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.

California

• Booker v. Imerys Talc America, Inc. (1st Appellate District, 3rd Division, 2020). Under Code of Civil Procedure section 1032, a prevailing party with a net monetary recovery is entitled to costs as of right, and cost apportionment among defendants is discretionary only where a party recovers non-monetary relief. In any event, the challenged costs were reasonably necessary to the litigation.
• Estes v. Eaton Corporation (1st Appellate District, 2nd Division, 2020). An order granting a new trial for insufficient evidence must briefly identify the evidence or record that convinced the court the jury should have decided differently, not just restate ultimate facts. If the stated reasons are inadequate, the order is reversed and the judgment reinstated. A losing plaintiff challenging a defense verdict must show the evidence compelled a verdict in his favor as a matter of law.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2020). A plaintiff may prove past medical expenses through an expert's testimony on billed amounts where there is no evidence the lienholder or insurer would accept less, and a trial court has wide discretion to allocate prior settlement proceeds to future wrongful death claims when computing a nonsettling defendant's credit.
• Hart v. Keenan Properties, Inc. (2020). A witness's testimony that invoices bore a company's name and logo was circumstantial evidence of the source of delivered goods, not hearsay, because it was relevant regardless of the truth of the invoice's content; the trial court did not abuse its discretion in finding the invoices sufficiently authenticated.
• Toy v. Honeywell Int'l (In re Toy Asbestos Litigation) (2020). Modifying a Rule 16 scheduling order requires good cause, which turns mainly on the moving party's diligence, and Rule 26(e)'s duty to supplement does not let a party reopen expert deadlines.
• Kramer v. Amcord Inc. (1st Appellate District, 3rd Division, 2020). A trial court does not abuse its discretion under Evidence Code section 721(b)(3) where an expert's acknowledgment that a publication is generally reliable does not establish it as a reliable authority on the causation issue, and an economic damages award stands if supported by substantial evidence.
• Gibbons v. Johnson & Johnson Consumer (Laosd Asbestos Cases) (2nd District, Division 4, 2020). When a talc manufacturer supports summary judgment with expert testimony that its talc is asbestos-free, the plaintiff must produce competent evidence, in practice expert testimony, that the products she used were more likely than not contaminated with asbestos. Documents and an attorney's characterizations do not suffice.
• Mata v. Liberty Utilities (park Water) Corp. (2nd Appellate District, 3rd Division, 2020). Punitive damages against a corporation require clear and convincing evidence that an officer, director or managing agent had actual knowledge of the risk and willfully and consciously disregarded it; a failure to follow safety regulations, without evidence management knew asbestos was present, is not malice.
• Sabetian v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2020). A defendant that did not own, possess or control the premises owes no premises or negligence duty to workers there, and a guarantee in a contract not intended to benefit the workers does not create a duty under the J'Aire/Biakanja factors.
• Viale v. Air & Liquid Systems Corp. (2020). A defendant is entitled to summary judgment where plaintiffs lack admissible evidence that the decedent was exposed to its product; a lay witness's belief without a sufficient factual basis is inadmissible opinion, and an expert opinion resting on such testimony assumes facts not in evidence.
• Burch v. Certainteed Corporation (1st Appellate District, 4th Division, 2019). Civil Code section 1431.2 (Proposition 51) does not limit an intentional tortfeasor's liability for noneconomic damages to its percentage of fault, so the intentional tortfeasor stays jointly and severally liable for them.
• Deere v. Lizarraga (2019). A prison official is liable under the Eighth Amendment for unsafe conditions only if he knows inmates face a substantial risk of serious harm and disregards it. A warden's knowledge is not presumed from his position, and the plaintiff must offer evidence of exposure and causation.
• Malek v. Chevron U.S.A. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A defendant that did not own, operate or control a premises, was not a joint venturer or principal of the operator, and did not undertake responsibility for worker safety owes no duty of care; workers who only incidentally benefit from a contract are not intended third party beneficiaries.
• Linsowe v. Hennessy Indus. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A special verdict whose findings cannot be reconciled with one another is against the law, so a new trial is required; an appellate court may not choose between inconsistent answers, and the rule of reconciliation applies only to conflicts between general and special verdicts. Because of the inconsistencies, the court could not order JNOV on liability for either side.
• Friedman v. American Biltrite (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). Asbestos exposure may be shown through a plaintiff's testimony about breathing dust from an asbestos-containing product, and expert testimony that any exposure above background can increase mesothelioma risk can support substantial factor causation without a dose estimate. A minor difference between a study's method and the case facts goes to weight, not admissibility.
• Mettias v. The Pep Boys Manny, Moe & Jack of California (Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A party is entitled to instructions on every theory supported by substantial evidence, but not to general negligence instructions when the only supported negligence theory was the defendant's duty as a supplier, which specific instructions already covered. Any instructional error was harmless because the jury's special verdict findings made a different result not reasonably probable.
• Lopez v. the Hillshire Brands Company (1st Appellate District, 5th Division, 2019). CACI No. 435, the asbestos substantial-factor instruction based on Rutherford, applies to an asbestos claim against a premises owner that is not a manufacturer or supplier, and a 'but-for' causation instruction is not required where there may be multiple sources of exposure.
• Schildknegt v. Air and Liquid Systems Corp. (2nd Appellate District, 4th Division, 2019). A defendant does not shift the summary judgment burden on asbestos exposure unless it negates every pleaded theory, including that it acted as a supplier of replacement parts. A brand name on packaging is nonhearsay circumstantial evidence of a product's source. Under Rutherford, a plaintiff needs threshold exposure plus expert testimony that the exposure contributed to the risk of disease, and need not show a particular length, intensity or frequency of exposure.
• Viale v. Air & Liquid Systems Corp. (2019). A proposed amended complaint is deemed filed on the date the motion for leave is filed, so the amendment was timely. The defendant's arguments about its federal forum went to the effect of the amendment on jurisdiction, not to whether the pleading could be filed.
• Continental Casualty v. Chatz for Cfb/wfb Trust (2018). A party that repeatedly told the court that a threshold ruling decided the case and that judgment should be entered against it is judicially and equitably estopped from later raising a new coverage defense. An insurer's vexatious and unreasonable delay in paying claims supports a penalty and fees under Section 155 of the Illinois Insurance Code.
• Foglia v. Moore Dry Dock Company (1st Appellate District, 2nd Division, 2018). A defendant can shift the burden on summary judgment through plaintiffs' factually devoid discovery responses and other evidence, and an expert opinion resting on assumed facts with no admissible evidentiary support (here, that the father worked around asbestos at the shipyard) lacks foundation and cannot raise a triable issue.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2018). A witness's testimony about supplier names seen on invoices or delivery tickets that were not produced is hearsay offered for its truth. It is not admissible as a party admission, under the secondary evidence rule, or through authentication, and without it nothing showed the defendant supplied the pipe.
• Hubbard v. California Water Service Company (1st Appellate District, 3rd Division, 2018). Under Kinsman, the party asserting the exception to a hirer's general non-liability for a contractor's employees bears the burden of proving that the contractor neither knew nor could reasonably be expected to know of the concealed hazard. The contractor's actual or constructive knowledge is an essential element of the failure-to-warn claim.
• Alfaro v. Colgate-Palmolive Co. (Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2018). A trial court may not deny a prevailing party its statutory costs under Code of Civil Procedure sections 1032 and 1033.5 based on the losing party's inability to pay. Under section 998, the court may consider ability to pay when deciding expert witness fees, but only after assessing whether the offer was reasonable and made in good faith.
• Livernois v. National Ship and Shipbuilding Company (2018). Under Rule 41(a)(2), a court may allow voluntary dismissal without prejudice when the defendant identifies no cognizable prejudice, even if the plaintiff's motive involves forum shopping.
• Marteney v. Elementis Chemicals Inc. (2nd Appellate District, 4th Division, 2018). A pending appeal from the original plaintiffs' judgment did not strip the trial court of jurisdiction over the heirs' separate wrongful death claims, and a nonsettling defendant gets a section 877 credit for settlements the heirs did not sign only if those settlements bind the heirs.
• Sanchez v. Air & Liquid Systems, Corporation (2018). To remove under the federal officer statute, a defendant must show a colorable federal defense; a government-contractor defense is not colorable where the contractor offers no evidence that it warned the government of dangers it knew of that the government did not.
• Trapp v. CertainTEED Corporation (6th Appellate District, 2018). A defendant moving for summary judgment must produce admissible evidence negating an element of the claim, and an expert opinion built on case-specific data that is not in the record has no evidentiary value. Strict products liability can reach defendants in the stream of commerce when bystander injury is reasonably foreseeable.
• Williams v. the Pep Boys Manny Moe & Jack OF California (1st Appellate District, 4th Division, 2018). Damages in a survival action by a decedent's personal representative or successor in interest are limited to loss the decedent sustained or incurred before death and exclude 'lost years' damages. A Doe amendment relates back only if the plaintiff was actually ignorant of the facts establishing a claim against the defendant when the original complaint was filed.
• Wittman v. Coty, Inc. (2nd Appellate District, 4th Division, 2018). A defendant meets its initial summary judgment burden when the plaintiff's comprehensive discovery responses are factually devoid on product exposure to asbestos, and expert test results on a product sample may be excluded where the chain of custody linking the tested sample to the plaintiff's product is not established.
• Lyons v. Colgate-Palmolive Co. (1st Appellate District, 3rd Division, 2017). A plaintiff defeats summary judgment on product exposure by showing her use of the defendant's product together with expert evidence that the product contained asbestos; the lack of retained packaging or testing of her own container does not make that evidence speculative.
• Petitpas v. Ford Motor Company (2nd Appellate District, 4th Division, 2017). An employer's or premises owner's duty to prevent take-home asbestos exposure extends only to members of the worker's household, and a vehicle maker is not liable in design defect for asbestos in other makers' replacement brakes merely because its vehicles were compatible with them. A service provider that does not sell the asbestos parts it installs is not within the stream of commerce for strict liability.
• Phillips v. Honeywell International Inc. (5th Appellate District, 2017). An expert may testify that each identified, significant asbestos exposure contributed to a person's cumulative dose and risk of mesothelioma without relying on the rejected every-exposure theory. Substantial evidence supported the failure-to-warn finding and the finding of malice supporting punitive damages.
• Sandoval v. American Appliance Manufacturing Corp. (2nd Appellate District, 4th Division, 2017). Under Kesner, employers and property owners owe a duty to prevent take-home asbestos exposure to household members, and a defendant seeking summary judgment for lack of exposure evidence must show the plaintiff cannot obtain it. A dissolved corporation is not shielded from punitive damages claims, and a strict liability claim can rest on a bystander theory for defective components of the defendant's own product.
• Turley v. Familian Corporation (1st Appellate District, 2nd Division, 2017). To show exposure in an asbestos case, a plaintiff need not prove a specific exposure to a specific product on a specific date. It is enough that the defendant's product was at the work site and was prevalent enough to support an inference of exposure. A court may disregard a declaration under the D'Amico rule only when it clearly contradicts earlier sworn testimony.
• Zanowick v. Baxter Healthcare Corporation (2017). Rule 25(a)(1)'s 90-day substitution deadline does not require dismissal with prejudice; a district court has discretion to allow late substitution or to dismiss without prejudice, and may grant a Rule 41(a)(2) voluntary dismissal without prejudice.
• Baeza v. Special Electric Company, Inc. (2nd Appellate District, 4th Division, 2016). Under the consumer expectation test, the jury may consider the circumstances of a product's use, including the warnings, safety equipment and information given to the workers who were its ordinary users, and defense counsel may argue that evidence.
• Casey v. Kaiser Gypsum Co. Inc. (1st Appellate District, 4th Division, 2016). A trial court may order a retrial limited to malice and punitive damages before a new jury after the first jury deadlocks on malice, and Civil Code section 3295(d)'s 'same trier of fact' language does not forbid this. Punitive damages must also satisfy due process limits, which here required reducing the award to a 2.5-to-1 ratio against Kaiser Gypsum's share of compensatory damages.
• Davis v. Honeywell International Inc. (2nd Appellate District, 4th Division, 2016). Under Sargon, a trial court may admit expert testimony that each asbestos exposure contributed to the risk of mesothelioma, because the court does not resolve scientific disputes and Rutherford does not require a dose estimate. A jury instructed in line with Rutherford's substantial-factor standard (CACI No. 435) need not also receive a list of exposure factors.
• Flintkote Co. v. Aviva Plc (2016). Under California law and Fuller-Austin, an excess insurer's obligation to pay amounts the insured is 'obligated to pay' to a section 524(g) asbestos trust is limited to the trust's payment percentage, not the liquidated value. California Insurance Code section 1616 mandates a bond from a nonadmitted alien insurer that files a pleading.
• Flintkote Company v. Aviva Plc (2016). Under California law, following Fuller-Austin, an insurer whose policies cover sums the insured is 'obligated to pay' owes only the payment percentage the insured's § 524(g) asbestos trust actually pays claimants, not the claims' full liquidated value. Cal. Ins. Code § 1616 makes a bond mandatory for a nonadmitted alien insurer filing pleadings.
• Gerlach v. Goodman Lumber Company (1st Appellate District, 1st Division, 2016). An expert may rely on otherwise inadmissible hearsay of a type experts reasonably rely on, so an industrial hygienist's declaration on asbestos content had adequate foundation. With the plaintiff's testimony about buying joint compound from the defendant, it raised a triable issue of exposure.
• Hanson v. Collins Electrical Co. (1st Appellate District, 1st Division, 2016). Under Potter v. Firestone, medical monitoring damages in a negligence action do not require present physical impairment. The question is whether expert evidence shows monitoring is a reasonably certain and reasonable consequence of the toxic exposure.
• Kordestani v. ExxonMOBIL Oil Corporation (2nd Appellate District, 4th Division, 2016). Summary adjudication of one claim or one issue of duty (premises liability, strict product liability) does not preclude other negligence theories based on different duties, such as a special relationship arising from contract or an undertaking to give technical advice. A party not aggrieved by an appealable order lacks standing to cross-appeal.
• Lepore v. Kelsey-Hayes Co. (1st Appellate District, 4th Division, 2016). A plaintiff in an asbestos case must show exposure to the defendant's asbestos-containing product, and may do so with circumstantial evidence. Evidence that the worker was present when work was done on a defendant's products can create a triable issue, but evidence that merely shows a supplier was one of many sources is insufficient.
• Lund v. 3M Company (2016). Under the Ninth Circuit's McIndoe decision, Navy warships are not 'products' for strict liability, so a shipbuilder cannot be strictly liable for building the ship. A shipbuilder can still be strictly liable for a specific asbestos-containing product it actually manufactured.
• Marquez v. Pac Operating Limited Partnership (2nd Appellate District, 4th Division, 2016). A trial court may use its inherent power to control proceedings to exclude, through a motion in limine, a theory a party first disclosed after discovery closed, where the other side was unfairly surprised and prejudiced. A motion in limine needs no formal notice of its grounds, and this exclusion was not a discovery sanction requiring a finding of willful misconduct.
• O'leary v. Dillingham Construction NA, Inc. (1st Appellate District, 1st Division, 2016). An expert opinion based on an eyewitness description of the material and the expert's knowledge of insulation in use at the time is not speculative or lacking in foundation. A party opposing summary judgment need not give the level of explanation required of the moving party's expert.
• Unterleitner v. BASF Catalysts LLC (2016). A case not initially removable because of a non-diverse defendant becomes removable only through the plaintiff's voluntary act, so a dismissal ordered over the plaintiff's opposition, or one not formally entered, does not create diversity. Removal also requires all defendants to join or an exception to be shown, and fees are proper when removal lacked an objectively reasonable basis.
• Untermann v. D. Zelinsky & Sons, Inc. (1st Appellate District, 4th Division, 2016). A defendant can shift the burden on summary judgment by showing the plaintiff cannot identify asbestos-containing materials tied to the defendant's activities. The plaintiff then needs admissible evidence of exposure, and an expert opinion lacking foundation about the specific products may be excluded without abuse of discretion.