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.

Louisiana

• Boutte v. Huntington Ingalls Inc. (2022). A Rule 12(e) motion for more definite statement is disfavored and is granted only when a pleading is so vague as to be unintelligible and to seriously prejudice the responding party; missing details such as job and dates can be obtained in discovery.
• Brindell v. Carlisle Industrial Brake and Friction, Inc. (4th Circuit, 2022). A manufacturer is entitled to summary judgment when the plaintiff produces no evidence of substantial exposure to its asbestos-containing product, and a court may rule only on issues raised in the motion or opposition, not on arguments first raised at the hearing.
• Cortez v. Lamorak Ins. Co. (2022). A witness who gives opinions based on technical or specialized knowledge, such as air-monitoring studies of asbestos fiber release, must be disclosed with an expert report under Rule 26(a)(2)(B). Such opinions cannot be offered as lay opinion under Rule 701, and a deposition from another case is not an expert report.
• Cortez v. Lamorak Insurance Company (2022). Under Rules 403 and 701, the court excluded prejudicial labels and marginally relevant evidence, but allowed lay witnesses who worked with asbestos-containing products to infer that the dust from them contained asbestos.
• Cortez v. Lamorak Insurance Company (2022). Under Federal Rule of Civil Procedure 45, a court must quash a subpoena that subjects a person to undue burden. A trial subpoena to an insurer was unduly burdensome where the insurer had already produced certified copies of the relevant policies and would stipulate to their authenticity.
• Cortez v. Lamorak Insurance Company (2022). A defendant asserting the Louisiana statute of repose, La. Rev. Stat. § 9:2772, bears the burden of showing it was a contractor rather than a seller, with specific record citations. Under Louisiana law, even a short exposure can be a substantial factor in causing mesothelioma if a jury could find the plaintiff inhaled the defendant's asbestos fibers.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, a seller is a professional vendor only if it holds the product out as its own and operates with sufficient size, volume and merchandising practices; co-parties not adverse to the movant lack standing to oppose its summary judgment motion.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, an intentional tort requires proof that the injury was substantially certain to follow, and knowledge of asbestos hazards shows only negligence. Veil-piercing, including the single business enterprise theory, requires more than affiliation or control, such as fraud or other wrongdoing.
• Cortez v. Lamorak Insurance Company (2022). A motion to exclude expert testimony as cumulative under Federal Rule of Evidence 403 is premature before trial, and the objection can be raised at trial to specific testimony.
• Cortez v. Lamorak Insurance Company (2022). Under Federal Rule of Civil Procedure 25(a)(1), an action by a deceased party must be dismissed if no motion for substitution is made within 90 days after service of a statement noting the death.
• Cortez v. Lamorak Insurance Company (2022). A motion seeking review of an order granting leave to file a supplemental answer is moot where the defendant later filed a timely answer to an amended complaint that did not require leave and that responded to new matters raised in it.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law a plaintiff must show significant exposure to the defendant's asbestos product, and a deceased father's out-of-court statements about where he worked are hearsay not covered by the Rule 804(b)(4) family-history exception. A manufacturer has no duty to warn of dangers of a third party's asbestos insulation it did not make, sell, specify or recommend, but may be liable if it supplied or specified asbestos gaskets.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, an asbestos claimant must show significant exposure and that the exposure was a substantial factor in causing his injury. A short period of exposure does not by itself entitle a defendant to summary judgment. Deposition testimony from another proceeding can be considered on summary judgment if it could be presented in admissible form at trial.
• Everett v. Air Products & Chemicals, Inc. (4th Circuit, 2022). On a joint motion of the parties, the court dismissed the appeal as to one defendant and left the appeals as to the other parties undisturbed.
• Falcone v. Anco Insulations, Inc. (2022). Summary judgment on whether a company with a similar name took on a predecessor's liabilities was inappropriate where the transfer of liabilities was unclear, the governing law (Texas or forum law) had not been established, and further discovery was needed.
• Hotard v. Avondale Industries, Inc. (2022). A vessel owner that required asbestos-containing materials in construction, and knew the risk without warning, may owe a duty to a contractor's employees. An owner of premises under construction can have custody under Louisiana Civil Code article 2317 if it authorizes unsafe practices.
• Morales v. Anco Insulations Inc. (2022). A Rule 54(b) partial final judgment is appropriate when the risk of piecemeal appeals is outweighed by prejudice from delay, such as repeatedly relitigating a recurring preemption issue, and the court may include co-defendants who did not move.
• Ports America Gulfport, Inc. v. Johnson (2022). The Anti-Injunction Act bars a federal court from enjoining state proceedings on an LHWCA section 905(a) preemption claim, because that provision is not an expressly authorized exception. Younger abstention likely bars enjoining enforcement of a state judgment, and litigation costs are not irreparable harm.
• Ragusa v. Louisiana Insurance Guaranty Association (2022). A state-law preference for terminally ill litigants does not bind a federal court in a case removed under the federal officer removal statute. Good cause for an expedited trial was not shown where defendants needed time for discovery and would be prejudiced.
• Reulet v. Lamorak Ins. Co. (2022). A party's answers to interrogatories and requests for admission, even from earlier lawsuits, are competent summary judgment evidence. Evidence of that kind can create a genuine dispute over whether an insurance policy existed, a point on which the party claiming coverage bears the burden.
• Robichaux v. Huntington Ingalls Incorporated (2022). Under Rule 56(d), a summary judgment motion filed very early, before discovery beyond the plaintiff's deposition, is premature and may be denied where the opposing party shows specific discovery needed to oppose it.
• Sampey v. Anco Insulations, Inc. (2022). A plaintiff who fails to oppose a summary judgment motion is treated as admitting that she cannot prove an essential element of her claim, here exposure to the defendant's asbestos-containing product, so summary judgment is entered under Rule 56 and Celotex.
• Sampey v. Anco Insulations, Inc. (2022). A plaintiff who fails to oppose a summary judgment motion is treated as admitting she cannot prove an essential element, here exposure to the defendant's asbestos-containing products, so summary judgment is entered against her.
• Sampey v. Anco Insulations, Inc. (2022). A party that fails to oppose a summary judgment motion is treated as admitting it cannot prove an essential element of its claim, so summary judgment is entered against it. Under Louisiana law, an asbestos plaintiff must show exposure to the defendant's product and that the exposure was a substantial cause of injury.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the Fifth Circuit's manifestation rule, the LHWCA version in effect when the disease manifested applies. A shipyard employer is therefore immune from state-law tort claims for covered workers' occupational exposure, including take-home exposure from a coworker brother employed there at the same time.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the manifestation rule, the post-1972 LHWCA applies to a mesothelioma diagnosed in 2020. A shipyard worker's state-law tort claims against his employer, including take-home exposure from a coworker brother employed at the same time, are preempted by the LHWCA's exclusivity provision.
• Sentilles v. Huntington Ingalls Incorporated (2022). A court may certify a dismissal of one party for immediate appeal under Rule 54(b) when there is no just reason for delay, such as when delay risks repeated litigation of the same issue and retrial that outweighs the policy against piecemeal appeals.
• Sentilles v. Huntington Ingalls, Inc. (2022). A party who fails to oppose a summary judgment motion is treated as admitting it cannot prove its claims. Under Louisiana law, an asbestos plaintiff must show exposure to the defendant's product and that the exposure was a substantial cause of his injury.
• Sentilles v. Huntington Ingalls, Inc. (2022). A plaintiff who fails to oppose a summary judgment motion is treated as having admitted the facts it asserts, and summary judgment follows where the motion appears to have merit and he cannot show an essential element of his claim.
• Stansbury v. McCARTY Corporation (2022). Under Louisiana's Canter test, a non-employee third party may sue a corporation's executive officers for negligence, and the relevant delegation is from the corporate defendant to its officers; the complaint must plead facts, not conclusions, showing delegation, personal fault and a personal duty to the plaintiff.
• Stansbury v. McCARTY Corporation (2022). Under Federal Rule of Civil Procedure 25(a)(1), if no motion for substitution is made within 90 days after service of a statement noting a party's death, the action by or against the decedent must be dismissed.
• Williams v. Boeing Company (2022). Under Louisiana law, a plaintiff need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, and a court may not draw inferences against the non-movant on summary judgment. Wrongful death and survival actions are separate causes of action, so a late wrongful death claim by new plaintiffs does not relate back to the decedent's original suit.
• Arrowood Indemnity Company v. ST Joseph's Roman Catholic Church (2021). Under the Fifth Circuit's seven-factor test, a federal court should keep a declaratory judgment action when the insurer was not a party to the pending state suit and could not have had its coverage issues litigated there.
• Bagwell v. Union Carbide Corp. (2021). A jury verdict must be read as a whole, and answers to interrogatories are not inconsistent where the jury could reasonably have found that the exposure source did not make a defendant's products a substantial contributing cause of the disease.
• Barrosse v. Huntington Ingalls Incorporated (2021). A court may enter a Rule 54(b) partial final judgment when there is no just reason for delay; here the risk of piecemeal appeals was outweighed by prejudice to Avondale from relitigating the same preemption issue in many pending cases.
• Cortez v. Lamorak Insurance Co. (2021). A federal court has inherent discretionary power under Landis to stay an entire case, weighing hardship, prejudice and judicial economy, and an insurer's state-court liquidation stay must be honored. Louisiana's expedited-trial article is procedural and does not apply in a case removed under the federal officer removal statute.
• Deaville v. Exxon Mobil Corporation (4th Circuit, 2021). Under La. C.C.P. art. 73(B), venue stays proper in a parish after the last defendant domiciled there is dismissed only if that defendant's claim was compromised or dismissed after trial. A unilateral dismissal without prejudice, with each party bearing its own costs, is not a compromise.
• Dempster v. Lamorak Insurance Co. (2021). Under Louisiana law, a release of future claims is narrowly construed and applies only if the parties' intent to release the specific claim is clear. Where doubt exists, extrinsic evidence of intent may be considered, and a factual dispute over intent precludes summary judgment on res judicata.
• Falcone v. Anco Insulations, Inc. (2021). A federal court may stay claims against an insurer placed in state liquidation to avoid interfering with the state proceeding, and may use its inherent authority under the Landis factors to stay the claims against all other defendants when the claims arise from the same exposure.
• Gooding v. Liberty Mutual Insurance Co. (2021). A federal court may use its discretion to stay claims against an insolvent insurer and its insureds out of deference to state liquidation proceedings, and severing claims against only the insurer and its insureds is inappropriate where it would prejudice them and risk inconsistent verdicts.
• Hotard v. Avondale Industries, Inc. (2021). A federal court may stay a case against an insurer in state liquidation, and under its inherent power and the Landis factors may stay the claims against all other defendants too. Severing the insurer and its insureds was inappropriate because of prejudice, the risk of inconsistent verdicts and lost judicial economy.
• Hsieh v. Apache Deepwater, LLC (2021). A party moving to compel must show the requested information is relevant and proportional; without a factual basis that he was exposed at the defendants' sites, requests for years of well logs across the Gulf of Mexico are a fishing expedition. Detailed, case-specific objections are not improper boilerplate.
• Hsieh v. Badger Oil Corporation (2021). A plaintiff in an asbestos-exposure case must show that a defendant's conduct was a substantial factor in causing the harm. Where the movants' supported facts show no causal connection and the plaintiff does not oppose them, those facts are deemed admitted and summary judgment is required.
• Hutchins v. Anco Insulations, Inc. (2021). Under Rule 56(d), a court may deny a summary judgment motion as premature when the opposing party shows a plausible basis that discovery will yield facts bearing on the outcome, and an opposition signed by counsel can satisfy the affidavit requirement.
• Lege v. Union Carbide Corporation (4th Circuit, 2021). A jury's allocation of fault and general damages is reviewed for manifest error or abuse of discretion, and exposure need not be long if it was significant enough to be a substantial factor. A non-settling tortfeasor gets a credit for a released party's share only if it proves that party's fault at trial, even when solidary liability was already found.
• Legendre v. Lamorak Insurance Company (2021). A party seeking jurisdictional discovery must make a preliminary showing of factual allegations suggesting with reasonable particularity the possible existence of the requisite contacts; allegations of corporate successor status can meet that showing, since a predecessor's forum contacts may be imputed to its successor.
• Lindsay v. Ports America Gulfport, Inc. (4th Circuit, 2021). La. R.S. 9:396 does not automatically bar compelling a sibling to give DNA, but the party seeking testing must first show a reasonable possibility of paternity at an evidentiary hearing with cross-examination, so that due process is protected.
• Sampey v. Anco Insulations, Inc. (2021). Under Louisiana law, a plaintiff has no loss of consortium, service or society claim based on her own injuries, because such a claim depends on another person having been injured.
• Sanchez v. Anco Insulations, Inc. (2021). A Louisiana loss of consortium, service, and society claim is derivative and requires allegations that another person was injured. Under Louisiana's exposure theory, an insurer is liable only for exposure during its policy period.
• Sentilles v. Huntington Ingalls Inc. (2021). Under Louisiana's significant tortious exposure theory, a long-latency disease claim is a single cause of action. If it accrued before September 1, 1975, the Louisiana Workers' Compensation Act does not bar it, even if exposure continued after that date.