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.

Other federal courts

• In re Federal-Mogul Global, Inc. (2002). Under 28 U.S.C. §§ 1447(d) and 1452(b), orders remanding removed cases to state court for lack of "related to" bankruptcy jurisdiction are not reviewable by appeal or mandamus. Denial of a transfer is reviewable only by mandamus, which requires a clear and indisputable right, and under Pacor claims whose indemnification claims have not yet accrued are not "related to" the bankruptcy.
• US v. Pearson (2001). A supervisor under the Clean Air Act is someone with significant and substantial control over the asbestos work, and a supervisor can also be an excluded employee under § 7413(h), but the defendant bears the initial burden of raising that exclusion as an affirmative defense.
• Barnes v. Owens-Corning Fiberglas Corp. (2000). Under Kentucky's apportionment statute, fault may be apportioned only to parties, dismissed or settling parties, and persons released by agreement, and only where the evidence could support a finding of fault. Including unsupported parties in the instructions was harmless here, and a verdict is not set aside as against the weight of the evidence if a reasonable juror could reach it.
• Ortiz v. Fibreboard Corp. (1999). A mandatory settlement class under Rule 23(b)(1)(B) on a limited fund theory requires proof that the fund is limited by more than the parties' agreement. It also requires that the class include all claimants with unsatisfied claims and that conflicting interests within the class be addressed through separately represented subclasses.
• Chism v. WR Grace & Co. (1998). Under Missouri law, an asbestos plaintiff needs expert evidence that each defendant's product directly contributed to the death as a substantial factor, and must show frequency, regularity and proximity of exposure to that product. Showing exposure to a product that is not shown to contain asbestos does not meet this requirement.
• Cimino v. Raymark Industries, Inc. (1998). Under Texas law, causation and damages in asbestos injury suits must be determined for each individual plaintiff, not for groups, and a class or consolidation procedure cannot change that or remove the Seventh Amendment jury right. A raw-material supplier selling non-defective asbestos to a sophisticated manufacturer has no duty to warn the manufacturer's end users.
• In re Asbestos Litigation (1998). A mandatory settlement class under Rule 23(b)(1)(B) in which all future claimants are treated alike differs from the Rule 23(b)(3) class in Amchem, and the Rule 23(a) requirements were satisfied because class members shared common interests in equitable distribution of limited funds.
• LaBounty v. Coughlin (1998). A prisoner who alleges that officials knew of friable asbestos in the air and did not remedy it states an Eighth Amendment deliberate-indifference claim. The right was clearly established in 1991-92, so qualified immunity did not apply on this record.
• McClain v. Owens-Corning Fiberglas Corp. (1998). A district court does not abuse its discretion by ordering a new trial on wrongful death damages alone when the award is palpably inadequate and damages are separable from liability. Under Illinois law, a surviving spouse's cohabitation is irrelevant to loss of consortium damages and may be excluded.
• Braun v. Lorillard Inc. (1996). A district court may exclude an expert who departs from the accepted methods of his field without knowing those methods or justifying the departure, since Daubert requires scientific rigor and does not make customary methods irrelevant. The court also upheld the district judge's discretion over pretrial witness disclosure, hearsay and expert qualification, and found an improperly limited redirect harmless.
• Georgine v. Amchem Products, Inc. (1996). A class certified only for settlement must satisfy Rule 23(a) and Rule 23(b)(3) as if it were going to be litigated; a class of this size and diversity cannot meet the typicality, adequacy, predominance and superiority requirements.
• Holbrook v. Lykes Bros. SS Co., Inc. (1996). Under Rule 702's liberal standard, a court abuses its discretion by excluding a medical expert's testimony because the expert lacks the specialty the court considers most appropriate, and such exclusion is not harmless if the testimony bore on a critical issue such as diagnosis or causation.
• Barnes v. Keene Corp. (1995). Following its earlier decision in Tragarz v. Keene Corp., the court held that asbestos defendants are jointly and severally liable under Illinois Code of Civil Procedure Sections 2-1117 and 2-1118. It also held that an objection to entry of a single judgment on separate verdicts was waived because the plaintiff never proposed separate judgments in the district court.
• Consorti v. Armstrong World Industries, Inc. (1995). In a diversity case, state law governs whether a compensatory damages award is excessive, so New York's 'deviates materially from reasonable compensation' standard applied. Consolidation of asbestos cases is within a trial court's discretion unless it causes confusion or prejudice that prevents the jury from deciding on the evidence.
• Rohrbaugh v. Celotex Corp. (1995). Under the law of the case doctrine, an appellate court's earlier holdings, explicit or by necessary implication, govern later stages of the same case. The earlier ruling that the plaintiff was not a foreseeable user and that the manufacturer had no reason to know of the hazard defeated both the products liability and negligence claims.
• Stonewall Ins. Co. v. Asbestos Claims Management (1995). Under New York and Texas law, occurrence-based liability policies are triggered throughout a progressive disease process when the evidence shows injury-in-fact recurring at each point; the insured bears pro rata responsibility for years it chose to go uninsured but not for years after 1985 when asbestos insurance was unavailable, and each installation of asbestos building products is a separate occurrence for per-occurrence deductibles.
• Dunn v. Hovic (1993). Under Virgin Islands law and the Due Process Clause, successive punitive damages awards in asbestos cases are not barred as such. A defendant must show with evidence what it has actually paid and what it can pay, and a court weighs multiple claims when setting the amount.
• In re Joint E. & SO. Dist. Asbestos Lit. (1993). A complaint that asks only for a court-assisted class settlement and states no substantive claim of right against the defendants presents no Article III case or controversy, and a request for a declaratory judgment does not supply one. A debtor may not use a mandatory limited-fund class action to evade the Bankruptcy Code.
• Johnstone v. American Oil Co. (1993). Under Louisiana's risk-utility test for a product that is unreasonably dangerous per se, a court may not grant JNOV by disregarding admitted utility evidence as irrelevant. The product's danger and utility are weighed as to society as a whole, and the evidence here left a jury question.
• Malcolm v. National Gypsum Co. (1993). Courts may consolidate asbestos cases under Rule 42(a), but efficiency cannot come at the cost of a fair trial. Where the cases had no common worksite, occupation, time or disease and the evidence was vast, consolidation was prejudicial error.
• Miller v. American President Lines, Ltd. (1993). Punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. Indemnity and contribution among maritime tortfeasors, including product makers, are decided by comparative fault rather than the active-passive negligence rule.
• Sealover v. Carey Canada Inc. (1993). A claimant who has merely a claim against the Manville Trust, and has not settled with or released it, does not have a settled defendant for molding a verdict. Under Pennsylvania Rule 238, a continuance requested by plaintiff's counsel counts as plaintiff-caused delay and is excluded from delay damages.
• Watkins v. Fibreboard Corp. (1993). Under Texas law as stated in Dartez, a plaintiff may recover for mental anguish caused by asbestos exposure even without a present asbestos disease, if the fear is reasonable. Apparently conflicting jury answers are reconciled where possible, and under Rule 49 an omitted causation issue is deemed found consistent with the judgment.
• Becht v. Owens Corning Fiberglas Corp. (1992). Under Kentucky law, workers' compensation exclusivity is an affirmative defense the employer must prove, including that it employed the plaintiff and secured payment of compensation in Kentucky. Denial of a new trial on weight-of-the-evidence grounds is reviewed only for abuse of discretion.
• Blancha v. Raymark Industries (1992). A defendant need not present evidence of what type of asbestos its product contained in order to offer expert testimony that chrysotile does not cause mesothelioma. Such testimony is relevant to rebut plaintiffs' causation theory, and a new trial for jury confusion or a missing instruction was an abuse of discretion.
• Borman v. Raymark Industries, Inc. (1992). Under Pennsylvania law as predicted from Martin v. Owens-Corning Fiberglas, evidence that an insulator's lung disease was caused by both asbestos and smoking, with experts unable to assign percentages, gives no reasonable basis to apportion damages. A lost-earnings claim may go to the jury even where the proof of the decedent's personal maintenance cost is sparse.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• In re Joint E. & So. Dist. Asbestos Litigation (1992). A mandatory non-opt-out Rule 23(b)(1)(B) class settlement that readjusts creditors' rights against an insolvent entity requires proper subclasses, and co-defendant manufacturers cannot be in the same class as health claimants. Bankruptcy jurisdiction cannot be used to modify a confirmed and substantially consummated plan in violation of section 1127(b).
• O'banion v. Owens-Corning Fiberglas Corp. (1992). A court may exclude cancer evidence under Rule 403 in a non-cancer asbestos case when the plaintiff offers no expert testimony of a reasonable medical probability of cancer. Former testimony admitted without a finding of unavailability under Rule 804(b)(1) is error but is not reversible if the party shows no prejudice.
• Rohrbaugh v. Owens-Corning Fiberglas Corp. (1992). Under Oklahoma manufacturer's products liability law, the duty to warn extends only to ordinary consumers and users, and arises only when the manufacturer knew or should have known of the hazard; a wife exposed through her husband's work clothes was not owed a duty to warn.
• Rotondo v. Keene Corp. (1992). Under Pennsylvania's Eckenrod standard, circumstantial evidence placing a defendant's pipecovering in the same boiler room where the plaintiff worked, near the pipecoverers and used about half the time, was enough for a jury to infer exposure and causation. The jury could also infer that dust from sawed asbestos covering contained asbestos.
• Tragarz v. Keene Corp. (1992). Under Illinois law, direct testimony of working with or near a defendant's asbestos product can support a finding of probable exposure without naming specific job sites. The frequency, regularity and proximity test is less rigid in mesothelioma cases, and release of asbestos dust inside a workplace can count as a 'discharge into the environment' that keeps joint and several liability.
• Carey Canada, Inc. v. Columbia Cas. Co. (1991). Extrinsic evidence of the parties' intent may be used only if the contract term is ambiguous, and ambiguity must be shown by objective evidence of industry or public usage, not just the parties' own negotiations or disputes over meaning.
• Cochran v. EI DuPont de Nemours (1991). Admiralty tort jurisdiction requires both navigable-waters locality and a nexus to traditional maritime activity, and a sailor's exposure to dust from a land-usable nonskid deck coating lacked that nexus. Under Virginia law the claim accrued when the damage occurred, and the 1985 asbestos-diagnosis accrual provision was not applied retroactively to a claim that accrued earlier.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• O'brien v. National Gypsum Co. (1991). Circumstantial evidence can suffice to prove exposure to a particular defendant's asbestos product. A very rare disease with asbestos as its only known cause, plus testimony that products were used interchangeably at the only exposure site, supports a jury finding of liability.
• Fagiola v. National Gypsum Co. AC & S., Inc. (1990). A summary of voluminous documents under Fed.R.Evid. 1006 is reviewed for abuse of discretion; objections that it did not fairly represent the documents or was confusing go to weight rather than admissibility, and an unpreserved hearsay objection did not warrant reversal.
• George v. Celotex Corp. (1990). A manufacturer is held to the knowledge of an expert in its field, so an unpublished report showing what it reasonably should have known is relevant to the state of the art, and an ancient document may be admitted under Rule 803(16). A jury allocation of liability is upheld where evidence supports it.
• Hoffman v. Allied Corp. (1990). Under the summary judgment standard, affidavits that asbestos products were in use 300 to 400 feet away, that dust drifted into the shop, and that asbestos was the substantial cause of the disease allowed a reasonable jury to find exposure to the defendant's products and proximate cause.
• Howell v. Celotex Corp. (1990). Because medical experts disagreed about whether asbestos-related pleural thickening is an injury, it is not a compensable injury as a matter of law under predicted Pennsylvania law and is a question of fact for the jury. Treating pleural thickening as an injury for limitations purposes does not require treating it as one for liability.
• In re Fibreboard Corp. (1990). A federal court sitting in diversity cannot try thousands of asbestos claims by statistical extrapolation from a few sample plaintiffs, because that changes the substantive Texas requirement of proving individual causation and damage, and the class lacks the predominance Rule 23(b)(3) requires.
• Johnson v. Celotex Corp. (1990). A trial court may consolidate asbestos cases with common worksites and issues if it uses cautionary instructions and separate verdict forms, and circumstantial co-worker testimony can support a jury finding that defendants' products were a substantial factor. The court left open whether successive punitive awards violate due process because the record on prior payments was insufficient.
• King v. Armstrong World Industries, Inc. (1990). A party is bound by its attorney's concession in closing argument that the plaintiff was exposed to its products. In asbestos cases, evidence of what the industry knew is relevant to what was scientifically discoverable, even if it shows only a nonparty's knowledge. Under Texas law the defendant bears the burden of allocating causation, and the evidence supported the jury's apportionment and punitive award.
• White v. Celotex Corp. (1990). A plaintiff must produce evidence of exposure to a particular defendant's asbestos product, and market share liability, adopted for fungible DES, is inappropriate in asbestos litigation and unlikely to be adopted by Arizona.
• Jourdan v. Equitable Equipment Co. (1989). Federal Rule 4 (summons and complaint) does not apply to enforcement of a supplemental order of default under LHWCA section 18(a), which directs the district court to enter judgment on filing of the order. A due process claim in this setting requires a showing of substantial prejudice.
• Kaiser v. Armstrong World Industries, Inc. (1989). Under Puerto Rico's one-year limitations period, the claim begins to run when the plaintiff knows of the injury and of who caused it, and a plaintiff need not know the full extent of the injury or the exact identity of each tortfeasor. A plaintiff who sues late bears the burden of proving he lacked that knowledge.
• Smith v. US (1989). The two-year limit in the Suits in Admiralty Act is jurisdictional and cannot be extended or tolled, and the Clarification Act bars suit by a seaman's survivor until the administrative claim is disallowed, so a premature first suit and a late second suit were both properly dismissed.
• Bauer v. Raymark Industries, Inc. (1988). A denial of a new trial motion based on the verdict being against the weight of the evidence is not reviewable on appeal, and a judgment n.o.v. is proper only where there is a complete absence of supporting evidence or overwhelming evidence for the movant. Because plaintiff bore the burden of proof, the jury could reasonably find she did not show exposure to the defendants' products rather than those of nondefendants.
• Hardy v. Johns-Manville Sales Corp. (1988). Excerpts from a party's appellate briefs filed in a different case between other parties are not party admissions under Rule 801(d)(2), at least absent highly unusual circumstances. Admitting them here affected the defendants' substantial rights.