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 York

• Castro v. Johnson & Johnson (2021). The court adopted the magistrate judge's recommendation without de novo review because no party objected, and granted summary judgment on the ground that the claims were time-barred.
• Faivor v. Amchem Prods., Inc. (2021). A defendant seeking summary judgment in an asbestos case must first show its product could not have contributed to the plaintiff's disease. Conflicting expert opinions on whether chrysotile causes peritoneal mesothelioma raise fact issues for a jury. A summary judgment motion must also include the statement of material facts required by 22 NYCRR 202.8-g.
• Fitzwater v. Air & Liquid Sys. Corp. (2021). A New York court lacks general jurisdiction over a corporation that is neither incorporated nor has its principal place of business in New York, and lacks specific jurisdiction under CPLR 302(a) where the claims have no connection to the defendant's New York conduct.
• Graham v. Bristol-Myers Squibb Company (2021). Under Rule 41(a)(2), a court should grant voluntary dismissal without prejudice absent a showing of substantial legal prejudice to defendants, assessed under the Zagano factors; starting litigation over again is not legal prejudice.
• Davis v. CompuDyne (In re Eighth Judicial District Asbestos Litigation) (Erie, 2021). Expert reports attached to an attorney affirmation are inadmissible hearsay and cannot meet a movant's initial summary judgment burden; competing expert opinions on causation present a jury question.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (1st Dept., 2021). Issues of fact on whether the Port Authority had authority to control the activity that caused the injury, here the application of asbestos-containing materials, precluded summary judgment. A plaintiff opposing summary judgment may show an acceptable excuse for not tendering evidence in admissible form, and inadmissible evidence need not be the sole basis for finding fact issues.
• Witte v. Algoma Hardwoods, Inc. (2021). A plaintiff who has made a sufficient start by identifying the defendant's product is entitled to jurisdictional discovery on how the product reached New York, where the defendant's affidavit denying New York contacts is conclusory.
• Castro v. Colgate-Palmolive Company (2020). A district court need not review a magistrate judge's recommendation de novo when no party objects, and may adopt it.
• Castro v. Colgate-Palmolive Company (2020). The magistrate judge recommended denying as moot all three pending motions (CVS Pharmacy's two motions to dismiss or transfer and the Castros' cross-motion for leave to amend) because the Castros had dismissed CVS without prejudice, leaving the scheduling order in place.
• Fischer v. American Biltrite, Inc. (1st Dept., 2020). A defendant moving for summary judgment in an asbestos case must first show unequivocally that its product could not have contributed to the decedent's injury; pointing to gaps in the plaintiff's proof does not meet that burden.
• Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation) (Erie, 2020). Defendants moving for summary judgment in an asbestos case must offer admissible evidence that their products could not have contributed to the injury; pointing to gaps in plaintiff's proof is not enough. Interrogatory answers sworn under oath but made on information and belief are acceptable, especially where the injured person is deceased.
• Luca v. The Neslemur Co. (In re New York City Asbestos Litigation) (2020). A dissolved foreign corporation previously authorized to do business in New York may be served through the Secretary of State under BCL 306(b) for liabilities incurred in New York before dissolution, and a mistaken reliance on BCL 307 is disregarded. New York may exercise specific jurisdiction under CPLR 302(a)(1) and (2) where the claim arises from the defendant's New York business and product sales.
• DeKlerk v. Estée Lauder (In re New York City Asbestos Litigation) (2020). A forum non conveniens dismissal requires the movant to meet a heavy burden. It is not warranted where the action has a substantial nexus to New York beyond the defendant's corporate presence and no adequate alternative forum is available. Unreasonable delay in moving can also waive the ground.
• Vincent v. Baltimore Aircoil Co. (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's illness; a conclusory affidavit and pointing to gaps in plaintiff's proof do not meet that burden, and conflicting evidence raises credibility issues for trial.
• Eckrich v. ECR Int'l (In re New York City Asbestos Litigation) (2020). In New York City asbestos litigation, a plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred, and summary judgment is denied where plaintiff has presented sufficient evidence, not all of it hearsay, to warrant a trial.
• Minassian v. Kolmar Laboratories (In re New York City Asbestos Litigation) (2020). Under the NYCAL Case Management Order, boilerplate objections of burdensomeness and privilege that are not stated with particularity, and a work-product claim without a privilege log, are insufficient and the privilege is deemed waived.
• Montell v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (2020). A New York court lacks general jurisdiction over a corporation not incorporated or headquartered in New York, and lacks specific jurisdiction under CPLR 302(a) where the exposure occurred outside New York and there is no articulable nexus to the defendant's New York contacts; a supplier's New York headquarters and contracting with it are not a sufficient start for jurisdictional discovery.
• Peterson v. Vanderbilt Mineral (In re New York City Asbestos Litigation) (2020). A court may grant renewal in the interest of justice to allow expert reports in proper form where the failure to submit them earlier was inadvertent and the other side shows no prejudice. Conflicting expert reports on general and specific causation raise fact issues that bar summary judgment, and a venue change motion served long after the answer is untimely.
• Conaway v. ABB (In re New York City Asbestos Litigation) (2020). A defendant that waits many months after the note of issue and long after discovery to seek forum non conveniens dismissal waives that relief, and the motion is untimely under the NYCAL 45-day rule for dispositive motions.
• English v. Johnson & Johnson (In re New York City Asbestos Litigation) (2020). A motion to reargue must be made within 30 days of service of the order with notice of entry, and renewal requires a change in the law or new evidence with a reasonable justification for not presenting it earlier; a concurrent trial-court decision is not a change in law.
• Hardman v. Revlon (In re New York City Asbestos Litigation) (2020). The CPLR does not require a party to serve a fact witness list naming the individuals who will testify at trial, and a Special Master may decline to compel named witnesses while discovery is ongoing and far from trial.
• Germain v. The Neslemur Co. (In re New York City Asbestos Litigation) (2020). A dissolved foreign corporation that was previously authorized to do business in New York may be served through the Secretary of State under BCL § 306(b) for liabilities incurred in New York before dissolution, and service mistakenly made under the stricter BCL § 307 is not fatal. New York courts may exercise specific jurisdiction under CPLR 302(a)(1) and (2) where the claim arises from the defendant's New York business and in-state tortious conduct.
• Mauro v. John E. Potente & Sons (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing through admissible evidence that its product did not contribute to the illness, and cannot do so merely by pointing to gaps in the plaintiff's proof or by relying on an attorney's affirmation.
• Mauro v. Kennedy Electrical Supply, Corp. (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the injury, and a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. Deposition testimony taken without notice to a later-added defendant is inadmissible hearsay against it, but other evidence can still raise a fact issue.
• Peterson v. Vanderbilt Minerals (In re New York City Asbestos Litigation) (2020). In asbestos cases under New York toxic tort law, plaintiffs must offer admissible expert evidence of exposure sufficient to cause the disease. Unsworn or improperly affirmed expert reports cannot defeat summary judgment, and reports filed after the motion was submitted will not be considered.
• Mauro v. Consolidated Edison of New York (In re New York City Asbestos Litigation) (2020). Under Labor Law § 200, liability may attach to a party that controls the work through specifications directing the means and methods of using asbestos-containing products, monitors compliance, and can stop work; conflicting testimony on control raises credibility issues that preclude summary judgment.
• Slonim v. J & R Film Co. (In re New York City Asbestos Litigation) (2020). Renewal under CPLR 2221(e) requires new facts that would have warranted a different result. The plaintiffs' private testing of one Moviola did not make inspection of defendants' machines irrelevant, because that inspection could produce material and necessary evidence under CPLR 3101(a).
• Rivera v. Meriden Molded Plastic (In re New York City Asbestos Litigation) (2020). A defendant in an asbestos case cannot win summary judgment by pointing to gaps in the plaintiff's proof; it must first unequivocally show its product could not have contributed to the plaintiff's disease. Evidence and arguments raised for the first time in reply papers are not properly considered.
• Rothlein v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough.
• Salzano v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (2020). A witness's account of a co-worker's contemporaneous statement naming the joint compound brand can qualify as a present sense impression if corroborated, such as by the manufacturer's prior interrogatory answers, which raises a fact issue on product identification.
• Germain v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (2020). A supplier seeking summary judgment on product identification must first show its product could not have contributed to the plaintiff's illness. Plaintiffs need only show facts from which liability can be reasonably inferred, and conflicting testimony about exposure raises credibility issues for a jury.
• Koenig v. Pneumo Abex (In re New York City Asbestos Litigation) (2020). New York courts lacked general or specific personal jurisdiction over a non-New York defendant where the plaintiff's exposure and injury occurred in Massachusetts, and a New York office and contract negotiations alone did not make a sufficient start for jurisdictional discovery.
• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (4th Dept., 2020). A plaintiff need not quantify exposure precisely or use dose-response data to prove specific causation; evidence that the plaintiff was exposed to levels of the agent known to cause the harm, including expert opinion drawing on studies of similar work, suffices. A verdict sheet need not list loss of services and loss of society as separate items.
• Matter of New York Asbestos Litig. (1st Dept., 2020). A defendant seeking summary judgment must first show that the decedent could not have been exposed to its products or their asbestos. Apparent inconsistencies in a witness's testimony raise credibility issues that cannot be resolved on summary judgment.
• Montell v. Viking Pump (Matter of New York City Asbestos Litigation) (2020). New York courts lacked general jurisdiction over a corporation not incorporated or headquartered there, and lacked specific jurisdiction under CPLR 302(a) where the plaintiff's alleged exposure occurred outside New York and had no articulable nexus to the defendant's New York contacts; a plaintiff who made no sufficient start was not entitled to jurisdictional discovery.
• Stiglitz v. Homasote Co. (Matter of New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof, or relying on conclusory expert and corporate affidavits contradicted by its own interrogatory answers, does not meet that burden.
• Lanza v. Kaiser Gypsum Co. (Matter of Nyc Asbestos Litig) (2020). Two asbestos actions may be tried jointly under CPLR 602(a) and the Malcolm factors when individual issues do not predominate over common questions and the defendant shows no real prejudice.
• McDaniel v. Revlon, Inc. (2020). A court should grant a Rule 41(a)(2) dismissal without prejudice absent a showing of substantial legal prejudice to defendants, assessed under the five Zagano factors; having to start the litigation over is not legal prejudice.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Sargent v. Paccar, Inc. (Albany, 2020). A defendant seeking summary judgment in an asbestos case must first show its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof is not enough, and the plaintiff's burden arises only after that showing.
• Schrank v. Amchem Prods., Inc. (2020). In a toxic tort asbestos case, plaintiffs' expert opinions must show exposure to sufficient levels of asbestos from the particular defendant's product to cause the disease. Opinions that give no basis for estimating exposure from that defendant's products do not raise a triable issue on specific causation.
• Allen v. Air & Liquid Sys. Corp. (2019). A plaintiff opposing summary judgment in an asbestos case need only show facts from which the defendant's liability may be reasonably inferred, and a failure to identify the exact pump or its location does not defeat the claim. A motion supported only by an attorney's affirmation, without the deposition transcript annexed, also fails to show entitlement to judgment.
• Alleyne v. AO Smith Water Prods. Co. (2019). A party seeking an open commission for out-of-state discovery must make a strong showing that the testimony is necessary and unavailable from other sources, and must show the witnesses would not cooperate or that a commission is needed. Overbroad subpoenas must be limited to the stated purpose.
• Billok v. Union Carbide Corp. (3rd Dept., 2019). Under CPLR 3117, a deposition taken in another action may not be used against a party who was not present or represented at it, and a witness who never testified in this action cannot be impeached with a different deposition. Admitting the 2007 testimony on the central issue was not harmless error.
• Nelson v. Holley Performance Prods. (In re New York City Asbestos Litigation) (2019). After Daimler, a corporation is subject to general jurisdiction only where it is incorporated or has its principal place of business, and specific jurisdiction under CPLR 302(a) requires that the claims arise from the defendant's New York conduct or injury in New York.
• Slonim v. J & R Film Co. (In re New York City Asbestos Litigation) (2019). Leave to amend a pleading is freely given absent prejudice or a palpably insufficient claim; res judicata did not bar the claims where the movants lacked privity with the party to the earlier unopposed order, and severance of a third-party action is disfavored where it will not unduly delay the main action.
• Alleyne v. Chanel (In re New York City Asbestos Litigation) (2019). A party objecting to discovery as a trade secret need only make a minimal, non-conclusory showing, after which the burden shifts to the requesting party to show the information is indispensable and cannot be obtained any other way; until other possibilities are exhausted, the trade secret need not be disclosed.
• Alder v. A.O. Smith Water Prods. (In re New York City Asbestos Litigation) (2019). Consolidation under CPLR 602 is favored where common questions exist, but cases of living and deceased asbestos plaintiffs should not be joined because of the risk of prejudice to defendants. Cases with widely separated exposure periods and different available defenses also should not be joined.
• Proctor v. Burnham (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony raises credibility issues that cannot be resolved on papers.