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

• Lovaglio v. AW Chesterton Co. (2012). Deposition testimony that may be inadmissible at trial against a party can be considered in opposing summary judgment if it is not the sole basis for the ruling, and corroborating evidence can create a triable issue of fact. Whether the defendant could have cross-examined the dying plaintiff in time was itself a material issue.
• 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, defendant and type of exposure, and the defendant shows no prejudice. Possible differences among states' laws do not require separate trials where the causation standards are the same and jury instructions can address any differences.
• Bernard v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (2012). Under CPLR 3101(a), full disclosure of material and necessary matter is allowed. Discovery from a non-party was permitted where the witness's information bore on a disputed diagnosis or on alternate causation and could not be obtained elsewhere.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (2012). A valve manufacturer may owe a duty to warn about asbestos gaskets, packing and insulation made by others when it meant its valves to be used with them or knew or should have known they would be. Under CPLR Article 16, the Navy is not counted in apportioning fault because Feres and the grave-injury rule bar suit against it.
• Perez v. Port Auth. of NY & NJ (2012). On a CPLR 3211(a)(7) motion, a Labor Law § 200 claim survives if the owner may have supervised or controlled the work or had notice of the unsafe condition, and a real factual dispute about asbestos exposure bars dismissal.
• Roman v. Air & Liquid Sys. Corp. (2012). Conflicting deposition testimony about whether the plaintiff worked with Taco pumps raises a credibility issue for the jury. Arguments raised for the first time in reply papers cannot establish a movant's prima facie entitlement to summary judgment.
• Sadowski v. AO Smith Water Products (2012). A defendant seeking summary judgment on product identification must show it could not have made the equipment the plaintiff described. A plaintiff without technical training who names a manufacturer raises a credibility question for the jury.
• Tycz v. Asbeka Industries OF New York, Inc. (2012). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that there is no possibility of stating a claim against the non-diverse defendant. That burden is heavier than the summary judgment standard, and a plaintiff's failure to identify a defendant's product in discovery does not meet it.
• US Fid. & Guaranty Co. v. American Re-Ins. Co. (1st Dept., 2012). Under a follow-the-fortunes clause, a reinsurer must accept its reinsured's good-faith allocation and settlement of covered losses and cannot second-guess them; collateral estoppel applies only to issues actually litigated and decided.
• Walker v. Abb, Inc. (2012). Summary judgment on product identification is premature under CPLR 3212(f) where the defendant has not produced relevant discovery, such as sales records and details of a sale of its division, that could bear on whether its products were a source of exposure.
• Andrucki v. Alcoa, Inc. (2011). A claim against the Port Authority requires a notice of claim served at least sixty days before suit and commencement within one year of accrual. Plaintiffs who served a valid notice and then added the Port Authority by supplemental summons and amended complaint within the year met these conditions, and the relation-back doctrine did not apply.
• Bernard v. Brookfield Props. Corp. (2011). A person whose asbestos disease had not appeared when a debtor's reorganization plan was confirmed did not lose her claims, because due process outweighs the plan's discharge language. A corporation that acquires another's assets can be liable as successor-in-interest only on certain grounds, and the defendants did not show these were absent.
• Garner v. Dii Industries, LLC (2011). Under New York CPLR 214-c, the limitations period for a toxic-exposure claim runs from discovery of the physical condition, not from discovery of its cause. Because the link between asbestos and disease was publicly known well before the later trust determination, the claim was untimely and amendment would be futile.
• Graham v. AO Smith Water Prods. Co. (2011). Under CPLR 3101(a) and the NYCAL Case Management Order's standard document requests, sales and delivery records that may show whether a defendant supplied asbestos-containing products to a worksite are material and necessary, and a burdensome search does not by itself justify a protective order.
• Auletta v. Crane Co (In re New York City Asbestos Litigation Cluster) (2011). Under CPLR 602, a court may join asbestos cases for trial when they share common questions of law and fact, weighing the Malcolm factors, unless a joint trial would unduly prejudice a substantial right. A group of ten cases with twenty-one defendants is too large, so the court may group cases by their main shared features.
• Chinea v. Keystone Shipping (Matter of New York City Asbestos Litig.) (2011). Under CPLR 602, a court may join cases for trial when they share common questions, and the opponent must then show undue prejudice to a substantial right. In asbestos cases courts weigh the Malcolm factors: work site, occupation, time of exposure, disease, living or deceased status, discovery status and counsel.
• Conti v. Crane Co. (Matter of New York City Asbestos Litig.) (2011). Under CPLR 602 a court may join cases for trial when they share common questions of law and fact, and in asbestos cases it weighs the Malcolm v. National Gypsum factors, none of which is dispositive. A joint trial is proper unless the opponent shows it would unduly prejudice a substantial right.
• Penn v. Amchem Products (1st Dept., 2011). Viewed in the light most favorable to the prevailing plaintiffs, evidence that Kerr's name was on the liner boxes, that Kerr supplied such liners to the schools, and that Kerr did not test the liners' safety permitted the jury to find product identification, causation and a failure to warn. Objections to summation and to an allegedly inconsistent verdict that were not raised in time were unpreserved.
• Bernard v. Brookfield Prop. Corp. (2010). A plaintiff's death from a previously diagnosed disease is not a new fact supporting renewal under CPLR 2221(e), and the workers' compensation exclusivity bar on claims against the employer still applied; a third party may seek contribution from the employer only in a separate action.
• Bernard v. Brookfield Prop. Corp. (2010). Under CPLR 214-d and CPLR 3211(h), claims against a licensed engineering firm for work done more than ten years earlier must be dismissed if no notice of claim was served 90 days before suit and compliance was not pleaded, unless the claimant shows a substantial basis, such as expert proof, that the firm was negligent. Dismissal for non-compliance is without prejudice to a new action under CPLR 205.
• Carroll v. AO Smith Water Prods., Co. (2010). A defendant seeking summary judgment must show that its product could not have contributed to the plaintiff's injury, and pointing to weaknesses in the plaintiff's proof is not enough. Testimony that the plaintiff was present while work was done on a defendant's valves is enough to raise a fact issue on exposure.
• Friedman v. AI Friedman, LP (2010). Plaintiffs need not show a precise cause of injury, only facts from which liability may reasonably be inferred, such as being near where the defendant's product was used and being exposed to it. Testimony that conflicts with other evidence on where a product was bought goes to credibility, a question for the trier of fact.
• Gennone v. AJ Eckert Company, Inc. (2010). A corporation that buys another's assets is not liable for the seller's torts unless one of four exceptions applies (express or implied assumption, merger, mere continuation, fraud). A party seeking more discovery under Rule 56(f) must show how it would create a genuine factual issue, and speculation is not enough.
• Horn v. A.W. Chesterson Co. (In re Matter of New York City Asbestos Litig.) (2010). Under CPLR 602(a), actions with common questions of law and fact may be consolidated for joint trial. The Malcolm factors do not require plaintiffs to share an identical work site, occupation or exposure period, so differences among plaintiffs did not defeat consolidation.
• In re Quigley Company, Inc. (2010). A plan is not proposed in good faith under 11 U.S.C. § 1129(a)(3) when the parent seeking a § 524(g) channeling injunction buys the votes needed for acceptance through side settlements. A § 524(g) injunction is fair and equitable only if the third party's contribution is consistent with its likely liability outside bankruptcy. The best-interests test also counts the claims that dissenting creditors keep against the non-debtor.
• McDermott v. Mario & DiBono Plastering Co. (Matter of New York City Asbestos Litig.) (2010). A party may not depose a non-party witness solely to preserve testimony for trial unless the witness is so sick or infirm that he may be unable to attend trial, or other special circumstances exist. Prior depositions and the witness's age and asbestosis alone did not meet that standard.
• Horn v. Treadwell Corp. (Matter of New York City Asbestos Litig.) (2010). Workers' compensation is the exclusive remedy against an employer for asbestos exposure during employment, but a movant cannot raise new arguments for the first time in reply, and a plaintiff need only show facts from which exposure to the defendant's asbestos product may reasonably be inferred.
• Dietz v. Fulton Boilerworks (Matter of New York City Asbestos Litig.) (2010). Under CPLR 602(a), actions with common questions of law and fact may be consolidated for joint trial, and the court weighs factors such as work site, occupation, time of exposure, disease type, counsel and discovery status. Here the commonalities predominated over individual differences.
• Batista v. A.O. Smith Water Prods. (Matter of New York City Asbestos Litig.) (2010). A court has discretion under CPLR 602(a) to join asbestos cases that share common questions, and it weighs factors such as worksite, occupation, time of exposure and type of disease. When a party dies, the action is stayed until a personal representative is substituted, and a spouse's consortium claim depends on the decedent's claim.
• Miranda v. Abex Corp. (2010). Under CPLR 602(a), asbestos plaintiffs need not share an identical work site, occupation or exposure period to be tried jointly if common questions predominate. An individual factor, such as possible federal maritime law, can still require a separate trial.
• Penn v. Amchem Products (1st Dept., 2010). Viewed in the light most favorable to the plaintiffs, evidence that boxes bore the defendant's name, that it supplied liners to the school, and that visible dust arose with expert testimony on dose was enough for the jury to find product identification, causation and failure to warn.
• Beltrami v. AO Smith Water Prod. Co. (2009). Summary judgment is denied where the decedent's testimony about the products he used conflicts with the defendant's affidavit and documents, creating fact issues. Common-law indemnification requires proof of no negligence beyond statutory liability, which a fact issue about who supplied the gaskets and packing prevents.
• Charlop v. AO Smith Water Prods. (1st Dept., 2009). A party will not be relieved from a stipulation unless there is sufficient cause such as fraud, mistake, collusion or accident, and must seek to vacate it with reasonable promptness; here the delay before seeking vacatur required adherence to the stipulation.
• Ballard v. Anchor Packing Co. (In re New York City Asbestos Litigation) (2009). A court may join actions with common questions of law or fact for a single trial unless individual issues predominate or a party shows substantial prejudice. No single factor is dispositive, and a difference in disease type can justify splitting the cases into separate groups.
• In re New York City Asbestos Litigation v. AC & S., Inc. (2009). A court may consolidate asbestos actions for joint trial where they share common questions of law and fact, and the plaintiffs need not share an identical work site, occupation or exposure period. Individual factors such as possible federal maritime law, a non-smoker plaintiff, or prejudice from trying living and deceased plaintiffs together can require separate trials.
• Barnes v. AO Smith Water Products Co. (2008). Under CPLR 602(a), actions with common questions of law or fact may be tried jointly. The Malcolm factors guide the choice, and plaintiffs need not share an identical occupation or time of exposure, but joinder is refused where individual issues or prejudice to particular defendants predominate.
• Grossman v. AO Smith Water Products Co. (2008). Under CPLR 602(a), a court has discretion to order a joint trial where cases share common questions of law and fact, and the efficiency benefits of joinder here outweighed the differences in exposure times and diseases.
• Early v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2008). Under CPLR 602(a), a court may order a joint trial where cases share common questions of law or fact unless the opposing parties show prejudice to a substantial right. The court weighed the Malcolm factors (worksite, occupation, time of exposure, disease, living or deceased status, discovery status, counsel, type of cancer).
• Aguirre v. Long IS. Rail RD. Co. (2007). In a FELA case tried in state court, plaintiffs still need expert testimony to show causation, but under New York law (Parker v. Mobil Oil) exposure need not be quantified precisely if the expert's method is generally accepted. Awards that materially deviate from reasonable compensation may be reduced under CPLR 5501(c).
• Briggs v. General Electric Co. (Nassau, 2007). A summary judgment movant must first make a prima facie showing eliminating material fact issues, and failing that, its motion is denied regardless of the opposing papers. An insulation contractor performing a service is not a manufacturer or seller, so strict liability and warranty claims fail.
• Cepeda v. AC&S, Inc. (2007). A party's out-of-court statements, including a third party's statements that the party publicly adopted, may be used against it as admissions. Warnings in a party's training materials are not involuntary just because OSHA requires similar warnings, where the materials go beyond OSHA's mandate and were widely distributed to non-employees.
• Held v. AW Chesterton Co. (1st Dept., 2007). A theory raised for the first time on appeal is not properly before the court. In any event, insulation specifications that the site owner later superseded could not support a negligence or Labor Law § 200 claim against the engineer.
• In re Quigley Co., Inc. (2007). Bankruptcy courts may issue broad injunctions covering present and future claims against a non-debtor to preserve estate property such as shared insurance, but non-parties bound by such an injunction must be able to petition for relief from it.
• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (1st Dept., 2007). A theory raised for the first time on appeal is not properly before the court. The record also showed the engineer's asbestos specifications had been superseded by the site owner's interim specifications before the decedent began work, which precluded the negligence and Labor Law § 200 claims against the engineer.
• Reynolds v. Garlock Sealing Technologies (Mtr OF Eighth Jud. Dist. Asbestos Litigation) (2007). When a plaintiff and a defendant in a multi-defendant action make a high-low agreement that keeps the agreeing defendant in the case, the parties must disclose the agreement and its terms to the court and the non-agreeing defendants. Failure to disclose it prejudices the non-agreeing defendant and warrants a new trial.
• In re Quigley Co. (2006). A bankruptcy court has discretion to estimate unliquidated asbestos claims for voting so that voting power matches economic interests. The $1.00-per-vote method is acceptable only when it is harmless error, and claimants' contractual 90% reduction of their recovery can be reflected in a reduced vote.
• IN the Matter of United States Lines Inc. (2006). A bankruptcy court's rolling bar date order is interpreted as a claims-administration order rather than a statute of limitations, so the court may use New York's physical-manifestation approach to decide when injury manifested. Timeliness is a core issue decided without a jury, and the claimant bears the ultimate burden once the objector shows the claim is untimely.
• Dankenbrink v. Foster Wheeler (Matter of New York City Asbestos Litigation) (2006). Actions may be consolidated for joint trial under CPLR 602(a) where common questions predominate, and the Malcolm factors do not require an identical occupation, work-site or time of exposure. Cases implicating federal maritime law, and cases with materially different medical issues, may be tried separately to avoid jury confusion and prejudice.
• US v. Thorn (2006). On a limited remand for resentencing, issues a defendant could have raised at the first sentencing are waived and law of the case bars revisiting the appellate mandate; a sentencing court's departures from the money laundering guideline and criminal history category were legal errors on this record.
• Ak v. Aqua-Chem (Matter of New York City Asbestos Litigation) (2005). Under CPLR 602(a), a court may consolidate actions for joint trial where they share common questions of law and fact. The Malcolm factors guide that discretion but do not control it, and sufficient similarities supported a joint trial here.