality designations but not claw-back.
• Darden v. Western Asbestos Settlement Trust (In re Western Asbestos Settlement Trust) (2022). Under California law, a third party not named in a release may enforce it if a reasonable person in the releasor's position would understand it was intended to cover that party, and claim preclusion under the primary rights theory bars a second asbestos claim against a predecessor in privity with the released defendant. A trust that compensates asbestos exposure claims need not pay heirs' wrongful death claims when no underlying compensable claim exists.
• Payne v. Abb, Inc. (2022). Actions are related under Local Rule 123 when they involve the same parties, similar facts and the same legal questions, so that assignment to one judge saves judicial effort. Relating cases assigns them to one judge but does not consolidate them.
• Benavidez v. Fluor Corp. (2nd Appellate District, 7th Division, 2021). A plaintiff's deposition testimony that he regularly worked near a defendant's workers and recognized the asbestos materials they used can create a triable issue of exposure. Inconsistent testimony about the workers' job duties goes to credibility and does not require disregarding all of the testimony.
• Cahill Construction Company v. Superior Court of Alameda County (1st Appellate District, 5th Division, 2021). Code of Civil Procedure section 2025.295 sets a hard 14-hour cap on defense deposition time for a terminally ill mesothelioma plaintiff, and courts cannot exceed it through protective-order powers. The cap did not violate due process as applied on this record.
• Harris v. Thomas Dee Engineering Co., Inc. (1st Appellate District, 5th Division, 2021). A court may not give no weight to an expert's declaration opposing summary judgment just because it was not disclosed in the expert's deposition or conflicts with it. The D'Amico rule on contradictory discovery admissions guides whether a triable issue exists but does not make such a declaration inadmissible, and it does not apply where the declaration reasonably explains the difference.
• Harris v. Thomas Dee Engineering Co., Inc. (1st Appellate District, 5th Division, 2021). Under D'Amico, a declaration that contradicts earlier deposition testimony is not inadmissible. Whether it creates a triable issue is reviewed de novo, and a declaration with a reasonable explanation for the discrepancy cannot be given no weight.
• Toy v. Armstrong Int'l (In re Asbestos) (2021). A rebuttal expert report must respond to new, unforeseen matters; opinions on issues where the offering party bears the burden of proof belong in the opening expert disclosures, so the rest of the report may be struck even though both sides missed the scheduling deadlines.
• Putt v. Ford Motor Co. (In re Laosd Asbestos Cases) (2nd Appellate District, 2nd Division, 2021). Where the jury found Ford's brake pads defective and a substantial factor in causing mesothelioma, and it was undisputed that other makers' brake pads were identical and also exposed the plaintiff, the evidence compelled apportioning some nonzero fault to those others, and a defendant need not prove precise percentages to overturn a 100 percent apportionment.
• Toy v. Armstrong Int'l (In re Toy Asbestos) (2021). Under California law, a product maker is not liable for asbestos in third-party gaskets or insulation used with its product unless its own product contributed substantially to the harm or it mandated or advised use of the asbestos parts. Foreseeability that such parts would be used is not enough.
• Khosravan v. Chevron Corporation (2nd Appellate District, 7th Division, 2021). A section 998 settlement offer that requires the plaintiff to indemnify the defendant against future claims by unidentified nonparties cannot be accurately valued, so it is not a valid offer for shifting expert witness fees.
• Krueger v. Csaa Insurance Services, Inc. (5th Appellate District, 2021). A one-year suit limitation period in a homeowner's insurance policy is valid and enforceable. Delayed discovery, equitable tolling and equitable estoppel did not excuse the late filing where the insured showed no link between the later-discovered asbestos and the insurer's handling of her claims.
• Leavitt v. Johnson & Johnson (1st Appellate District, 5th Division, 2021). A plaintiff alleging mesothelioma from asbestos-contaminated talc must show it is more likely than not the product was contaminated when used, and that exposure was a substantial factor in contributing to the risk of disease; no dose-level estimate or testing of the plaintiff's own container is required. An appellant must show both error and prejudice.
• Morgan v. JM Manufacturing Co., Inc. (2nd Appellate District, 1st Division, 2021). A plaintiff seeking punitive damages against a corporation must offer clear and convincing evidence that an officer, director or managing agent had the required state of mind, whether shown directly or by piecing together managing agents' knowledge and acts; the company's size does not relax that burden.
• Phipps v. Copeland Corporation LLC (2nd Appellate District, 7th Division, 2021). A defendant bears the burden at trial of proving the percentage of fault attributable to others, and on appeal must show the evidence compelled a more favorable apportionment as a matter of law; on a new trial motion for excessive damages, Code Civ. Proc. sections 657 and 658 bar the court from considering a survey of other verdicts outside the minutes of the court.
• Swanson v. The Marley-Wylain Co. (2nd Appellate District, 1st Division, 2021). Michigan law governed the negligence claim, and under it a plaintiff must show that the defendant's conduct was a substantial factor in producing the injury, not merely in increasing the risk of injury. An instruction using California's risk-contribution standard was therefore error.
• Adcock v. Peery (2020). A prisoner's claim over asbestos and mold exposure in prison housing can support an Eighth Amendment claim, but he must allege when he was exposed and what each named official knew and did or failed to do.
• Anderson v. Johnson & Johnson (2020). The court approved the parties' stipulation dismissing the wrongful death action against Johnson & Johnson and Johnson & Johnson Consumer Inc. without prejudice, with the limitations period tolled until after the state appeal ends.
• Bader v. Avon Products, Inc. (1st Appellate District, 4th Division, 2020). At the jurisdictional stage, a plaintiff suing over an allegedly defective product sold in the forum need not prove the product defect (here, asbestos in the talc); a direct in-forum sale of the allegedly defective product to the plaintiff is enough to show the claims arise out of or relate to the defendant's forum contacts.
• Barr v. Parker-Hannifin Corp. (1st Appellate District, 3rd Division, 2020). Expert and lay testimony that a plaintiff's father may have brought shipyard asbestos home was properly excluded because it rested on speculation about actual exposure. Punitive damages were supported by substantial evidence that the manufacturer knew of asbestos hazards, warned its own employees, and did not warn its customers.