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.

Missouri

• Lindsey v. Dow Chemical Company (2021). A defendant with no reasonable basis in fact and law for the claim against it is fraudulently joined, and its citizenship is disregarded for removal. The forum defendant rule does not apply to a forum-state defendant joined only after removal, and a court may deny leave to add a nondiverse defendant when the purpose is to defeat federal jurisdiction.
• Callanan v. Chesterton (Eastern District, 5th Division, 2020). In an asbestos case against a product manufacturer, exposure to the defendant's asbestos-containing product can be shown by circumstantial evidence. Where the record supports an inference of exposure and of substantial-factor causation, summary judgment is improper.
• Ingham v. Johnson & Johnson (Eastern District, 2nd Division, 2020). Specific personal jurisdiction must be shown separately for each non-resident plaintiff's claim, and a parent corporation's jurisdictional contacts can be attributed to it from a subsidiary only through proven agency or alter ego. Expert testimony was admissible under section 490.065, and the evidence supported submitting causation and punitive damages to the jury.
• Zurich American v. Insurance Co. of North America (2019). Under Missouri law, a pollution exclusion covering irritants, contaminants or pollutants released into the atmosphere unambiguously applies to asbestos dust carried from a workplace and released where the worker's wife came into contact with it, even though asbestos is not named in the exclusion. An insurer with no coverage cannot be made to contribute to another insurer's settlement.
• Accident Fund Insurance Company v. Casey (2018). An employer that accepts enhanced mesothelioma liability under section 287.200.4 and an insurer whose policy endorsement covers those benefits are liable for claims filed on or after January 1, 2014, regardless of the date of last exposure. The statute is not retrospective as applied, and it allows all children, not only dependents, to recover.
• MacCormack v. Ingersoll-Rand Company (2018). Under Massachusetts law, an unopposed state-court summary judgment on exposure and causation can bar a later suit against the same defendant. This holds even though the plaintiff's disease was later diagnosed as mesothelioma, because the same alleged negligence, product and exposure were at issue.
• Accident Fund Insurance Company v. Casey (Western District, 2017). A preserved, real and substantial claim that applying a state statute violates the constitutional ban on retrospective laws is a challenge to the statute's validity, and the whole case must go to the Missouri Supreme Court, which has exclusive appellate jurisdiction.
• MacCormack v. Air & Liquid Systems Corporation (2017). Under Massachusetts law, an unopposed summary judgment in an earlier suit on exposure and causation is a final judgment with preclusive effect, even though the plaintiff's disease later developed into mesothelioma.
• MacCormack v. the Adel Wiggins Group (2017). Missouri's foreign corporation registration statute does not constitute consent to general personal jurisdiction, per State ex rel. Norfolk S. Ry. Co. v. Dolan, which is an intervening change in law justifying reconsideration; a global corporation with business in Missouri is not 'at home' there under Daimler.
• MacCormack v. the Adel Wiggins Group (2017). Under Massachusetts law, a prior state-court summary judgment on causation, where the party had a full opportunity to litigate, precludes relitigating the same claims against the same defendant. Collateral estoppel may be raised by a Rule 12(b)(6) motion.
• Bristol v. Ford Motor Company (2016). Under 28 U.S.C. § 1446(c)(1), a diversity case may not be removed more than one year after commencement unless the plaintiff acted in bad faith to prevent removal. A plaintiff who actively litigated against the removal-spoiling defendant is presumed to have acted in good faith, and the defendant did not rebut that presumption.
• Hartfield v. 3M Company (2016). A resident defendant is fraudulently joined only if there is no reasonable basis in fact and law for the claim against it; a plaintiff's lack of personal knowledge or litigation conduct early in discovery does not show that. Fees for improper removal are awarded only where the removing party lacked an objectively reasonable basis.
• Hovsepian v. the Adel Wiggins Group (2016). Interlocutory appeal under 28 U.S.C. § 1292(b) requires a controlling question of law, substantial ground for difference of opinion, and a materially advanced termination of the litigation. Two in-circuit district court cases and a few out-of-circuit cases do not establish substantial ground for difference of opinion.
• Bergstrom v. Welco Manufacturing Company (Eastern District, 1st Division, 2015). On summary judgment, the non-movant gets all reasonable inferences; where the movant needs an inference to prevail and the evidence supports an equally probable contrary one, a genuine dispute exists, so summary judgment fails.
• Foreman v. AO Smith Corp. (Eastern District, 4th Division, 2015). Under Maryland's frequency, proximity and regularity test, exposure to a defendant's asbestos products may be shown circumstantially, and the plaintiff's testimony plus expert testimony was enough for a jury. A settlement release makes a settling party a joint tortfeasor for statutory reduction only if it so provides, and an inconsistent verdict claim not raised before the jury is discharged is waived.
• Brauer Supply Company 542 (G) Asbestos Personal Injury Trust v. Atlanta International Ins. Co. (2012). Under Rule 702, the factual basis of an expert opinion generally goes to credibility rather than admissibility, and an opinion may rest on assumptions. Doubts about admissibility are resolved in favor of admitting the testimony.
• Wagner v. Bondex International, Inc. (Western District, 2012). Missouri requires but-for causation (the substantial factor test applies only in two-fires cases), and a plaintiff must identify the defendant's asbestos-containing product as the source of exposure. Section 537.060 reduces a judgment only by settlements actually made, not by trust payments the plaintiff never sought.
• State EX rel. Kcp&l Greater Missouri Operations Company v. Cook (Western District, 2011). Under the 2005 amendments and strict construction, the Missouri Workers' Compensation Law's exclusivity provisions in § 287.120 apply only to injuries by 'accident' as defined in § 287.020.2, so an occupational disease claim that is not an accident is not barred from common-law suit in circuit court.
• Families for Asbestos Compliance Testing and Safety v. City of St. Louis (2009). A Clean Air Act citizen-suit plaintiff must show the defendant was violating the standard when the complaint was filed or that future violations were imminent to establish redressability under Article III. Congress cannot remove that constitutional requirement by statute.
• State EX rel. Ford Motor Company v. Nixon (Western District, 2007). Workers' compensation is the exclusive remedy for workplace injury claims, and only the Labor and Industrial Relations Commission can decide whether an injury was accidental or intentional. A co-employee is not liable at common law unless he committed an affirmative negligent act beyond the employer's duty to provide a safe workplace.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.
• Hoskins v. Business Men's Assurance (Western District, 2003). Punitive damages were properly submitted where clear and convincing evidence showed the manufacturer knew its sprayed asbestos product was dangerous to those who would later remove it. Prejudgment interest under section 408.040.2 cannot be awarded on punitive damages because its purposes are compensation and encouraging settlement, not punishment.
• Hoskins v. Business Men's Assur. (2002). A statute giving the state a lien on half of a final punitive damages judgment does not violate the excessive fines clause, due process or the takings clauses, because the state has no prosecutorial power, its share derives from the private judgment, and it takes nothing from defendants.
• Nugent v. Owens-Corning Fiberglas, Inc. (Eastern District, 3rd Division, 1996). A trial court has broad discretion over use of a deposition, and when a party uses part of it the other side may use the rest to explain. It also has discretion to limit expert testimony to each expert's area of expertise and to allow exhibits to be published to the jury in booklets.
• Clayton Center Assoc. v. WR Grace & Co. (Eastern District, 2nd Division, 1993). A building owner may recover in strict liability and negligence for asbestos contamination of the building from a fireproofing product. A claim accrues when asbestos fibers are released and a substantial, unreasonable risk of harm can be ascertained, and the economic loss doctrine does not bar recovery for damage to property other than the product itself.
• Harashe v. Flintkote Co. (Eastern District, 3rd Division, 1993). A buyer of a company's assets can be liable as successor under a de facto merger when it continues operations, pays with its own stock, and requires the seller to dissolve. Expert testimony that exposure to the defendant's product contributed causally to mesothelioma satisfies the substantial-factor causation test of Hagen.
• Hagen v. Celotex Corp. (1991). A plaintiff must show through expert testimony that each defendant's product was a substantial factor in causing the harm. Evidence showing only asbestos exposure in general, or that a defendant's product may have contributed, does not make a submissible case against that defendant.
• Hagen v. Rapid American Corp. (Eastern District, 4th Division, 1990). A party is aggrieved and may appeal only if a judgment prejudices its rights directly and immediately. Plaintiffs who stipulated to severing a defendant, and who feared only a remote contingent future loss, were not aggrieved by a without-prejudice dismissal for lack of personal jurisdiction.
• Speck v. Union Elec. Co. (1987). When a trial court dismisses a count that arises from the same transactions or occurrences as other claims and specifically designates the dismissal final for purposes of appeal under Rule 81.06, the order is appealable. The designation is reviewed only for abuse of discretion, and the 'judicial unit' test no longer applies.

Montana

• Gallegos v. BNSF Railway Company (2024). A renewed motion asking the court to revisit an interlocutory ruling must comply with the local rule on reconsideration. Where evidence on negligence and punitive damages overlaps substantially, they are normally tried together, with only the amount of punitive damages bifurcated.
• Wells v. BNSF Railway Company (2024). A mistrial is appropriate only where a cautionary instruction is unlikely to cure the prejudicial effect of an error, and juries are presumed to follow the court's cautionary instructions.
• Wells v. BNSF Ry. Co. (2024). Federal law (ICCTA) did not expressly or impliedly preempt Montana strict liability claims for an abnormally dangerous activity based on asbestos-contaminated vermiculite in a railyard, and the common carrier exception did not cover the railroad's handling of asbestos outside its duties as a carrier. A party cannot raise grounds in a post-verdict Rule 50(b) motion that it did not raise before the verdict.
• Gallegos v. BNSF Railway Company (2023). Spoliation sanctions are not warranted for destruction of evidence the movant was not entitled to obtain; a Rule 35 autopsy request requires an affirmative showing of good cause, which BNSF did not make.
• Wells v. BNSF Railway Company (2023). Under Montana's comparative-fault statute, a defendant may not assign fault to an unsettled nonparty such as W.R. Grace, and must prove a settled party's negligence with expert testimony where the issues are beyond lay knowledge. The HMTA and FRSA do not preempt state-law claims over transporting asbestos-bearing vermiculite ore.
• Moe v. BNSF Railway Company (2022). The court ordered that plaintiff Mary Diana Moe's pathology materials be delivered to BNSF Railway's defense counsel and its consulting pathologist for review under the conditions the parties agreed to.
• Baeth v. Liberty NW Ins. Corp. (2014). Where an occupational disease involves successive employers, the last employer is liable if the claimant's work there was of the same type and kind as the conditions that could have caused the disease. Pursuing civil suits against other parties for the same exposure does not judicially estop a claimant from a workers' compensation claim.
• Peterson v. Liberty NW Ins. Corp. (2013). Under § 39-72-403, MCA, an occupational disease claim must be filed within one year of when the claimant knew or should have known the condition resulted from an occupational disease; the period began when Peterson was diagnosed with asbestos-related disease and knew of his asbestos exposure at work.
• US v. Grace (2009). An expert may rely under Rule 703 only on facts or data of a type reasonably relied on by experts in the field, and Rule 703 cannot be used to put before the jury material excluded under Rule 403. Evidence of indoor releases and historical product testing may be used to show the propensity of fibers to become airborne, but not to prove post-1999 ambient fiber concentrations.
• United States v. Grace (2006). A defendant claiming a due process violation from pre-indictment delay must first show actual, non-speculative prejudice from lost evidence or witnesses, and the delay is then weighed against the government's reasons for it. Prosecutors need not charge a conspiracy before they have evidence supporting it.
• US v. Grace (2006). Expert testimony that states a legal conclusion about compliance with a statute (here TSCA 8(e)) is excludable and unhelpful to the jury, and a motion in limine cannot serve as a summary judgment on whether a reporting requirement was violated in a criminal case.
• US v. WR Grace (2006). Knowing endangerment under the Clean Air Act is not a continuing offense, so conduct completed outside the five-year limitations period is time-barred. The statute requires only a knowing release and knowing endangerment, not knowledge of unlawfulness, and the emissions-standard clause is an affirmative defense rather than an element.
• US v. Grace (2005). A bill of particulars is not required where the indictment sets out the government's theory and the government has given full discovery. Defendants are entitled to know the theory of the prosecution, not the details of how it will be proved.
• US v. WR Grace & Co.-Conn. (2003). Under CERCLA, the government may recover cleanup costs, ATSDR health effects study costs and indirect costs once it documents them adequately; the defendants then bear the burden of showing they are inconsistent with the National Contingency Plan or inaccurate. Asbestos-contaminated vermiculite from mining and processing is not a 'naturally occurring substance' that bars a response.

Nebraska

• Olivotto v. DeMarco Bros. Co. (2007). Under the last injurious exposure rule, liability for an occupational disease falls on the employer whose work exposed the employee in a way that could cause the disease. A worker who retired decades before disability suffered no loss of earning capacity and gets no weekly indemnity benefit.

Nevada

• Potter v. Crane Co. (2021). Under Rule 37(c)(1), late expert disclosures may be allowed if substantially justified or harmless, judged by prejudice, ability to cure, disruption of trial, and bad faith; the party that disclosed late bears the burden.
• Knutson v. Allis-Chalmers Corp. (2005). A defendant claiming fraudulent joinder bears a heavy burden to show the plaintiff obviously cannot state a claim against the non-diverse defendant under well-settled state law, and doubts or unsettled state law are resolved in favor of remand. A plaintiff's opposition brief that adds no new facts or law does not start a new removal period under 28 U.S.C. § 1446(b).

New Jersey

• Ltl Management LLC v. Emory (2024). A plaintiff alleging intentional torts must show that each defendant purposefully availed itself of the forum and expressly aimed its conduct there. Sending an article to a forum-based journal, prior expert work in the forum's courts, and knowing the plaintiff's home state did not meet that standard.
• Hall v. Johnson & Johnson (2023). At class certification, a court must weigh all evidence bearing on price impact, even where it overlaps with materiality. A defendant must prove by a preponderance of the evidence that no price impact occurred. Showing that corrective information was already public, or that a price drop fell just short of statistical significance, does not by itself sever the link to the stock price.
• In re Ltl Management LLC (2023). A substantial contribution claim under 11 U.S.C. § 503(b)(3)(D) and (b)(4) is narrowly construed and covers only non-duplicative services that directly and materially benefited the estate. It is not allowed for work that court-approved committee professionals were already doing or that mainly served individual claimants' interests.
• In re Ltl Management, LLC (2023). A bankruptcy court may extend the automatic stay to non-debtors, or enjoin actions against them under § 105(a), where unusual circumstances exist, such as shared insurance and identity of interests. Here the court found a reasonable likelihood of reorganization at this early stage and could not make a bad-faith finding on the undeveloped record.