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.

Ohio

• Baechel v. Sears, Roebuck & Co. (1994). A claimant for an occupational disease must show an injurious exposure to asbestos in the course of employment at the last employer, and basic proximate-cause principles allow a dual-causation instruction when employment and environmental exposures combine to cause the disease.
• Columbus Bd. of Edn. v. Armstrong World (1993). The discovery rule applies to asbestos property damage claims, and the claim accrues when the owner knew or should have known its property was damaged, here at the first abatement. An amendment adding a new defendant relates back only if there was a mistake about identity, not mere lack of knowledge.
• Lynch v. Mayfield (1991). A trial court may admit testimony about a decedent's cohabitation with another woman and his divorce complaint, because dependency is decided on the facts existing at the time of death. A verdict supported by competent, credible expert testimony that the death was not caused by the work-related disease is not against the manifest weight of the evidence.
• La Placita Partners v. Northwestern Mut. Life Ins. (1990). Under Arizona law a seller in an arm's-length, "as is" real estate sale has no duty to disclose easily discoverable conditions to a buyer who inspected the property, and a buyer who admits the defect would not have changed its decision cannot show materiality or reliance.
• Bush v. Abex Corp. (1989). Under the summary judgment standard, circumstantial evidence from which a reasonable jury could infer the decedent was exposed to a defendant's asbestos is enough to create a genuine issue of material fact on exposure.
• Gradwell v. AS Helbig Constr. Co. (1989). Under State ex rel. Burnett v. Indus. Comm., a claimant in a de novo workers' compensation appeal may add additional employers as parties at the trial court level, even after the two-year limitations period has expired.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.
• Layne v. GAF Corp. (1988). Ohio strict products liability under Restatement 402A, Comments j and k, supports a failure-to-warn claim and a state-of-the-art defense for asbestos products, and the learned intermediary rule has been affirmed only for prescription drugs, not for building owners.
• Goldman v. Johns-Manville Sales Corp. (1987). Alternative liability requires the plaintiff to prove that all defendants acted tortiously, including that their asbestos products reached the plaintiff's workplace. Market-share liability, developed for the DES drug, was not accepted for asbestos because asbestos products are not fungible.
• Lavelle v. Owens-Corning Fiberglas Corp. (1987). A plaintiff with asbestosis but no cancer cannot present evidence of increased risk of cancer because it is speculative, but may present evidence of reasonable fear of developing cancer as a claim of serious emotional distress.
• English v. Johns-Manville Sales Corp. (1984). Under Ohio Civ. R. 26(B)(4)(a), experts retained in anticipation of litigation but not expected to testify are discoverable only on exceptional circumstances, but where an expert was contacted by both sides and no one sought to suppress his opinions, he may be used by all parties.
• Laster v. Celotex Corp. (1984). Under Fed. R. Evid. 201, a court may notice only facts not subject to reasonable dispute. The conditions under which asbestos causes asbestosis, and whether asbestos causes mesothelioma, were reasonably disputed, so notice was refused.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, duty of care depends on foreseeability and policy considerations; where the husband's exposure was intermittent and non-occupational, take-home harm to his wife was not foreseeable as a matter of law and no duty was owed.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, a manufacturer owes no duty to warn a worker's wife who was exposed only by laundering his work clothes, because she is not a foreseeable user. The negligence duty of care also failed because take-home harm from the boilers was not foreseeable on this record.
• Angelo v. Armstrong World Industries, Inc. (1993). A trial court does not abuse its discretion by trying asbestos cases in reverse bifurcated format (damages, causation and disease first, liability second) when the issues are separable, it serves economy, and it is not unfair. Objections not raised at trial are reviewed only for plain error.
• Fisher v. Owens-Corning Fiberglass Corp. (1989). Under Oklahoma law an unambiguous release is a contract interpreted as a matter of law, and a mutual-mistake challenge fails where the plaintiff already knew of and had pleaded the possibility of the later-diagnosed disease when he settled.

Oregon

• Long v. 3M Company (2024). Federal officer removal requires a causal nexus between the plaintiff's claims and the defendant's actions under federal direction, and a plaintiff's waiver of all claims from Navy and government-commissioned vessels removes that nexus. Admiralty jurisdiction over claims filed in state court does not by itself support removal.
• Chatfield v. Brenntag North America, Inc. (2023). Removal based on diversity is improper where a properly joined and served in-forum defendant exists. Fraudulent joinder requires showing the plaintiff cannot possibly state a claim against that defendant, and sworn denials or evidentiary disputes that require a searching merits inquiry do not meet that burden.
• Miller v. Agripac, Inc. (2022). A defendant whose negligence is found reckless (wanton), the third category of tortious conduct, cannot use the comparative-fault defense. Under Shin, that defendant also falls outside the several-only liability statute and stays jointly and severally liable, whenever the action arose.
• Hoff v. Certainteed Corp. (2021). A plaintiff need not prove exposure to the defendant's asbestos-containing product at a particular job site. It is enough that the evidence supports a reasonable inference that, more likely than not, he was exposed to it at one or more sites. A judgment does not violate ORCP 67 C where it is below the amount in the complaint's prayer, and the defendant never sought to clarify an inconsistent figure in the body of the complaint.
• Sheldon v. Cleaver-Brooks, Inc. (2021). For diversity purposes, a decedent's legal representative is deemed a citizen of the decedent's state, and a non-party beneficiary's citizenship does not count, because only the personal representative may bring an Oregon wrongful death action.
• Golik v. CBS Corp. (2020). A trial court may infer, from the circumstances, that counsel deliberately withheld responsive discovery. That is misconduct supporting a new trial under ORCP 64 B(2) if it materially affects the moving party's substantial rights. Under Washington law, a premises owner can be liable to an independent contractor's employee for a dangerous condition if the owner negligently directed the contractor to create it.
• Coury v. Air & Liquid Systems Corporation (2018). A settlement-related email from a plaintiff's side can be an "other paper" under 28 U.S.C. § 1446(b)(3) that restarts the removal clock, and a plaintiff who has regained remand through a waiver of Navy-ship claims and then signals an intent to pursue them can be removed again under the federal officer removal statute.
• Greer v. Ace Hardware Corporation (2013). In an asbestos case, once a defendant moves for summary judgment, the plaintiff must produce evidence identifying a specific asbestos-containing product the defendant made or supplied and to which the plaintiff was exposed; general assertions that "some" products contained asbestos, or guesswork, are not enough.
• Portland General Electric Company v. Ebasco Services, Inc. (2012). A court lacks jurisdiction to enter a default judgment for more than the amount prayed for in the complaint unless the defaulting party had reasonable notice and opportunity to be heard; a complaint that requests no specific amount supports no default money judgment.
• Union Bank OF California, NA v. Copeland Lumber Yards, Inc. (2007). Under ORS 30.020(1), a wrongful death claim is derivative and requires that the decedent could have maintained an action at the time of death; a decedent's prior judgment for the same wrongful act bars a later wrongful death action.
• Weihl v. Asbestos Corporation, Ltd. (2006). A trial court managing many asbestos cases may require plaintiffs to file product identification reports as a pleading obligation. It may bar a plaintiff who does not file them from offering product identification evidence against summary judgment, and this is consistent with the Oregon Rules of Civil Procedure.
• West v. Allied Signal, Inc. (2005). An affidavit need not expressly state personal knowledge if, read as a whole, a reasonable person would understand it to rest on the affiant's personal knowledge. A jury may reasonably infer from circumstantial evidence that a defendant was the likely source of the asbestos product.
• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.

Other federal courts

• In re Ltl Management LLC (2024). A Chapter 11 case must serve a valid bankruptcy purpose, which assumes a debtor in financial distress; a remote, speculative worst-case possibility of future insolvency is not enough, and lack of financial distress is not the kind of bad faith that can be excused under § 1112(b)(2).
• Devries v. Air & Liquid Systems Corp. (In re Asbestos Products Liability Litigation) (2017). Under maritime law, a manufacturer of a bare-metal product may be held liable in negligence for injuries from later-added asbestos materials if the injuries were a reasonably foreseeable result of its conduct. A bright-line rule that bare-metal manufacturers are never liable does not apply.
• Anderson v. Bondex International, Inc. (2014). An amended complaint relates back under Fed. R. Civ. P. 15(c)(1)(B) only if it shares a common core of operative facts with the original pleading, and the original pleading must give defendants fair notice of the amended claim.
• Barlow v. Colgate Palmolive Co. (2014). 28 U.S.C. § 1447(d) bars review of remand orders but does not stop a district court from deciding Rule 11 sanctions motions after remand, or from vacating a remand order under Rule 60(b)(3) because it was obtained through misrepresentation, since vacatur on that ground is not review of the order's merits.
• Estate of Barabin v. AstenJohnson, Inc. (2014). A district court abuses its discretion when it admits expert testimony without first finding it relevant and reliable under Daubert and Rule 702, and it cannot leave that gatekeeping to the jury. Such an error is reviewed for harmless error, and where the erroneously admitted testimony was essential to the winner's case, a new trial is the remedy.
• Stevens v. CBS Corp. (In re Asbestos Products Liability Litigation (NO. V)) (2014). An essential element of a maritime products liability claim is that the products to which the plaintiff was exposed actually contained asbestos, and speculative, internally inconsistent deposition testimony cannot create a genuine factual dispute on that point.
• Wannall v. Honeywell, Inc. (2014). A district court does not abuse its discretion under Rules 26 and 37(c) by striking an untimely expert declaration when the plaintiff, for strategic reasons, never invoked Rule 26(e) or 56(d) and so waived those arguments. Exclusion does not require a finding of bad faith.
• Wood v. Crane Co. (2014). After the thirty-day removal window closes, a defendant may amend a notice of removal only to correct allegations already made, not to add a new ground for federal jurisdiction. A defendant who chose not to assert a federal defense for the gasket claims could not rely on it after the plaintiff dropped the valve claims.
• Tkk USA, Inc. v. Safety National Casualty Corp. (2013). Under Illinois law, an excess policy covering liability under "Workers' Compensation or Employers' Liability Laws" includes employee common law claims against the employer, even groundless ones barred by the occupational diseases act's exclusivity provision; ambiguity is construed against the insurer.
• US v. Yi (2013). A deliberate ignorance instruction is proper where the evidence supports an inference that the defendant believed there was a high probability a fact existed and deliberately avoided learning the truth. The sentencing enhancements for substantial likelihood of death or serious bodily injury and for an organizer or leader role were supported by the evidence and not clearly erroneous.
• Barabin v. AstenJohnson, Inc. (2012). A district court must act as gatekeeper and make some on-the-record relevance and reliability determination before admitting expert testimony under Rule 702 and Daubert; failing to do so is reversible error requiring a new trial under Ninth Circuit precedent.
• Ruppel v. CBS Corporation (2012). A private contractor may remove under the federal officer removal statute if it was a person acting under a federal officer, the suit relates to acts under color of office, and it has a colorable federal defense; the government contractor defense can be colorable for both use-of-asbestos and failure-to-warn claims without proof that the government prohibited warnings.
• Albina Engine & Machine v. Director, Owcp (2010). In LHWCA occupational disease cases with multiple employers, the §20(a) presumption must be invoked against each employer, and the evidence is analyzed sequentially starting with the last employer. The first employer in that sequence who fails to rebut the presumption, or is shown responsible by a preponderance, is liable.
• In re Grossman's Inc. (2010). A bankruptcy "claim" arises when an individual is exposed pre-petition to a product or conduct giving rise to an injury, even if the injury appears after confirmation, so the Frenville state-law accrual test is overruled. Whether such a claim was actually discharged depends on due process, including adequacy of notice.
• CSX Transp., Inc. v. Hensley (2009). Under Norfolk & Western R. Co. v. Ayers, a trial court must, on a defendant's request, instruct the jury in a FELA asbestosis case that fear-of-cancer damages require proof that the fear is genuine and serious. Sufficiency-of-the-evidence review does not replace that instruction.
• Conwed Corp. v. Union Carbide Corp. (2006). Under Minnesota law, after a Naig settlement the jury's allocation of fault to the employer is applied once, to the lesser of the verdict or the workers' compensation benefits paid and payable, and a verdict on warnings in a mesothelioma trial does not collaterally estop litigation of warnings for asbestosis claims where the issue was not necessarily determined.
• In re Congoleum Corp. (2005). Pre-petition conduct of a law firm in negotiating a pre-packaged asbestos plan is relevant to whether it may be retained as debtor's counsel. A firm with unwaived concurrent conflicts, serving as co-counsel for claimants and counsel for the debtor, violates the Rules of Professional Conduct and the disinterestedness requirement of 11 U.S.C. § 327(a).
• Lindstrom v. AC Product Liability Trust (2005). Under maritime products liability law, a plaintiff must show for each defendant that he was exposed to that defendant's product and that it was a substantial factor in causing the injury. A generic expert opinion that every asbestos exposure contributed does not meet this requirement. A manufacturer is not responsible for asbestos in other companies' packing or gaskets attached to its equipment.
• In re Kensington International Limited (2004). Under 28 U.S.C. § 455(a), a judge must recuse when a reasonable layperson with knowledge of all the facts would question his impartiality; conflicted court-appointed advisors and extensive unrecorded ex parte meetings created that appearance, and recusal motions are timely if the movants lacked actual knowledge of the conflict.
• In re Kensington Intern. Ltd. (2003). Mandamus will not issue to force recusal while a recusal motion is still pending before the district judge, since other adequate means of relief exist. The appellate court directed discovery and a ruling because it needed a developed record on whether a reasonable person would question the judge's impartiality under 28 U.S.C. § 455(a).
• Norfolk & Western R. Co. v. Ayers (2003). Under the FELA, a railroad worker who has asbestosis may recover, as part of pain and suffering, for a genuine and serious fear of developing cancer. The FELA does not require apportioning damages among other tortfeasors, so a negligent railroad is liable for the full damages and must seek contribution elsewhere.