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

• Koulermos v. O'Connor Constructors (Matter of New York City Asbestos Litig.) (2016). A defendant moving for summary judgment in a New York asbestos case must affirmatively show its work could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's evidence is not enough.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (2016). A manufacturer that knew its product would mainly be used with asbestos-containing brakes and designed it for that use may be held to have a duty to warn. Visible dust from an asbestos-containing product can support expert testimony on specific causation of mesothelioma without precise dose quantification.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). A manufacturer that promoted and sold asbestos insulation for its boilers, and for which insulation was a practical necessity, could be held to have a duty to warn of asbestos hazards. Unpreserved objections to jury instructions are not reviewed.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (1st Dept., 2016). Applying the Court of Appeals' 2016 standard, a manufacturer may be liable for failing to warn of asbestos hazards in insulation used with its products where it promoted and sold that insulation and its products needed insulation to operate safely and efficiently.
• Mtr OF Diegelman v. City (2016). A police officer who receives General Municipal Law § 207-c benefits may still sue the employer under § 205-e when the municipality has elected not to provide workers' compensation coverage, because the § 205-e bar applies only to recipients of workers' compensation benefits.
• Mtr OF Nyc Asbestos Litig. (2016). A manufacturer has a duty to warn of the danger from the known and reasonably foreseeable use of its product together with a third-party product that, by design, mechanics or economic necessity, is necessary for the manufacturer's product to function as intended. Foreseeability alone does not create the duty.
• US v. Silver (2016). A defendant seeking bail pending appeal must show a substantial question of law or fact likely to result in reversal or a new trial. A jury charge that omits McDonnell's limits on "official act" can raise such a question where the harmless-error analysis is close.
• US v. Silver (2016). Circumstantial evidence can prove an implicit quid pro quo for honest services fraud and Hobbs Act extortion, and the Government need not trace commingled funds to prove money laundering under 18 U.S.C. § 1957.
• Warren v. Amchem Prods., Inc. (2016). New York law governed the privilege waiver question, because New York has the strongest interest as the site of the alleged exposure. Under New York law, a party that repeatedly fails to safeguard a privileged document and lets its witness and counsel disclose it waives the privilege.
• Assenzio v. AO Smith Water Prod. (2015). A court may use its discretion to modify its earlier order and to stay proceedings, even without new facts. Here it extended the time to accept a reduced verdict until an appeal on how remittitur is evaluated is decided, because the potential prejudice to plaintiffs outweighed defendants' interest in knowing sooner.
• Assenzio v. AO Smith Water Prods. (2015). Reargument requires showing the court overlooked or misapplied law, and renewal requires new facts or a change in law; a pending appeal and a judgment-molding calculation under General Obligations Law § 15-108 do not qualify. The court may still grant a stay under its discretionary authority (CPLR 2201).
• Assenzio v. AO Smith Water Prods. Co. (2015). After verdict, a court may mold the judgment using the aggregate amount of settlements (the Didner method) without disclosing individual settlement agreements or amounts. Disclosure is not required where plaintiffs timely disclosed their claims and the agreements show no new liability information.
• Brown v. Bell & Gossett Co. (2015). An owner is not liable under Labor Law § 200 for work-method hazards unless it supervised or controlled the injury-producing work. Specifications requiring asbestos-containing materials did not by themselves show such control or create a dangerous condition.
• Byer v. Bell Helicopter Textron, Inc. (2015). Although Rule 37(c)(1) calls for preclusion of late-disclosed expert information, courts in the Second Circuit treat it as discretionary and weigh the explanation, the testimony's importance, prejudice to the opponent and the possibility of a continuance. Preclusion was not warranted where discovery remained open, no trial date was set, and the opinions were not novel.
• In re Johns-Manville Corporation (2015). An injunction covering claims 'related to' an insurer's services for the debtor is unambiguous and broad, and it bars claims against the insurer that rest on its dealings with the debtor. A future claimants' representative gave future claimants constitutionally sufficient notice of the proceedings that produced the orders.
• Koulermos v. Treadwell Corp. (In re New York City Asbestos Litig.) (2015). A defendant moving for summary judgment must first make a prima facie showing of no material issue of fact; failing that, and given factual disputes over when the plaintiff worked at the site and whether he worked alongside the defendant's employees, cross-claims cannot be dismissed.
• Hernandez-Vega v. Fisher Controls Int'l (In re New York City Asbestos Litigation) (2015). A defendant moving for summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's injury, and personal jurisdiction defenses not raised in a pre-answer motion or the answer are waived under CPLR 3211(e). A valve maker with a sufficiently significant role, interest or influence in the asbestos parts used with its valves may be liable even if the valve was "bare metal."
• Ricci v. Cleaver-Brooks (In re New York City Asbestos Litigation) (2015). A defendant seeking summary judgment must unequivocally show that its product could not have contributed to the plaintiff's injury. Weighing the credibility of equivocal product-identification testimony is a jury function, not a basis for summary judgment.
• Cuzzolino v. A.O. Smith Water Prods. (In re New York City Asbestos Litigation) (2015). Trial courts may consolidate asbestos actions for joint trial under CPLR 602(a) when they involve common questions of law or fact and consolidation does not prejudice a substantial right. The Malcolm factors guide the decision, and no single factor is dispositive.
• Brady v. Crane Co. (In re New York City Asbestos Litigation) (2015). Consolidation of asbestos cases for joint trial is discretionary. It should be granted unless the opposing party shows specific prejudice to a substantial right, and it should be denied where individual issues predominate. Courts weigh factors such as common worksite, occupation, exposure period, disease, whether plaintiffs are alive, and the number of defendants.
• Flahive v. 3M Co. (In re New York City Asbestos Litigation) (2015). Under CPLR 602(a), a court may consolidate asbestos cases for joint trial when individual issues do not predominate, and the Malcolm factors, such as disease type, counsel, discovery status and manner of exposure, need not all match exactly.
• Gayoso v. Fiat USA (In re New York City Asbestos Litigation) (2015). Where a defendant claims it is not the successor to the company that sold the product, the plaintiff may take limited discovery on the corporate relationship before summary judgment, because the Schumacher successor-liability exceptions, de facto merger and alter ego theories cannot be ruled out on the existing record.
• Storey v. Morse Diesel (In re New York City Asbestos Litigation) (2015). A general contractor seeking summary judgment on Labor Law § 200 and negligence claims must first establish prima facie that it did not create or have notice of the dangerous condition and lacked supervision and control; where it does not, the motion fails.
• Smyth v. Crane Co. (In re New York City Asbestos Litigation) (2015). A defendant moving for summary judgment in an asbestos case must first make a prima facie showing that its product could not have contributed to the plaintiff's injury; Crane did not, and plaintiff's deposition testimony also raised fact issues for a jury.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (2015). A verdict is set aside as a matter of law only where no valid line of reasoning could support it. Testimony on cumulative asbestos exposure, together with evidence of exposure to the defendant's equipment, can establish causation under New York's Frye standard. Awards that deviate materially from reasonable compensation must be reduced.
• Hackshaw v. Crane Co. (In re New York City Asbestos Litigation) (2015). A verdict may be set aside only where no valid line of reasoning could support it. A manufacturer with a significant role, interest or influence in the asbestos components used with its products may owe a duty to warn, and evidence of that role supported the failure-to-warn and recklessness findings. Awards that deviate materially from reasonable compensation are reduced under CPLR 5501(c).
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (Erie, 2015). A trial court may set aside a damages award that deviates materially from reasonable compensation and order a new trial unless the defendant stipulates to a higher award. The jury's allocation of 100% fault to the defendant was a fair reading of the evidence, and New York law applied because the plaintiff lived in New York when first exposed.
• Galasso v. BF Goodrich (Matter of New York City Asbestos Litig.) (2015). A defendant that made both asbestos-containing and asbestos-free products must eliminate the possibility that plaintiff was exposed to the asbestos-containing product, and it must account for residual marketplace use after it stopped making it. Equivocal identification testimony raises credibility issues for the jury.
• Best v. The William Powell Co. (Matter of New York City Asbestos Litig.) (2015). A joint trial is discretionary and should be granted unless the opposing party shows prejudice to a substantial right, but not where individual issues predominate over common ones. Courts weigh factors such as common worksite, occupation, period of exposure, disease, whether plaintiffs are alive, and number of defendants.
• Lefrak v. American Biltrite (Matter of New York City Asbestos Litig.) (2015). A defendant moving for summary judgment in an asbestos case must first establish prima facie that its product could not have contributed to the plaintiff's injury; absent that, the motion is denied, and witness credibility and conflicting testimony are for the jury.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (1st Dept., 2015). Under CPLR 3215(g)(1), a court may dispense with notice and a hearing on damages where the defendant failed to proceed to trial of an action reached and called for trial, so damages may be assessed without an inquest.
• Moore v. AERCO Int'l (Matter of New York City Asbestos Litigation) (2015). Under CPLR 602(a), a court may consolidate asbestos cases for joint trial when they share common questions of law or fact and consolidation does not prejudice a substantial right. The Malcolm factors do not require a common occupation, worksite or time of exposure, and no single factor is dispositive.
• Mineweaser v. One Beacon America Insurance Company (2015). Settlement agreements relevant to the merits of the claims are judicial documents carrying a strong presumption of public access, and the defendants showed no compelling reason to keep them sealed.
• North v. Adam Opel AG. (Albany, 2015). Plaintiffs asserting long-arm jurisdiction under CPLR 302 must make a sufficient start showing that facts may exist supporting jurisdiction to obtain further discovery; speculative submissions that do not tie the defendant to New York do not meet that standard.
• Smith v. AO Smith Water Prods. (2015). The First Department's Hockler decision is limited to salvage work and does not bar strict liability claims by skilled tradesmen who disassemble products during routine maintenance or renovation; whether such disassembly was foreseeable is a question of fact.
• Storey v. AO Smith Water Products Co. (2015). A summary judgment movant must first make a prima facie showing with admissible proof; a conclusory affidavit does not do so, and the plaintiff's own deposition testimony identifying the defendant's asbestos product is enough to raise a triable issue of fact.
• US v. Silver (2015). An indictment is sufficient if it alleges the elements and informs the defendant of the charge; Hobbs Act extortion can rest on transferable intangible property such as patient information or a share of legal claims, and honest services fraud requires a bribe or kickback rather than mere undisclosed self-dealing.
• Bailen v. Air & Liquid Sys. Corp. (2014). A plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred; testimony identifying the defendant's product and describing breathing asbestos dust from it raises a triable issue of fact.
• Baruch v. Baxter Healthcare Corp. (2014). A defendant seeking summary judgment must make a prima facie showing that its product could not have contributed to the plaintiff's injury; an argument that the plaintiff's product-identification testimony is not credible goes to its weight at trial, not to summary judgment.
• Brown v. Bell & Gossett Co. (2014). Under Labor Law § 200, a premises owner is not liable for injuries from the method and manner of a contractor's work unless it actually supervised or controlled that work. General supervision, inspection, and contract specifications that listed asbestos materials are not enough.
• Correnti v. Bertram D. Stone, Inc. (2014). A fraud complaint satisfies CPLR 3016(b) when its facts permit a reasonable inference of the alleged misconduct. Whether a joint venture existed, making one venturer liable for the other's misrepresentations, is a fact question where the agreement shows joint ownership, shared costs and expected profits, even without an explicit agreement to share losses.
• Friedman v. AO Smith Wter Prod. Co. (2014). A defendant's vague and conclusory assertions that its product was asbestos-free, contradicted by its own catalogs describing an "Asbestos Fiber Filler," raise a fact question that precludes summary judgment. A plaintiff's inability to recall specific job sites or dates goes to the weight of his testimony, which the court cannot weigh on summary judgment.
• Golden v. Alliance Laundry Sys. (2014). To be on the New York City Asbestos Litigation In-Extremis docket, a plaintiff must show a nexus to New York City; a 'significant exposure' requirement is not the standard, and forum objections do not turn on venue or forum non conveniens rules.
• Hockler v. The William Powell Co. (In re New York City Asbestos Litigation) (2014). Foreseeability of use or misuse of a product is generally a fact question for trial, and a manufacturer that sells asbestos-containing gaskets and packing for its valves may have a duty to warn of asbestos hazards whether or not it made those components.
• Abrams v. Foster Wheeler (In re New York City Asbestos Litigation) (2014). A joint trial of asbestos cases should be granted unless the opposing party shows specific prejudice to a substantial right, but not where individual issues predominate over common ones. Courts weigh the Malcolm factors: worksite, occupation, period of exposure, disease, whether the plaintiff is alive, and the number of defendants.
• In re New York City Asbestos Litigation v. Certainteed Corp. (2014). A court may consolidate actions for joint trial when they share common questions of law or fact, unless the opposing party shows prejudice to a substantial right. In asbestos cases, no single factor decides the question, and plaintiffs need not share a common occupation or time of exposure.
• Kestenbaum v. Durez Corp. (2014). Summary judgment is not available where the evidence leaves a triable question of fact; testimony that some of the defendant's phenolic resins contained asbestos was enough to dispute its claim that its resins were asbestos-free.
• Konstantin v. 640 Third Ave. Assoc. (2014). A court may vacate or revisit a judgment under CPLR 5015(a) or in the interests of justice, but reopening discovery after judgment requires newly discovered evidence, misconduct, or a reasonable basis to think the discovery would yield relevant information. An unrelated bankruptcy court's findings about abuse by other plaintiffs did not supply that basis.
• Konstantin v. 640 Third Ave. Assoc. (2014). A court may vacate a judgment under CPLR 5015(a) or in the interests of justice, but reopening discovery needs newly discovered evidence, misconduct, or a reasonable basis to think the subpoenas would reveal relevant information. Plaintiff's failure to update an interrogatory answer after filing trust claims did not amount to misconduct here.
• Lamberty v. AO Smith Water Prods. Co. (2014). A plaintiff opposing summary judgment in an asbestos case need only show facts from which exposure to the defendant's product may reasonably be inferred. A co-worker's precise testimony that the defendant's boilers were present creates a triable fact issue despite contrary registry and boiler records.