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

• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (1st Dept., 2004). Evidence that would be inadmissible at trial may be considered in opposing summary judgment if it is not the sole basis for the decision. A plaintiff need only show facts from which the defendant's liability may reasonably be inferred, not the precise cause of the injury.
• Lustenring v. AC&S, Inc. (1st Dept., 2004). A jury could find causation from evidence that plaintiffs worked in dust raised by manipulating the defendant's asbestos packing and gaskets, and a defendant's factual disagreement with the plaintiffs' causation theory does not require a Frye hearing.
• Root v. Eastern Refractories Co., Inc. (4th Dept., 2004). A defendant that shows it supplied no asbestos-containing product to the job site is met by the plaintiff's showing of a triable issue; the decedent's own testimony that he used asbestos-containing ERCO-Mat blankets at the site is enough to defeat summary judgment.
• Polito v. Burns Int'l Services Corp. (Matter of Asbestos Litig.) (Monroe, 2003). Evidence of plant workers' compensation claims and plant conditions, and nonparty industry documents, may be admitted on what a manufacturer knew or should have known, subject to foundation and hearsay objections. An expert retained by a party in unrelated litigation is not that party's agent, so his statements are not admissions.
• Ballard v. Armstrong World Indus. (Matter of Seventh Jud. Dist. Asbestos Litig.) (Monroe, 2002). Consolidation for trial under CPLR 602(a) is discretionary and should be granted unless the opposing party shows prejudice to a substantial right. In asbestos cases, courts may weigh factors such as worksite, occupation, time and type of exposure, disease, and whether the plaintiffs are living or deceased.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Hamilton v. Garlock, Inc. (2000). Evidence of exposure to the defendant's products, state-of-the-art notice and reckless concerted conduct supported the verdict. A defendant that offers no proof on allocating fault among joint tortfeasors forfeits any reduction for settling defendants' shares, so a directed verdict on allocation is proper.
• Vasura v. Acands (2000). Removal jurisdiction is judged as of the time of removal, so later dismissal of a non-diverse defendant does not validate an improper diversity removal. A defendant's foreign-state status under the FSIA did not apply where its government ownership (1980-1989) did not overlap with the 1969 exposure or the 1999 filing.
• Hamilton v. Atlas Turner, Inc. (1999). A defendant that preserves a personal jurisdiction defense in its answer can still forfeit it by participating in extensive pretrial proceedings and forgoing clear opportunities to move to dismiss; forfeiture is governed by federal procedural law.
• Hamilton v. Garlock, Inc. (1998). After trial, a plaintiff must prove personal jurisdiction by a preponderance of the evidence. Under New York law, the situs of injury for CPLR 302(a)(3) is where the asbestos exposure occurred, not where the plaintiff lives or suffers later damages.
• Consorti v. Owens Corning Fiberglas Corp. (In Re Joint Eastern and Southern Dist. Asbestos) (1998). On remand after Gasperini, a federal court in a diversity case tests a jury's damages award against New York's "deviates materially from reasonable compensation" standard, comparing it to awards in similar New York state cases and using a totality-of-circumstances approach rather than a fixed monthly multiplier.
• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (1st Dept., 1998). Evidence was sufficient for a jury to link a defendant's asbestos-containing components and products to the worker's injury. A government contractor defense charge was unwarranted without evidence of a conflict between state warning requirements and federal requirements. A defendant that challenges its share of fault must show the equitable shares of the settling defendants.
• Perry v. City of New York (1st Dept., 1998). Under General Municipal Law § 50-e (6), a defect or omission in a notice of claim, such as a missing diagnosis date, may be corrected in the court's discretion where it was made in good faith and the municipality was not prejudiced.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (1997). A defendant asserting the military contractor defense to a design defect claim must prove every Boyle element, including warnings to the government, and merely raising some elements is not enough. New York does not recognize a child's claim for loss of parental consortium, and filing a proof of claim with the Manville Trust is not a settlement that supports a set-off under General Obligations Law § 15-108.
• Conway v. Raymark Indus. (In re Asbestos Litigation) (1997). A case management order of the court that took the cases back from the MDL transferee judge allows plaintiffs to add defendants without leave of court, and the earlier MDL pretrial order cannot override it. Federal abstention in favor of parallel state cases requires extraordinary circumstances, which were not present.
• Maltese v. Westinghouse Electric Corp. (Matter of New York City Asbestos Litig.) (1997). Reckless disregard requires a gross negligence standard: intentionally acting in disregard of a known or obvious risk so great that harm is highly probable, with conscious indifference to the outcome. General awareness that high, prolonged asbestos exposure could cause injury did not meet that standard.
• Mtr. OF Nyc Asbestos Litig. (1997). A jury may consider a manufacturer's actual knowledge of asbestos dangers in allocating relative culpability under CPLR article 16, and answers to interrogatories by settling defendants cannot be offered by a non-settling defendant who is no longer adverse to them. A recklessness finding must be set aside if no valid line of reasoning could support it.
• Buckley v. Metro-North Commuter RR (1996). Under FELA, a jury could find that a worker with massive, prolonged asbestos exposure suffered a physical impact that supports a negligent infliction of emotional distress claim, even without clinical signs of disease. The cost of reasonably necessary future medical monitoring is also recoverable as damages.
• Dollas v. WR Grace & Co. (1st Dept., 1996). A court may not take judicial notice of a disputed fact, or reject sworn deposition testimony as not credible, on summary judgment; conflicts between testimony and other evidence go to weight and must be resolved by the trier of fact.
• In re Waterman SS Corp. (1996). The claims bar date, not the plan confirmation date, decides whether an asbestos claim was discharged. A wrongful death claim is derivative and accrues when the underlying asbestosis claim accrued, and the claimants carry the burden of proving when their disease manifested.
• Consorti v. Owens-Corning Fiberglas Corp. (1995). The Second Circuit did not decide the appeal; it certified to the New York Court of Appeals the question whether a spouse's loss of consortium claim is valid when mesothelioma arose after the marriage from asbestos exposure before it, and kept jurisdiction pending the answer.
• In re Keene Corp. (1994). A holder of a non-final judgment secured by a supersedeas bond can show cause under 11 U.S.C. § 362(d)(1) for stay relief to complete the appeal and then collect on the bond, where the debtor fails to show greater prejudice to itself or other grounds to deny relief.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1993). Epidemiological evidence showing a weak, inconsistent association between asbestos and colon cancer, combined with only a differential diagnosis, is insufficient to show that asbestos more likely than not caused the cancer, so a jury verdict resting on it cannot stand.
• In re Waterman SS Corp. (1993). Seamen whom the debtor knew had manifested illness were entitled to actual personal notice of the bar date, while unidentifiable claimants could receive notice reasonable under the circumstances, such as publication. Claimants with no detectable signs of disease at the time of notice were not discharged.
• Matter of New York City Asbestos Litig. (1st Dept., 1993). A defendant may be precluded from relitigating a substantive point conclusively established against it in prior litigation, as a matter of fairness. Additur awards stand if they do not deviate materially from reasonable compensation.
• Kreppein v. Celotex Corp. (1992). Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.
• Rittenhouse v. St. Regis Hotel Joint Venture (1st Dept., 1992). Sanctions under CPLR 8303-a require a finding that the action was commenced frivolously or in bad faith, and the record did not support that finding. Summary judgment was proper where objective testing showed no physical manifestation of asbestos contamination.
• Kulzer v. Pittsburgh-Corning Corp. (1991). Under New York's 1986 revival statute, a wrongful death claim is not revived if the decedent had any employment-related asbestos exposure within three years of death, since accrual follows the last-date-of-exposure rule and does not depend on whether that last exposure proximately caused the death.
• Mendelowitz v. Xerox Corp. (1st Dept., 1991). A document request must describe the items sought with reasonable particularity, and the requesting party bears that burden. A list of asbestos lawsuits over a defendant's copiers is discoverable whatever the model, since admissibility and weight are separate from disclosure.
• Barnett v. City of Yonkers (1990). Under New York law a school board is liable like a private landowner only if it had actual or constructive notice of the hazard, an owner out of possession without control is not liable, and an architect is liable only for professional negligence judged by the standards of the time his services ended.
• Campo v. Asbestospray Corp. (1st Dept., 1990). Plaintiffs with only minor asbestos-related conditions who disclaim recovery for present injuries and seek to preserve claims for possible future serious disease are asking for an advisory opinion. The one-year revival statute is a condition precedent that cannot be tolled.
• In re Joint Eastern & Southern Dist. Asbestos Lit. (1990). A federal court may enjoin pending state and federal suits against an insolvent asbestos personal injury trust, despite the Anti-Injunction Act, under the "in aid of jurisdiction" and "protect or effectuate judgments" exceptions, the All-Writs Act, and Bankruptcy Code section 105(a), to prevent inequitable distribution of limited trust assets.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (1990). A federal court sitting in diversity applied New York law and held that a dismissal with prejudice of a decedent's lifetime personal injury claim for lack of exposure evidence bars his personal representative's later wrongful death claim against the same defendant, because she stands in the decedent's position. Circumstantial exposure evidence and medical testimony were enough to support the jury's verdict.
• Raney v. Owens-Illinois, Inc. (1990). Under New York law, a jury may infer from the facts and circumstances that a reasonably required warning would have been heeded, so the plaintiff did not need direct evidence that the worker would have changed his conduct. This inference is not a formal presumption.
• Simpson v. Pittsburgh Corning Corp. (1990). A due process challenge to punitive damages based on earlier awards in asbestos cases fails when the defendant has not made an adequate factual record. A preponderance standard of proof, denial of bifurcation within the trial judge's discretion, and denial of a continuance to join the Manville Trust did not require reversal.
• In re Johns-Manville Corp. (1989). A bankruptcy court retains post-confirmation jurisdiction to enforce a confirmed plan's channeling injunction and claims resolution procedures, and may enjoin asbestos suits filed in other courts against the debtors or the trust without meeting the strict Rule 65 standard.
• Rummo v. The Celotex Corp. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1989). Under New York law, a living plaintiff with a fatal injury recovers lost future earnings based on the work-life expectancy he would have had without the injury, because a personal injury judgment bars any later wrongful death action.
• Campo v. Asbestospray Corp. (1988). The court would not judicially extend the legislature's one-year revival period for time-barred asbestos claims, and a class action brought without present claims for injury does not toll that period. New York had not adopted a 'two-injury' rule, and adopting one would be a judicial extension of CPLR 214-c.
• BD. OF Educ. v. Ambach (Monroe, 1984). Under the School Asbestos Safety Act, asbestos material that is friable is an imminent health hazard without separate evidence of damage or deterioration, and the Commissioner of Education has authority to enforce the Act.
• Weinberg v. Johns-Manville Prods. Corp. (1st Dept., 1979). An officer's affidavit based on a records search can make a prima facie showing that a defendant did not make the product during the relevant period. Where no one offers any evidence against it, no triable issue exists and summary judgment may be granted.

North Carolina

• In re Bestwall, LLC (2024). Contempt and sanctions orders imposed for violating a Rule 2004 discovery order in an ongoing bankruptcy case do not end a discrete proceeding within the case. They are therefore interlocutory and not immediately appealable under 28 U.S.C. § 158(a).
• In re Aldrich Pump LLC (2023). Financial distress is not a constitutional or jurisdictional prerequisite to filing Chapter 11. Under the Fourth Circuit's Carolin test, a bad faith dismissal requires both objective futility and subjective bad faith, and objective futility was not shown. Section 1112(b) cause also was not shown.
• In re Alrich Pump, LLC (2023). A motion to stay pending appeal under Bankruptcy Rule 8007 is judged by the four preliminary-injunction factors in the Fourth Circuit; the court found all four favored a stay of an order requiring the claimants to identify themselves publicly.
• In re Bestwall LLC (2023). A bankruptcy court has "related to" jurisdiction under 28 U.S.C. § 1334(b) to enjoin thousands of identical asbestos claims against a non-debtor affiliate when they could conceivably affect the debtor's estate. A § 105(a) preliminary injunction in chapter 11 requires only a realistic possibility of successful reorganization, not a showing that a permanent § 524(g) injunction will issue.
• Non-Party Certain Matching Claimants v. Aldrich Pump LLC (2023). A stay pending appeal is judged under the four-factor preliminary injunction standard (likelihood of success, irreparable harm, balance of equities, public interest), and all four were met where disclosure of claimants' identities would moot the appeal and expose confidential information.
• The Manville Trust Matching Claimants v. Dbmp, LLC (2023). A decision whether to allow parties to proceed anonymously is reviewed for abuse of discretion, and a court acts within that discretion in denying anonymity where the parties show only speculative harm and no exceptional circumstances under the Jacobson factors.
• Walls v. Ford Motor Company (2023). Under North Carolina law, applied in a federal diversity case, settlement credits under N.C. Gen. Stat. § 1B-4(1) are applied against an aggregate judgment that includes costs, so costs are subject to setoff.
• Barkley v. 4520 Corp., Inc. (2022). Under North Carolina law, a plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is responsible. Prior depositions from cases in which the defendant was not present cannot be used against it, and an affidavit lacking personal knowledge or contradicting earlier deposition testimony may be disregarded.
• Bell v. American International Industries (2022). A document filed to support protective-order or discovery motions is not a judicial record, so a motion to modify a protective order is judged by Rule 26(c) good cause. Good cause is decided by weighing four factors: the reason for modification, alternative means of getting the information, the type of order, and the type of material.