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

• Morvant v. Maryland Casualty Company (2014). Colorado River abstention requires parallel state and federal actions with substantially the same parties and issues, and exceptional circumstances; a federal direct-action suit on insurance coverage against insurers who were not parties to the state liability suit is not parallel, and a stay under inherent power cannot bypass that test.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2014). Under Louisiana law, the mere presence of asbestos-containing material, or a supplier's sale of such material to a shipyard, is not enough to hold that supplier liable; plaintiffs must produce evidence that the worker was exposed to the defendant's product.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2014). A plaintiff in an asbestos case may prove causation through a qualitative assessment of exposure (level, frequency, nature, proximity, duration) and need not prove a quantitative dose. Genuine fact issues about exposure to the supplier's asbestos and its substantial contribution to mesothelioma preclude summary judgment.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). Under Louisiana law, an intentional tort requires proof that the harm was substantially certain to follow from the conduct, and mere knowledge of an asbestos risk is negligence, not intent. Louisiana recognizes no substantive tort of civil conspiracy.
• Cook v. Asbestos Corporation Ltd. (5th Circuit, 2013). Under amended La. C.C.P. art. 966, only evidence formally admitted at the summary judgment hearing may be considered, including on de novo appeal; evidence merely attached to the motion or opposition is not considered.
• Francis v. Union Carbide Corporation (4th Circuit, 2013). Summary judgment was improper in a take-home asbestos case where the record showed the father worked at a shipyard where asbestos materials were used and the plaintiff was around his dusty work clothes, creating genuine issues of material fact on exposure.
• Phillips v. Abb Combustion Engineering, Inc. (2013). Where the nonmovant first raises a serious choice-of-law question in her opposition, so that the law governing the time bar is in dispute, summary judgment on prescription and peremption is not well suited until the movants adequately brief the issue and support it with competent evidence.
• Phillips v. Abb Combustion Engineering, Inc. (2013). After removal, the sufficiency of a complaint is judged under the federal Rule 8 plausibility standard rather than Louisiana's fact-pleading standard, and a Rule 12(e) motion is disfavored where the complaint gives fair notice of the claim.
• Pitman v. Crane Co. (2013). A removing defendant must show no reasonable possibility of recovery against the in-state defendant to establish improper joinder. Pointing to the plaintiff's lack of evidence early in discovery is not enough, and limited discovery is proper only to find discrete, undisputed facts that preclude recovery.
• Smith v. Union Carbide Corp. (2013). A defendant waives removal only by proceeding to an adjudication on the merits in state court, and a non-diverse defendant is improperly joined when there is no reasonable possibility the plaintiff can recover against it. Evidence that the plaintiff may have worked at sites where the defendant supplied products at some point is too tenuous.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Pierre v. Northrop Grumman Shipbuilding, Inc. (4th Circuit, 2012). An attorney's statutory privilege under La. R.S. 37:218 runs only against the attorney's own client and that client's settlement proceeds. It does not let the attorney interfere with or nullify settlements by other plaintiffs who were never the attorney's clients, and a party plaintiff cannot intervene in her own suit.
• Bozeman v. Union Carbide Corporation (2nd Circuit, 2011). Rando v. Anco Insulations, which held that mesothelioma was not a covered occupational disease under the pre-1975 Workers' Compensation Act and so not subject to its exclusive remedy, applies retroactively. A partial judgment not designated final remains open to revision at any time.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be granted only on issues raised in the motion. A motion that challenges only exposure to the defendant's asbestos does not put medical causation at issue, and circumstantial evidence that a manufacturer bought the supplier's asbestos can create a fact question on exposure. A raw-asbestos supplier also owes the general duty of reasonable care.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be rendered only on issues set forth in the motion under consideration, and a trial court must conduct a Daubert analysis tied to the case's facts before excluding an expert as unreliable. An asbestos plaintiff need show only significant exposure to the defendant's product that was a substantial factor in causing the disease, not the dose from each defendant or epidemiological proof.
• Rome v. Asbestos Defendants (4th Circuit, 2011). Once defendants showed the exposure was attributable to Arnot Marine Corporation, to which plaintiffs conceded Dover was not a successor, plaintiffs had to offer specific evidence of a genuine factual dispute, and mere possibility or speculation did not suffice.
• Falgoust v. Avondale Industries, Inc. (4th Circuit, 2010). Where contract documents excluded by the trial court, together with later-found copies, may establish the disputed defense and indemnity agreement, a genuine issue of material fact may exist, so summary judgment is vacated and the authenticity question is sent back for a contradictory hearing.
• Marcel v. Delta Shipbuilding Co. (4th Circuit, 2010). Under the law in effect when Delta dissolved in 1946, dissolution did not extinguish an accrued cause of action, so it did not bar a direct action against the dissolved corporation's insurer. The 1988 direct action amendments apply only to causes of action accruing on or after January 1, 1989.
• Marcel v. Delta Shipbuilding Company (4th Circuit, 2010). Under the pre-1969 Louisiana corporate law, a corporation's dissolution did not extinguish an accrued cause of action, only the right to sue the dissolved corporation itself, so the claim could still be brought directly against the corporation's former insurer.
• Pichon v. Asbestos Defendants (4th Circuit, 2010). A company that bought only part of a seller's assets, and expressly refused to assume its liabilities, is not liable as a successor under the 'mere continuation' exception, which requires purchase of all the assets. Plaintiffs must also offer factual support that the defendant's own products exposed the worker to asbestos.
• Boudreaux v. Able Supply Co. (3rd Circuit, 2009). Under La. Code Civ. P. art. 123(B), a trial court has discretion to dismiss a case for forum non conveniens when private and public interest factors favor another forum, and it gives less deference to a non-resident plaintiff's choice of forum. It need not first rule on venue, and the alternative forum need not have jurisdiction over every defendant.
• DiBenedetto v. Noble Drilling Company (4th Circuit, 2009). A plaintiff with mesothelioma whose first significant exposure predated 1975 (when Louisiana's compensation act began covering the disease) is not limited to LHWCA benefits and may bring a state tort suit against employers and their executive officers. A plaintiff may also dismiss defendants with prejudice, and article 1671 does not give the trial court discretion to refuse.
• Hymel v. Eagle, Inc. (4th Circuit, 2009). A written settlement and release that expressly names mesothelioma and cancer is enforceable against a later mesothelioma claim arising from the same earlier conduct. A represented party cannot avoid it merely by claiming he did not understand it, and a compromise cannot be rescinded for lesion or error of law.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2009). A lost or destroyed written contract containing an indemnity agreement may be proven by secondary evidence under Civil Code art. 1832 and Evidence Code art. 1004, but the party claiming indemnity must still produce evidence of sufficient quality to show the contract existed and what it said.
• Benard v. Eagle, Inc. (4th Circuit, 2008). A prior appellate writ judgment granting summary judgment and dismissing the plaintiff's 'claims' against the defendants became final when the plaintiff did not seek rehearing or Supreme Court review, so res judicata barred relitigating all claims against them. No exceptional circumstances justified relief under La. R.S. 13:4232.
• Danos v. Avondale Industries, Inc. (4th Circuit, 2008). Conflicting testimony about whether the defendant's boilers were on the vessels where the worker was exposed creates a genuine issue of material fact that precludes summary judgment on product exposure.
• Richoux v. Csr Limited (2008). A removing defendant bears a heavy burden to show that no reasonable basis exists to predict recovery against in-state defendants; a plaintiff's pre-discovery deposition testimony that he lacks personal knowledge of those defendants' products does not meet that burden, and removal on that basis lacks an objectively reasonable basis supporting fees under § 1447(c).
• Tabor v. Anco Insulations, Inc. (3rd Circuit, 2008). An insurer must defend unless the underlying petition unambiguously excludes coverage, and the allegations are read liberally. Under the policy's defense clause, the insured can recover only the costs of defending the underlying claims, not the costs of pursuing claims against others.
• Grant v. American Sugar Refining, Inc. (4th Circuit, 2007). On summary judgment a court cannot make credibility determinations or weigh evidence, and expert affidavits are tested only under the Daubert-Foret standards without evaluating their persuasiveness. Circumstantial evidence of the defendant's insulation work at the premises can create a genuine issue on exposure.
• Graves v. Riverwood International Corp. (2nd Circuit, 2007). A worker's tort claim against his employer vests when significant asbestos exposures occur. Exposures before Louisiana's 1952 occupational disease coverage therefore left the claim outside the later workers' compensation scheme. A JNOV or new trial is denied where reasonable minds could differ and the verdict is supportable by a fair interpretation of the evidence.
• Lerille v. Monsanto Corporation (2007). Under Louisiana law, state-court consolidation of two suits does not merge them unless the record shows intent to do so, so the 30-day removal period for one suit is not restarted by service in the other. The earlier suit's removal was therefore untimely under 28 U.S.C. § 1446(b).
• Mouton v. Morton International, Inc. (3rd Circuit, 2007). A survivor under La. C.C. art. 2315.1 can be the 'legal successor' under La. C.C.P. art. 801 only if the action survives in the survivor's favor. Here the plaintiff's suit had been settled before his death, so the succession representative was the proper party to dismiss it.
• Palermo v. Port of New Orleans (4th Circuit, 2007). A port authority that leases wharves to stevedores owes no duty to their employees to provide a safe workplace unless the premises are defective and it knew or should have known of the defect. Ship repairers are liable only if the evidence shows their work was a substantial factor in the plaintiff's asbestos exposure.
• Terrance v. Dow Chemical Company (1st Circuit, 2007). Mesothelioma was not a compensable occupational disease under the pre-1975 Louisiana workers' compensation statute, so the tort claim against a premises owner was not barred. A defendant seeking a credit for a settling party's fault must prove that party's fault at trial; settlement documents are not admissible to prove it.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Thomas v. AP Green Industries, Inc. (4th Circuit, 2006). A premises owner can be directly liable for its own negligence toward a contractor's employee even if the independent contractor defense bars vicarious liability, and the substantial contributing factor test for causation applies to premises owners as well as product defendants.
• Cichirillo v. Avondale Industries, Inc. (2005). A suit filed before a tort claim becomes actionable is premature and cannot interrupt Louisiana prescription. A 1992 Mississippi asbestosis suit therefore did not interrupt prescription on a mesothelioma claim that was not diagnosed until 1999.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.
• Alexander v. Thiokol Corp. (3rd Circuit, 2004). Where the workers' compensation act did not cover an occupational disease or asbestos when the employee was exposed, the employee may sue the employer in tort, and the law in effect at the time of exposure governs. Pre-1952 asbestos exposure therefore supports a negligence claim against the employer.
• Cichirillo v. Avondale Industries (4th Circuit, 2004). A timely suit in a court of competent jurisdiction and venue in another state interrupts Louisiana prescription, including as to solidary obligors, and the plaintiff's Mississippi complaint listing mesothelioma among the conditions claimed gave fair notice to interrupt it.
• Graves v. Riverwood Intern. Corp. (2nd Circuit, 2004). A contract benefiting a third party must clearly stipulate that benefit, and a stipulation pour autrui is never presumed. A parent corporation may be liable for undertaking a duty of safety owed by its subsidiary, and under Louisiana fact pleading the petition's allegations of an assumed duty were sufficient.
• Roberts v. Owens-Corning Fiberglas Corp. (1st Circuit, 2004). A trial court cannot substantively change a final judgment by a second judgment without a proper procedure, so the change is an absolute nullity. A premises owner that knew or should have known asbestos exposure caused serious lung disease and cancer is liable for mesothelioma even without specific knowledge of that disease.
• Torrejon v. Mobil Oil Co. (4th Circuit, 2004). Under the Jones Act a seaman need only show the employer's negligence was a cause, however slight, of the injury, and the jury's finding of negligent asbestos exposure together with the stipulation that asbestos caused the mesothelioma left no reasonable basis for finding no causation. A defendant seeking to reduce liability for settling manufacturers' fault must prove their liability, and allegations in another suit's complaint do not do so.
• Vodanovich v. AP Green Industries, Inc. (4th Circuit, 2004). A plaintiff in an asbestos case must show exposure to asbestos released by the defendant's activities that was a substantial factor in causing the injury; without direct or circumstantial evidence of such exposure, summary judgment for the defendant is proper.
• Booth v. Acands (4th Circuit, 2003). A defendant moving for summary judgment may point to an absence of factual support for an element, and plaintiffs must then show they can prove it was more probable than not that the decedent was exposed to the defendant's product; a purchase form linking the defendant to a subcontractor's order was not enough to show exposure.
• Breaux v. Avondale Industries, Inc. (4th Circuit, 2003). Res judicata does not bar a later suit against different defendants absent identity of parties, and solidary liability does not create privity. The joinder rule of La. C.C.P. art. 425(A) yields to the interests of justice where no single court has jurisdiction over all defendants.
• Ewing v. Armstrong World Industries, Inc. (3rd Circuit, 2003). Since the 1976 amendment to La.R.S. 23:1032, workers' compensation is the exclusive remedy against executive officers, so survivors' loss of consortium claims arising after 1976 are barred. The 1999 reenactment of La.Civ.Code art. 2315 did not retroactively apply the 1982 loss of consortium amendment.
• Jefferson v. Cooper/T. Smith Corp. (4th Circuit, 2003). On de novo review of summary judgment, a premises owner owes a duty of reasonable care to persons on its premises, and genuine factual disputes about what it knew or should have known about asbestos dangers and facility adequacy precluded summary judgment.
• Landry v. Avondale Industries, Inc. (2003). A loss of consortium claim accrues only when the injured person's condition deteriorates enough that the family is actually deprived of consortium, but applying the 1982 amendment to art. 2315 to pre-1982 conduct is an impermissible retroactive application of a substantive law. Because the claim arose after 1975-1976, employers and executive officers are also immune under La. R.S. 23:1032.
• Watters v. Department of Social Services (4th Circuit, 2003). A plaintiff who moves for summary judgment and will bear the burden of proof at trial must establish each point without any genuine factual dispute. Competing expert and fact evidence on causation, exposure and timing creates genuine issues that preclude summary judgment.