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

• Nauheimer v. Union Carbide Corp. (In re New York City Asbestos Litigation) (2018). Under CPLR 602, consolidation of asbestos cases is favored where common questions exist and individual issues do not predominate, and the opposing party must show specific prejudice; one motion on notice to all affected parties suffices, and moving for consolidation does not waive a punitive damages claim.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2018). A jury verdict is set aside only if it could not be reached on any fair interpretation of the evidence, but damages that deviate materially from reasonable compensation must be reduced. A boiler maker has a duty to warn of asbestos hazards from foreseeable removal of its boilers and the asbestos components used with them.
• In re New York City Asbestos Litigation (2018). At a deposition a witness must answer questions about underlying facts, but questions asking for the witness's understanding of the parties' ultimate legal contentions, or for legal conclusions or inferences, are palpably improper and may be barred by protective order.
• Botta v. AERCO Int'l (In re New York City Asbestos Litigation) (2018). Consolidation is within the court's discretion and is generally favored where common questions exist, unless the opposing party shows specific prejudice. Not every Malcolm factor must be present, so long as individual issues do not predominate over common ones.
• Gibson v. Mack Trucks (In re New York City Asbestos Litigation) (2018). A personal jurisdiction defense not asserted in the first responsive pleading (answer or pre-answer motion) is waived under CPLR 3211(a)(8). Registering to do business in New York does not by itself confer general jurisdiction after Daimler.
• Chen v. Nissan North America (In re New York City Asbestos Litigation) (2018). Under the NYCAL Case Management Order, a party objecting to a Special Master's recommendation must follow the CMO's notice and objection procedure. A plaintiff who identifies a defendant's product at deposition has made a sufficient start to obtain jurisdictional discovery.
• Macaluso v. Carrier Corp. (In re New York City Asbestos Litigation) (2018). Under the NYCAL Case Management Order, defendants may use a settled non-party's interrogatory answers and, where the CPLR allows, its deposition to establish its share of fault under CPLR Article 16, so forcing a settling party to produce a live trial witness is contrary to the policy favoring settlement.
• Macaluso v. Burnham (In re New York City Asbestos Litigation) (2018). A settled non-party in the New York City Asbestos Litigation need not produce a live trial witness for a defendant's Article 16 purposes, because the Case Management Order lets defendants use non-party interrogatory answers and, where the CPLR allows, depositions, and compelling testimony would undercut the policy favoring settlement.
• Konstantin v. Certain Underwriters AT Lloyd's London (2018). On a motion to dismiss, a tortious-interference claim is sufficiently pleaded if it alleges the elements, and the claim is not barred by agent immunity where the agent is alleged to have acted in bad faith and in a predatory manner.
• Matter of Adesso v. AO Smith Water Prods. Co. (2018). Cases may be tried together only where there is a plain identity of issues, judged by factors such as worksites, occupations, exposure periods, disease, living or deceased status and shared defendants. Consolidation is appropriate if individual issues do not predominate over common ones, and the party opposing it must show specific prejudice.
• Matter of Murphy-Clagett v. AO Smith Water Prods. Co. (2018). Under the New York City Asbestos Litigation Case Management Order, defendants may meet their CPLR Article 16 burden as to settled non-parties through those non-parties' interrogatory answers and certain depositions, so forcing a settled party to produce a live trial witness is contrary to settlement policy and unnecessary.
• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litigation) (2018). Viewing the evidence in plaintiff's favor, it was legally insufficient to establish that Ford's conduct was a proximate cause of the decedent's mesothelioma under Parker v Mobil Oil Corp. and Cornell v 360 W. 51st St. Realty, so Ford was entitled to judgment as a matter of law under CPLR 4404 (a).
• Niemeyer v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (2018). A breach of warranty claim is governed by the four-year limit of UCC 2-725 and cannot be revived under CPLR 214-c, which covers only personal injury and property damage. Fraud must be pleaded with the specificity CPLR 3016(b) requires, and a civil conspiracy claim fails when the underlying tort fails.
• Montebianco v. AO Smith Corp. (2018). Cases may be joined for trial only where the plaintiffs show a plain identity of issues under the Malcolm factors, the case management order and New York case law. Similar exposure mechanisms did not outweigh the differences in occupation, worksite and disease.
• Pogacnik v. AO Smith Water Prods. Co. (2018). A notice of claim against the Port Authority is jurisdictional and strictly construed; using "approximately" for the exposure dates cannot stretch the claim to cover years several years beyond the stated period, and lack of prejudice to the Port Authority is immaterial.
• Robaey v. Air & Liquid Sys. Corp. (2018). Repeated exposure to visible dust from a defendant's asbestos gaskets, shown by its consistency, duration and intensity, can supply enough evidence of exposure to support an expert's specific-causation opinion under Parker; Juni does not require mathematical modeling or product-specific studies. A recklessness finding based on knowledge of asbestos hazards and failure to warn is not a finding of solely intentional conduct.
• Shulman v. Brenntag N. AM., Inc. (2018). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's illness, and speculative or conclusory expert affidavits fail that burden. Conflicting expert evidence on whether talc was contaminated with asbestos raises fact issues for trial.
• US v. Silver (2018). An indictment may charge a continuing bribery scheme in a single count, and the government need only prove that some aspect of the quid pro quo scheme continued into the limitations period. McDonnell did not overrule the 'as opportunities arise' theory of bribery.
• Watts v. A & J Plumbing & Heating Corp. (2018). A corporation that buys another's assets is not liable for the seller's torts unless it assumed the liability, there was a de facto merger or mere continuation, or the sale was fraudulent. The asset purchase agreement here excluded liability for product claims based on occurrences on or before the closing date.
• Carilli v. AO Smith Water Prods. Co. (2017). Under the New York City Asbestos Litigation Case Management Order, defendants may use non-party interrogatory answers to prove a non-party's product contained asbestos or lacked warnings for CPLR Article 16 apportionment, which removes the need to subpoena a non-party witness to testify at trial.
• Cunningham v. Aerco Intl. (2017). Under CPLR 602(a) the court may order joint trials where common questions of law and fact exist, applying the Malcolm factors. Consolidation is proper so long as individual issues do not predominate, and exact commonality of worksites or occupations is not required.
• Gallen v. Aerco Intl., Inc. (2017). Under the New York City Asbestos Litigation case management order, a non-defendant or settled party's interrogatory answers and deposition may be used to establish its share of fault under CPLR Article 16. Forcing a settled party to produce a trial witness would undermine the policy of encouraging settlement.
• Appleton v. Allied Signal (In re New York City Asbestos Litigation) (2017). Consolidation under CPLR 602 is within the court's discretion and is favored where common questions exist, unless the opposing party shows specific prejudice. Under the Malcolm factors, deceased mesothelioma plaintiffs with similar Navy exposure may be tried together, but living and deceased plaintiffs, and mesothelioma and lung cancer plaintiffs, are not grouped.
• Brooks v. AIR & LIQUID SYSTEMS CORPORATION (In re New York City Asbestos Litigation) (2017). Consolidation under CPLR 602 is discretionary and favored where common questions exist unless the opposing party shows specific prejudice. Using the Malcolm factors, the court grouped plaintiffs by living or deceased status and similar exposure and disease, and kept Navy-service cases apart from non-Navy cases.
• Carilli v. CRANE CO. (In re New York City Asbestos Litigation) (2017). A settled party in the New York City asbestos litigation cannot be forced to produce a live trial witness, because that would undercut the policy of encouraging settlement and the case management order. The defendant may instead use the settled party's interrogatory answers and prior deposition testimony to show its share of fault under CPLR Article 16.
• Aquitato v. AMCHEM PRODUCTS, INC. (In re New York City Asbestos Litigation) (2017). Consolidation of asbestos cases is within the court's discretion and is favored where common questions exist, unless the opposing party shows specific prejudice. Courts weigh the Malcolm factors, such as work site, occupation, time of exposure, disease, whether plaintiffs are living or deceased, and discovery status. Living and deceased plaintiffs, and Navy and non-Navy plaintiffs, should not be tried together.
• Cerutti v. Baruffaldi S.P.A. (In re New York City Asbestos Litigation) (2017). Where a plaintiff specifically identifies a foreign defendant's products and the defendant's jurisdictional affidavit is conclusory, the plaintiff has made a sufficient start to obtain discovery on how the products reached New York, whether directly or through a distributor or agent, to support specific jurisdiction under CPLR 302(a)(3).
• Macaluso v. A.O. Smith Corp. (In re New York City Asbestos Litigation) (2017). Consolidation of asbestos cases is within the court's discretion and favored where common questions exist, unless the opposing party shows specific prejudice. Factors include worksite, occupation, time of exposure, disease, whether plaintiffs are living or deceased, and discovery status. A living plaintiff should not be tried with deceased plaintiffs, and a Navy and maritime case with unique defenses should be tried separately.
• Altman v. Ford Motor Co. (In re New York City Asbetos Litigation) (2017). Consolidation of asbestos cases for a joint trial is discretionary. It requires common issues that predominate over individual ones, judged by factors such as worksite, occupation, time of exposure, disease type and whether the plaintiff is living, and the party opposing must show specific prejudice to a substantial right.
• Klock v. Albany Intl. Corp. (Onondaga, 2017). Courts decide whether to consolidate asbestos cases by applying a flexible set of factors, including common work site, occupation, time of exposure, disease, and the status of discovery. Differing discovery postures and differing exposure histories can outweigh common questions of law and fact and preclude consolidation.
• Konstantin v. Aetna Cas. & Sur. Co. (2017). A judgment creditor who satisfies Insurance Law § 3420 stands in the insured's shoes and may seek declaratory relief and proceed as a third-party beneficiary, but a GBL § 349 claim fails where the insurance dealings are between sophisticated parties and are not consumer-oriented.
• Matter of Diegelman v. City of Buffalo (4th Dept., 2017). Under General Municipal Law § 50-e (5), a court weighs all relevant factors, and no single factor decides the matter. Even assuming no reasonable excuse for the delay, a late notice of claim may be allowed where the municipality learned the facts within a reasonable time and showed no substantial prejudice.
• Matter of New York City Asbestos Litig. (2017). The Coordinating Judge issued a case management order setting procedures for all NYCAL asbestos personal injury and wrongful death cases, superseding earlier orders effective July 20, 2017; no party won or lost.
• Fogel v. American Int'l Indus. for Clubman (Matter of New York City Asbestos Litig.) (2017). In extremis cluster placement requires testimony that clearly anchors the alleged exposure to New York City; where plaintiff has neither sued nor identified any entity responsible for the New York City exposure source (an oven), that exposure does not supply the required nexus.
• Montanez v. Beck/Arnley Worldparts (Matter of New York City Asbestos Litigation) (2017). Under New York law, continuity of ownership is a necessary predicate to finding a de facto merger and successor liability for a seller's torts, and other indicia such as continuing benefit cannot substitute for it absent appellate direction.
• Matter of Schwartz v. AO Smith Water Prods. (2017). In the New York City Asbestos Litigation, the case management order lets defendants use non-party and settled-party interrogatory answers and depositions to prove their share of fault under CPLR Article 16, which makes a live corporate witness subpoena unnecessary.
• Mtr OF Nyc Asbestos Litig. (1st Dept., 2017). In a mesothelioma case, as in other toxic tort cases, plaintiff's experts must provide some scientific expression of exposure to the defendant's product at levels sufficient to cause the disease, as Parker and Cornell require. General association between asbestos and mesothelioma, visible dust and unquantified cumulative exposure are not enough.
• O'connor v. Aerco International, Inc. (3rd Dept., 2017). A defendant seeking summary judgment in an asbestos case must first show its products could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough. At summary judgment the defendant also bears the initial burden on specific causation (Parker).
• Snedeker v. Arvinmeritor, Inc. (Broome, 2017). In an asbestos case a defendant moving for summary judgment must first make a prima facie showing that its product could not have contributed to the plaintiff's injury; it cannot meet that burden by pointing to gaps in the plaintiff's proof.
• US v. Silver (2017). Under McDonnell, an "official act" must be a decision or action on a specific matter involving a formal exercise of governmental power, and an instruction covering any action under color of official authority is erroneous. The error is harmless only if clear beyond a reasonable doubt that a properly instructed jury would have convicted. Section 1957 money laundering does not require tracing of commingled funds.
• Barbarino v. BASF Catalysts, LLC (2016). Where a served defendant never responded or appeared and the plaintiff submitted the CPLR 3215 proof, a default judgment on liability is granted and damages are referred to a special referee. The court noted that Daimler did not affect long-arm jurisdiction under CPLR 302, the plaintiff's stated basis for jurisdiction.
• Hernandez-Vega v. Air & Liquid Sys. Corp. (2016). A defendant cannot obtain summary judgment by pointing to gaps or equivocation in a plaintiff's product-identification testimony; it must offer affirmative evidence, and discrepancies in the plaintiff's description of the product are credibility issues for the jury.
• In re Johns-Manville Corp. (2016). A person exposed to asbestos before the debtor's petition date holds a prepetition claim even if disease appears later. Such a claim against a Manville subsidiary is discharged by that subsidiary's plan and is also channeled to the Manville Trust under the Manville injunction, and notice by publication plus a future claims representative satisfied due process.
• LoGiudice v. Colgate-Palmolive Co. (In re New York City Asbestos Litigation) (2016). Requests for admission under CPLR 3123 must be narrow and aimed at facts not in dispute at trial, not used as a substitute for other discovery; duplicative supplemental document requests are not allowed under the case management order.
• DeMartino v. Aurora Pump Co. (In re New York City Asbestos Litigation) (2016). A defendant seeking summary judgment must affirmatively show that its product could not have contributed to the plaintiff's injury; a conclusory affidavit from a witness lacking personal knowledge of the relevant period, or pointing to gaps in the plaintiff's proof, does not meet that burden.
• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (1st Dept., 2016). An owner that specifies the means and methods of work and coordinates the trades can be liable under Labor Law § 200, and a pre-1996 indemnification clause covering all losses arising from the work can require the contractor to indemnify the owner, including fees for defending the plaintiff's action but not for prosecuting the indemnity claim.
• Jackson v. 84 Lumber Co. (Onondaga, 2016). State-of-the-art testimony is admissible where an adequate foundation is laid. Specific causation opinions on asbestos exposure need only give a scientific expression of exposure, and the question is generally one for the jury, so no Frye hearing was required.
• Acosta v. Avocet Enterprises (Matter of New York City Asbestos Litig.) (2016). Under CPLR 602(a), a court may consolidate asbestos actions for joint trial when they share common questions of law or fact and consolidation does not prejudice a substantial right of the defendants. No single factor, such as a common worksite or occupation, is dispositive.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (2016). A party challenging a joint-trial order must assemble an adequate appellate record and must specifically object when circumstances change, such as after some cases settle, to preserve the challenge. The Court of Appeals has no power to review a claim that damages are excessive.
• Cicio v. American Biltrite (Matter of New York City Asbestos Litig.) (2016). Consolidation for a joint trial is within the trial court's discretion and depends on factors such as worksite, occupation, exposure period, disease, whether plaintiffs are alive, and the number of defendants. Fairness to the parties is the paramount concern, and judicial economy does not justify consolidation where individual issues predominate.