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.

Massachusetts

• Ciolino v. Keystone Shipping Co. (2024). A late expert disclosure by a plaintiff's treating physicians was substantially justified and not excluded under the Esposito factors. Statements by a shipowner's officers about asbestos aboard the vessel are non-hearsay party admissions. Disputed facts on asbestos presence and causation preclude summary judgment on Jones Act negligence and unseaworthiness claims.
• Gillis v. Pbv Inc. (2023). Under a stream-of-commerce-plus theory, a component maker that sold finished gaskets to another manufacturer in its home state, with no role in directing them to Massachusetts, lacks the relatedness and purposeful availment needed for specific jurisdiction there.
• McIsaac v. Air & Liquid Systems Corporation (2023). Under maritime law, a plaintiff must show exposure to the defendant's product at a high enough level that it was a substantial factor in causing the injury; the mere presence of the product at the workplace is insufficient. Rule 56(d) allows time to find facts, not to gather additional expert opinions.
• Pritt v. John Crane, Inc. (2023). Where a product manufacturer that was not the seaman's employer is sued over an indivisible injury from asbestos exposure on the high seas and in territorial waters, neither the Jones Act nor DOHSA applies. General maritime law then permits punitive damages, loss of consortium damages and survival remedies, so an amendment seeking them is not futile.
• Pritt v. John Crane, Inc. (2022). A magistrate judge's pretrial ruling is set aside only if clearly erroneous or contrary to law. Challenges to an expert's reliability and interpretation of military specifications go to weight and credibility for the jury, not admissibility, under Rule 702 and Daubert.
• Barraford v. T & N Limited (2014). A Chapter 11 plan confirmation with a discharge and channeling injunction lifts the automatic stay, so 11 U.S.C. § 108(c) gave only 30 days to sue after that. A tolling letter between class counsel and the CCR did not cover plaintiffs who were not that firm's clients, and equitable tolling did not apply.
• Barraford v. T&N Limited (2013). Under Massachusetts law, an asbestos plaintiff must show product identification, exposure through working with or in close proximity to the product, and that exposure was a substantial contributing factor; a prior deposition from a state case is admissible as former testimony where the earlier defendants had a similar motive and opportunity to examine the witness.
• Hilbert v. Aeroquip, Inc. (2007). A defendant removing under the federal officer statute must show a causal nexus between its actions under federal direction and the claims, plus a colorable federal defense. Northrop did not show that the Navy prevented it from giving state-law warnings, so removal failed.
• In re Asbestos Litigation (1998). Under 28 U.S.C. § 1407(a) and Lexecon, cases whose pretrial proceedings have run their course must be remanded, but cases actually terminated are not remanded. The court therefore presumed that "closed" ordinarily means resolved, unless the parties show otherwise.
• Thayer v. Pittsburgh-Corning Corporation (1997). Under Vassallo, a defendant is not liable under the implied warranty of merchantability for failure to warn of risks not reasonably foreseeable at the time of sale, so state of the art evidence is relevant. Lack of privity is judged by the date of injury, not the date of exposure or sale.
• Eagle-Picher Ind. v. American Employers'ins. (1989). When an insurer fails to prove that claim-by-claim review of underlying asbestos claims is feasible, stare decisis applies and the First Circuit's six-year presumptive rollback from diagnosis fixes the policy attachment date for asbestosis and pleural claims.
• O'connor v. Raymark Industries, Inc. (1987). Where several causes combine to produce an indivisible injury, the plaintiff need not prove but-for causation or separate out the effect of the defendant's product; a 'substantial contributing cause' instruction that distinguishes a substantial factor from a negligible one is correct.

Michigan

• Pyscher v. US (2017). Under Michigan law, which applies to an FTCA claim, both negligence and medical malpractice require an actual present injury, and exposure, increased risk or emotional distress without physical harm is not enough. The FTCA's six-month limit after denial of the administrative claim also barred any refiling.
• Grand Trunk Western Railroad, Inc. v. 37th Circuit Court Judge (2008). Michigan Supreme Court Administrative Order 2006-6 bars "bundling", meaning aggregating cases to pressure settlement. Trying two asbestos cases simultaneously before separate juries is not bundling and does not violate the order.
• In re Certified Question From the Fourteenth District Court OF Appeals OF Texas (2007). Under Michigan law, a duty depends on the parties' relationship, foreseeability, the burden on the defendant and the nature of the risk. A property owner owes no duty to a person who was never on or near its property to protect her from asbestos fibers carried home on a household member's work clothes, where there was no further relationship.
• Beaudrie v. Anchor Packing Co. (1998). Under the Michigan workers' compensation statute, all persons with a financial interest in a wrongful death recovery are "parties" for apportioning expenses of recovery. The lien-holder's reimbursement and its share of expenses are recalculated with each new recovery from a separate tortfeasor.
• Allen v. Owens-Corning Fiberglas Corp. (1997). Evidence of a plaintiff's exposure to other manufacturers' asbestos products is relevant to whether the defendant's product was a substantial factor in causing the injury, but its exclusion is harmless where the plaintiff's evidence independently showed substantial exposure to the defendant's product. A manufacturer who knew of asbestos harms must warn even if it did not know of the specific disease that resulted.
• Faulkner Const. v. Silicosis Fund (1997). An employer seeking reimbursement from the silicosis and dust disease fund for a dust disease other than silicosis, phthisis or pneumoconiosis bears the burden of proving the disease is so common and widespread as to threaten the industry.
• Anjeski v. Keene Bldg. & Development Co. (1989). Under Michigan's Restatement (Second) § 431 proximate cause test, a plaintiff must show the defendant's product was used at the specific site in the workplace where the worker worked; showing that the product was merely aboard the ship or present at the workplace is not enough.
• Brisboy v. Fibreboard Corp. (1988). A defendant's negligence need only be a proximate cause, meaning a substantial factor, of the harm, and it is not excused because other causes also contributed. Under pure comparative negligence, the particular risk doctrine does not narrowly define a smoker's risk, so the risk of lung cancer is within the risk a smoker assumes and the jury's comparison of fault must be given effect.
• Marshall v. Celotex Corp. (1988). Under Michigan law as the court applied it, a plaintiff may not proceed on a concert of action theory where she cannot show that any defendant supplied the asbestos-containing products to which the decedent may have been exposed, absent joinder of a significant majority of the potentially responsible parties.
• Marshall v. Celotex Corp. (1987). The court's view was that under concert of action liability the burden of proof never shifts, so a plaintiff must identify the defendant who supplied the injury-causing asbestos to show proximate cause. It treated the requirement as an open question of Michigan law and certified it.

Minnesota

• Anderson v. AH Bennett Company (2025). Under Minnesota's workers' compensation law, the exclusivity provision applies if the employee was last exposed to the occupational disease hazard in a significant way while employed by the defendant, even if the plaintiff only pursues exposures from a period when he was not employed there. Whether that last significant exposure occurred is a fact question.
• Palmer v. Walker Jamar Company (2019). A Minnesota asbestos wrongful-death claim accrues when the disease manifests in a way causally linked to asbestos, or at death if earlier, without the plaintiff needing to identify the specific defendant. Podvin bars claims against a dissolved corporation brought more than two years after dissolution, and the 2007 amendment to section 302A.781 does not apply retroactively.
• Conda v. Honeywell International, Inc. (2018). Expert causation testimony was admissible and sufficient where the district court considered foundational reliability and the evidence supported the verdict. The current Minn. Stat. § 604.02, subd. 1 does not apply when the events giving rise to the claim occurred before August 1, 2003, even if the claim accrued later.
• Filipek v. the Boeing Company (2017). Under Minnesota law, a products-liability claim accrues when the plaintiff knows of an asbestos-related disease and its connection to asbestos exposure. An earlier asbestosis diagnosis therefore started the limitations period, and a later mesothelioma diagnosis did not start a new one.
• Rock v. Bucyrus Int'l (In re Minnesota Asbestos Litigation) (2009). Under the Minnesota Supreme Court's grant of broad managerial authority over asbestos litigation, the district court had authority under the 1994 case-management order to allow presuit discovery to identify potential defendants; the 2008 order only clarified this.
• Newinski v. John Crane, Inc. (2009). Under Minnesota's comparative fault statute, a defendant found jointly liable is liable for the whole award, less any Pierringer-released share. Reallocating the share of non-party entities is premature because no judgment can be entered against them and uncollectibility cannot yet be determined.
• In re Api, Inc. (2005). A party objecting to Chapter 11 plan confirmation must satisfy constitutional and prudential standing for each issue it raises, and § 1109(b) does not override that requirement. A § 524(g) asbestos trust plan that preserves insurers' pre-petition rights and substitutes the trust as insured does not impair those rights.
• Conwed v. Union Carbide Chem. and Plastics (2001). An employer's third-party subrogation claim under Minn. Stat. § 176.061 depends on an employee's compensable injury and the employer's present duty to pay benefits, so it cannot rest on statistical projections of future illness. Prejudgment interest is available to the employer in such an action.
• Tester v. American Standard, Inc. (1999). Minn. Stat. § 604.02, subd. 3 applies only to reallocating uncollectible amounts among parties in the same chain of manufacture and distribution. Minnesota law does not aggregate defendants' fault when comparing it to the plaintiff's, except for joint enterprises, and the court of appeals declined to extend that exception to asbestos cases.
• Independent School Dist. No. 197 v. WR Grace (1990). Under Minnesota law a school district's asbestos-fireproofing removal claims were not barred as a matter of law by the statute of repose or limitations, because fraud tolling and class-action tolling raised fact issues. Such claims are not barred by the economic loss doctrine, and the state revival statute is constitutional. Federal asbestos regulation does not preempt the state-law claims.
• Kath v. Burlington Northern R. Co. (1989). Failure to object at trial to a special verdict form or to refused instructions waives the objection on appeal. Averaging juror damage estimates is not misconduct without proof of an advance agreement to be bound by the average.
• Bertrand v. Johns-Manville Sales Corp. (1982). Under the flexible approach to offensive collateral estoppel, defendants may be barred from relitigating that asbestos dust can cause asbestosis and mesothelioma. They may not be estopped on other issues based on earlier trials in which many of them did not take part, because that would violate due process.

Mississippi

• Dickens v. A-1 Auto Parts & Repair Inc. (2021). Under Mississippi's asbestos causation test (exposure to a particular product, regularly, over an extended time, and in proximity), minimal exposure to a defendant's products and expert opinions that do not tie the disease to that defendant's products cannot create a genuine issue of fact. Without a valid compensatory claim, punitive damages claims also fail.
• Bedford v. American Honda Motor Company (2020). An argument raised for the first time in a motion for reconsideration in the district court is generally deemed waived and will not be considered on appeal.
• Bedford v. American Honda Motor Co. (2019). A party's deposition may be prohibited in extraordinary circumstances, such as when an uncontested medical opinion shows the deposition creates a substantial risk to the witness's life and health, particularly where the requesting party delayed seeking it.
• Dickens v. A-1 Auto Parts & Repair Inc. (2019). Under the Mississippi Product Liability Act's innocent seller provision, a seller is not liable unless it controlled the product's manufacture, altered it, or knew of the defect. A general allegation of failure to warn does not plead actual or constructive knowledge, so the defense appeared on the face of the complaint.
• Dickens v. A-1 Auto Parts & Repair, Inc. (2019). Enterprise, market-share, concert-of-action and alternative liability theories are not recognized in Mississippi, and fraud-based and aiding-and-abetting conspiracy claims must be pleaded with particularity and facts showing the defendant's knowledge and substantial assistance.
• Dickens v. A-1 Auto Parts & Repair, Inc. (2018). Mississippi does not recognize enterprise, market-share, concert-of-action or alternative liability to excuse product identification in asbestos cases, and fraud-based claims must be pleaded with particularity under Rule 9(b). An aiding-and-abetting conspiracy claim requires allegations that the defendant knew of the conspiratorial conduct and substantially assisted it.
• Union Carbide Corporation v. Nix (2014). A manufacturer's compliance with the OSHA warning wording does not make its warning adequate as a matter of law, and expert testimony is not required where a warning's adequacy is within a layperson's understanding. A judge's comments suggesting the compensatory award was too low can taint a punitive award submitted right after.
• Garlock Sealing Technologies, LLC v. Pittman (2010). A complaint filed in the name of a person who died before filing is a nullity, so Rule 17(a) substitution is unavailable and an amended complaint cannot relate back to it. The limitations defense was not waived because the defendants had not actively participated in the litigation.
• Brooks v. Stone Architecture (2006). Under Mississippi law, a claim for emotional distress from fear of future illness, brought before any disease appears, requires substantial exposure and medical or scientific evidence giving a rational basis for the fear. The plaintiffs' expert evidence was unreliable and could not supply that basis.
• Geske v. Williamson (2006). The collateral source rule applies only when the other compensation is for the same injury as the damages sought, and it is not violated when the evidence is offered for a purpose other than reducing damages. Here the asbestos settlement was for a separate injury and was relevant to the claimed emotional distress.
• Gorman-Rupp Company v. Hall (2005). Mississippi adopts the "frequency, regularity, and proximity" test for proving exposure to a particular defendant's asbestos product in asbestos cases. A plaintiff who offers no evidence of exposure to an asbestos-containing product attributable to the defendant cannot defeat summary judgment, and unauthenticated documents may not be considered under Rule 56(c) and M.R.E. 901.
• Illinois Central Railroad Company v. Gregory (2005). Plaintiffs may be joined under Rule 20 only if their claims arise from a distinct litigable event linking them, and asbestos cases are not exempt from this requirement; plaintiffs must also specify who they sue, when and where each was exposed, their injury, and the common event.
• Owens-Illinois, Inc. v. Edwards (1990). In negligence or products liability actions involving latent disease, a cause of action under Miss. Code Ann. § 15-1-49 (1972) accrues when the plaintiff can reasonably be held to have knowledge of the injury or disease, not at the time of last exposure.
• McCarty v. Johns-Manville Sales Corp. (1980). In a diversity case the federal court applies state collateral estoppel law, and Mississippi requires mutuality of parties. Even under federal non-mutual offensive estoppel, it would not apply here because the issues were not identical, the earlier results conflicted, and the defendants could not have foreseen the later litigation.

Missouri

• Guthe v. Johnson & Johnson (2024). A petition must at least describe the type of product the decedent was exposed to and allege that the defendant made or distributed it; Missouri law recognizes no standalone products-liability tort of willful and wanton misconduct, though the allegations may be read as a punitive damages request.
• Barnes v. Athene Annuity & Life Assurance Company (Western District, 2023). An employer asserting workers' compensation exclusivity for mesothelioma under section 287.200.4 must show it had valid insurance coverage for the employee's mesothelioma injury in effect on the date the workers' compensation claim was filed. An affidavit from someone without personal knowledge of the policy cannot authenticate it on summary judgment.