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.

Indiana

• Sears Roebuck and Co. v. Noppert (1999). A motion to correct errors cannot be treated as a T.R. 60(B) motion to substitute for a timely appeal absent extraordinary factors. The asbestos discovery-rule exception to the product liability limitations statute applies only to persons who mined and sold commercial asbestos, not to a seller of boilers containing some asbestos components.
• Castor v. US (1995). The Bureau of Prisons' decisions on how to manage asbestos-containing material in a prison involve judgment grounded in public policy, so the FTCA's discretionary function exception bars the claims and the court lacks jurisdiction.
• Harris v. AC & S, Inc. (1995). Under the Seventh Circuit's Peerman decision, a plaintiff must produce evidence supporting an inference that the decedent inhaled asbestos dust from the defendant's product, meaning the product as used at the job site could possibly have produced a significant amount of dust that might have been inhaled. Generic trade-name identification does not identify a particular manufacturer, and affidavits that contradict deposition testimony are disregarded.
• Bunker v. National Gypsum Co. (1982). The three-year-from-last-exposure limitation for asbestos-related disability claims in the Occupational Diseases Act is constitutional, because the legislature determines what time period is reasonable and courts may not rely on medical evidence outside the record to strike it down.

Iowa

• Beverage v. Alcoa, Inc. (2022). Iowa Code section 686B.7(5) codifies a broad component-parts (bare-metal) defense that applies only to products liability claims, shielding manufacturers or sellers from liability for products or parts made or sold by third parties. It does not bar premises liability claims or claims against a seller of the offending product.
• Beverage v. Alcoa, Inc. (2021). Iowa Code section 686B.7(5), which says a defendant in an asbestos action is not liable for exposures from a product or component part made or sold by a third party, applies to any entity sued in an asbestos action, not only manufacturers, and is not merely a codification of the bare metal defense. Constitutional claims not raised and ruled on in the district court are not preserved for appeal.
• Kinseth v. Weil-McLain (2018). A new trial is warranted when counsel's closing argument, viewed as a whole, repeatedly and deliberately violates an in-limine order and likely changed the result. Punitive damages under Beeman do not require proof that the defendant's conduct differed from its peers if the defendant had specific knowledge of the hazard.
• Kinseth v. WEIL-McLAIN Company (2017). A trial court abuses its discretion by denying a mistrial when counsel persistently violates in limine rulings in closing argument, such as references to defense spending, corporate wealth, sending a message and other lawsuits, so that a different result was probable. Fault may be allocated only to released parties against whom the plaintiff has a viable claim, which excludes exposures barred by the statute of repose.
• Huber v. Watson (1997). In a legal malpractice suit over an asbestos case, the plaintiff must show the underlying suit would have succeeded. Contract specifications naming asbestos products, together with evidence of the manufacturers' corporate successors, gave a jury enough to find product exposure and proximate cause. The state-of-the-art defense does not bar failure-to-warn claims based on later-acquired knowledge.
• Spaur v. Owens-Corning Fiberglas Corp. (1994). Asbestos plaintiffs may prove causation under a flexible substantial-factor test, with circumstantial evidence of exposure to the defendant's product, without proving how much that product contributed to the disease. Punitive damages in asbestos cases are not per se unconstitutional, and the defendant bears the burden of showing a due process violation.
• 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

• Dickenson v. Brenntag North America, Inc. (2023). Settlement agreements with other defendants are relevant and discoverable when claims overlap, and confidentiality clauses do not bar discovery (a protective order is the remedy). Settlement communications are not compelled without a showing of relevance and proportionality beyond what the agreements provide.
• Dickenson v. Brenntag North America, Inc. (2022). When a defendant moves to dismiss for lack of personal jurisdiction, jurisdictional discovery is liberally granted where pertinent jurisdictional facts are controverted or a more satisfactory showing of the facts is necessary, and denying it would prejudice the plaintiff.
• Little v. the Budd Company, Inc. (2020). The Safety Appliance Act preempts state regulation only of the safety devices listed in the Act, so state tort claims about unlisted equipment such as asbestos pipe insulation are not preempted. A preemption theory not raised in the district court is waived on appeal.
• Little v. Budd Company (2019). Rule 37(c)(2) expenses are not owed when the party that denied a request for admission had a reasonable ground or good reason to do so. Locomotive Inspection Act preemption could not be decided as a matter of law where the jury could reasonably find the exposure came from equipment not connected to the locomotive.
• Little v. Budd Co. (2018). The Safety Appliance Act preempts only state claims about devices listed in the statute, and pipe insulation is not listed. Whether the Locomotive Inspection Act preempts the claims turns on a disputed fact: whether the insulated pipes were locomotive appurtenances.
• 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. Budd Company (2018). Certification of an interlocutory appeal under 28 U.S.C. § 1292(b) requires a substantial ground for difference of opinion on a controlling question of law. The defendant did not show one on whether the Safety Appliance Act preempts state claims about devices the statute does not specifically list.
• 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.
• Menne v. Celotex Corp. (1986). Predicting Nebraska law under Erie, the court held that Nebraska would adopt alternative liability (Restatement (Second) of Torts § 433B), so once an asbestos plaintiff shows exposure to defendants' products and resulting injury, the burden shifts to each defendant to prove its product did not contribute, failing which the defendants are jointly and severally liable.
• Miller v. Johns-Manville Sales Corp. (1982). In a Kansas-law case, a federal court declined to apply nonmutual offensive collateral estoppel based on the Borel judgment, given the narrow reading of Borel by the Fifth Circuit, differences between Texas and Kansas law, and Kansas comparative fault, which meant the evidence would have to be presented anyway.

Kentucky

• Brewer v. Air Products and Chemicals, Inc. (2024). A court may order the SSA to disclose records under the Privacy Act regulations, limited to relevant periods, but orders compelling production from non-parties such as employers, medical providers and a state agency require service of a Rule 45 subpoena first.
• Kentucky Employers'mutual Insurance v. Hall (2024). An ALJ has authority under KRS Chapter 342 to decide which insurer covered the employer at the date of last exposure, and an insurer need not have been a formal party to be heard. No statute or regulation sets a deadline for a motion to certify coverage, so a motion filed within 30 days of the Supreme Court's final decision was timely.
• Letcher County Board OF Education v. Hall (2022). State agencies, including school boards, are subject to the Workers' Compensation Act, so the Department of Workers' Claims, not the Claims Commission, has jurisdiction over a school employee's asbestos-related work injury claim. Unpaid benefits owed before the 2017 amendment to KRS 342.040(1) carry the new 6% interest rate.
• Papineau v. Brake Supply Company, Inc. (2022). Under Kentucky's comparative-fault statute, a jury may be asked to apportion fault to a party dismissed for lack of personal jurisdiction, because apportionment only limits the remaining defendants' liability and does not impose liability on the absent party.
• Hayes v. Colgate-Palmolive Company (2021). A corporate representative's testimony about personal and family use of the company's product is irrelevant to the company's knowledge for punitive damages and unduly prejudicial under KRE 403. A scientific article is admissible under KRE 703 or 803(18) only if the testifying experts actually relied on it, not merely because it is reliable.
• Papineau v. Brake Supply Company, Inc. (2021). Under Rules 14, 21 and 42(b), the party seeking severance or bifurcation must show it is warranted. Where the claims share common questions, overlapping witnesses and evidence, and a risk of inconsistent verdicts, a single proceeding better serves judicial economy.
• Schneider Electric USA, Inc. v. Williams (2021). Under Sheets v. Ford Motor Co., denial of summary judgment based on workers' compensation up-the-ladder immunity is not immediately appealable under the collateral order doctrine, because no substantial public interest is imperiled when the parties are private.
• Sheets v. Ford Motor Co. (2021). Denial of a claim of up-the-ladder (statutory employer) workers' compensation immunity does not satisfy the collateral order doctrine, because it involves no substantial public interest that would be imperiled absent an immediate appeal, so it is not immediately appealable. Ervin Cable Construction v. Lay was overruled.
• Papineau v. Brake Supply Company (2020). Common law indemnity requires evidence that the third-party defendant was the primary, active tortfeasor, and a corporate veil piercing theory (including reverse piercing) must be pleaded in the complaint. KRS 411.182 gives a right to an apportionment instruction but is not itself a cause of action.
• Papineau v. Brake Supply Company (2020). Where the parties' evidence conflicts on whether a domestic subsidiary is the alter ego and agent of a foreign parent, the court may defer ruling on service of process and personal jurisdiction and allow limited jurisdictional discovery.
• Papineau v. Brake Supply Company, Inc. (2020). Discovery is limited to claims and defenses actually pleaded, so a party may not take alter ego jurisdictional discovery on a theory it did not plead. Discovery on specific jurisdiction must be tied to the defendant's asbestos friction product sales and the relevant time period.
• Papineau v. Brake Supply Company, Inc. (2020). To plead common law indemnity under Kentucky law, a party must allege facts showing the third party was the primary, active tortfeasor and it was the secondary, passive one. K.R.S. 411.182 gives no independent cause of action for apportionment, only a right to an instruction where underlying fault exists.
• Papineau v. Brake Supply Company, Inc. (2020). A magistrate judge's discovery order is reviewed only for clear error or being contrary to law, and the party resisting discovery bears the burden of showing undue burden or disproportionality. Declining to consider an affidavit filed after argument closed was within the magistrate judge's discretion.
• Ford Motor Company v. Sheets (2019). An order denying summary judgment because the defendant is not entitled to up-the-ladder immunity as a matter of law is immediately appealable, but a bare order that gives no basis for the denial cannot be reviewed, so the trial court must state its reasons.
• Schneider Electric USA, Inc. v. Williams (2019). The workers' compensation exclusive remedy provision covers only work-related injuries, so a brief period of employment does not bar a separate claim for non-work-related asbestos injury from a parent's workplace; damages may be apportioned between the two roles under the Owens Corning approach.
• Landreth v. Brake Supply Company, Inc. (2017). A plaintiff must offer direct or circumstantial evidence showing a reasonable probability of actual exposure to a particular defendant's asbestos product that was a substantial cause of the disease. Evidence showing only a possibility of exposure, or equal likelihood of exposure to another maker's product, does not defeat summary judgment.
• Surita v. Arvinmeritor, Inc. (2017). Under Kentucky law, negligence, strict liability, warranty and misrepresentation claims all require proof that each defendant's product was a substantial factor in causing the harm, meaning a probable rather than merely possible cause.
• Brown v. Kentucky Utilities Company (2015). After severing a federal-officer defendant's third-party claims, a federal court may decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(2) and (4) where state-law claims predominate and a late-removed case was nearly ready for state trial.
• McGuire v. Lorillard Tobacco Company (2014). Negligent design and negligent failure-to-warn claims were subsumed in a strict liability instruction, so separate negligence instructions were unnecessary. Workers' compensation exclusivity covers only diseases arising out of employment. An erroneous instruction on that point was harmless because no reasonable possibility existed that it affected the verdict.
• Rehm v. Ford Motor Company (2011). Evidence rulings are reviewed for abuse of discretion. The trial court properly admitted 28-year-old newspaper articles under the ancient-documents hearsay exception and let a qualified expert testify, because weaknesses in expert testimony go to weight and are tested on cross-examination. A loss of consortium claim accrues when the disease becomes manifest, not on exposure.
• Certainteed Corporation v. Dexter (2010). A participating defendant that wants fault apportioned to an empty-chair defendant must prove that defendant's liability, just as it would have to be proved against a participating defendant. A trial court's finding that a verdict is not sustained by sufficient evidence is reviewed for clear error, and its decision to grant a new trial is reviewed for abuse of discretion, with great deference to the trial court.
• Sunbeam Corporation v. Dortch (2010). State courts have concurrent jurisdiction with bankruptcy courts to decide whether a claim falls within a bankruptcy discharge. Ordinary litigation expense does not make an appeal inadequate, so a writ is not available.
• Cardinal Industrial Insulation Co., Inc. v. Norris (2009). Under Kentucky's substantial factor test, a plaintiff must show that the defendant's asbestos work probably, not merely possibly, exposed him; fiber drift is expert evidence rather than a causation test and cannot alone support liability without proof of proximity. A claim of professional negligence against an engineer requires expert testimony on the standard of care.
• Dunkel v. Boetler (2009). A writ of prohibition over discovery orders requires showing the trial court acted erroneously with no adequate remedy by appeal; a trial court acts within its broad discretion when it limits discovery to relevant matters, such as first requiring a threshold showing that the worker was at the defendant's facility and when.
• RT Vanderbilt Company, Inc. v. Franklin (2009). Under the discovery rule, a claim does not accrue until the plaintiff knows or reasonably should know of the injury and who may have caused it. A jury may decide reasonable diligence when the facts are disputed, and a defendant's misrepresentation about its product bears on that question. A trial court may strike a party's defenses as a discovery sanction after willful violations, if it considers willfulness, prejudice, warnings, lesser sanctions and proportionality and makes findings.
• Jeffries v. Georgia-Pacific Corporation (2008). Errors not objected to at the time are not preserved by raising them in a new-trial motion, juror affidavits about confusion cannot impeach a verdict, and evidentiary errors are harmless where the jury's finding of no use of the defendant's product meant it never reached causation.
• Lee v. DuPONT (2008). To avoid the exclusive remedy of Kentucky's Workers' Compensation Act, a plaintiff must show the employer acted with specific intent to harm the employee; knowledge of a hazard and failure to protect or warn, even if grossly negligent or reckless, is not enough.
• General Elec. Co. v. Cain (2007). A premises owner is immune from tort suit as a statutory "up-the-ladder" employer only if it proves, with substantial evidence, that the injured worker's job was work customary or repeated in its business that it or similar businesses would normally do with employees. A certification or uncontroverted insurer affidavit of workers' compensation coverage is prima facie proof that compensation was secured.
• Combs v. Albert Kahn Associates, Inc. (2006). Under Kentucky's one-disease approach, a plaintiff with asbestosis who already sued and claimed increased cancer risk must sue within one year of the first diagnosis; Carroll's later-accrual rule for lung cancer is a narrow exception that did not apply here.