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

• St. Romain v. Delta Southern Co., Inc. (1st Circuit, 2021). A final appealable judgment must contain decretal language naming the parties and the relief granted or denied. A trial court cannot amend a defective judgment after the order of appeal is signed unless the appellate court gives it authority, so the appellate court lacks jurisdiction over a non-final judgment.
• Steib v. Lamorak Insurance Company (4th Circuit, 2021). The mere presence of asbestos-containing materials at a job site does not defeat summary judgment for an employer or premises owner. The plaintiff must offer specific, non-speculative evidence linking those materials to the work the plaintiff did, and a witness's internally inconsistent or conjectural testimony cannot create a genuine issue of fact.
• Waguespack v. Avondale Industries, Inc. (2021). Where an insurer defendant is insolvent and subject to a six-month stay under La. R.S. 22:2068(A), the court may stay the entire case, because letting the rest proceed risks piecemeal adjudication; the court would do so under its discretion even if the statute does not apply in federal court.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Bagwell v. Union Carbide Corporation (4th Circuit, 2020). Jury answers that are inconsistent with each other or with the directed verdicts are an error of law, and a verdict not supported by a fair interpretation of the evidence warrants a new trial. Denying a new trial was therefore an abuse of discretion.
• Chevron Oronite Company, LLC v. Jacobs Field Services North America, Incorporated (2020). Under Louisiana law, an indemnitee under a written contract who tenders its defense and gives the indemnitor a chance to take over or approve the settlement need show only potential liability. Once it does, the indemnitor bears the burden of showing the settlement was unreasonable.
• Dempster v. Lamorak Ins. Co. (2020). Evidence of accidents and regulatory citations unrelated to asbestos is not shown to be relevant without substantial similarity to the decedent's exposure, and any probative value is substantially outweighed by unfair prejudice, confusion of the issues and the risk of a trial within a trial.
• Dempster v. Lamorak Ins. Co. (2020). Even assuming the Welch Paper might qualify under the learned treatise exception of Rule 803(18), a court may exclude it under Rule 403 where its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury and cumulative evidence.
• Dempster v. Lamorak Insurance Co. (2020). Evidence that others exposed at the defendant's premises developed asbestos-related disease is relevant to whether asbestos was present there, and Rule 403 does not require blanket exclusion. Evidence of non-asbestos injuries to non-parties has limited probative value that is substantially outweighed by the danger of prejudice and confusion.
• Dempster v. Lamorak Insurance Co. (2020). Under Louisiana law, releases of future claims are narrowly construed, and any doubt about whether a future claim is covered means it is not released. Even where a release expressly mentions cancer, extrinsic evidence of the parties' intent can create a fact issue that precludes summary judgment.
• Gaddy v. Taylor Seidenbach, Inc. (2020). A jury verdict may be set aside under Rule 50(b) only if no reasonable jury could have found otherwise. Testimony that Owens-Illinois made the Kaylo pipe covering shipped to International Paper, with no evidence of other insulation there, was enough to link Dr. Gaddy's exposure to Owens-Illinois.
• Gaddy v. Taylor Seidenbach, Inc. (2020). Under Louisiana article 2317 as it stood in 1955-1959, asbestos dust from constant, necessary refurbishment work in a plant is not a 'temporary condition' that bars strict liability. Under the maximum recovery rule, a general damages award above the range supported by comparable mesothelioma cases must be reduced to the highest amount a jury could properly award.
• Gomez v. Aardvark Contractors, Inc. (2020). A defendant is entitled to summary judgment where the movant points to the absence of evidence that the plaintiff or his father was exposed to asbestos from its products and no one opposes the motion to show a genuine factual dispute.
• Gomez v. Aardvark Contractors, Inc. (2020). A scheduling order deadline may be modified for good cause, which requires showing the deadline could not reasonably be met despite the party's diligence. The court weighs the explanation, the importance of the amendment, prejudice, and the availability of a continuance.
• Hernandez v. Huntington Ingalls Incorporated (2020). A Rule 12(e) motion for more definite statement is disfavored and is granted only if the pleading is so excessively vague as to be unintelligible and to seriously prejudice the defendant; additional facts should be sought through discovery.
• Hsieh v. Apache Deepwater, LLC (2020). A Rule 59(e) motion cannot be used to raise arguments that could have been made earlier. OCSLA jurisdiction was properly found based on the plaintiff's own sworn discovery responses and complaint, without a separate affidavit from the defendant on the work location.
• Jackson v. Avondale Industries, Inc. (2020). A subcontractor may remove under the federal officer removal statute if it shows a colorable federal defense, that it is a person, that it acted under a federal officer's directions, and that the charged conduct is connected or associated with those directions. At the removal stage the court may consider affidavits and deposition testimony from other cases without applying strict admissibility rules.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana Code of Evidence art. 804(B)(1), a deceased plaintiff's deposition can be used against a defendant who was absent if other defendants present, such as gasket and packing makers, had a similar motive and opportunity to cross-examine. Testimony about exposure and an expert's opinion that above-background exposures were a substantial cause create a fact question on causation.
• Lopez v. McDERMOTT, Inc. (2020). A deceased plaintiff's deposition testimony is admissible against a defendant who was absent if other defendants present had a similar motive and opportunity to cross-examine him. Whether a valve maker had a duty to warn about asbestos gaskets used with its valves depends on disputed facts, and the Supreme Court's DeVries decision was treated as instructive outside maritime law.
• Marsh v. Huntington Ingalls, Incorporated (2020). Accepting the petition's allegations as true, a plaintiff exposed to asbestos aboard ships in Louisiana waters and ports who alleges the defendant supplied asbestos products to those sites has shown prima facie personal jurisdiction and stated a plausible products liability claim under general maritime law (Restatement (Second) of Torts 402A).
• Michel v. Ford Motor Company (2020). Where a scheduling order deadline has passed, Rule 16(b) good cause must be shown before Rule 15(a) applies. Newly discovered information acquired through discovery can be good cause, and an amendment is not futile if it alleges that the proposed defendant had custody (garde) of the asbestos-containing products.
• Rodrigue v. Travelers Insurance Company (4th Circuit, 2020). La. C.C.P. art. 1734.1(E) requires that any unexpended amounts left in a jury cash deposit be refunded to the party who made it; only costs actually incurred, here a $1,500.00 deduction for empaneling the venire, may be withheld.
• Williams v. Seidenbach (2020). Rule 54(b) lets a district court enter partial final judgment as to some defendants after the plaintiff voluntarily dismisses the remaining defendants under Rule 41(a), so the appeal from the earlier summary judgments satisfies the final-decision requirement of 28 U.S.C. § 1291.
• Williams v. Taylor Seidenbach, Incorporated (2020). A district court may enter partial final judgment under Rule 54(b) as to some defendants even when the plaintiff has voluntarily dismissed all remaining defendants under Rule 41(a) without prejudice, which gives the court of appeals jurisdiction under 28 U.S.C. § 1291.
• Bagwell v. Union Carbide Corporation (4th Circuit, 2019). A jury's choice between conflicting views of the evidence on exposure and causation will not be disturbed on review. An appellate court that finds a general damages award an abuse of discretion may raise it to the lowest reasonable amount, guided by awards in similar mesothelioma cases.
• Bannister v. Sfb Companies, Inc. (1st Circuit, 2019). A nonresident successor corporation cannot be sued in Louisiana by imputing a predecessor's forum contacts unless the record shows the predecessor's liabilities were actually transferred to it; without that evidence, plaintiffs fail their initial burden of proving minimum contacts. A judgment denying an exception is not a final judgment that can be certified under La. C.C.P. art. 1915.
• Berry v. Anco Insulations (2nd Circuit, 2019). Under pre-comparative fault Louisiana law, a defendant who blames settled nonparties must prove their fault by a preponderance of the evidence, and a midtrial settlement does not automatically give the remaining defendant a virile share credit; the test is fairness to that defendant. Future medical expenses can be awarded where the record shows they will probably be incurred, even when the cost estimates are rough.
• Bitco General Insurance Corporation V Dash Building Material Center, Inc. (2019). The Brillhart/Wilton doctrine applies only to purely declaratory actions; a request for reimbursement of defense costs is coercive monetary relief that triggers Colorado River analysis. Under Colorado River, abstention requires parallel state and federal proceedings, and these were not parallel.
• Bondurant v. 3M Company (2019). Specific personal jurisdiction requires that the plaintiff's claim arise out of the defendant's forum contacts; a plaintiff whose own testimony points to exposure to the defendant's products only outside the forum fails to make a prima facie showing, and jurisdictional discovery is not required absent a preliminary showing.
• Bondurant v. 3M Company (2019). A corporation incorporated and headquartered elsewhere is not subject to general jurisdiction in Louisiana merely because it does business there. Registering to do business and appointing an agent for service does not amount to consent to jurisdiction, and specific jurisdiction requires a connection between the claim, the defendant and the forum.
• Calamia v. Parish of Jefferson (5th Circuit, 2019). Documents merely attached to memoranda are not evidence, and a trial court cannot grant an exception of prescription based on pleadings that were not properly offered and admitted into evidence.
• Craft v. Ports America Gulfport, Inc. (4th Circuit, 2019). A plaintiff must show by a preponderance of the evidence that future medical expenses will be medically necessary, and need not prove their exact value. An employer's duty to protect workers from asbestos depends on whether it knew or should have known of the danger during the employment.
• Knight v. Huntington Ingalls Incorporated (2019). On the present record it was premature to sever claims, remand, or abstain in a case removed under the federal officer removal statute, and Colorado River abstention appeared inapplicable because removal of the entire case left no parallel state action.
• Lopez v. McDERMOTT, Inc. (2019). Under Louisiana law, alleged children have standing to bring survival and wrongful death claims if they are the decedent's biological children, shown by clear and convincing evidence. A survival action is a single shared claim, so a prior dismissal with prejudice binds later-joined beneficiaries, while each wrongful death beneficiary has an individual claim that others cannot settle.
• Lopez v. McDERMOTT, Inc. (2019). A court need not accept as true conclusory jurisdictional assertions made on information and belief, but where plaintiffs make a preliminary showing that suggests the possible existence of forum contacts, the court may allow jurisdictional discovery before ruling.
• McMaster v. Union Carbide Corp. (4th Circuit, 2019). A nonresident corporate party in Louisiana litigation may be subpoenaed to appear at trial after a fundamental-fairness review under the Hayden factors. A generic corporate trial subpoena must identify the specific topics for testimony, but the deposition-only Johnson rule on repeat corporate depositions is not extended to trial.
• Michel v. Ford Motor Co. (2019). The Louisiana Workers' Compensation Act bars wrongful death tort claims against an employer for mesothelioma because such claims arise at death, after mesothelioma became a covered disease in 1975. Plaintiffs may plead employer and premises liability in the alternative under Rule 8(d)(3).
• Michel v. Ford Motor Co. (2019). A trial subpoena cannot compel a witness who lives and works more than 100 miles from the trial and outside the state; a scheduling deadline may be modified only for good cause under Rule 16(b)(4), judged by the Geiserman factors.
• Michel v. Ford Motor Co. (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b), and then Rule 15(a) leave is freely given. Prejudice to the opposing party can be cured by a continuance, and futility is judged by the Rule 12(b)(6) standard.
• Parfait v. Huntington Ingalls Incorporated (2019). A notice of removal under the federal officer removal statute is untimely when the state court petition itself set forth the facts supporting removal, so a later deposition does not restart the 30-day clock. Under binding Fifth Circuit law, no causal nexus exists where the plaintiff limits his claim against the contractor to negligence.
• Rodrigue v. Anco Insulations, Inc. (2019). Where the movants pointed to insufficient record evidence on an essential element and the non-moving parties submitted no evidence showing a genuine factual dispute, summary judgment is proper under Celotex.
• Schindler v. Dravo Basic Materials Company, Incorporated (2019). Ordinary Rule 702 and Daubert reliability standards apply in Jones Act cases despite the reduced causation burden, and toxic-tort claims need expert proof of causation, so experts who merely assumed exposure on the vessel were properly excluded.
• Sizemore v. Reilly-Benton Company, Inc. (4th Circuit, 2019). After a defendant has appeared, a trial court has discretion to dismiss without prejudice unless the defendant would lose substantive rights or be deprived of a just defense. The court may also hear a late motion despite a scheduling order deadline.
• Williams v. Taylor Seidenbach, Incorporated (2019). A voluntary dismissal of remaining defendants without prejudice does not create a final, appealable judgment, and a later Rule 54(b) judgment cannot retroactively turn it into a with-prejudice dismissal.
• Fagot v. Dow Chemical Company (1st Circuit, 2018). An indemnity clause covering "all claims" arising from the contractor's performance, excepting only the indemnitee's sole negligence, is unambiguous and expresses indemnity for the indemnitee's own partial negligence in unequivocal terms. Extrinsic evidence cannot be used to vary an unambiguous contract.
• Gomez v. Aardvark Contractors, Inc. (2018). A plaintiff may plead asbestos exposure on information and belief when the facts, such as the composition of pipe insulation, are within the defendant's control. A premises owner owes a duty of reasonable care to an independent contractor's employees, and a strict liability claim is plausibly pleaded when it alleges custody of defective asbestos products that caused the plaintiff's disease.
• Leech v. 3M Company (2018). When a Rule 12(b)(2) motion raises factual questions about jurisdiction and the requested discovery could add significant facts, the court may allow jurisdictional discovery instead of dismissing at once.
• McAllister v. McDERMOTT, Inc. (2018). A plaintiff's failing health did not establish good cause to expedite trial under 28 U.S.C. § 1657(a) or Rule 16 where discovery was at an early stage, the court's docket was full, and an expedited trial would prejudice the defendants.
• Michel v. Ford Motor Company (2018). Under Rule 37(c)(1) and the four Geiserman factors, expert reports disclosed months after the discovery deadline, without good cause, may be excluded, and a scheduling order that lists no deadline does not reopen a closed discovery period.
• Morgan v. Huntington Ingalls, Incorporated (2018). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts when the defendant receives the deposition transcript, not when the deposition testimony is given, because oral testimony is not an "other paper."