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.

North Carolina

• In re Bestwall LLC (2022). Contempt and sanctions orders enforcing an interlocutory questionnaire order in a bankruptcy case are not final orders that finally dispose of a discrete dispute, so they cannot be appealed immediately, particularly where the claimants are not disinterested non-parties.
• Walls v. Ford Motor Company (2022). A district court may reconsider an interlocutory order under Rule 54(b) to account for a change in controlling law or new evidence, or to correct clear error or prevent manifest injustice. It will not do so merely to rehash arguments already considered.
• Walls v. Ford Motor Company (2022). A district court may revisit interlocutory rulings under Rule 54(b), but the asbestos causation test requires proof of actual exposure to the product and that the exposure was a substantial factor in causing the injury. Causation may be shown by direct or circumstantial evidence, and plaintiff's expert evidence supported a genuine fact issue.
• Walls v. Ford Motor Company (2022). A party may not use supplementation to bolster an expert's opinions. A supplemental report that applies a previously disclosed analysis to a hypothetical to answer criticisms is not a proper supplement.
• Walls v. Ford Motor Company (2022). Under Rule 702 and Daubert, evidence from an experiment whose lead scientist and a review committee criticized its methodology, and whose data went unpublished, is unreliable. Its mention would also confuse and mislead the jury, so it is excluded.
• Covil Corporation v. United States Fidelity and Guaranty Co. (2021). A party's duty to supplement discovery under Rule 26(e) continues after discovery closes, so a motion to compel supplementation is timely. Settlement agreements are discoverable only to the extent they bear on damages and setoff, and neither confidentiality terms nor a state-court sealing order bars production.
• In re Aldrich Pump LLC (2021). Under the Texas divisional merger statute the asbestos liabilities belong only to the debtors, so suits against non-debtor affiliates to recover them are stayed under section 362(a)(1). Claims such as fraudulent transfer, alter ego and successor liability are estate property or belong first to the trustee, and are stayed under section 362(a)(3). A preliminary injunction under section 105 was warranted because such suits would interfere with reorganization.
• In re Bestwall LLC (2021). A bankruptcy court order granting a Rule 2004 motion for personal injury questionnaires is not a final order under 28 U.S.C. § 158(a)(1), and the district court declined to grant leave to appeal it as an interlocutory order under § 158(a)(3).
• In re Bestwall LLC (2021). A motion for rehearing under Bankruptcy Rule 8022 is judged by the narrow Rule 59(e) standard. The court kept its ruling that the PIQ Order is not final or appealable on an interlocutory basis. It withdrew its earlier affirmance of the order because it had not reached the merits, and it allowed the committee to challenge the order in an appeal from a later final order.
• In re Bestwall LLC (2021). A party bound by a bankruptcy court's order must comply with it, or seek relief from that court or on appeal, until it is reversed. Filing a separate lawsuit elsewhere in violation of the order's terms is civil contempt, even where the party disagrees with the order.
• In re Bestwall LLC (2021). A bankruptcy court's discovery order under Bankruptcy Rule 2004 is interlocutory, not final. Leave for an interlocutory appeal requires, among other things, a controlling question of law, and whether to allow a Rule 2004 examination is a matter of the bankruptcy court's discretion.
• Reed v. Reichhold Liquidation, Inc. (2021). Predicting Iowa law, the court held that the Iowa Supreme Court would abandon the 'sole proximate cause' defense after adopting the Restatement (Third) of Torts in Thompson v. Kaczinski. Even if the defense existed, disputed facts about the employer's conduct would prevent summary judgment.
• Settlemyer v. Borg-Warner Morse Tec, LLC (2021). A court need not rewrite overly broad discovery requests that are unlimited in time and product scope when the movant asks to compel responses as written, and a motion to compel Rule 30(b)(6) deposition dates is premature before the parties confer on topics and a notice with a date is issued.
• Walls v. Ford Motor Company (2021). A party seeking discovery from another party's non-testifying consulting expert may obtain the underlying facts and test data, though not the expert's opinions, on a showing of exceptional circumstances under Rule 26(b)(4)(D), such as destructive testing of limited tissue that the other side cannot replicate.
• Walls v. Ford Motor Company (2021). General boilerplate objections to discovery are invalid, and a party claiming work-product protection must show the protection applies and describe the withheld documents. A party that delays correcting inaccurate discovery responses without justification may be made to pay expenses under Rule 37, and net worth discovery requires some factual showing that punitive damages are viable.
• Bell v. American International Industries (2020). A non-resident seller that sold a product in the forum for years and then contracted to indemnify the buyer for liabilities from those sales has purposefully availed itself of the forum. A parallel Delaware declaratory action did not justify abstention or a stay under Colorado River or Landis.
• Brock v. Air & Liquid Systems Corporation (2020). On a pretrial motion decided without a hearing, a plaintiff need only make a prima facie showing of specific personal jurisdiction. Alleged direct sales of asbestos-containing products into the forum that injured a forum resident satisfy that showing, even where the defendant's affidavit disputes the sales.
• Finch v. Covil Corporation (2020). A non-party insurer that knew of its insured's receivership for decades but did not examine public court records cannot timely intervene or obtain Rule 60(b)(2) relief after judgment. A Rule 60(b)(4) motion based on a claimed statute-of-repose jurisdictional bar fails where there was at least an arguable basis for diversity jurisdiction.
• Finch v. Covil Corporation (2020). A jury instruction on substantial factor causation need not repeat Lohrmann verbatim, but must convey that the plaintiff proved more than de minimis exposure through regular, frequent proximity to the defendant's product. Under North Carolina law, wrongful death damages that are hard to quantify are not speculative and are left to the jury.
• Hill v. Mallinckrodt LLC (2020). A party is not a required party under Rule 19(a) merely because it could help a defendant show that someone else controlled the worksite. Joint tortfeasors need not be sued together, and a settled party's interests are already protected.
• Finch v. Covil Corporation (2019). A verdict for the plaintiff stands where the evidence permitted a jury to find that the defendant supplied asbestos insulation, that the worker was exposed to it, and that no warning was given. Under North Carolina law, a wrongful death verdict is excessive only if the record shows passion, prejudice or disregard of the law, not merely because it is large.
• Zurich American Ins. Co. v. Covil Corporation EX rel. Protopapas (2019). Under Rule 19, a receiver acting for the insured and underlying asbestos claimants in another state were not necessary parties to the insurers' declaratory judgment action. Colorado River abstention applies only to parallel federal and state suits, not to a parallel suit in another federal court.
• Bell v. American International Industries (2018). Under North Carolina law, willful or wanton conduct for punitive damages requires conscious and intentional disregard of others' rights and safety, which is more than gross negligence. Allegations that top management rejected advice to warn of asbestos hazards plausibly pleaded it, but a conspiracy claim requires an alleged agreement between defendants.
• Finch v. BASF Catalysts LLC (2018). Under North Carolina law as applied through the Lohrmann frequency, regularity and proximity test, a plaintiff must show regular exposure to asbestos fibers from the defendant's specific product. The mere presence of encapsulated or static asbestos in a product is not enough to support an inference of causation.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Finch v. BASF Catalysts LLC (2018). A party that fails to timely disclose an expert report and evidence under Rule 26(a) cannot use it under Rule 37(c)(1) unless the failure was substantially justified or harmless. An adverse inference for spoliation requires a duty to preserve, destruction of relevant evidence, and willful destruction.
• Penegar v. United Parcel Service (2018). Under the last-injurious-exposure rule, a claimant need only show an exposure that augmented the disease to any extent, however slight. If the record has no evidence of asbestos exposure in later jobs, the employer must produce some evidence of it, and the claimant need not prove that no later exposure occurred.
• Lineberger v. CBS Corporation (2017). Interlocutory appeal under 28 U.S.C. § 1292(b) requires a controlling question of law the court actually decided, substantial ground for difference of opinion, and a material advance of the litigation, and the court may decline absent exceptional circumstances.
• Lineberger v. CBS Corporation (2017). When a court decides a Rule 12(b)(2) motion on the pleadings without an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction, with the complaint's allegations read in the plaintiff's favor. The defendant's affidavit is not considered at that stage.
• Lineberger v. CBS Corporation (2017). Rule 8 does not require a plaintiff to name the exact asbestos product a defendant made or where and when exposure occurred. Alleging the plaintiff's jobs, dates, work locations, a list of asbestos products and the defendant's role in making or distributing them is enough to state a claim.
• Lovelace v. B&r Auto Service, Inc. (2017). Under N.C. Gen. Stat. § 97-57, liability rests with the employer where the worker was last injuriously exposed, and the Commission may draw reasonable inferences from circumstantial evidence to find that exposure occurred in later self-employment. Findings supported by competent evidence are binding on appeal.
• Phillips v. Pneumo Abex, LLC (2017). Under North Carolina law, a jury may find a defendant's negligence was a proximate cause of injury yet also find that a third party's intervening negligence became the sole proximate cause. Such answers on a special verdict form can be harmonized and are not inconsistent.
• Queen v. CBS Corporation (2017). Under Fourth Circuit and North Carolina law, a plaintiff must show exposure to the defendant's specific product regularly over an extended time near where the plaintiff worked; with no evidence of exposure, the product cannot be a substantial factor in causing the disease.
• Branson v. American International Industries (2016). A court may defer a belated personal jurisdiction challenge until trial under Rule 12(i) when the defendants answered late and participated in discovery planning, and the jurisdictional facts need further development and overlap with the merits. Under Rule 12(c), the complaint's allegations were enough to prevent dismissal.
• Phillips v. Pneumo Abex LLC (2016). Plain error has virtually no application in civil cases, and even under that standard a party cannot obtain a new trial based on a verdict-sheet structure (separating intervening cause from proximate cause) that the party itself requested and that did not prejudice it.
• Richardson v. Pcs Phosphate Company, Inc. (2016). A Medicare beneficiary may bring a private action under the Medicare Secondary Payer Act in federal court, and the beneficiary may sue as a third-party beneficiary under N.C. Gen. Stat. § 97-98 for a workers' compensation payer's failure to promptly pay. Unjust enrichment is unavailable where the claim rests on an express contract.
• Young v. 3M Company (2016). Where personal jurisdiction is disputed and the plaintiff's claim is not clearly frivolous or merely attenuated and based on bare allegations against specific denials, a court should ordinarily permit limited jurisdictional discovery.
• Garlock Sealing Technologies, LLC v. Simon Greenstone Panatier Bartlett (2015). A party seeking transfer under 28 U.S.C. § 1412 must show that the interest of justice or the convenience of the parties favors it, and a court should presume in favor of exercising jurisdiction, so discretionary abstention under § 1334(c)(1) is warranted only in rare cases and the movant bears the burden.
• Garlock Sealing Technologies, LLC v. Simon Greenstone Panatier Bartlett, A Professional Corporation (2015). A statute of limitations defense, Noerr-Pennington and state litigation privileges cannot be decided on a motion to dismiss unless all necessary facts appear on the face of the complaint. Litigation conduct is not shielded from RICO, and the complaint adequately pleaded fraud, conspiracy and RICO.
• Ketchie v. Fieldcrest Cannon, Inc. (2015). Under the plain language of N.C. Gen. Stat. §§ 97-130(4) and 97-131, a claim is a "covered claim" only if the injury, or for latent occupational disease the last injurious exposure, occurred while the self-insurer was a member of the Security Association.
• Harris v. Ajax Boiler, Inc. (2014). Federal CLIA regulations and voluntary CAP guidelines do not bar a court from ordering a laboratory to release original pathology tissue blocks, so the order was not unduly burdensome and the protective order was denied.
• Legal Newsline v. Garlock Sealing Technologies LLC (2014). A court may not seal proceedings or judicial records merely because of protective orders or counsel's confidentiality designations. It must determine the source of the right of access, give public notice, consider less drastic alternatives, and state specific findings supporting any sealing.
• Taylor v. Alcatel-Lucent USA, Inc. (2014). Colorado River abstention applies only where federal and state suits are parallel, meaning substantially the same parties and issues. Suits based on distinct factual allegations of asbestos exposure are not parallel, and filing related suits in different forums was not abuse of process or sanctionable.
• Young v. Agco Corporation (2014). At the motion-to-dismiss stage, a plaintiff need only make a prima facie showing of personal jurisdiction, with allegations and factual disputes construed in the plaintiff's favor. Allegations that the defendant placed asbestos products into the stream of commerce so they were used at the decedent's North Carolina job sites met that showing.
• Wise v. Alcoa, Inc. (2013). The Industrial Commission may admit expert testimony from experts qualified in their general fields, and its findings are upheld if any competent evidence supports them. A non-mandatory federal guideline noting a general association between asbestos and esophageal cancer is not binding and does not establish causation in an individual case.
• Kingston v. Lyon Construction, Inc. (2010). A superior court has jurisdiction under N.C. Gen. Stat. § 97-10.2(j) to determine a workers' compensation lien once a final, enforceable settlement with some third parties exists, even if claims against other third parties remain. The court has discretion to reduce the lien after considering the statutory factors.
• Williams v. CSX Transportation, Inc. (2006). Under the FELA, the trial court acted within its discretion in its evidence rulings, its jury instructions and its handling of the trial. Conflicting expert testimony on causation properly went to the jury, so the post-trial motions were rightly denied.
• Payne v. Charlotte Heating & Air Cond. (2005). The time limit in the fourth paragraph of N.C. Gen. Stat. § 97-61.6, which gave asbestosis and silicosis death claims a shorter period than other latent occupational diseases, violates the Equal Protection Clause under rational basis review. The Commission's findings on asbestosis, causation and last injurious exposure were supported by competent evidence and so were binding.

North Dakota

• Pyle v. AH Bennett Co. (2023). Because no federal rule or North Dakota provision authorizes a court to order a plaintiff to file asbestos trust claims, the court could not compel filing whether or not the state statute's investigation and filing requirements apply in federal court. Trust-related discovery relevant to apportionment of fault is still allowed under Rule 26.
• Pyle v. AH Bennett Co. (2022). In a diversity case, Federal Rule of Civil Procedure 26 directly conflicts with and displaces the disclosure requirements of North Dakota's Asbestos Bankruptcy Trust Transparency Act, and Rule 26 is valid under the Rules Enabling Act.