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.

New Jersey

• Fowler v. Akzo Nobel Chemicals, Inc. (2022). An asbestos manufacturer or supplier that puts inadequate warnings on its asbestos bags has breached its duty to the worker, even if it gave adequate information to the employer. A medical-causation charge on the substantial factor test was sufficient even though it did not use the Sholtis 'frequency, regularity and proximity' wording.
• In re Ltl Management, LLC. (2022). A transferee bankruptcy court's predecessor order fixing a creditors' committee is law of the case that the U.S. Trustee cannot unilaterally override under § 1102. A bankruptcy court may review the U.S. Trustee's committee appointments under § 105(a) for arbitrary and capricious action and may disband a committee.
• Marino v. Abex Corporation (2022). A trial court may sanction a party for violating a discovery consent order by directing a verdict on duty and breach, and on general causation, where the violation was deliberate and the sanction fit it. Admitting a doctor's out-of-court statement about the cause of the disease was an error that did not warrant reversal.
• N RE Ltl Management, LLC (2022). The automatic stay under § 362(a)(1) and (3) may be extended to non-debtors where unusual circumstances exist, such as an identity of interests, indemnification obligations, shared insurance, or risk to reorganization. A § 105(a) injunction is an alternative basis if § 362(a) does not independently support the extension.
• Fowler v. Akzo Nobel Chemicals, Inc. (2021). A manufacturer cannot delegate its duty to warn to an employer but may discharge it, if reasonable under the circumstances, by giving adequate warnings to the employer; the jury must be told this. In multi-defendant asbestos cases, medical causation instructions must include the frequency, regularity and proximity test, not just a general proximate cause charge.
• Hammell v. Air & Liquid Systems Corporation (2021). Reconsideration is an extraordinary remedy requiring overlooked facts or law or clear error. A material factual dispute over what the Navy knew about asbestos hazards defeats summary judgment on the government contractor defense.
• In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation (2021). The party claiming privilege bears the burden of proving it. In-house litigation counsel's legal comments on business or public relations drafts are privileged when their primary purpose is legal advice, and sharing them with outside PR consultants helping counsel does not waive privilege. Technical, historical or routine business documents sent to counsel are not privileged without a showing that they were sent to obtain legal advice.
• Lanzo v. Cyprus Amax Minerals Company (2021). A trial court must act as gatekeeper under Accutane and the Daubert factors and assess the methodology and data behind expert opinions on novel causation theories, and admitting such opinions without that review can require a new trial. An adverse inference instruction against one defendant for spoliation can be unduly prejudicial to a co-defendant and require severance.
• Perrone v. Johnson & Johnson (2020). An ERISA stock-drop plaintiff cannot plead, as the alternative action, a corrective SEC disclosure that fiduciaries could make only in their corporate capacity, and general allegations that earlier disclosure would cause less harm do not show it would do more good than harm. Respondeat superior may be a basis for employer liability for fiduciary breaches.
• Fishbain v. Colgate-Palmolive Company (2019). A trial court does not abuse its discretion by excluding tangible samples whose chain of custody over about forty years is not shown under N.J.R.E. 901. Evidentiary errors, such as hearsay from a corporate representative and an FDA letter, are not grounds for reversal unless clearly capable of producing an unjust result.
• Hall v. Johnson & Johnson (2019). A securities fraud complaint may proceed where it alleges that a company's public statements that its products were safe and asbestos-free were contradicted by its own internal documents, so the statements were misleading when made. Opinion statements are actionable only if not honestly believed or lacking a reasonable basis, and general value statements are non-actionable puffery.
• In re Duro Dyne National Corp. (2019). A bankruptcy court may appoint a debtor's nominee as future claimants' representative under § 524(g)(4)(B)(i) after notice, discovery and a hearing, without deferring to the nominee, and the appropriate standard is the 'disinterested person' standard of 11 U.S.C. § 101(14), not an 'appearance of impropriety' standard.
• McClung v. 3M Company (2019). A plaintiff must show with sworn affidavits or other competent evidence, not conclusory pleadings or briefs, that the claims arise out of or relate to the defendant's own forum contacts. A defendant's purchases from a forum vendor, or the vendor's unilateral activity, do not establish specific jurisdiction. Arguments not raised before the magistrate judge are waived.
• Rebbeck v. Honeywell International, Inc. (2019). A trial court does not abuse its discretion in dismissing a foreign plaintiff's asbestos claims on forum non conveniens grounds where the U.K. is an adequate alternative forum and the public interest factors favor trial there. Perceived disadvantages in the foreign forum's tort, damages and cost rules do not make it inadequate.
• Rowe v. Bell & Gossett Company (2019). A settling defendant's interrogatory answers and corporate-representative deposition testimony can be admitted as statements against interest under N.J.R.E. 803(c)(25) without showing the declarant is unavailable, and the declarant need not be a party. A non-settling defendant who gives fair notice and presents prima facie evidence may have fault allocated to the settling defendants.
• Brandecker v. E&b Mill Supply Co. (2018). After a final judgment is entered, earlier interlocutory orders can be challenged under Rule 4:50-1, and newly discovered evidence (here, samples the defendant withheld in discovery) can justify vacating the judgment if it was not cumulative, could not have been found with due diligence, and would probably change the result.
• Rowe v. Bell & Gossett Company (2018). A non-settling defendant cannot use settled defendants' interrogatory answers and deposition testimony to prove their fault when the statements are offered against the plaintiff rather than against the statement-makers, and unavailability of a witness requires due diligence, including enforcing a notice in lieu of subpoena that survives dismissal.
• McClung v. 3M Company (2017). Under 28 U.S.C. § 1404(a) and Rule 21, a court may sever claims against one defendant and transfer them when the balance of private and public interest factors favors transfer and the events giving rise to the claim did not occur in the forum.
• Seymoure v. AO Smith Water Products Company (2016). Workers' compensation medical records are protected by statute and privacy interests, so they may be disclosed only with identifying information removed, or after weighing the Doe v. Poritz factors, and their use is limited to the present case absent employee consent.
• Feaster v. AW Chesterton Company (2015). Under New Jersey law, an asbestos plaintiff must show exposure to friable asbestos manufactured or distributed by the defendant, and failure to identify the defendant's product defeats the claim.
• Haas v. 3M Company (2015). Under New Jersey law, a mesothelioma plaintiff may use circumstantial evidence of exposure, together with expert proof, to reach a jury, and the exposure needed is lower for mesothelioma. Deposition testimony of a deceased witness may come in under Rule 804(b)(1) when a co-defendant who questioned the witness had a similar motive to the party it is offered against.
• Kaenzig v. Charles B. Chrystal Company, Inc. (2015). In an asbestos failure-to-warn case, a plaintiff must prove product-defect causation and medical causation, and exposure is a substantial factor if it meets the frequency, regularity and proximity test. Discovery of a non-testifying consulting expert's facts or opinions requires exceptional circumstances.
• Thomasson v. Air & Liquid Systems Corporation (2015). To recover in an asbestos case under New Jersey law (and similarly maritime law), a plaintiff must identify an asbestos-containing product made or supplied by the defendant and show exposure to it frequent and close enough to support causation; dismissal as a sanction for missed deadlines requires weighing the Poulis factors.
• Barnes v. Foster Wheeler Corp. (2014). Under New Jersey law, a plaintiff must identify an asbestos-containing product manufactured or supplied by the defendant to which the plaintiff was exposed; presence of asbestos insulation made by an unidentified party around the defendant's turbines is not enough, even in a mesothelioma case.
• Haas v. 3M Company (2014). Under New Jersey's frequency, regularity and proximity test, a plaintiff must show exposure to an asbestos-containing component of the defendant's product; speculation does not suffice. A contractor meeting the three Boyle prongs is shielded from both design defect and failure-to-warn claims where the specifications are silent on warnings.
• In re GI Holdings, Inc. (2014). A confirmed Chapter 11 plan binds creditors under res judicata, and a plan definition of "Claim" that includes any right to an equitable remedy discharges a late-asserted injunctive demand. A housing authority without regulatory power that seeks abatement costs acts as a creditor, so its injunction request is a dischargeable claim.
• Barile v. 3M Company, Inc. (2013). A builder of a custom boiler that is an improvement to real property is protected by the ten-year statute of repose, including for follow-up repairs and for strict liability claims based on standard asbestos insulation made by others. A landowner owes no duty to protect an independent contractor's workers from hazards inherent in the contracted work unless it controls the means and methods of that work.
• Commissioner of Insurance v. Integrity Insurance Company (2012). Under N.J.S.A. 17:30C-28a, only claims that are 'absolute' (liability and value fixed by payment or judgment, standing on their own) may share in an insolvent insurer's estate. Grace's estimated asbestos claims were not absolute, and its bankruptcy did not change that.
• Gaskill v. Abex Corporation (2012). Dismissal with prejudice is a permissible sanction where a party commits fraud on the court by deliberately lying about his work history in discovery and no lesser sanction would suffice. The trial court's decision is reviewed for abuse of discretion.
• Andreoli v. State Insulation Corporation (2011). A plaintiff may use fictitious-party practice under Rule 4:26-4 only if he did not know the defendant's identity, described the fictitious defendant adequately, supplied an affidavit on how he learned the identity, and acted diligently. The plaintiff bears the burden of showing this, and a defendant is prejudiced by losing the repose the statute of limitations gives it.
• Buttitta v. Allied-Signal, Inc. (2011). Under New Jersey Rule 4:58, a plaintiff may make an offer of judgment to a single defendant in a multi-defendant, joint and several liability case, and a defendant that does not accept it can be held liable for the fee, cost and interest awards the rule provides. The award did not violate due process.
• Anderson v. AJ Friedman Supply Co. (2010). An employer shielded by workers' compensation exclusivity for an employee's direct occupational exposure can still be sued under a dual persona theory for a separate duty owed to the employee's spouse for take-home asbestos exposure. Fault need not be allocated to the employer in its capacity as the plaintiff's own employer.
• Buttitta v. Allied Signal, Inc. (2010). In a mesothelioma case, the frequency, regularity and proximity test is applied in light of expert evidence that the disease can follow minimal and infrequent exposure, so brief but regular work near a defendant's asbestos product can support a jury finding of medical causation.
• In re Congoleum Corp. (2009). Pre-petition settlement payments to claimants who retained no stub claims against the estate did not create unequal treatment under Combustion Engineering, but fees paid to claimants' counsel are subject to court approval as reasonable under 11 U.S.C. § 1129(a)(4). Dismissing a Chapter 11 case sua sponte without notice and a hearing on creditors' best interests was an abuse of discretion.
• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• In re GI Holdings, Inc. (2005). Asbestos personal injury claimants hold Seventh Amendment and statutory jury trial rights that a § 502(c) estimation for distribution cannot strip, so a matrix that finally liquidates claims without a jury is rejected; the court may estimate aggregate liability and decide the legal validity of claims.
• Prudential Ins. Co. of America v. US Gypsum Co. (2001). A civil RICO claim accrues when the plaintiff knew or should have known of its injury, and a building owner who should have known of the potential asbestos hazard in its buildings more than four years before suing is time-barred. A prior state class settlement is given the preclusive effect it would have in the state that rendered it.
• Kurak v. AP Green Refractories Co. (1997). To hold an asbestos defendant liable, a plaintiff must show with direct or circumstantial evidence that he was exposed to that defendant's friable asbestos frequently, regularly and in close proximity, and mesothelioma's low dose threshold bears on that showing. Jurors must set damages without regard to how fault is apportioned among defendants, and the trial court must correct a jury question suggesting otherwise.
• Thalman v. Owens-Corning Fiberglas (1996). A jury damages award may be set aside or reduced only on a carefully reasoned and articulated finding that it would be a manifest denial of justice; a remittitur based on speculation or an unexplained 'more reasonable number' was improper.
• Jadlowski v. Owens Corning (1995). A punitive damages award so excessive that it shows prejudice, partiality or passion taints the whole verdict and cannot be cured by remittitur, so a new trial is required. Punitive damages are not awarded for wrongful death, and the award should focus on the defendant's conduct and the lifetime injuries rather than punishing the defendant for harm to all victims.
• Ripa v. Owens-Corning Fiberglas (1995). A defendant is bound only for the share of liability that remains after a settling party's agreed percentage is removed, so the judgment must be molded to that share. Admitting damaging documents against a defendant without proof it received them, and without the required conditional-relevance jury charge, is error that can taint a punitive award.
• Schiavo v. Owens-Corning Fiberglas (1995). A 'day in the life' videotape is admissible once the trial judge finds it relevant, probative and an accurate depiction of the injuries, and error in admitting punitive-phase documents without foundation may be harmless where the punitive award was minimal.
• Becker v. Baron Bros. (1994). Asbestos-containing products sold without warnings are not defective as a matter of law across the board; where the product's dangerousness is genuinely disputed, the jury must decide that first. Beshada is limited to the state-of-the-art defense. If the product is found dangerous and a warning would not destroy its usefulness, the court may then find it defective as a matter of law, leaving proximate cause to the jury.
• Goss v. American Cyanamid Co. (1994). A plaintiff must show exposure to the defendant's asbestos products with sufficient frequency, regularity and proximity, but may do so by circumstantial evidence, including a distributor's supply of the products to the plant. A trial court may not set aside a jury verdict and resubmit an issue when the evidence supports a reasonable inference for the jury's finding.
• Coffman v. Keene Corp. (1993). In a strict liability failure-to-warn case, the plaintiff may rely on a rebuttable presumption that he would have followed an adequate warning. In the workplace, the manufacturer can rebut it only by proving that the employee, with meaningful choice, or the employer would not have heeded a warning.
• Owens-Illinois, Inc. v. United Ins. Co. (1993). For asbestos liability coverage, the court adopted a continuous trigger covering the period from exposure to manifestation, and held that each triggered insurer is liable for the full loss up to its limits, subject to other-insurance clauses, rather than a prorated share. Questions of waiver, intent and fraud turn on state of mind and ordinarily cannot be decided on summary judgment.
• Landrigan v. Celotex Corp. (1991). Under Rubanick, an expert's causation opinion in toxic-tort cases is admissible if based on sound, reliable methodology, and a qualified non-physician such as an epidemiologist may testify to specific causation; a plaintiff may proceed on both strict liability and negligence without being forced to elect.
• Sholtis v. American Cyanamid Co. (1989). To defeat summary judgment in an asbestos case, a plaintiff must show exposure to a defendant's friable asbestos that was a substantial factor in causing the disease, shown by exposure of sufficient frequency, regularity and proximity, usually with expert proof linking the exposure to the condition. Market-share and similar collective liability theories do not apply to this cumulative-exposure case.
• Campolongo v. Celotex Corp. (1988). Under Rule 42(b), a court may sever strict liability from negligence and punitive damage claims in an asbestos failure-to-warn case and bar conduct-related proofs, if defendants waive conduct-based defenses. The court also said an asbestos product sold without a warning may be treated as defective as a matter of law.
• Millison v. EI du Pont de Nemours (1988). The fraudulent-concealment verdict could rest on circumstantial evidence and a jury could treat defendants' silence as evidence. OSHA citations are hearsay and are not admissible as public records or business entries, but their admission without a limiting instruction was harmless here.