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 Dakota

• Black v. Abex Corp. (1999). Even assuming market share liability were recognized, a plaintiff must present admissible evidence that the defendants' products were fungible and carried equivalent risks of harm. Alternative liability does not apply when the plaintiff has not joined all possible manufacturers.
• Puppe By Puppe v. AC and S., Inc. (1990). After Hopkins v. McBane, North Dakota law allows punitive damages in wrongful death actions, and neither multiple punitive awards nor the interests of future plaintiffs create a due process bar to punitive damages in asbestos-type toxic tort litigation.

Ohio

• Parker Hannifin Corp. v. Standard Motor Products, Inc. (2023). Under the plain language of the 1986 sale agreement, asbestos personal injury claims first asserted in writing after the fifteenth anniversary of closing are Assumed Liabilities, which includes punitive damages awarded in such a claim. Ohio public policy does not bar sophisticated commercial parties from agreeing to indemnify punitive damages arising from the indemnitee's past conduct.
• Taylor v. BASF Catalysts, LLC (8th Appellate District, 2023). A trial court abuses its discretion by finding an attorney's claims frivolous based solely on a non-binding out-of-state ruling between different parties, because the party seeking sanctions bears the burden of showing why that ruling should carry weight. A voluntary dismissal under Civ.R. 41, without egregious conduct, is not by itself frivolous or harassing conduct.
• Parker Hannifin Corp. v. Standard Motor Products, Inc. (2020). An order may be certified for interlocutory appeal under 28 U.S.C. § 1292(b) only if it involves a controlling question of law whose resolution could materially affect the case's outcome. Issues tied to unripe claims that may become moot, and that leave the other claims largely unaffected, do not qualify.
• RW Beckett Corp. v. Allianz Global Corp. (2020). Under Ohio law, "atmosphere" in a pollution exclusion is ambiguous as to whether it covers air inside a residential basement, so the exclusion is construed against the insurer. A non-settling insurer seeking a settlement credit must show the settling insurer's payment was for the same damages.
• Blakely v. Goodyear Tire & Rubber Co. (9th Appellate District, 2019). An unrebutted statutory presumption under R.C. 2307.941 that a premises owner complied with state safe exposure levels does not by itself defeat a premises claim built on a theory that the owner knew those levels were unsafe. A negligence-based supplier claim under R.C. 2307.78(A)(1) is not barred by DiCenzo or a privity requirement, and the product question is whether the component had left the manufacturer's control, not whether it was still in a manufacturing process.
• MacLachlan v. AW Chesterton, Inc. (2019). A later affidavit that contradicts earlier deposition testimony need not be struck as a sham if the contradiction is reasonably explained by memory lapses, confusion or new evidence; the resulting inconsistencies go to weight and credibility for the jury. Punitive damages are a form of damages, not a separate cause of action under Ohio law.
• Shaffer v. AW Chesterton Co. (9th Appellate District, 2019). A state court hearing Jones Act and unseaworthiness claims must apply federal maritime substantive law, not Ohio's asbestos causation statute and Schwartz; the Jones Act uses a relaxed 'however slight' causation standard. A trial court also may not grant summary judgment on a ground the movant did not raise.
• Case v. Clark Indus. Insulation (8th Appellate District, 2018). Under Ohio Civ.R. 12(H)(1) and Gliozzo, a personal jurisdiction defense is waived only by omitting it from a responsive pleading or certain pre-pleading motions, not by active participation in the case. A notice of appearance under the Cuyahoga asbestos docket rules preserved all affirmative defenses.
• Ellis v. Bridgestone Americas, Inc. (2018). Under Rule 45(f), a court where compliance is required may transfer a motion to quash to the issuing court if the subpoenaed person consents. A late reply brief may be allowed in the court's discretion when the opposing party shows no prejudice.
• Alexander v. Honeywell International, Inc. (2017). Under Ohio Rev. Code 2307.96(B), a plaintiff's testimony about the manner, proximity, frequency and length of exposure to a defendant's asbestos can let a jury find that exposure a substantial factor, even if the testimony is imprecise.
• French v. AW Chesterton Company (2017). Deposition testimony of a deceased witness is inadmissible hearsay against a party that had no reasonable opportunity to cross-examine him on the subject, so it cannot satisfy the former-testimony exception. Without that testimony there was no admissible evidence linking the defendant's product to the plaintiff.
• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Heaton v. Ford Motor Co. (8th Appellate District, 2017). A trial court may exclude evidence under Civ.R. 26(E) and 37(C) when a party fails to supplement discovery responses, even if the failure was inadvertent, where the resulting prejudice to the opposing party cannot be cured by a lesser sanction. Without that testimony, product identification evidence against McCord was lacking.
• Brucker v. CBS Corporation (2016). Complete relief under Rule 19 is judged among the existing parties, so absent joint tortfeasors are not necessary parties merely because Ohio's apportionment of fault statute affects the defendants' defense. The movant also bears the burden of identifying the absent party, its location, and whether jurisdiction exists over it.
• Dennis v. Gen. Motors Corp. (3rd Appellate District, 2016). Asbestos-related lung cancer is not 'asbestosis' under R.C. 4123.68, so the pulmonary-function-test requirements of R.C. 4123.68(Y) do not apply to it. Resolution R03-1-02 applies only to 'injured workers,' not to surviving-spouse claimants.
• Schwartz v. Honeywell Internatl., Inc. (8th Appellate District, 2016). Expert testimony on cumulative asbestos exposure and brake dust causing mesothelioma was admissible without quantified dose, and evidence of manner, proximity and frequency of exposure met Ohio's substantial factor test (R.C. 2307.96). Evidence that a feasible non-asbestos alternative existed supported the design defect claim, and enough evidence of flagrant disregard existed that punitive damages should not have been taken from the jury.
• State EX rel. Boyd v. Scotts Miracle-Gro Co. (2016). The Industrial Commission's denial of permanent total disability was supported by some evidence in the record. Resolution R03-1-02's B-reader requirement applies to the initial diagnosis and allowance of an asbestos claim, not to an examining physician's report on disability from an already-allowed claim. The Commission may reject vocational evidence in favor of its own analysis.
• Bryant v. General Motors Corp. (3rd Appellate District, 2015). A directed verdict is properly denied when, viewing the evidence for the nonmovant, reasonable minds could differ on workplace asbestos exposure and on whether it was a proximate cause of the lung cancer. A conflict between medical experts is for the jury, and an expert may rely on assumed facts that independent evidence supports.
• Burkhart v. HJ Heinz Co. (2014). Under Evid.R. 804(B)(1), former testimony is admissible against a party only if that party or its predecessor-in-interest (one in privity, from whom it received a right, title, interest or obligation) had an opportunity and similar motive to examine the witness; merely sharing an interest in the facts and outcome is not enough.
• Tucker v. CompuDyne Corp. (8th Appellate District, 2014). An inadvertent disclosure of a privileged document can waive attorney-client privilege under a case-by-case, five-factor test with fairness weighing heavily, and work-product protection for factual information yields on a showing of good cause (relevant and otherwise unavailable).
• Burkhart v. HJ Heinz Co. (6th Appellate District, 2013). A deposition from a prior asbestos suit is admissible as former testimony under Evid.R. 804(B)(1) when a party in the earlier case had a similar motive and opportunity to examine the witness (the Lloyd test). Properly authenticated business records, medical-history statements, and interrogatory answers from other cases may be considered on summary judgment, and disputes over whether the material was asbestos present fact questions.
• Bier v. Am. Biltrite (8th Appellate District, 2012). A plaintiff cannot defeat summary judgment against a raw asbestos supplier by stacking inferences that it sold asbestos to manufacturers whose products the decedent used. The plaintiff must produce evidence that the supplier's asbestos was in the products he was exposed to.
• City of Dayton v. AR Environmental, Inc. (2012). Under Ohio law, punitive damages for breach of contract are available where the breach is accompanied by an independent tort such as fraud committed with malice, including conscious disregard of public safety. Asbestos is a hazardous substance under CERCLA, and burying it is a release.
• Bowens v. Sager Corp. (In re All Cases Against Sager Corp.) (2012). Whether a dissolved foreign corporation can be sued is determined by the law of its state of incorporation, and Full Faith and Credit requires Ohio to honor that law. A receiver therefore cannot be appointed to accept service and marshal unexhausted liability insurance for a corporation that can no longer be sued.
• Fisher v. Alliance Machine Co. (8th Appellate District, 2011). Under R.C. 2307.96(B), an asbestos plaintiff must prove exposure to each defendant's asbestos and that it was a substantial factor in causing the injury, weighing manner, proximity, frequency and mitigating factors of exposure. On summary judgment, unauthenticated documents not attached to an affidavit cannot be considered under Civ.R. 56.
• Welsh v. Ford Motor Co. (8th Appellate District, 2011). A workers' compensation claimant must show by a preponderance that the disease was contracted through injurious exposure in the course of employment. Coworker testimony about exposure, together with expert testimony and corroborating records, was enough for the jury, and a challenge to an expert's scientific foundation not raised at trial under Daubert or Evid.R. 702 was waived.
• Cantrell v. Adience, Inc. (8th Appellate District, 2010). A plaintiff must show some evidence, direct or circumstantial, that the defendant's asbestos product was at the workplace at or near the time of exposure. A past supplier relationship does not support an inference that it continued, and Evid.R. 406 habit evidence cannot prove a continuing business relationship.
• Connell v. Goodyear Tire & Rubber Co. (8th Appellate District, 2010). A buyer of a company's assets that did not assume liability for claims by former employees is not the successor to that liability. An employer intentional tort claim requires proof that the employer actually knew harm to the employee was substantially certain. A liability-only summary judgment is not a final appealable order.
• Dean v. Bur. OF Workers'comp. (5th Appellate District, 2010). A claimant seeking workers' compensation for an asbestos occupational disease must show asbestos exposure at an employer's facility that proximately caused the injury. Once the defendants showed through the claimant's deposition that she had no evidence of exposure, she had to come forward with evidence, and she did not.
• Fagerholm v. Gen. Elec. Co., Inc. (8th Appellate District, 2009). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk or that asbestos is dangerous is not enough. A trial court may limit discovery of corporate knowledge to the products and conditions present at the plaintiff's facility.
• Jackson v. AC Product Liability Trust (2009). A verdict is against the weight of the evidence when there is no testimony showing the plaintiff's actual, substantial asbestos exposure on the defendant's vessel. Expert hypotheticals must rest on facts in the record, and a verdict that shocks the conscience is excessive.
• Oglesby v. Consol. Rail Corp. (6th Appellate District, 2009). Ohio Civ.R. 10(D)(2), which requires a merit affidavit with a medical claim, is procedural and constitutional, and a plaintiff who substitutes real parties for John Doe defendants after the one-year service period cannot use relation back where the limitations period has run.
• Polanco v. Asbestos Corp., Ltd. (3rd Appellate District, 2009). An employee's asbestos claim against his employer can avoid workers' compensation exclusivity under the intentional-tort exception if there is a genuine issue of fact on all three Fyffe elements: the employer knew of the danger, knew harm was substantially certain, and required the employee to keep doing the dangerous work. Company documents of the kind offered here can be authenticated as ancient documents under Evid.R. 901(B)(8) when age, condition and custody are shown.
• Riedel v. Consolidated Rail Corporation (8th Appellate District, 2009). Ohio's administrative dismissal provision (R.C. 2307.93(C)) applies only to the asbestos-related claims specified in R.C. 2307.92, so non-asbestos claims joined in the same action are not dismissed and may be severed and proceed.
• Werts v. Goodyear Tire & Rubber Co. (8th Appellate District, 2009). Out-of-court experiments need not duplicate the plaintiff's exact working conditions if they are designed to show the relevant exposure and differences are acknowledged; such differences go to weight. Admitting a proof-of-claim form to show liability violated Evid.R. 408 but was harmless error.
• Gomcsak v. US Steel Corp. (9th Appellate District, 2008). A trial court does not abuse its discretion by limiting an expert to the opinions in his written report under a local rule, or by denying a new trial where competent, credible expert testimony supports the jury's finding that asbestos did not cause the cancer.
• Louden v. AW Chesterton Co. (8th Appellate District, 2008). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk, or acting negligently or recklessly, is not enough, and an employer that provided respirators and permitted their use did not meet that standard.
• Polanco v. Asbestos Corp., Inc. (3rd Appellate District, 2007). A judgment that adjudicates fewer than all claims or parties is not a final, appealable order unless the trial court makes the Civ.R. 54(B) express determination that there is no just reason for delay.
• Rahmes v. Adience Inc. (8th Appellate District, 2007). Under Horton and R.C. 2307.96(B), an asbestos plaintiff must prove exposure to the particular defendant's product and that it was a substantial factor in causing the injury; merely working in the vicinity of asbestos-containing products is not enough.
• Barone v. Gatx Corp. (11th Appellate District, 2006). Under Horton, a plaintiff need not show regular, close-proximity exposure to a product, but must still offer some evidence that the defendant's product was at the workplace during the period of exposure. Speculation about earlier purchases is not enough.
• Bartel EX rel. Estate, Rich v. AC Prod. Liab. Tr. (2006). Asbestos exposure on navigable waters falls under admiralty jurisdiction and federal maritime law, but land-based exposure at a refinery fails the locality and maritime-connection tests and is governed by state law. A joined admiralty claim and non-admiralty claim may be tried to one jury.
• Blandford v. A-Best Prods. Co. (8th Appellate District, 2006). A party with the burden of proof must present its evidence in its case in chief and may use rebuttal only to answer new matter. Allowing an unreported expert and a video for the first time on rebuttal, with no chance to respond, prejudiced the defendant and was an abuse of discretion.
• Snyder v. Ford Motor Co. (3rd Appellate District, 2005). To participate in the workers' compensation fund for an occupational disease, the claimant must show asbestos exposure at an employer's facility that was injurious, meaning it proximately caused, augmented or aggravated the disease. An expert opinion that all of the worker's exposures were significant contributing causes creates a genuine factual issue that defeats summary judgment, even against a latency-period argument.
• State EX rel. Abex Corp./electro Alloys Div. v. Indus. Comm. OF Ohio (10th Appellate District, 2005). A common pleas court hearing an R.C. 4123.512 appeal cannot decide which employer is liable, so mandamus is the remedy for challenging that question. An order naming a sole liable employer must have some evidence behind it, and the medical reports here did not support the last-injurious-exposure finding.
• State ex rel. Hubbard v. Indus. Comm. (2002). Mesothelioma is a cancer distinct from asbestosis, so the statutory and commission-resolution requirement of a specialist medical exam for asbestosis and dust diseases did not apply to it, and the widow could pursue the decedent's accrued benefits despite his death.
• Horton v. Harwick Chem. Corp. (1995). Summary judgment in an asbestos case is governed by the ordinary standard, and Ohio does not adopt the Lohrmann frequency-regularity-proximity test for proving that a product was a substantial factor. Alternative liability does not apply where the defendants' products did not create a substantially similar risk of harm.
• In re Eagle-Picher Industries, Inc. (1995). Under 11 U.S.C. § 502(b) and (c), asbestos claims are estimated as of the petition date, and future values must be discounted to that date. A debtor's closed-claim settlement history is a sound basis for valuing open and future claims.
• Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. (1995). Under Ohio law, a continuous-injury trigger applies to asbestos claims under these excess policies, and the insured may recover in full from any one triggered insurer. The court also declined to adopt a separate known loss doctrine and held that Ohio law bars insuring punitive damages.