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

• Langhorne v. Aerofin Corp. (2014). A personal jurisdiction defense not raised in the first responsive pleading or a pre-answer motion is waived. Prior sworn testimony from related federal litigation is admissible if the party had the same motive and opportunity to cross-examine, and circumstantial evidence can support an inference of exposure to a defendant's product.
• Feuerman v. A.O. Smith Water Prods. Co. (Matter of New York City Asbestos Litig.) (2014). Asbestos cases may be joined for trial where common questions predominate over individual issues and defendants show no substantial prejudice; the Malcolm factors guide this, but not all need be present. Differences in the type of cancer, such as lung cancer with smoking histories versus mesothelioma, can justify separate trial groups.
• Carmody v. DAP (Matter of New York City Asbestos Litig.) (2014). Under Kapon v Koch, a movant seeking to quash a non-party subpoena must show the discovery is utterly irrelevant or the process futile, and a subpoenaing party need only show the material is relevant to the action. Trust claim submissions are relevant and discoverable.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• Lamberty v. Cleaver Brooks (Matter of New York City Asbestos Litig.) (2014). Where both sides violated the discovery order's deadlines, a unilateral sanction such as striking a defense or precluding experts is inappropriate, and the case should be decided on the merits by a jury.
• McCloskey v. AO Smith Water Prods. (2014). A verdict will be set aside as a matter of law only if no valid line of reasoning could lead rational jurors to it. A defendant found reckless is liable for the full verdict regardless of apportionment, and a defendant bears the burden of proving the equitable shares of other entities.
• Mtr OF Nyc Asbestos Litig. (2014). Under the Port Authority notice-of-claim statute, a notice of claim for personal injuries is a sufficient notice for a wrongful death claim where the injured person dies after the notice is served but before suit begins.
• Noble v. AO Smith Water Prods. Co. (2014). A defendant moving for summary judgment must make a prima facie showing, and an affidavit that relies on documents not in the record is conclusory and fails that burden. Its unsupported opinions raise credibility issues for a jury.
• Osterhout v. Air & Liquid Systems Corporation (2014). To remove under the federal officer removal statute, a defendant need only show a colorable federal defense, meaning facts which, viewed favorably to the defendant, would establish a complete defense at trial; it need not prove the defense.
• Proctor v. Alcoa, Inc. (2014). Conflicts or inconsistencies in a plaintiff's testimony about a defendant's products, and a defendant's contrary affidavit, raise credibility issues for the jury and do not defeat the inference of exposure on summary judgment.
• Proctor v. Alcoa, Inc. (2014). On summary judgment the evidence is viewed in the light most favorable to the non-movant; evidence that a defendant's predecessors supplied the taping and floor tile work at the site raises triable issues on successor responsibility for the plaintiff's exposure.
• Proctor v. Alcoa, Inc. (2014). A plaintiff's deposition testimony that he used the defendant's asbestos-containing product and was exposed to its dust raises a fact issue defeating summary judgment. A defendant cannot establish its entitlement to judgment through an expert affidavit first submitted in reply.
• Shtockhammer v. 29th Street Hotel Acquisition, LLC (2014). On a motion to dismiss, a complaint and supporting affidavit alleging asbestos exposure at a property state premises liability and negligence claims against the buyer, and the purchase agreement's transfer of the property's liabilities, including asbestos, did not conclusively defeat them. Veil-piercing claims against related entities may proceed to discovery.
• Smith v. 3M Company (2014). Under Labor Law § 200 and the common law, a premises owner that supplied a worker with asbestos-insulated wire and the tools to strip it raises a triable issue of fact on whether it was positioned to prevent the injury, even if it did not instruct how to cut the wire.
• Vantosh v. 3M Co. (2014). Under CPLR 3101(a) and the NYCAL Case Management Order, disclosure is required regardless of the burden of proof, so a first-time NYCAL defendant must answer the standard interrogatories even when summary judgment standards might favor it.
• Wiacek v. 3M Co. (2014). A design defect claim against a product maker needs expert proof of a feasible safer design, so plaintiffs without an expert cannot defeat summary judgment. The adequacy of a warning is ordinarily a question of fact, and compliance with NIOSH standards does not by itself bar a state-law failure to warn claim.
• Adler v. 3M Co. (2013). Under the New York City Asbestos Litigation case management order, a defendant may depose a plaintiff's treating pathologist when the accuracy of the diagnosis is central and the pathologist's basis is unclear. The case management order also controls the allocation of travel expenses for an out-of-area deposition.
• Assenzio v. AO Smith Water Prods. (2013). Under CPLR 602(a) a court may order joint trials where common questions of law and fact exist, unless joinder would prejudice a fair trial or individual issues predominate. Factors include work sites, occupations, exposure periods, disease type and whether plaintiffs are living, and no single factor decides the question.
• Baiocco v. AC & S., Inc. (2013). A motion for a joint trial under CPLR 602 is decided in the trial court's discretion and should be granted unless the opposing party shows prejudice to a substantial right. In asbestos cases the court weighs the Malcolm factors, such as worksite, occupation, period of exposure, disease and the defendants involved.
• Barton v. AO Smith Water Prods. Co. (2013). Asbestos cases may be tried together under CPLR 602(a) when the plaintiffs are sufficiently similar on the Malcolm factors, such as worksite, occupation, time of exposure, disease and counsel, and the opponents show no substantial prejudice. Cases that may raise a federal government contractor defense not applicable to the others should be tried separately.
• Brown v. Bell & Gossett Co. (2013). A premises owner faces Labor Law § 200 liability if it had authority to control the activity causing the injury, and testimony that it chose the insulation materials and enforced specifications that barred dust control raises a fact issue on that control.
• Crane v. Crane Co. (2013). A premises owner may be liable under Labor Law § 200 and the common law where inferences can be drawn that it exercised supervision and control over the materials and the subcontractor workers' use of them; reargument is limited to matters of fact or law overlooked or misapprehended.
• Finerty v. Abex Corp. (2013). A court may allow jurisdictional discovery under CPLR 3211(d) when the plaintiff makes a "sufficient start" and shows its position is not frivolous, including on a theory that a foreign subsidiary is a mere department of a New York-present parent.
• Frieder v. Long Is. RR (2013). A landowner that controls the premises and its employees can owe a duty of care to a diner worker on its property exposed to asbestos dust carried on its employees' work clothes, and circumstantial evidence of exposure can raise a question of fact defeating summary judgment.
• Garbutt v. AO Smith Water Prods. Co. (2013). In an asbestos case, where a worker's identification of a defendant's product conflicts with the defendant's evidence and the worker's technical knowledge is questionable, the dispute is one of credibility that a jury must decide, so summary judgment is improper.
• Hammer v. Algoma (2013). Summary judgment must be denied where a plaintiff's testimony about exposure to a defendant's asbestos-containing products conflicts with the defendant's unsupported affidavit that the products were asbestos-free, because the weight of that evidence is for the jury.
• McCormick v. Burnham (In re Asbestos Litigation) (2013). Where Kansas is the plaintiff's domicile and place of injury and the parties agree, Kansas law governs, so comparative fault allocates each defendant's liability by percentage and statutory caps on non-economic damages are applied by the court, not disclosed to the jury.
• Lindsay v. Air & Liquid Sys. Corp. (2013). To defeat summary judgment in asbestos litigation, a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. Deposition testimony that he disturbed insulation on the defendant's boiler raises a fact issue, and credibility is for the trier of fact.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (1st Dept., 2013). A trial court does not abuse its discretion by consolidating asbestos cases for trial where the plaintiffs worked in similar jobs over overlapping periods, share counsel and are trial ready, even if their diseases differ.
• Peraica v. Crane Co. (Matter of New York City Asbestos Litig.) (2013). Under New York law, whether a manufacturer of a bare-metal product had a duty to warn of asbestos insulation others applied to it after sale is a question of fact for the jury where the manufacturer knew or should have known the product would be used with asbestos-containing materials. A court may reduce a jury award that deviates materially from reasonable compensation.
• Matter of New York City Asbestos Litig. (1st Dept., 2013). Compliance with the 60-day pre-suit notice of claim requirement in the Port Authority's suability statute is a mandatory jurisdictional condition that is strictly construed, with no substantial compliance exception, so a prematurely served complaint cannot confer jurisdiction.
• Matter of New York City Asbestos Litig. v. Durez Corp. (2013). Under CPLR 602(a), a court may consolidate actions with common questions of law or fact for joint trial unless the opposing party shows prejudice to a substantial right. The Malcolm factors are weighed together and require only similarities, not identical occupations or exposure periods.
• Dietrich v. A.O. Smith Water Prods. Co. (Matter of New York City Asbestos Litigation) (2013). Asbestos cases may be joined for trial under CPLR 602(a) where the Malcolm factors show enough similarity among plaintiffs, who need not have identical occupations, worksites or exposure periods, and the opponents show no substantial prejudice. Cases that may involve federal government contractor defenses the others do not may be tried separately.
• Ambruso v. Goulds Pumps (Matter of New York City Asbestos Litigation) (2013). A motion for a joint trial is decided in the trial court's discretion and should be granted unless the opposing party shows prejudice to a substantial right. In asbestos cases, courts weigh the Malcolm factors, such as worksite, occupation, period of exposure, disease, whether plaintiffs are alive, discovery status and counsel.
• Matter of New York City Asbestos Litigation v. AW Chesterton Co., Inc. (2013). Under CPLR 602(a) and the Malcolm factors, asbestos cases may be tried jointly when common issues predominate and the opponents show no substantial prejudice. Differences in occupation, exposure type, disease or governing law can justify separate trials.
• Matter of New York City Asbestos Litigation v. Baxter Healthcare Corporation (1st Dept., 2013). A trial court does not abuse its discretion in consolidating asbestos cases for trial where the plaintiffs' exposure periods, counsel and trial readiness overlap and the shared factual and legal issues outweigh differences such as disease type.
• McCloskey v. AO Smith Water Prod. Co. (2013). A plaintiff's deposition testimony that a defendant's workers created asbestos dust near him is enough to raise a fact issue and defeat summary judgment. Weighing its credibility is for the jury, not the court on a summary judgment motion.
• Stitt v. Burham Corp. (2013). A NYCAL plaintiff must show a nexus between the asbestos exposure and New York City to receive a place on the In-Extremis trial-preference calendar; this is a calendar-management matter separate from venue.
• Vellucci v. Borg-Warner Corp. (2013). In asbestos cases a plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred. Testimony that may rest partly on hearsay can be considered when it is not the sole basis for the decision, and gaps in the product's service history go to weight, not admissibility.
• Walker v. Abb, Inc. (2013). Under CPLR 306-b, a court may extend the time to serve a defendant for good cause or in the interest of justice, weighing factors such as diligence, the limitations period, delay, promptness and prejudice. The NYCAL case management order's amendment provision does not cure defective service on a party already named.
• Wilson v. 3M Co. (2013). In asbestos cases, once a defendant makes a prima facie showing, the plaintiff must show actual exposure to fibers from the defendant's product. It is enough to show facts from which liability may reasonably be inferred, with inferences resolved in the plaintiff's favor.
• Wilson v. 3M Company (2013). Conflicting testimony about whether the defendant's cable contained asbestos raises a credibility question that a jury must decide, so summary judgment cannot be granted on a motion where the court would have to weigh the testimony.
• Adler v. Air & Liquid Sys. Corp. (2012). Under CPLR 602(a) and the Malcolm factors, considered together with none dispositive, asbestos cases may be joined when common issues predominate and no substantial prejudice is shown. Joinder is limited by the number of parties and by differences in disease or legal claim, such as peritoneal versus pleural mesothelioma or a FELA claim.
• Bernard v. Brookfield Props. Corp. (2012). A corporation's attorney-client privilege can extend to communications with a former employee about matters within the scope of employment, but it did not apply where the former employee had his own lawyer present, so the talks were not confidential. Questions probing opposing counsel's mental impressions and strategy fall under work-product protection, which does not shield underlying facts.
• Bischofsberger v. AO Smith Water Products (2012). A court may join cases for trial under CPLR 602 where common questions exist, and in asbestos cases it weighs the Malcolm factors (work site, occupation, time of exposure, disease, living or deceased, discovery status, same counsel). Joinder was denied because the cases would share too little testimony to serve judicial economy.
• Chilarski v. AW Chesterton Co. (2012). Once a defendant makes a prima facie showing, the plaintiff need only show facts from which exposure to asbestos from the defendant's product can reasonably be inferred. Conflicts between the decedent's testimony and the defendant's witness are credibility questions for the jury, and evidence first submitted in reply papers cannot establish a prima facie case.
• Feinberg v. Colgate-Palmolive Co. (2012). The 1997 FDCA cosmetics preemption clause does not apply retroactively to product use that ended decades earlier. Without a binding FDA regulation on cosmetic talc labeling, there was no express or implied preemption of the state failure-to-warn claim, and primary jurisdiction did not require dismissal.
• Garner v. Ngc Bodily Injury Trust (2012). Under New York CPLR 214-c, a personal injury claim accrues when the physical condition or symptoms of the latent disease appear, not when its cause is discovered. The earlier ruling on the accrual date therefore barred relitigation by collateral estoppel, and the claims were time-barred in any event.
• Bernard v. Colgate-Palmolive Co. (IN the Matter of New York City Asbestos Litig.) (1st Dept., 2012). Asbestos actions may be consolidated for joint trial under CPLR 602(a) where they share a common disease, a common defendant and a common type of exposure, and the defendant shows no prejudice. Possible differences in state law do not require separate trials.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.