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.

Maryland

• Vitale v. Burnham, LLC (2018). Summary judgment is improper where the record shows a genuine dispute of material fact about whether boilers were products that contain asbestos, which would bring the case within an exception to Maryland's statute of repose for manufacturers of asbestos-containing products. A denial of reconsideration that rests on legal principles is reviewed without special deference.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2018). A jury may infer from circumstantial evidence that a contractor installed asbestos-containing insulation at a site where the plaintiff was exposed, if the contractor did a large share of the insulation work there. Evidentiary rulings and jury instructions are reviewed for abuse of discretion.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2018). A jury may use circumstantial evidence to infer that a defendant installed the asbestos-containing product to which a bystander plaintiff was exposed, and fiber drift theory is rejected in Maryland, so an instruction on it is not required when the evidence does not raise it.
• Duffy v. CBS Corporation (2017). Under CJP § 5-108, a cause of action accrues when the injury is discovered, so a mesothelioma claim discovered more than 20 years after the improvement became usable is barred. Applying the 1991 asbestos-manufacturer exemption to revive a claim already barred would unconstitutionally take the defendant's vested right.
• Fish v. Air & Liquid Systems Corporation (2017). Under Rule 26(b)'s relevance and proportionality requirements, a court may limit corporate-deposition topics that are overly broad, unduly burdensome or duplicative when the plaintiff's own testimony ties the defendant to only a narrow exposure.
• Rhodes v. Mcic, Inc. (2017). A complaint that relies on conclusions and a formulaic recitation of negligence and strict liability, lumps all defendants together, and pleads no facts on frequency, regularity and proximity of exposure fails Rule 8(a) plausibility; fraud must also be pleaded with particularity under Rule 9(b).
• Arbogast v. AW Chesterton Co. (2016). A plaintiff must offer evidence from which a jury can reasonably infer that a defendant's product actually contained asbestos before Maryland's frequency, regularity, proximity test applies; an expert opinion resting on a worker's unsupported belief that a product contained asbestos lacks sufficient facts or data under Rule 702.
• Oliver v. Campbell McCORMICK, Inc. (2016). A federal court may decline supplemental jurisdiction under 28 U.S.C. § 1367(c) and sever and remand state-law claims that substantially predominate over a federal contractor defense raised only by removing third-party defendants, and such a request is not subject to the 30-day limit in § 1447(c).
• RJ Reynolds Tobacco v. Stidham (2016). An order dismissing defendants with the right to refile, followed by resolution of all other claims, produces a final judgment. An appeal seeking joinder of tobacco and asbestos defendants is moot once no asbestos defendants remain in the case, though the court may comment on a recurring issue that evades review.
• Citrano v. John Crane-Houdaille, Inc. (2015). A cross-claim against a federal-officer defendant does not create federal subject matter jurisdiction. After all claims with independent federal jurisdiction were dismissed, the court declined supplemental jurisdiction over the state-law claims because economy, fairness and comity favored remand.
• Haney v. 3M Company (2015). On summary judgment a court may consider only evidence admissible at trial; deposition testimony naming "Cranite" that was elicited by an impermissibly leading question was inadmissible, leaving no admissible proof that the plaintiff was exposed to a Crane Co. product.
• Sherin v. John Crane-Houdaille, Inc. (2015). A cross-claim for contribution does not give rise to independent federal jurisdiction, but a federal court that has federal officer or enclave jurisdiction over some claims may keep supplemental jurisdiction over related state claims when economy, convenience, fairness and comity favor retaining them.
• Sherin v. John Crane-Houdaille, Inc. (2014). Under Maryland law, a supplier owes no duty to warn unless a better warning could feasibly and effectively have prevented the harm, and the plaintiff must offer evidence that improved warnings to intermediaries would have prevented the take-home exposure. Testimony about the manufacturer name on a product container is circumstantial evidence of the manufacturer, not hearsay.
• Dixon v. Ford Motor Company (2013). An expert's opinion that each exposure to asbestos contributed to mesothelioma need not undergo Frye/Reed review when it rests on evidence of repeated, high-intensity exposure to the defendant's product. A trial court abuses its Rule 2-535 discretion by overturning a jury verdict that the evidence reasonably supported.
• Joyner v. AC & R. Insulation Co. (2013). A plaintiff may use a Rule 15(a) amendment to disclaim damages for one product and so avoid federal officer jurisdiction. A defendant that did not raise a federal defense for another product in its notice of removal within thirty days cannot rely on it later, and contribution cross-claims that depend on the plaintiff's recoverable damages do not create federal jurisdiction.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Scapa Dryer Fabrics, Inc. v. Saville (2011). Evidence of regular work within arm's length of the defendant's asbestos-containing felts can satisfy the frequency, regularity and proximity test for substantial-factor causation, and a bankruptcy trust is a joint tortfeasor for offset purposes only as its settlement agreement provides.
• Scapa Dryer Fabrics, Inc. v. Saville (2010). A defendant seeking to reduce a verdict for payments from bankruptcy trusts under Maryland's contribution act must prove the trusts are joint tort-feasors. JNOV in a jury trial requires a motion for judgment at the close of all evidence. A manufacturer's duty to warn can continue after the plaintiff's exposure, so later-dated evidence of its knowledge can be relevant.
• Scapa Dryer Fabrics, Inc. v. Saville (2009). Circumstantial evidence of regular, close-range exposure to a defendant's asbestos product meets Maryland's frequency-regularity-proximity test for substantial-factor causation. A party seeking a verdict reduction for payments by claimed joint tort-feasors, such as bankruptcy trusts, must prove their joint tort-feasor status. A duty to warn can continue after exposure ends, so later-dated evidence of the defendant's knowledge can be relevant.
• Taylor v. Csr Limited (2008). Viewing the evidence in the light most favorable to plaintiffs, a foreign company that packaged and shipped asbestos to the Port of Baltimore, expecting it to be unloaded by stevedores there, had purposeful minimum contacts with Maryland. Exercising jurisdiction over it was constitutionally reasonable and within the long-arm statute.
• John Crane, Inc. v. Puller (2006). A claim for asbestosis and a claim for mesothelioma are separate claims, so the voluntary dismissal of the earlier asbestosis suit did not bar the later suit by collateral estoppel because no fact was actually litigated. In asbestos cases a loss of consortium claim arises when the underlying injury claim arises (the exposure test), so Maryland's non-economic damages cap does not apply to it when it does not apply to the underlying survival action.
• Wilson v. John Crane, Inc. (2005). Under Maryland Rule 2-424(d), a trial court has broad discretion to deny withdrawal or amendment of deemed admissions, and it does not abuse that discretion when a party that was not diligent seeks withdrawal days before an asbestos trial and the opposing party would be prejudiced.
• Wajer v. Baltimore Gas and Electric Company (2004). A premises owner that hires independent contractors is not liable to a contractor's employee under the retained-control rule (§ 414) or the safe-workplace rule (§ 343) unless it controlled the operative details of the very work that caused the injury; asbestos products the contractors brought in were their own work product, not a preexisting latent condition.
• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Crane, Inc. v. Scribner (2002). For the Maryland cap on non-economic damages, the court may look to the plaintiff's last exposure to the defendant's asbestos product; if that exposure was undisputedly before July 1, 1986, the cap does not apply. The plaintiff bears the burden of showing the cause of action arose before the cap date, and a genuine factual dispute goes to the jury.
• Owens-Illinois v. Gianotti (2002). Under Scribner, the Maryland noneconomic damages cap does not apply when the plaintiff's last asbestos exposure was before July 1, 1986. A loss of consortium claim is barred by a premarital injury only if the couple knew or should have known of the injury when they married.
• Royal Ins. Co. of America v. Miles & Stockbridge (2001). A client who reasonably relies on successor counsel's advice is not contributorily negligent and does not fail to mitigate, and a successor attorney's negligence does not supersede the first attorney's liability. A negligent attorney may seek contribution, but not tort-based indemnification, from successor counsel whose negligent settlement advice contributed to the harm.
• Hollingsworth v. Connor (2000). A nonresident component maker that sold its product to another company outside the forum, and did not direct activity at the forum, lacks minimum contacts even if it knew the product would be sold there. For Maryland's noneconomic damages cap, a mesothelioma cause of action arises when the disease is contracted, not at the first cellular change.
• Owens Corning v. Bauman (1999). A cause of action for a latent asbestos-related disease such as mesothelioma "arises" under the noneconomic damages cap when the disease comes into existence, not when it is diagnosed or manifests symptoms. When that date is disputed, Article 23 of the Maryland Declaration of Rights requires the jury to decide it, upon a proper request.
• Owens Corning v. Walatka (1999). The plaintiff bears the burden of proving that a cause of action arose before the effective date of Maryland's noneconomic damages cap, and the cap does not violate the separation of powers clause. Under the proximity, frequency and regularity test, circumstantial evidence of a bystander's presence near a named product's use can support a finding of substantial causation.
• Pittsburgh Corning Corp. v. James (1999). An order denying a motion to dismiss on the ground of inconvenient forum is not immediately appealable under the collateral order doctrine, because the issue is not completely separate from the merits and is not effectively unreviewable after final judgment.
• Porter Hayden Company v. Wyche (1999). The statutory cap on noneconomic damages applies presumptively, and plaintiffs bear the burden of producing probative evidence that the disease arose before the cap's July 1, 1986 effective date; a hedged expert estimate that did not show the cancer pre-dated that date was insufficient.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Adams v. Owens-Illinois (1998). A trial judge's rulings on juror challenges, new trial motions and evidence are reviewed only for abuse of discretion, and the appellate court does not reweigh the evidence or expert credibility. Absent a showing of prejudice, and given a verdict that is not irreconcilably defective, the judgments stand.
• Ford Motor v. Wood (1998). A bystander plaintiff must show frequent, regular exposure to the defendant's own asbestos products, and a vehicle maker has no duty to warn about replacement brake parts it did not make, sell or place in commerce. Evidence of exposure to other asbestos products is admissible as an alternative cause only if the proffered exposures could have caused the disease.
• Porter Hayden v. Bullinger (1998). A trial court may not withhold from nonsettling defendants the amounts and relevant terms of other defendants' settlements when it uses them to reduce verdicts to judgment. A default judgment is an admission of liability that makes the defaulting party a joint tort-feasor under the Maryland contribution statute.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• ACandS Inc. v. Asner (1996). Threshold limit value evidence is relevant state of the art evidence in negligence and strict liability failure-to-warn claims, and evidence of exposure to non-parties' asbestos products is not per se irrelevant. Punitive damages require clear and convincing proof that the defendant, when the product left its control, actually knew of the danger to bystanders and consciously disregarded it.
• Owens-Corning Fiberglas Corp. v. Baltimore City (1996). To recover punitive damages in a non-intentional product case, the plaintiff must prove by clear and convincing evidence that the defendant actually knew, before the product left its control, that it posed a serious risk to the class of persons at issue; knowledge of danger to asbestos trade workers does not show knowledge of danger to ordinary building users.
• Owens-Corning Fiberglas Corp. v. Garrett (1996). A bystander's proof of substantial-factor causation is judged by the frequency, regularity and proximity of exposure to the defendant's product. Punitive damages in a products case require clear and convincing evidence of actual knowledge of the defect and a bad-faith decision to market the product in conscious disregard of the danger. A defendant found not liable at trial is not a joint tort-feasor, so no settlement offset applies.
• ACandS, Inc. v. Asner (1995). A punitive damages claim in a products liability case goes to the jury if the plaintiff offers evidence that could clearly and convincingly show actual malice (actual knowledge of the hazard and conscious disregard of it). Exposure to the products of non-party companies is irrelevant to whether a defendant's product was a substantial factor. A spouse's death ends the measure of consortium damages but not the consortium claim, and solatium damages may also be recovered.
• ACandS, Inc. v. Godwin (1995). A bystander shows substantial-factor causation for a defendant's asbestos product through the frequency, regularity and proximity of exposure, and punitive damages in a products case require clear and convincing proof of actual knowledge of the defect and a deliberate, bad-faith disregard of consumer safety. Negligence, even gross negligence, is not enough.
• US Gypsum v. Baltimore (1994). A building owner seeking asbestos removal costs may sue in tort because the defect creates a substantial risk of personal injury, and a post-sale duty to warn applies. Punitive damages require clear and convincing proof that the defendant actually knew, at the time of sale, that its product endangered ordinary building users.
• Eagle-Picher Industries, Inc. v. Balbos (1992). A nonmanufacturing supplier-installer of asbestos is held to a 'should have known' standard in a negligent failure-to-warn claim. A bystander plaintiff must show frequent exposure near regularly used products of the particular defendant to prove substantial-factor causation, and 'fiber drift' alone is not enough. A sophisticated-user instruction requires evidence that the supplier reasonably relied on the intermediary, and punitive damages require actual malice shown by clear and convincing evidence.
• Owens-Illinois, Inc. v. Armstrong (1992). A trial judge may exclude a document that technically qualifies as a business record if the objecting party shows it lacks the usual reliability, though a heavy burden applies. A cause of action arises under the noneconomic damages cap when it comes into existence, not when it is discovered. The contribution statute does not reduce a nonsettling defendant's liability by another defendant's punitive damages settlement.
• Eagle-Picher Industries, Inc. v. Balbos (1990). A jury's negligence verdict was upheld despite arguably inconsistent findings, and a defendant's failure to warn was a cause-in-fact of harm to bystander shipyard workers, with expert evidence of asbestos fibers drifting supporting the inference that bystanders were exposed. Suppliers could not rely on the employer as a sophisticated purchaser. Punitive damages require direct evidence of substantial knowledge that the product itself was dangerous and gross indifference to that danger.
• Knauer v. Johns-Manville Corp. (1986). Maryland's three-year filing period in its Wrongful Death Act is a condition precedent to the claim, so federal Rule 15(c) relation back cannot save a late wrongful death claim in a diversity case. The general three-year limitations period for survival claims is an ordinary statute of limitations, so the survival claims relate back to the original filing.
• Smith v. Bethlehem Steel Corp. (1985). The second paragraph of § 58 tolls limitations only during the two months after a compensation award when the employer alone may sue a third party, not from accrual until an award. Under Pierce, a claim for a latent cancer medically separate and distinct from asbestosis accrues on discovery of the cancer, even if the worker has already sued in tort for asbestosis.
• Harig v. Johns-Manville Products (1978). In latent disease cases, a cause of action in negligence or strict liability accrues when the plaintiff discovers, or through reasonable care and diligence should have discovered, the nature and cause of the injury.