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.

California

• Green v. CertainTEED Corporation (1st Appellate District, 3rd Division, 2015). Under California's governmental interest test, Texas law governs claims against defendants whose products or facilities exposed a Texas resident in Texas, even if other law applies to other defendants. Texas law requires proof that the exposure exceeded a harm-inducing threshold, and an 'any exposure' opinion does not meet that standard.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2015). Preverdict settlements are credited against economic damages by the Espinoza method regardless of the settling defendants' fault, while postverdict settlements are credited under the Torres method, and a settlement executed after the verdict is a postverdict settlement. A court need not reduce a judgment for uncertain future asbestos bankruptcy trust recoveries that have not been received.
• Hernandezcueva v. EF Brady Company, Inc. (2nd Appellate District, 4th Division, 2015). A subcontractor that both supplies and installs a defective product can be held strictly liable if it took part in the product's stream of commerce and the product sale was not merely incidental to its services; this is a fact-sensitive question. A claim of judicial misconduct is forfeited if no timely objection was made and no showing of futility is made.
• Leidig v. Zenith Electronics LLC (2nd Appellate District, 4th Division, 2015). A plaintiff opposing summary judgment must offer admissible evidence that the decedent was exposed to asbestos in the defendant's product. Lay witnesses and an unqualified expert cannot identify a material as asbestos, and speculation that a product might have contained asbestos does not raise a triable issue.
• Melendrez v. Ameron International Corporation (2nd Appellate District, 4th Division, 2015). If employment substantially contributed to a disease, the disease is covered by workers' compensation even if a nonindustrial cause such as home exposure also contributed, so the exclusive remedy rule bars a tort suit against the employer for the whole injury.
• Shiffer v. CBS Corporation (1st Appellate District, 1st Division, 2015). A plaintiff must produce evidence of actual exposure to the defendant's asbestos-containing product, and mere presence at a site is not enough. Expert opinions resting on an incomplete factual record cannot supply that evidence. Belated expert opinions based on evidence available before the summary judgment hearing are not new evidence for reconsideration or a new trial.
• Soto v. BorgWarner Morse Tec Inc. (2nd Appellate District, 4th Division, 2015). A punitive damages award cannot stand without meaningful evidence of the defendant's financial condition, and revenue figures alone are not enough. A minor is 'dependent' under Code Civ. Proc. § 377.60(c) only if financially reliant on the decedent for the necessaries of life, not merely for niceties.
• Walton v. OneBeacon Ins. Co. (2nd Appellate District, 4th Division, 2015). An insurer that pays its insured's defense costs under a policy is entitled to equitable and contractual subrogation to the insured's costs judgment. In asbestos cases, coverage is triggered by exposure to the insured's product before or during the policy period.
• Boyd v. Super. CT. OF Alameda County (1st Appellate District, 3rd Division, 2014). A party over 70 with a substantial interest in the action whose uncontradicted medical evidence shows substantial doubt of survival is entitled to mandatory trial preference under Code of Civil Procedure section 36, subdivision (a), absent contrary evidence, even if the declaration is conclusory.
• Ganoe v. Metalclad Insulation Corporation (2nd Appellate District, 3rd Division, 2014). A defendant does not shift the summary judgment burden merely by pointing to a witness's failure to recall its name or to factually devoid discovery responses that the plaintiff has since amended with specific facts; circumstantial evidence and expert opinion tying the defendant's work to the decedent's exposure can raise a triable issue on causation.
• Gottschall v. Crane Co. (1st Appellate District, 2nd Division, 2014). Collateral estoppel cannot bind a California litigant to another court's ruling on a point of California law that is wrong. The federal court's holding that the Navy's sophistication as a user shielded a supplier was inconsistent with California authority, which looks to the plaintiff's own knowledge rather than an intermediary's.
• Grande v. Borg-Warner Morse Tec, Inc. (2014). Under California law, a plaintiff may show exposure to a defendant's asbestos-containing product through circumstantial evidence that supports a reasonable inference of exposure. Punitive damages go to the trier of fact unless no reasonable jury could find clear and convincing proof of malice, fraud or oppression.
• Haver v. BNSF Railway Co. (2nd Appellate District, 5th Division, 2014). Following Campbell v. Ford Motor Co., a premises owner owes no duty of care to family members of workers who are secondarily exposed to asbestos off the premises, whether the worker was employed by the owner or by a contractor.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2014). Evidence that asbestos products routinely emitted respirable fibers in ordinary use supports a design defect under the consumer expectations test, and evidence that each exposure increased the risk of mesothelioma supports substantial-factor causation. A judgment is final and appealable even if settlement credits have not yet been applied.
• Kent v. Warren Pumps, LLC (2nd Appellate District, 3rd Division, 2014). A defendant moving for summary judgment on product identification does not meet its initial burden when the plaintiff's discovery responses and deposition testimony identify the defendant's products and the undisputed fact that some of its gaskets and packing contained asbestos; declarations on sales records and Navy procurement go only to weight.
• Kesner v. Superior Court of Alameda County (1st Appellate District, 3rd Division, 2014). An employer's duty of reasonable care extends at least to members of an employee's household and to long-term, frequent guests likely to be affected by toxic materials brought home on the worker's clothing. Premises-liability no-duty rules such as Campbell do not control a negligence claim about the employer's own manufacturing conduct.
• Lovelace v. Pneumo Abex LLC (3rd Appellate District, 2014). A new trial motion based on surprise is properly denied where the party never asked for a continuance, and a mistrial motion does not take the place of one. Substantial evidence, with conflicts resolved for the verdict winner, supported the jury's fault allocation to the brake maker.
• Scott v. Ford Motor Company (1st Appellate District, 1st Division, 2014). The sophisticated user defense did not bar a failure to warn claim because Ford did not prove that service station owners knew or should have known of automotive asbestos risks during the early part of Scott's career. Under California's governmental interest analysis, Michigan has no interest in having its ban on punitive damages applied in California courts, so no true conflict exists and California law applies.
• Vos v. Calhoon (3rd Appellate District, 2014). An appellant must provide a record that affirmatively shows error, and self-represented parties get no special treatment. Without the operative complaint, the court could not find error in sustaining the demurrer without leave to amend.
• Ward v. Goss-Jewett Co. OF Northern California (1st Appellate District, 3rd Division, 2014). A defendant served with a statement of damages is entitled to actual notice a reasonable period of time before default, not a fixed 30 days. A default judgment cannot exceed the amounts in the operative statement of damages.
• Catiller v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2013). A plaintiff with trial preference for health reasons is still entitled to the near-mandatory continuance under Code Civ. Proc. § 437c(h) when discovery needed to oppose summary judgment was delayed by the defendant.
• David v. Slakey Brothers, Inc. (2nd Appellate District, 3rd Division, 2013). A trial court abuses its discretion by refusing to consider a signed opposing declaration filed before the summary judgment hearing, where the refusal punishes counsel for conduct in other cases rather than rests on a finding of no good cause. The declaration here raised a triable issue of exposure to the defendant's asbestos-containing products.
• Hernandez v. Amcord, Inc. (2nd Appellate District, 2nd Division, 2013). Under Rutherford, a plaintiff need not have an M.D. recite that the defendant's product caused the disease. Evidence of threshold exposure, an epidemiologist's testimony on cumulative exposure, and a physician's opinion that asbestos caused the mesothelioma can show the product was a substantial factor contributing to the risk of cancer. The Noerr-Pennington doctrine is a rule of substantive liability, not a rule of evidence, so it does not bar evidence of lobbying.
• Jones v. John Crane, Inc. (2nd Appellate District, 7th Division, 2013). A federal dismissal with prejudice of a decedent's personal injury suit, and of his spouse's loss of consortium claim, is a final judgment on the merits. Under res judicata and collateral estoppel it bars the later survival and wrongful death claims by the estate, the spouse and the heirs, who are in privity with the decedent.
• Keeney v. AW Chesterton Company (2nd Appellate District, 4th Division, 2013). A jury's apportionment of fault is upheld if any evidence under a reasonable view supports it, and the appellant must set out all material evidence. A party lacks standing to assert a privilege held by the Navy or another public entity.
• Lee v. Clark Reliance Corporation (2nd Appellate District, 3rd Division, 2013). A manufacturer is not liable in strict liability or negligence for harm caused by another manufacturer's asbestos-containing replacement parts used with its product, and a plaintiff must show exposure to the defendant's own asbestos-containing product to establish causation.
• Lund v. 3M Company (2013). A court may grant jurisdictional discovery when pertinent jurisdictional facts are controverted or a more satisfactory showing of the facts is necessary, including where a defendant's declaration conflicts with its own website.
• Melendrez v. Superior Court OF State OF California (2nd Appellate District, 3rd Division, 2013). An attorney may verify a corporate party's discovery responses as its agent, which waives the attorney-client and work product privileges only as to the sources of the information. If a corporation no longer exists, its attorney-client privilege passes to its insurers as de facto assignee, and a court cannot simply deem responses verified.
• Pfeifer v. John Crane, Inc. (2nd Appellate District, 4th Division, 2013). When a supplier sells hazardous goods to a sophisticated intermediary that passes them to its employees, the supplier can still be liable for failing to warn those employees unless it has reason to believe the ultimate users know or should know of the hazards. The intermediary's sophistication alone does not shield the supplier.
• Steiner v. Volkswagen Group OF America, Inc. (2nd Appellate District, 6th Division, 2013). A trial court has discretion to limit an expert's recitation of hearsay literature on direct examination. Under Evidence Code section 721(b)(1), cross-examination on a publication requires a showing that the expert referred to, considered or relied on it, and mere familiarity is not enough. A trial court may find a defendant's token section 998 offer unreasonable and strike its expert fees.
• Swanson v. Simpson Timber Company (2nd Appellate District, 3rd Division, 2013). Under the Rowland factors, a premises owner owes no duty to an employee secondarily exposed to asbestos off the premises through a family member and fellow employee's work clothes. An employee's secondary exposure from wearing his own work clothes home is a derivative injury barred by workers' compensation exclusivity.
• Webb v. Special Electric Company, Inc. (2nd Appellate District, 1st Division, 2013). A trial court may enter judgment notwithstanding the verdict only after the statutory waiting period and with the required written notice. A supplier of raw asbestos is not relieved of its duty to warn downstream users, as a matter of law, just because its sophisticated customer already knew the dangers.
• Bankhead v. Pneumo Abex LLC (1st Appellate District, 4th Division, 2012). A defendant that stonewalls discovery on its financial condition cannot complain about the exclusion of its unverified financial statement. Indemnity evidence admitted for a limited purpose, even if erroneous, does not require reversal when substantial evidence of the defendant's own wealth supports the punitive award.
• Barker v. Hennessy Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A manufacturer of a non-asbestos machine owes no duty to warn, in strict liability or negligence, about asbestos hazards from another maker's products used with it, where the machine's use with asbestos parts was only foreseeable and not necessary or inevitable.
• Brewer v. Crane Co. (2nd Appellate District, 2nd Division, 2012). Under O'Neil, a manufacturer is not liable in strict liability for harm from asbestos-containing replacement gaskets and packing it did not make or supply, unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use; mere compatibility with asbestos parts is not a defect.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• Davis v. Foster Wheeler Energy Corporation (2nd Appellate District, 5th Division, 2012). A boiler manufacturer that did not make or sell asbestos-containing products is not liable for harm from other makers' asbestos insulation (O'Neil v. Crane Co.). Contradictory testimony that did not tie Foster Wheeler workers to the insulation removal raised no triable issue, and an argument about incomplete discovery that was not raised in the trial court cannot be raised on appeal.
• Evans v. Certainteed Corp. (2nd Appellate District, 8th Division, 2012). An order granting a new trial is reviewed for abuse of discretion and stands if there is a reasonable justification. The trial court could order a new trial on all issues, not just fault allocation, because the jury's failure to assign any fault to Johns Manville cast doubt on its other findings.
• Farag v. ArvinMeritor, Inc. (2nd Appellate District, 3rd Division, 2012). A section 998 offer may be made jointly to husband and wife without allocation, because a personal injury cause of action is community property and either spouse can accept on behalf of the community. The court also noted the argument was not properly raised in the trial court.
• Flores v. Kmart Corporation (2nd Appellate District, 5th Division, 2012). A bankruptcy reorganization plan's discharge cannot be enforced against a claimant at the demurrer stage unless the record shows the claimant received constitutionally adequate notice. Publication notice suffices only if the claimant's identity was not reasonably ascertainable or the claim was conjectural; otherwise actual notice is required.
• Haver v. BNSF Railroad Co. (2nd Appellate District, 5th Division, 2012). Collateral estoppel requires that the issue be identical to one actually litigated in the prior case; a prior judgment on locomotive-exposure allegations does not bar a later wrongful death claim based on different, non-locomotive asbestos exposures that were never raised or decided.
• Leonard v. John Crane, Inc. (1st Appellate District, 5th Division, 2012). A spouse has a valid loss of consortium claim where the other spouse's injury was not discovered or discoverable until after the marriage and so accrued during the marriage, even if the defendant's negligent conduct (such as asbestos exposure) occurred before the marriage.
• O'neil v. Crane Co. (2012). A product manufacturer is not strictly liable or negligent for harm caused by another manufacturer's product or replacement parts used with its product, unless its own product contributed substantially to the harm or it participated substantially in creating a harmful combined use. Foreseeability alone does not create a duty to warn.
• Robinson v. Ssw, Inc. (1st Appellate District, 3rd Division, 2012). California Corporations Code section 2010 does not apply to dissolved foreign corporations, so the law of the state of incorporation governs how long a dissolved corporation can be sued; under Nebraska's five-year survival statute the suit was untimely.
• Rollin v. Foster Wheeler, LLC (2nd Appellate District, 2nd Division, 2012). The sophisticated user defense does not bar a worker's claim merely because his employer was knowledgeable about asbestos, and the sophisticated intermediary doctrine applies only if the manufacturer gave adequate warnings to the intermediary. A new trial was proper so the parties could address the O'Neil limits on liability for other manufacturers' asbestos products.
• Shields v. Hennessy Industries, Inc. (1st Appellate District, 1st Division, 2012). Under O'Neil v. Crane Co., a manufacturer can be liable for harm involving another maker's asbestos product if its own product contributed substantially to the harm. Allegations that a machine's only intended use was grinding asbestos brake linings, and that this released the fibers, meet that test at the pleading stage.
• Vanhooser v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2012). In latent asbestos disease cases, the marriage element of a loss of consortium claim is satisfied if the couple was married before the spouse's symptoms were discovered or the disease diagnosed, even if the marriage came after the asbestos exposure. Zwicker, which involved an immediate injury, does not control.
• Adams v. Ford Motor Company (2nd Appellate District, 1st Division, 2011). A prevailing defendant's section 998 offer is presumed reasonable when it wins a more favorable judgment. The trial court has discretion to award expert fees incurred before or after the offer, and the party challenging the costs must show they were unreasonable or unnecessary.
• Belvedere v. GS Blodgett Corporation (2nd Appellate District, 5th Division, 2011). Under the asbestos statute of limitations, the limitations period runs separately against each wrongful death heir, so one heir's knowledge does not start the clock for the others. A Doe amendment relates back only if the plaintiff was genuinely ignorant of the defendant's identity or the facts of its liability.
• Fontes v. Interstate Brands Corporation (2nd Appellate District, 5th Division, 2011). A defendant can shift the burden on summary judgment by showing through discovery responses and deposition testimony that plaintiffs cannot prove asbestos was present at the work site. An expert declaration lacking foundation for that point is properly excluded, and a new trial motion based on excluded expert opinions fails because the evidence is not material.