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

• Austin v. Abney Mills, Inc. (2002). In a long-latency occupational disease case where the plaintiff has the disease, a tort cause of action accrues, for purposes of determining the applicable law, when asbestos exposures are significant and later result in manifestation of damages (the significant tortious exposure theory), not at manifestation or disability.
• Estate of Patrick v. BD. OF Sup'rs OF Univ. (4th Circuit, 2002). A trial court acts within its discretion in refusing a second expert examination of a deceased plaintiff's tissue samples, treated as analogous to an independent medical examination, when the defendant had earlier had the chance to examine them. Arguments raised for the first time in a reply brief fall outside the scope of appellate review.
• Estate OF Patrick v. Bd. of Supervisors (2002). Testing of tissue preserved for more than eight years is treated like examination of any inanimate object in discovery, not like an independent medical examination of a living person or an autopsy. The heightened "good cause shown" standard of art. 1464 therefore does not apply.
• Hebert v. Anco Insulation, Inc. (1st Circuit, 2002). A defense that a settlement extinguished the debt must be specifically pleaded, and Dow's post-verdict assertion of it was untimely. The majority held, however, that pre-1985 law (former art. 2203, requiring a reservation of rights) governs the effect of the settlements, so the trial court had to rule on whether plaintiffs reserved their rights. A later general appearance does not waive a pending declinatory exception, and the individual defendants' Louisiana contacts were too thin for personal jurisdiction.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• In re Babcock & Wilcox Co. (2002). Future unasserted asbestos liabilities count as liabilities in measuring insolvency under the Louisiana revocatory action, and the plaintiffs must prove insolvency by an objective estimate; GAAP is relevant but neither controlling nor presumptively valid.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Austin v. Abney Mills, Inc. (2nd Circuit, 2001). A tort cause of action for a long-latency asbestos disease does not accrue on mere exposure, because damage is required; under either the manifestation or contraction theory Hogue showed no injury before mesothelioma was covered by workers' compensation in 1975, so compensation was his exclusive remedy for negligence claims. Intentional tort claims not raised in the summary judgment motion cannot be dismissed on it.
• Crooks v. Metropolitan Life Ins. Co. (3rd Circuit, 2001). Louisiana's 1999 amendment to Civil Code art. 2315, which barred damages for future medical monitoring absent a manifest injury, changed substantive law, so it could not be applied retroactively to deprive plaintiffs of vested rights in a suit filed before its enactment.
• Dufrene v. Avondale Industries, Inc. (4th Circuit, 2001). When a tort suit was filed before the victim's death, the abatement and substitution articles govern, and where Article 2315.1 beneficiaries such as a spouse and children exist, they take preference as legal successors; grandchildren are not listed beneficiaries and cannot step into a deceased parent's shoes.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Callaway v. Anco Insulation, Inc. (4th Circuit, 1998). A survival action is governed by the workers' compensation law in effect at the time of exposure, and a wrongful death action by the law in effect at death. Workers' compensation exclusivity bars a negligence wrongful death claim but not a survival claim based on pre-1975 exposure; an intentional tort claim needs evidence of intent, not just allegations that the employer knew or should have known.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1998). A wrongful death claim is governed by the law in effect when it accrued at the decedent's death, not at the time of exposure. Under either the Louisiana Workers' Compensation Act or the LHWCA, an employer is liable in tort only for an intentional tort, which requires intent to cause the harm.
• Meredith v. Asbestos Corp., Ltd. (4th Circuit, 1998). A wrongful death action arises at the time of death, so the workers' compensation exclusivity law in effect on the date of death governs, barring tort wrongful death suits against the employer even where the asbestos exposure occurred before the 1976 amendment. A pre-death settlement reserving rights against other defendants does not preclude a survival action against defendants not named in the earlier suit.
• Rareshide v. Mobil Oil Corp. (4th Circuit, 1998). A refinery worker with an occupational asbestos disease who is restricted from further asbestos exposure is not offered a suitable job when every offered position carries exposure risk, so the employer fails its burden to defeat supplemental earnings benefits. Temporary total disability benefits are capped at six months from the injury.
• Re' v. Owens-Corning Fiberglas Corp. (4th Circuit, 1998). Under LSA-C.C.P. art. 123, a court may transfer a case to another parish to avoid inconsistent results and promote judicial economy where it shares common issues of fact and law with a related pending case.
• Scott v. Metropolitan Life Ins. Co. (4th Circuit, 1998). Asbestos claims in Louisiana are subject to a one-year prescriptive period that runs once the disease manifests with enough certainty to support a cause of action. Prescription was not suspended where the plaintiff was diagnosed with mesothelioma and was told it is caused by asbestos more than a year before suit.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1997). A wrongful death action arises only when the victim dies, so the law at the time of death governs. Because the death came after the 1976 amendment to La. R.S. 23:1032, survivors cannot sue executive officers for negligence, only for intentional acts.
• Potter v. Patterson (4th Circuit, 1997). When Article 1913(B) requires notice of the signing of a final judgment, the delay for a new trial motion does not start until the clerk mails the notice, so the plaintiffs' motion was timely. Because the dismissal of the whole case was a mistake, the motion should have been granted.
• Gautreaux v. Rheem Mfg. Co. (4th Circuit, 1996). Under former La. R.S. 23:1031.1(A)(1)(d), it was not established as a matter of law that asbestos is an "oxygen compound", so the employer could not show on an exception of no cause of action that workers' compensation was the exclusive remedy for the lung cancer death.
• Held v. Avondale Industries, Inc. (4th Circuit, 1996). A marine surveyor who is not a seaman is not barred by maritime law from asserting Louisiana state remedies, and a plaintiff's expert affidavit that any exposure contributed to mesothelioma raises a genuine issue of material fact on causation that prevents summary judgment.
• Atkinson v. Celotex Corp. (3rd Circuit, 1994). A jury's general damage awards in asbestos injury cases are reviewed under a great-discretion standard and are disturbed only if beyond what a reasonable trier of fact could award. Where medical evidence supports two permissible views, the jury's choice is not manifestly erroneous.
• Coates v. AC and S, Inc. (1994). Pre-comparative-fault law and equal ("by heads") apportionment governed the wrongful death claim because the significant exposures came before August 1, 1980. The court refused to rule asbestos products unreasonably dangerous per se as a matter of law, admitted the OSHA and EPA publications, and denied Owens-Corning's three motions.
• Cole v. Celotex Corp. (1992). In long-latency occupational disease cases, pre-Act law applies when significant tortious exposures occurred before the comparative fault act took effect, and contribution among defendants is governed by that same law. Coverage is triggered by exposure during the policy period, and a plaintiff may recover under each triggered annual policy.
• Bergeron v. Celotex Corp. (1991). Under Louisiana law a wrongful death action arises at the decedent's death, so the post-1976 workers' compensation exclusivity statute barred tort claims against the employer even though the exposure came earlier. A post-prescription amendment adding a new plaintiff does not relate back where the defendant had no notice of that plaintiff and no duty to look for her.
• In re Davis (1984). Extraordinary relief requires a clear and indisputable right and the absence of other adequate remedies. The bankruptcy court could stay direct actions and discovery against Manville's insurers if the policies were property of the estate, and the workers had other routes of review, including the New York district court and a motion for relief from the stay.
• White v. Johns-Manville Sales Corp. (5th Circuit, 1982). Under Louisiana's occupational disease compensation provision, the compensation rate is fixed at the date the disease manifests as disability, not the date of last injurious exposure. A claimant who shows he falls in the 'odd-lot' category shifts to the employer the burden of showing available work.

Maine

• Coffin v. Ametek, Inc. (2020). A court may deny leave to implead a third party under Rule 14(a) when the request comes late, would unduly delay the case, and would prejudice the plaintiff by adding unrelated issues, even if the contribution or indemnity claim is colorable.
• Bernier v. Raymark Industries, Inc. (1986). In a failure-to-warn claim under Maine's strict liability statute, the manufacturer's actual or constructive knowledge at the time of sale is relevant, and wrongful death damages are available. An asbestos claim does not arise until physical injury manifests itself, not at inhalation, so the statute applies if the disease manifested after its October 3, 1973 effective date.
• In re Moorenovich (1986). Predicting Maine law, the court held that fear of cancer is a recoverable element of damages for present anxiety in asbestos exposure cases. The anxiety must be reasonable and proximately caused by exposure for which the defendants are legally responsible.
• Austin v. Raybestos-Manhattan, Inc. (1984). Maine's comparative negligence statute (14 M.R.S.A. § 156) applies to strict products liability claims under § 221. A plaintiff's fault counts only if it consists of voluntarily and unreasonably proceeding to encounter a known danger, not a mere failure to discover or guard against a defect.
• Austin v. Unarco Industries, Inc. (1983). A shipyard worker's asbestos products liability claim against manufacturers is not within admiralty jurisdiction because his work was not traditional maritime activity. A bankruptcy debtor's automatic stay does not extend to solvent co-defendants. An appellate court applies a state-law clarification made after trial.
• Linnell, Choate & Webber v. Heyde (1971). A deputy commissioner's attorneys' fee award under the Longshoremen's and Harbor Workers' Compensation Act must be reasonably commensurate with the necessary work, the amount involved, the novelty and complexity of the issues, the results obtained and the claimant's circumstances; an award that ignores these factors is arbitrary and not in accordance with law.

Maryland

• Irwin Industrial Tool Company v. Pifer (2022). Items bought online and offered as exemplars are authenticated under Maryland Rule 5-901 if a reasonable juror could find by a preponderance of the evidence, from circumstantial evidence, that they are what the proponent claims, and no chain of custody back to manufacture is required. An appellate court ordinarily reviews a summary judgment only on the grounds the trial court explicitly relied on.
• Barrett v. AW Chesterton Company (2021). Under Maryland law, a plaintiff or cross-plaintiff in an asbestos case must offer evidence that the defendant's conduct was a substantial factor in bringing about the harm; without such evidence, and with no opposition, summary judgment is proper.
• Pifer v. Irwin Industrial Tool Co. (2021). Under Maryland Rule 5-901, the proponent need only show a reasonable probability that physical evidence is what it is claimed to be. A gap in the chain of custody, without evidence of tampering or motive to tamper, goes to weight for the jury, not to admissibility.
• Staubs v. CSX Transportation, Inc. (2021). The separate disease (two-disease) rule applies to toxic-exposure claims under FELA, so a judgment on a claim for one exposure-related disease does not bar a later claim for a different disease from the same exposure unless that disease was or could have been raised in the first action.
• Coates v. Ford Motor Company (2020). A trial court has wide discretion to deny summary judgment and let a case go to trial, and a jury's weighing of conflicting expert evidence on exposure will not be disturbed. Res judicata and collateral estoppel do not apply where an appellate reversal and remand left no final judgment on the issues.
• Curtin v. Cyprus Amax Minerals Co. (2020). A court lacking personal jurisdiction dismisses without prejudice, and under Rule 41(a)(2) a voluntary dismissal without prejudice should not be denied absent substantial prejudice to the defendant; loss of a statute of limitations defense does not by itself bar it.
• In re RailWORKS Corporation (2020). A claim arises for bankruptcy purposes upon prepetition exposure to asbestos, not upon manifestation of disease. A debtor that used reasonably diligent efforts to identify creditors may give unknown creditors publication notice of the bar date, and that notice satisfies due process so the discharge applies.
• In re RailWORKS Corporation (2020). Under the Fourth Circuit's conduct test, a bankruptcy claim arises upon exposure, not manifestation, so an asbestos claim based on prepetition exposure is a dischargeable claim. A debtor that used reasonably diligent efforts to identify creditors may give unknown creditors publication notice of the bar date, which satisfies due process.
• Colvin v. Eaton Corporation (2019). A discovery plan approved by the court that did not require the plaintiff to produce non-party fact witnesses for deposition could not support a dismissal with prejudice for failure to produce them. Under the scheduling orders, defendants could locate and subpoena those witnesses themselves.
• Dugger v. Union Carbide Corporation (2019). Even if late expert reports are not true supplements under Rule 26(e), they need not be excluded under Rule 37(c)(1) when the late disclosure is harmless, judged by factors such as surprise, ability to cure, trial disruption, importance and explanation.
• Fullen v. 3M Company (2019). A party relying on foreign law must give reasonable notice under Fed. R. Civ. P. 44.1; notice given at the close of discovery, after earlier reliance on forum law, is unreasonable and waives foreign law. A late witness designation is not excluded where the surprise can be cured and no prejudice is shown.
• Kerkhof v. Johnson & Johnson (2019). A state-law tort action against a non-debtor is not "related to" a supplier's Chapter 11 case where indemnification or shared insurance is speculative and the debtor is no longer a party. Even if related-to jurisdiction existed, equitable grounds under 28 U.S.C. § 1452(b) favored remand.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2019). A plaintiff may prove through circumstantial evidence and reasonable inferences that a defendant installed the asbestos-containing products at the specific site of exposure. A party that introduces evidence about a former co-defendant may open the door to telling the jury that the co-defendant was dismissed.
• Lloyd E. Mitchell, Inc. v. Rossello (2018). Denial of summary judgment is reviewed only for abuse of discretion, and circumstantial evidence can suffice to identify a defendant as the contractor whose asbestos-containing product exposed a bystander. A trial court may exclude a witness as a sanction when a party violates the scheduling order and fails to educate its corporate designee under Md. Rule 2-412(d).
• Mack Trucks, Inc. v. Coates (2018). A jury instruction on a liability theory the evidence did not generate is reversible error when it prejudices the party, and pattern instructions must be tailored to the theories actually in the case. A party must object to allegedly inconsistent civil verdicts before the jury is discharged, and a party's out-of-court denial of liability is inadmissible hearsay even under the completeness doctrine.