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.

Kentucky

• Rehm v. Navistar International (2005). A property owner is a statutory contractor immune from tort suits by a subcontractor's employee if the subcontracted work is a regular or recurrent part of its business. Where the underlying facts are undisputed, whether work is regular or recurrent is a question of law, and the immunity is strictly construed.
• Clephas v. Garlock, Inc. (2004). Allowing an expert to give medical and causation opinions that were not disclosed under the expert-disclosure rule (CR 26.02(4)) and that the other side could not explore by deposition is an abuse of discretion when it prejudices the other party. Admitting an industrial hygienist's testimony despite unmet Daubert criteria was within the trial court's discretion, since the reliability test is flexible.
• Strickland v. Owens Corning (1998). A jury's allocation of fault must have evidentiary support, and an allocation to a distributor exceeding that of the manufacturer and all other companies combined was against the weight of the evidence. Remittitur may be used to correct such a malapportionment of fault.
• Capital Holding Corp. v. Bailey (1994). A negligence claim for asbestos exposure does not accrue, and no damages for increased risk or fear of cancer are available, until the plaintiff shows some harmful result from the exposure. The tort of outrageous conduct is intentional, needs no physical contact or injury, and a failure to comply strictly with the prehearing statement rule (CR 76.03) is not grounds to withdraw a decided issue.

Louisiana

• Alford v. Taylor-Seidenbach, Inc. (2025). Under Louisiana law before the Products Liability Act, an OSHA-compliant asbestos warning is not automatically adequate, and whether a warning was adequate is a jury question. Exposure to a particular asbestos product may be shown by circumstantial evidence.
• Sentilles v. Huntington Ingalls Incorporated (2025). A party seeking to supplement a pleading after the scheduling-order deadline must show good cause under Rule 16(b) and satisfy Rule 15(d). A party cannot base a bad faith claim on a delay that it jointly requested.
• Sentilles v. Huntington Ingalls Incorporated (2025). The court ruled on Avondale's objections to plaintiff Sentilles's trial exhibits: it overruled some, sustained others (including expert reports and several publications as hearsay), deferred many to trial, and dismissed several as moot.
• Thibodeaux v. General Electric Company (2025). Under Louisiana law, there is no loss of consortium claim for asbestos exposure that occurred before 1982.
• Chenet v. Colgate-Palmolive Company (4th Circuit, 2024). A discretionary new trial under La. C.C.P. art. 1973 was an abuse of discretion where the stricken testimony had no bearing on the question the jury decided and the facts did not support a finding of a miscarriage of justice.
• Craft v. Crowley Marine Services, Inc. (4th Circuit, 2024). Res judicata under La. R.S. 13:4231 requires the same parties (or privies) and a cause of action that existed when the first judgment became final. A wife's later claim did not meet either requirement, because her own claim was separate from her husband's and she discovered her disease after his judgment.
• Ehlers v. Ports America Gulfport, Inc. (4th Circuit, 2024). An insurer (here LIGA) claiming a policy exclusion bears the burden of proving the exclusion was in the policies at issue, and a standard form and circumstantial evidence did not meet that burden where no actual policy containing the exclusion was produced.
• Gomez v. Huntington Ingalls Inc. (2024). Avondale cannot invoke the Boyle or Yearsley government contractor defenses against failure-to-warn and failure-to-enact-safety-measures claims, following earlier decisions of the same court. A party seeking more discovery before summary judgment must show the discovery will likely create a genuine issue of material fact.
• Hotard v. Avondale Industries, Inc. (2024). Accepting the pleaded allegations as true, Avondale and Hopeman Interests stated plausible claims that their settlement agreements required Hotard to indemnify them for SeaRiver's claims. Louisiana contract-interpretation rules apply, and indemnity must be clearly expressed, so whether the agreements actually cover those claims needs further development.
• Lagrange v. Eagle, Inc. (2024). The automatic bankruptcy stay does not automatically cover non-debtor co-defendants, but a court may grant a discretionary stay that rests on the balance of party interests, clear inequity to co-defendants, and reasonable limits on its length.
• Legendre v. Louisiana Ins. Guaranty Association (2024). A joiner that assembled wallboard for a shipyard is not a manufacturer, and veil-piercing to treat a parent as its subsidiary's alter ego is an extraordinary remedy requiring more than shared officers and ownership. Fact questions on control, holding out and scale preclude summary judgment on professional vendor status, and the first-to-file rule requires substantial overlap between cases.
• Lyles v. K&b Louisiana Corporation (2024). When a plaintiff seeks after removal to join a non-diverse defendant, the court weighs the Hensgens factors under 28 U.S.C. § 1447(e), and may deny joinder where the amendment's purpose is to defeat diversity and the plaintiff was dilatory. An amendment is also futile when it does not plead a valid Louisiana direct action against the insurer.
• Matherne v. Huntington Ingalls Incorporated (2024). Rule 45 does not allow a trial subpoena to be served on a corporate entity, and Rule 30(b)(6) cannot be used with Rule 45 to compel corporate trial testimony without naming a particular individual.
• Matherne v. Huntington Ingalls Incorporated (2024). A Rule 30(b)(6) deposition may be refused when, given the late motion, the discovery deadline and the burden of researching 35 years of litigation records, a witness cannot be prepared in time and a less burdensome method, such as producing an existing case list, can supply the information.
• McElwee v. Anco Insulations, Inc. (2024). A defendant's request to depose the plaintiff is reasonable and within Rule 26, and the plaintiff's health difficulties do not excuse delay in a case pending over a year.
• Nelson v. Texaco, Inc. (4th Circuit, 2024). An employer's answer asserting workers' compensation exclusivity and statutory employer status sufficiently pleads the borrowed employee defense, even without using the term "borrowed employee," so the defense is not waived.
• Palermo v. Eagle Inc. (2024). When a subpoena seeks a non-party's personnel file, the court balances the non-party's privacy interest against the need for relevant information using the Frankenhauser factors. Relevant records may be produced, with sensitive information excluded, redacted or protected by order.
• Sentilles v. Huntington Ingalls Incorporated (2024). A court may decline under Rule 54(b) to reconsider an unopposed summary judgment order when there is no new contrary evidence, and a plaintiff may not adopt a settling party's experts late, or offer new undisclosed expert opinions, where that would unfairly prejudice the defendant.
• Allen v. Eagle, Inc. (4th Circuit, 2023). A witness's internally inconsistent deposition testimony, offered alone in opposition to a properly supported summary judgment motion, does not create a genuine issue of material fact; the court may consider only documents actually filed in support of or opposition to the motion.
• Barker v. Anco Insulations, Inc. (5th Circuit, 2023). Under Canter v. Koehring, an executive officer is personally liable only if the employer delegated a personal duty of care to him and he breached it; general administrative responsibility is not enough.
• Cadiere v. Huntington Ingalls, Inc. (2023). Leave to amend should be freely given absent a substantial reason such as undue delay, bad faith, prejudice or futility. Judicial estoppel did not bar the amendment because the plaintiff took no inconsistent position and had not persuaded the court to accept an earlier one.
• Chenet v. Colgate-Palmolive Co. (4th Circuit, 2023). An issue summary judgment is appealable only if properly certified as final under La. C.C.P. art. 1915(B). Applying the four R.J. Messinger factors de novo, the court held the certification improper, so it had no appellate jurisdiction.
• Gooding v. Liberty Mutual Insurance Company (2023). Under Fed. R. Evid. 703, experts may rely on otherwise inadmissible facts or data if experts in the field would reasonably rely on them, so expert opinions based on the decedent's deposition created a fact dispute that defeated summary judgment even if the deposition was inadmissible against the defendant.
• Hotard v. Avondale Industries, Inc. (2023). A motion to reconsider an interlocutory order is judged under Rule 54(b), looking to changed law, new evidence or manifest error. A third-party indemnity claim under a contract covering claims arising directly or indirectly from the vendor's performance states a plausible claim, and the vendor's earlier tort settlement with the plaintiffs does not affect it.
• Hotard v. Avondale Industries, Inc. (2023). Under Rule 54(b), a court may reconsider an interlocutory order denying leave to file third-party demands for cause, considering factors such as an intervening change in controlling law. A party that files a cross-claim at the outset and does not invoke an arbitration clause for years waives its right to arbitrate interrelated claims.
• Legendre v. Louisiana Insurance Guaranty Association (2023). Under Louisiana's LIGA law, a claim filed after the court-set deadline for claims against an insolvent insurer's liquidator is not a "covered claim," so LIGA has no obligation to pay it, and the Louisiana Supreme Court has rejected a constitutional challenge to this rule.
• Marsh v. Continental Insurance Company (2023). In a Louisiana Direct Action Statute case against an insurer, discovery about the insured's history, operations and knowledge is irrelevant to the claim against the insurer, and a very large set of repetitive requests for admission is disproportionate to the needs of the case.
• Matherne v. Huntington Ingalls Incorporated (2023). Rule 54(b) certification of a partial final judgment is granted only rarely, when delay would cause hardship or injustice that immediate appeal would relieve; a dismissed party's wish to avoid monitoring the docket, with claims still intertwined with remaining issues, is not enough.
• Pete v. Boland Marine and Manufacturing Company, LLC (4th Circuit, 2023). A jury instruction that correctly makes fault an element of a take-home claim cures the omission of fault from a verdict interrogatory when no timely objection was made. The reviewing court will not disturb a jury's causation finding or a general damage award unless the record shows manifest error or an abuse of discretion.
• Phillips v. Exxon Chemical Louisiana, LLC (1st Circuit, 2023). The sixty-day delay for a devolutive appeal runs from denial of the new trial motion, even if that denial came from an appellate court on writs. Filing a writ application, including one to the state supreme court, does not suspend that delay unless a stay is ordered, and the delay is jurisdictional.
• Ports America Gulfport, Inc. v. Johnson (2023). If a court disposes of the challenged contention before Rule 11's 21-day safe harbor period expires, the party never had the full period to withdraw it, so a sanctions motion cannot be filed or granted.
• Rivet v. Huntington Ingalls Incorporated (2023). Under Rule 15(a)(2), leave to amend should be granted absent a substantial reason to deny it, and any delay or prejudice from related litigation elsewhere can be cured by staying the added claims rather than denying amendment.
• Robichaux v. Huntington Ingalls Inc. (2023). A scheduling order may be modified for good cause under Rule 16(b)(4). A pending certiorari petition that could change the governing law on LHWCA preemption supported a continuance.
• Robichaux v. Huntington Ingalls Inc. (2023). A corporate representative may testify to matters within the corporation's knowledge regardless of personal knowledge. A request for information a party will not provide is a motion to compel, not a motion in limine, and the court will not reopen closed discovery through an evidentiary motion.
• Robichaux v. Huntington Ingalls Inc. (2023). Insurance policy documents bearing the insurer's logo and describing the policies can be authenticated by their distinctive characteristics under Rule 901(b)(4). Documents prepared before 1998 are not excluded as hearsay under Rule 803(16), and duplicates are admissible under Rule 1003 absent a genuine question about the original's authenticity or fairness.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Rule 37(c)(1), late-disclosed expert affidavits need not be excluded where the factors (importance, prejudice, continuance, explanation) show substantial justification or harmlessness, even if the affidavits are not proper supplemental reports.
• Robichaux v. Huntington Ingalls Inc. (2023). Federal pleading rules require only fair notice of a claim, and the amended complaint gave it. Under Louisiana law, plaintiffs defeat summary judgment in an asbestos case by showing a reasonable jury could find it more likely than not that the plaintiff inhaled the defendant's asbestos fibers, even in slight exposures.
• Robichaux v. Huntington Ingalls Inc. (2023). Avondale's contribution claims, which stand in the shoes of the plaintiffs by subrogation, were barred by res judicata because Robichaux had settled and released asbestos claims, including future mesothelioma claims, against the cross defendants. A defendant is also entitled to summary judgment where the plaintiff offers no evidence of exposure to that defendant's products.
• Rushton v. Taylor-Seidenbach, Inc. (2023). A court may enter partial final judgment under Rule 54(b) when it has disposed of one party in a multi-party case and there is no just reason for delay. Here an immediate appeal would let the Fifth Circuit resolve a recurring LHWCA preemption question.
• Short v. Honeywell International, Inc. (2023). A Price-Anderson Act claim requires injury from a nuclear incident involving source, special nuclear or byproduct material. Injury from non-radioactive asbestos in weapons packaging falls outside the Act, and discovery cannot cure that defect.
• Stauder v. Shell Oil Company (4th Circuit, 2023). An appellate court may disturb a general damages award only after finding the jury abused its vast discretion, and prior awards are compared only after that finding. Under Burton and Cole, prejudgment interest against a joint tortfeasor added by amended petition runs from the date suit was originally filed.
• Walker v. Anco Insulations, Inc. (4th Circuit, 2023). Under Louisiana's pre-comparative-fault law, joint tortfeasors are solidarily liable. Each is assigned a virile share, including non-parties found liable at trial, with credit only for parties who settled. Strict liability for things in one's custody depends on custody and control, not ownership.
• Allen v. Eagle Inc. (4th Circuit, 2022). Conflicting testimony about exposure is a credibility question that cannot be resolved on summary judgment. An expert's reliance on assumptions about frequency, duration and proximity of exposure goes to the weight of the opinion, not its admissibility under Daubert.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law, a plaintiff opposing summary judgment need only show that a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, however slight the exposure, and experts need not calculate a dose for each defendant. A manufacturer may owe a duty to warn when its product requires asbestos-containing parts or insulation to function as intended.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law a plaintiff must show significant exposure to the defendant's product that was a substantial factor in the injury. Expert evidence of general and specific causation, including a reliable differential diagnosis, was enough to create a fact question for the jury.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law, an intentional tort requires proof that the defendant desired the injury or knew it was substantially certain to follow, which is more than knowing a practice is dangerous. A fraud claim requires evidence of fraudulent intent, and conclusory allegations of silence do not supply it.