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

• US v. Tzavah Urban Renewal Corp. (1988). The Clean Air Act and the asbestos NESHAP impose strict civil liability without proof of knowing or intentional violation, and owners or operators who stop renovation after finding asbestos remain bound to comply until it is properly disposed of. A preliminary injunction is warranted where the government shows likely success, irreparable harm, public interest and balance of hardships.
• Fischer v. Johns-Manville Corp. (1986). Punitive damages may be pursued and awarded in a strict liability, failure-to-warn products case, including asbestos cases, when the manufacturer knew of or was culpably indifferent to an unnecessary risk and refused to reduce the danger. The standard is a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.
• Seckular v. Celotex (1986). Under Florida law, the place of diagnosis does not necessarily determine where an asbestos-related cause of action arose for borrowing-statute purposes; that can be a fact question. A New Jersey court with no interest in the case should defer to the Florida courts as a matter of comity and allow voluntary dismissal without prejudice.
• Devlin v. Johns-Manville Corp. (Law Division, 1985). A person with asbestosis cannot recover damages for an enhanced risk of cancer alone when cancer cannot be shown to be reasonably probable. Emotional distress from that risk and the cost of medical monitoring are recoverable, and asbestosis and later cancer are separate diseases, so a later cancer claim is not barred.

New York

• Beagan v. Akebono Brake Corp. (1st Dept., 2025). New York's exercise of long-arm jurisdiction under CPLR 302(a)(3) over defendants in this toxic tort case was consistent with due process, and interstate federalism concerns did not outweigh the other relevant considerations. Material issues of fact remained, so no preliminary trial on jurisdiction was required.
• Biljetina v. Brenntag N. AM., Inc. (2025). A claim for latent asbestos injury must be brought within three years of discovery under CPLR 214-c(2). Equitable estoppel and relation-back did not save claims against a new defendant that showed no wrongdoing and no unity of interest with the original defendants.
• Gref v. American International Industries (2025). A Rule 41(a)(2) voluntary dismissal with prejudice should be denied only if it unduly prejudices the defendant, and a prevailing party seeking costs must show the amount and that the costs fall within the categories allowed by 28 U.S.C. § 1920.
• Kirby v. David Fabricators OF NY, Inc. (1st Dept., 2025). A prior dismissal with prejudice of a settled action does not bar a later suit against a defendant who was not a party to it and was not in privity with the settling party, an alleged joint tortfeasor. Joint tortfeasors are not necessary parties under CPLR 1001(a).
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (1st Dept., 2025). Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.
• Rasso v. Avon Prods., Inc. (2025). Even if an appellate ruling applying Texas causation law were a change in the law, a defendant moving for summary judgment must meet its prima facie burden under New York procedure by affirmatively disproving causation. Pointing to gaps in the plaintiff's proof under the governing substantive law is not enough.
• Gref v. American International Industries (2024). Under Rules 26(e) and 37(c)(1), preclusion of late-disclosed expert material is a harsh remedy. It was not warranted where the delay was harmless, discovery remained open and a continuance and reopened deposition could cure any prejudice.
• Gref v. American International Industries (2024). The court said it would decide the motion to preclude Plaintiff's supplemental expert disclosures before ruling on Colgate-Palmolive's request for more time to depose Dr. Moline, and it terminated the request for more time (ECF No. 376) for the time being.
• Gref v. American International Industries (2024). Sanctions under a court's inherent power require clear evidence that the challenged conduct was entirely without color and motivated by improper purposes; a colorable factual basis for the discovery sought defeats a bad-faith finding.
• Ironshore Specialty Insurance Company v. Color Techniques, Inc. (2024). Under New York law, an insurer may use extrinsic evidence that merely clarifies which claims an underlying plaintiff actually brings, without going to the merits, to show no claim falls within coverage. Coverage for the insured's 'work' covers services, not products, so product-based claims fall under the products coverage and its asbestos exclusion.
• Matter of Johnson & Johnson v. Northwell Health Inc. (1st Dept., 2024). Subpoenaed identities of subjects of scholarly articles on talc and mesothelioma are relevant to the credibility of the articles and are not shielded by HIPAA or the Common Rule. The party opposing disclosure bears the burden of proving a protective order applies, and production was not unduly burdensome.
• Matter of Lucano (Queens, 2024). Sealing court records requires a written finding of good cause, meaning a likelihood of significant and concrete harm and compelling circumstances. Confidentiality is the exception, and an unopposed motion or a confidentiality clause in the settlement does not alone satisfy that burden.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (1st Dept., 2024). A plaintiff shows specific causation under Nemeth by expert testimony based on generally accepted methodologies that offers a scientific expression of exposure level, such as quantitative exposure estimates backed by epidemiological risk data. The pain and suffering award did not deviate materially from reasonable compensation.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2024). A pain and suffering award that deviates materially from reasonable compensation under CPLR 5501(c) must be reduced or retried, and under General Obligations Law § 15-108 settlement amounts paid by settling defendants are deducted from the total award, with specified offsets for a settling defendant on the verdict sheet.
• McFarland v. Abb, Inc. (Erie, 2024). Successor liability rules do not confer personal jurisdiction over a successor, so jurisdiction cannot rest on a predecessor's New York acts. Where a prima facie showing of jurisdiction is not yet made but facts may exist, a plaintiff who makes a sufficient start is entitled to jurisdictional discovery under CPLR 3211(d).
• McLaughlin v. Air & Liquid Sys. Corp. (2024). A motion to reargue under CPLR 2221(d)(2) requires a showing that the court overlooked or misapprehended facts or law. The release's unambiguous language covered mesothelioma as an asbestos-related disease, so the claims against LILCO were released.
• Meissner v. Ridge Constr. Corp. (4th Dept., 2024). In an excess-coverage dispute over an asbestos judgment, an all-sums allocation applies where the excess policies contain non-cumulation clauses. Whether an injured plaintiff gave the insurer notice within a reasonable time, and when asbestos injury-in-fact occurred where experts conflict, are fact questions that cannot be decided on summary judgment.
• Moline v. Johnson & Johnson (2024). An out-of-state subpoena is enforced only if it meets New York's discovery standards, and the court reviews it anew when the issuing court never ruled on its merits. Study subjects' identities were not compelled because the requested material was too attenuated from the proof the underlying plaintiff would actually rely on.
• Pawlowski v. Avon Prods., Inc. (2024). Under CPLR 214-c the limitations period began when the plaintiff was informed of her mesothelioma diagnosis, not when a nodule was first found and removed, and the COVID-19 executive order toll extended the filing deadline.
• Silviano v. AO Smith Water Prods. Co. (2024). Under the case management order, cases may be joined for trial using the Malcolm factors, and not every factor must be present. Differing worksites do not bar joinder where adequate trial safeguards can avoid juror confusion.
• Bassier v. AO Smith Water Prods. Co. (2023). A defendant seeking summary judgment must affirmatively establish that its product could not have contributed to the plaintiff's injury; it cannot simply argue the plaintiff lacks proof. Plaintiff's deposition testimony identifying the product is enough to raise a fact issue.
• Cohen v. Air & Liquid Sys. Corp. (2023). Under the case management order and the Malcolm factors, asbestos cases may be joined for trial when enough factors are met; not every factor is required, and differing worksites do not preclude joinder.
• McWilliams v. AO Smith Water Prods. Co. (2023). A verdict is set aside as against the weight of the evidence only if no valid line of reasoning could lead rational jurors to it, and pain-and-suffering awards receive great deference. Counsel who submit false discovery responses and let an expert give false testimony uncorrected engage in sanctionable frivolous conduct under 22 NYCRR 130-1.1.
• Munna v. American Honda Motor Co., Inc. (2023). Under the case management order and the Malcolm factors, not all factors need be present for cases to be joined for trial; where most factors are met and common issues exist, joint trial is proper, and safeguards can limit juror confusion.
• Papsodero v. Air & Liquid Sys. Corp. (2023). Under the case management order and the Malcolm factors, two asbestos cases may be joined for trial even if not all factors are met, such as common worksites, where common issues of law and fact exist and safeguards can prevent juror confusion.
• Petro v. Aerco Intl., Inc. (2023). A jury verdict may be set aside only if no valid line of reasoning and permissible inferences could lead rational jurors to the result. Disputed facts, credibility and the weight of expert testimony are for the jury, and expert causation testimony needs enough specificity about exposure but not a precise numerical dose.
• Rodney v. Akebono Brake Corp. (2023). Post-note-of-issue discovery requires unusual or unanticipated circumstances, and a defendant seeking physical testing of a plaintiff's tissue must show the procedure's medical importance, safety, relevance and need, which outweighs the plaintiff's health interests.
• Rullo v. Abb, Inc. (2023). Under the Case Management Order and the Malcolm factors, two asbestos cases may be joined for trial when enough factors are met; not every factor must be present.
• Seen v. Kaiser Gypsum Co., Inc. (2023). A jury verdict in a toxic tort case stands where the experts tied the decedent's exposure to historical industrial hygiene data and studies showing sufficient exposure to cause mesothelioma, as Nemeth II requires. A pain-and-suffering award within the range of awards in similar cases is not excessive.
• Servedio v. AO Smith Water Prods. Co. (2023). Under the New York City Asbestos Litigation case management order and the Malcolm factors, cases may be joined for trial when enough factors are met. Three cases may be joined if the plaintiffs share the same disease category. Not every factor is required, and a lack of common worksites does not bar joinder.
• Sides v. Advance Auto Parts Inc. (2023). A defendant meets its summary judgment burden by showing that the exposure witness never identified its product, and the plaintiff must then produce admissible evidence of a triable issue of fact; speculation or unsubstantiated assertions are not enough.
• Winter v. AO Smith Water Prods. Co. (2023). Under the New York asbestos case management order and the Malcolm factors, up to three cases may be joined for trial where three or more factors are met and the plaintiffs share the same disease; not every factor, such as common worksites, must be present.
• Aylward v. Air & Liquid Sys. Corp. (2022). Cases may be joined for trial under CPLR 602(a) and the case management order when the Malcolm factors support it; not all factors must be met, and safeguards can prevent jury confusion.
• Barbarino v. BASF Catalysts LLC (2022). A summary judgment movant must first establish a prima facie case that its product could not have contributed to the injury; it cannot meet that burden merely by pointing to gaps in the plaintiff's proof.
• English v. Avon Prods., Inc. (1st Dept., 2022). A New York court has specific jurisdiction under CPLR 302(a)(1) over a nondomiciliary that maintained a New York office from which it marketed the product at issue, where the plaintiff used the product in New York, and exercising jurisdiction satisfies due process.
• Hunter v. Coty, Inc. (2022). A court may use its discretion to resolve a discovery dispute by ordering an incomplete deposition completed through interrogatories, giving defendants a chance to cross-examine, instead of precluding the testimony or compelling further oral examination of an ill plaintiff.
• Hunter v. Coty, Inc. (2022). A court may order written interrogatories in place of further deposition testimony when a plaintiff cannot continue a deposition because of her health and interrogatories are a feasible alternative.
• Hunter v. Coty, Inc. (2022). A plaintiff's incomplete deposition testimony is not precluded where she cooperated and stopped only because of her health. Interrogatories may complete the deposition in place of further oral questioning.
• Katechis v. Allied Bldg. Prods. Corp. (2022). A defendant's summary judgment motion fails where it rests on a deposition from an unrelated case that is inadmissible against the plaintiff under CPLR 3117, and the plaintiff's own testimony identifying the defendant as a supplier raises a factual question for the jury.
• Matter of Miller v. Mo Maier Ltd. (3rd Dept., 2022). The Board's decision whether to reopen a claim in the interest of justice is reviewed only for abuse of discretion, and none was found where the carrier failed to appear at the hearing and failed to properly seek review.
• Moutal v. AO Smith Water Prods. Co. (2022). A defendant seeking summary judgment on specific causation must make a prima facie showing, such as a study of the plaintiff's actual exposure levels with its product in his work setting; a reconstructed dose estimate without such a study is not enough, and pointing to gaps in the plaintiff's proof does not meet that burden.
• Theophil v. AO Smith Water Prods. Co. (2022). A summary judgment movant cannot meet its prima facie burden merely by pointing to gaps in the plaintiff's proof, and may not cure that failure with new evidence in reply. Personal jurisdiction under CPLR 302(a) was shown by O'Connor's New York business and use of New York real property connected to the alleged exposure.
• Unger v. AW Chesterton Co. (2022). A defendant moving for summary judgment cannot meet its burden by pointing to gaps in the plaintiff's proof. It must unequivocally show its product could not have contributed to the injury. Under the NYCAL case management order, a pending motion does not automatically stay discovery.
• Viglietta v. Asbestos Corp., Ltd. (Erie, 2022). Under Nemeth, an expert need not quantify exposure precisely if the methods used are generally accepted in the scientific community. Where a defendant invokes CPLR Article 16 apportionment, the plaintiff may invoke the reckless disregard exception of CPLR 1602(7).
• Backer v. Abb, Inc. (2021). Under the New York asbestos Case Management Order and the Malcolm factors, cases may be joined for trial when enough factors are met (three or more for a three-case joinder, with the same disease), even without common worksites, and safeguards can limit juror confusion.
• Camiolo v. American Biltrite Inc. (2021). In an asbestos action, a defendant is entitled to summary judgment absent proof that the plaintiff was exposed to asbestos from its products, but a defendant's prima facie showing fails to win summary judgment where the opposition raises fact issues about product identification and whether its tiles contained asbestos.