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

• Williams v. Taylor-Seidenbach, Incorporated (2018). Appellate jurisdiction over a non-final order cannot be created by dismissing remaining defendants without prejudice, and a voluntary dismissal that is silent on prejudice is presumed without prejudice; a party must obtain Rule 54(b) certification to create finality.
• Bell v. Foster Wheeler Energy Corp. (2017). Under general maritime law, an expert's specific causation opinion in a multi-defendant mesothelioma case is unreliable under Rule 702 if it rests only on population-level studies of exposure levels and not on the plaintiff's own exposure history. Experts may still testify on general causation and on what studies show, but may not offer a backdoor specific causation opinion.
• Bell v. Foster Wheeler Energy Corp. (2017). A "one-size-fits-all" specific causation opinion that draws no distinctions among a plaintiff's exposures to different defendants' products is unreliable under Rule 702 and Daubert, and an expert cannot rely on general causation evidence alone to say a particular product did not cause the disease.
• Bordelon v. Atlantic Richfield Co. (2017). A court weighing post-removal joinder of a non-diverse defendant applies the Hensgens factors, and a removing party must show federal jurisdiction. Here, a declaration that did not establish where the husband worked was disregarded, and the state-law petitions raised no federal question.
• Coleman v. Anco Insulations, Inc. (2017). Rule 30(b)(6) topics must be relevant and proportional; general 'dust' topics were cumulative of the asbestos-specific topics, and post-employment information was not shown to be relevant because the tortious exposure period was during the decedent's employment.
• Coleman v. Anco Insulations, Inc. (2017). Destructive testing of tangible things, including a decedent's tissue samples, may be ordered under Rule 34 after balancing the relevance and reasonableness of the testing against prejudice to the opposing party. Objections that the results will be unreliable are for a Daubert or in limine motion.
• Coleman v. Anco Insulations, Inc. (2017). Under Rule 25(a)(1) and Louisiana law, a motion to substitute heirs for a deceased party is supported by an affidavit of death and heirship, and affiants who state they were personally acquainted with the decedent show enough personal knowledge.
• Coleman v. Anco Insulations, Inc. (2017). In a diversity case, a complaint must allege citizenship as domicile for individuals and as state of incorporation and principal place of business for corporations; alleging that defendants are 'foreign corporations' is not enough.
• Fletcher v. Anco Insulations, Inc. (4th Circuit, 2017). Whether contract work is part of a principal's trade, business, or occupation, making the worker a statutory employee under La. R.S. 23:1061 (1989 version), is decided case by case under the eight Kirkland factors and reviewed for manifest error.
• Hayden v. 3M Co. (4th Circuit, 2017). Nonresident corporations that are parties to litigation in Louisiana are subject to the court's subpoena power to appear for depositions, hearings or trial, at the trial court's discretion and with consideration of factors such as travel cost, case complexity and potential recovery.
• Murphy v. Alcatel-Lucent USA Inc. (2017). Where plaintiffs have not yet had access to information held by defendants, a court may deny motions to dismiss for lack of personal jurisdiction or failure to state a claim, allow jurisdictional discovery, and order a more definite statement of the factual basis for the claims.
• Savoie v. Pennsylvania General Insurance Co. (2017). Under Louisiana law, a signed compromise that expressly releases future mesothelioma, wrongful death and survival claims gives rise to res judicata. The party attacking it bears the burden of proving it invalid, and a small payment, claimed lack of understanding or missing master-settlement documents does not defeat it.
• Savoie v. Pennsylvania General Insurance Co. (2017). A removing defendant under the federal officer removal statute need only show a colorable government contractor defense under Boyle, and may supplement its removal notice with affidavits under 28 U.S.C. § 1653 when they clarify grounds already stated in the notice.
• Sheppard v. Liberty Mutual Insurance Company (2017). Rule 408 and the collateral source rule do not bar all settlement or collateral-source evidence, which may be admitted for limited purposes after balancing. A medical record prepared by another facility but kept in a custodian's files can qualify as a business record, and authentication needs only evidence sufficient to support a finding.
• Sheppard v. Liberty Mutual Insurance Company (2017). Treating physicians who gave neither an expert report nor a Rule 26(a)(2)(C) disclosure are automatically excluded under Rule 37(c)(1) from giving expert opinions, and testimony on diagnosis or cause of asbestos-related disease is expert opinion. Medical records alone do not satisfy the disclosure requirement.
• Sheppard v. Liberty Mutual Insurance Company (2017). Federal jurisdiction under OCSLA is judged by the claims as they existed at removal, and a plaintiff cannot defeat it by amending away the allegations that support it. Because all his claims arise out of or in connection with operations on the Outer Continental Shelf, the court did not need supplemental jurisdiction.
• Sheppard v. Liberty Mutual Insurance Company (2017). A plaintiff alleging fraudulent concealment under Rule 9(b) must specifically plead what information was withheld and that it was known to the defendant but not generally available to the plaintiff through reasonable diligence. Allegations that asbestos hazards were generally known do not support such a claim.
• Signal Mutual Indemnity Association, Ltd. v. Asbestos Corporation, Ltd. (2017). Admiralty jurisdiction requires both a maritime location and a connection to maritime activity; a predominantly land-based stevedore's asbestos injuries are less likely to disrupt maritime commerce, so the connection test was not met.
• Storer v. Crown Cork & Seal Company (2017). A Rule 30(b)(6) designee must be prepared on all noticed matters, and an unprepared designee amounts to no appearance. Relevance is not a valid basis for instructing a deponent not to answer, and sanctions may be imposed for an unproductive deposition.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Bell v. Foster Wheeler Energy Corp. (2016). A vaguely worded witness disclosure was enough where defendants were or should have been alerted to the witness, and any disclosure error was harmless under Rule 37(c) given minimal prejudice and the opportunity to depose the witness.
• Bell v. Foster Wheeler Energy Corp. (2016). An expert's opinion that each and every "significant" asbestos exposure caused mesothelioma is not meaningfully different from the "each and every exposure" theory and is unreliable ipse dixit under Rule 702. Evidence that exposure raises disease risk does not establish specific causation.
• Bell v. Foster Wheeler Energy Corp. (2016). Under maritime law, a manufacturer is not liable merely because its product might foreseeably be used with asbestos; liability depends on whether it added the asbestos, took part in design integration, negligently entrusted a component, or negligently recommended asbestos use. The court rejected both the Sixth Circuit's absolute bare metal defense and the broader exceptions other courts have adopted.
• Blow v. OneBEACON America Insurance Company (4th Circuit, 2016). The 1989 amendment adding "only" to the Direct Action Statute's venue provision is interpretive and procedural and applies to causes of action arising before it, so venue exceptions do not apply; when venue is improper, transfer rather than dismissal is required unless the plaintiff knowingly filed in the wrong venue.
• Boudreaux v. Bollinger Shipyard (4th Circuit, 2016). A trial court does not abuse its discretion in excluding an expert's causation opinion under Daubert-Foret when the proponent offers no independent evidence that the methodology is generally accepted. Without that expert, plaintiffs cannot prove cause-in-fact and summary judgment is proper.
• Boyd v. Boeing Company (2016). A successor judge may reconsider an interlocutory order, but a late amendment of pleadings is judged under Rule 16(b) good cause, and an order allowing it was not a manifest error of law where plaintiffs gave a reasonable explanation for the delay in a latent disease case and no substantial prejudice was shown.
• Coleman v. Anco Insulations, Inc. (2016). A co-defendant may oppose another co-defendant's summary judgment motion under Rule 56(d) even without a crossclaim, and a summary judgment motion filed before discovery begins is premature.
• Davidson v. Georgia-Pacific, LLC (2016). A motion to remand is a dispositive matter on which a magistrate judge may only recommend, subject to de novo district court review. Improper joinder requires the defendant to show no possibility of recovery against the in-state defendant, and a mere absence of plaintiff's evidence does not meet that standard.
• Sheppard v. Liberty Mutual Insurance Company (2016). A fraudulent concealment claim must plead with particularity what each specific defendant gained by withholding information, and allegations aimed at all defendants as a group are impermissible group pleading under Rule 9(b).
• Sheppard v. Liberty Mutual Insurance Company (2016). A plaintiff may not use Rule 15(a) to amend a removed complaint in a way that would defeat federal jurisdiction. Denial of leave to amend is proper where the amendment is futile and made in bad faith to forum shop, because jurisdiction is judged on the claims as they stood at removal.
• Sutherland v. Alma Plantation, LLC (4th Circuit, 2016). Summary judgment on duty is proper only where no duty exists as a matter of law and no factual disputes exist. Louisiana recognizes that employers may owe a duty to household members exposed to asbestos carried home on work clothes, and factual issues on foreseeability required a trial.
• Jordan v. Thatcher Street, LLC (2nd Circuit, 2015). A premises owner is entitled to summary judgment on negligence and custody-based strict liability claims when the plaintiff offers no evidence that the owner knew of or specified the asbestos, directed the work, or had garde over the asbestos. A defendant may seek summary judgment early, and the court need not delay it for discovery where the plaintiffs had a fair opportunity and show no probable injustice.
• Laurent v. New Orleans City (2015). A plaintiff opposing summary judgment must produce evidence that the decedent was exposed to asbestos from the specific defendant's products; a belief that all types of cars passed through the workplace is not enough. A request for more discovery requires a Rule 56(d) affidavit.
• Meyers v. Chesterton (2015). A Rule 59(e) motion cannot be used to rehash arguments already decided, and once the clerk mails a certified copy of a remand order under 28 U.S.C. § 1447(c) the federal court is divested of jurisdiction to stay it.
• Oddo v. Asbestos Corporation Ltd. (4th Circuit, 2015). When a jury's special-verdict answers are irreconcilably inconsistent and the trial court neither sends the jury back nor orders a new trial, that is legal error, and the appellate court reviews the affected findings de novo. In asbestos cases a plaintiff must show exposure to the defendant's product was significant and a substantial factor in causing the disease.
• Poche v. Eagle, Inc. (2015). A case not removable at the outset becomes removable only when nondiverse defendants are dismissed through the plaintiff's voluntary act; a bankruptcy automatic stay is a temporary suspension, not a certain and voluntary dismissal, so it does not make the case removable.
• Savoie v. Pennsylvania General Insurance Co. (2015). To remove under the federal officer removal statute, a defendant must show a causal nexus between its actions under federal direction and the claims; for failure-to-warn and strict-liability claims, that requires showing the government directly controlled warnings or how asbestos materials were handled, not just that it mandated the materials. A federal defense such as the LHWCA cannot independently support removal.
• Vedros v. Grumman (2015). Deposition testimony from a witness who has since died is admissible against a party under Federal Rule of Evidence 804(b)(1) when a predecessor in interest, here another insurer of the same company, attended and had a similar motive to develop it. Rule 32(a)(8) of the Federal Rules of Civil Procedure also allows such use where the Rules of Evidence permit it.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). When a substitute expert is allowed to replace an original expert, the substitute's report and testimony may not go beyond the original expert's report and testimony, and opinions that exceed that scope may be stricken.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). When a court lets a party substitute an expert for one who has died, on the condition that the substitute's testimony stay within the original expert's report, the substitute's opinions that go beyond or contradict the original expert's report may be struck as unfairly prejudicial to the opposing party.
• Abadie v. Asbestos Corp. Ltd. (5th Circuit, 2014). Under La. C.C.P. art. 2162, an appeal can be dismissed by consent of all parties.
• Comardelle v. Pennsylvania General Insurance Company (2014). Under Louisiana Civil Code Article 2317 (as it applied before 1996), a plaintiff must show the defendant had care, custody and control (garde) of the harmful thing; evidence of responsibility for employee safety and knowledge of asbestos risk does not show control of the asbestos itself.
• Davidson v. Georgia Pacific LLC (2014). An expert's "every exposure" theory of asbestos causation is inadmissible under Rule 702 and Daubert and conflicts with Louisiana's substantial factor test; without other expert causation testimony, plaintiffs cannot create a genuine dispute on causation.
• Davidson v. Georgia Pacific LLC (2014). Under Louisiana law, a voluntary dismissal of an earlier suit erases any interruption of prescription it caused, so a claim that prescribed before the decedent's death cannot support a survival action. A dismissal filed by the decedent's counsel after his death still counted as voluntary.
• Davidson v. Georgia Pacific, LLC (2014). Under Rule 37(c)(1), a court weighs the explanation, prejudice, possible cure by continuance, and the importance of the testimony in deciding whether to strike an expert for deficient disclosures. Expert reports from a prior proceeding that evolved over time and lack required details do not satisfy Rule 26(a)(2)(B).
• Humphries v. OneBEACON America Insurance Company (2014). A stay of a remand order pending appeal requires a strong showing of likely success on appeal and favorable equities. Elliott did not show a substantial case on the merits, and the harm a stay would cause to a gravely ill plaintiff weighed strongly against it.
• Landry v. Columbia Casualty Company (2014). A non-diverse defendant is fraudulently joined when the plaintiff cannot establish a cause of action against it, and fraudulently joined defendants need not consent to removal. Letters from defense counsel can be an "other paper" that starts a new removal period, because the voluntary-act rule does not apply to fraudulent joinder.
• Leonard v. Board OF Supervisors OF Louisiana State University Agricultural & Mechanical College (2014). A party seeking discovery over objection must show some factual basis that the decedent was exposed to an asbestos-containing component of the defendant's product; without it, the requests are overbroad and the motion to compel is denied.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• Millet v. Huntington Ingalls Incorporated (2014). Summary judgment is premature where the discovery deadline has not passed and further discovery could produce evidence of a genuine issue of fact; an unopposed motion may be granted where no party offers evidence or argument against it.