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

• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.
• In re Asbestos Litigation (1987). Common law decisions of a state's highest court are subject to equal protection review under the rational basis test, and New Jersey's denial of the state-of-the-art defense to asbestos manufacturers has a rational basis in risk-spreading, victim compensation and simplified trials.
• Dykes v. Raymark Industries, Inc. (1986). Tennessee's Contribution Among Tort-Feasors Act excludes only intentional tortfeasors, so a punitive award for willful and wanton conduct may be set off by settlements paid by co-defendants. Post-exposure documents may be admitted on punitive damages if relevant to pre-injury conduct.
• Herber v. Johns-Manville Corp. (1986). Under New Jersey law, as predicted by the court, a plaintiff with asbestos-caused pleural thickening cannot recover for increased risk of a possible future cancer alone. He can recover the cost of future cancer monitoring and emotional distress from fear of cancer, without proof of a physical manifestation of that fear. Excluding that evidence under Rule 403 was an abuse of discretion.
• Jackson v. Johns-Manville Sales Corp. (1986). Predicting Mississippi law, the court held that punitive damages are available in strict liability and mass tort cases. It also held that a plaintiff who has asbestosis may recover for the reasonable probability of future cancer and for present, reasonable fear of getting cancer.
• Jenkins v. Raymark Industries, Inc. (1986). A district court does not abuse its discretion by certifying a Rule 23(b)(3) class on common issues such as the state-of-the-art defense in asbestos cases. Texas law and the Constitution do not bar deciding punitive damages in a class trial separately from actual damages.
• Joyce v. AC and S., Inc. (1986). Under Virginia law a personal injury plaintiff has a single, indivisible cause of action that accrues at the first injury, so later distinct asbestos-related diseases do not restart the two-year limitations period. The Workers' Compensation Act's exclusivity provision bars an employee's claim against his employer unless the employer intended to injure him, and knowingly exposing him to a hazard is not enough.
• Kisor v. Johns-Manville Corp. (1986). Under Washington law, a manufacturer's ignorance of its product's danger, and evidence of industry standards and medical knowledge, are not a defense to a strict products liability claim based on failure to warn, and the jury must be told so.
• Lohrmann v. Pittsburgh Corning Corp. (1986). Under Maryland law, circumstantial proof of substantial-factor causation in a large workplace requires evidence of exposure to a specific product on a regular basis over some extended period in proximity to where the plaintiff worked (the frequency, regularity and proximity test). State-of-the-art evidence is relevant in a strict liability failure-to-warn claim.
• Commercial Union Ins. Co. v. Sepco Corp. (1985). Under the Fifth Circuit's Porter precedent, which the court treated as binding, asbestos-related "bodily injury" under liability policies is equated with exposure to asbestos, so coverage is triggered by exposure during the policy period.
• Dartez v. Fibreboard Corp. (1985). Under Texas law, a plaintiff without a medically probable cancer or mesothelioma may still recover for mental anguish from fear of those diseases, though not for their future costs. Evidence of what other asbestos makers knew is relevant to the state of the art, but hearsay and treatise rules still apply, and compliance with OSHA fiber limits can defeat liability for a low-emission product.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Gifford v. National Gypsum Co. (1985). A trial court's findings after a bench trial, including resolution of conflicting testimony on product use and identification, are reviewed for clear error under Rule 52(a) and stand unless the appellate court has a definite and firm conviction of mistake.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Rocco v. Johns-Manville Corp. (1985). Under the Pennsylvania Joint Tortfeasors Act, settlement payments by defendants not determined to be joint tortfeasors do not reduce a verdict, while a pro rata release of a joint tortfeasor who later files for bankruptcy still reduces the verdict. Pennsylvania delay damages may be assessed against a non-settling defendant only on its proportionate share of the verdict.
• Adams v. Johns-Manville Sales Corp. (1984). Under Louisiana law, a cause of action for cancer does not arise from asbestos exposure until cancer manifests, so evidence of increased risk of future cancer is properly excluded. A court need not instruct on future damages for which there is no proof, and a jury's findings with a reasonable evidentiary basis need not be consistent across products.
• Belton v. Fibreboard Corp. (1984). Evidence of co-defendant settlements may be admitted for a non-liability purpose such as explaining their absence, but telling the jury the settlement amounts so it bases its award on them violates Rule 408. A judge also may not comment on the ultimate fact of damages or steer the jury toward a verdict.
• Halphen v. Johns-Manville Sales Corp. (1984). Under Louisiana strict products liability law, a manufacturer is presumed to know the defects in its product, so the state-of-the-art defense fails; foreseeability applies only to the injury, not to the defect.
• Hansen v. Johns-Manville Products Corp. (1984). Applying Texas law, the court held that Texas courts would not bar punitive damages in a mass asbestos products case, that punitive damages in a private suit do not raise double jeopardy, and that no government specification defense was recognized or applicable. Awards found excessive must be reduced to the maximum the jury could properly have awarded.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.
• United States v. Croft (1984). Under 18 U.S.C. § 641, the services of an employee paid with federal grant funds can be a "thing of value" of the United States. An indictment charging "knowingly and unlawfully" converting them sufficiently alleges the required intent.
• Bouvier v. Krenz (1983). A shipyard rigger whose work on many different vessels was not permanent or substantial, and who was shore-based and never went to sea, is not a Jones Act seaman as a matter of law.
• Donovan v. Oil, Chem., and Atom. Workers Intern. (1983). Employees may participate fully as parties once an employer files a notice of contest, but if the employer withdraws the notice as part of a settlement, they are limited to challenging the abatement period and the Commission loses jurisdiction to review the settlement's terms.
• Large v. Bucyrus-Erie Co. (1983). Under Virginia law as stated in Locke v. Johns-Manville, a personal injury claim accrues when the plaintiff is injured, as shown by competent medical evidence, not at last exposure. A brief later exposure that caused no new injury, and no continuing service relationship, does not extend the limitations period.
• Thompson v. Johns-Manville Sales Corp. (1983). Louisiana law as predicted by the court does not dispense with proof that a defendant's product caused the injury; enterprise and market share liability are radical departures that Louisiana courts, not a federal court sitting in diversity, must adopt. Alternative liability and indivisible-injury theories do not apply to defendants with no proven connection to the injury.
• Wedgeworth v. Fibreboard Corp. (1983). The automatic bankruptcy stay under 11 U.S.C. § 362(a) protects only the debtor, not its co-defendants, and a discretionary stay tied to the end of the bankruptcy was indefinite and unjustified without a clear showing of hardship. On rehearing, the court held the district court did not abuse its discretion in refusing to let the plaintiffs add the debtors' insurers.
• Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. (1982). Under these liability policies, an asbestos-related disease "results" (and so triggers coverage) when it becomes clinically evident, meaning reasonably capable of medical diagnosis, not at initial exposure or on actual diagnosis. Ambiguous policy language is construed in favor of the insured.
• Hardy v. Johns-Manville Sales Corp. (1982). Offensive collateral estoppel could not bind defendants who were not parties or privies in Borel, and it could not bind the Borel defendants because that judgment was ambiguous, inconsistent with other verdicts, and unfair. Courts also may not judicially notice that asbestos in all products is a competent producing cause of cancer.
• Murphree v. Raybestos-Manhattan, Inc. (1982). Under Tennessee law the vested rights doctrine no longer bars application of the 1979 amendment exempting asbestos-related disease actions from the ten-year sale-based limitations ceiling. Proximate cause requires only that the defendant's product be a substantial factor, not the sole cause.
• ACandS, Inc. v. Aetna Cas. & Sur. Co. (1981). A dispute among an insured and its liability insurers over defense and indemnity obligations for asbestos suits is a justiciable case or controversy, even though the underlying suits have not reached judgment. The damages counts for present injury were also justiciable.
• Fusco v. Johns-Manville Products Corp. (1981). Under Texas law, the two-year limitations period for products liability personal injury claims begins when the plaintiff discovers, or with ordinary care should have discovered, the injury; a pending federal compensation claim neither delays accrual nor tolls the period, and there is no fraudulent concealment of facts the plaintiff knew.
• Keene Corp. v. Ins. Co. of North America (1981). For asbestos-related disease, inhalation exposure, exposure in residence and manifestation all trigger coverage under occurrence-based liability policies, and each triggered insurer is liable in full up to one policy's limits, with allocation among insurers governed by the policies' other-insurance clauses.
• Migues v. Fibreboard Corp. (1981). Borel v. Fibreboard held only that the jury on that record could find asbestos products without adequate warnings unreasonably dangerous. It does not establish by stare decisis that all asbestos products are unreasonably dangerous as a matter of law.
• Petes v. Hayes (1981). Special interrogatories must be consistent with the jury instructions and must not confuse or mislead the jury. An interrogatory asking whether a disease "specifically" resulted from asbestos inhalation could be read as "solely," which conflicted with the instruction that more than one proximate cause may support recovery.
• Porter v. American Optical Corp. (1981). A jury could find a respirator filter defective in design where it was never tested with asbestos dust and the plaintiff's experts showed asbestos passing through it, even though it met government and industry standards. For a progressive disease such as asbestosis, insurance liability is prorated among the insurers on the risk during the exposure period (the "injurious exposure" theory) rather than assigned to the insurer at the time symptoms first appeared.
• Karjala v. Johns-Manville Products Corp. (1975). Under Minnesota law a manufacturer is held to the knowledge of an expert and must warn of dangers it knew or could have discovered through reasonable care. The six-year limitations period for a product injury begins when some harm or impairment manifests itself that can be shown to have been caused by the defendant's product.
• Reserve Min. Co. v. Environmental Protection Agcy. (1975). A discharge that gives rise to a reasonable medical concern about future health harm, though actual harm is not proven, can be abated as a precautionary measure under the Federal Water Pollution Control Act and state air regulations. Because the risk was potential rather than imminent, immediate plant closure was an abuse of discretion and the remedy must allow a reasonable time to abate.
• Borel v. Fibreboard Paper Products Corporation (1973). Under Texas law and section 402A of the Restatement (Second) of Torts, a manufacturer of asbestos insulation can be strictly liable for failing to warn insulation workers of foreseeable dangers, and a warning given only to intermediary contractors does not by itself end that duty. Defendants whose products each caused some indivisible injury are jointly and severally liable, and assumption of risk is a defense only if the plaintiff's conduct was both voluntary and unreasonable.

Pennsylvania

• Constantine v. Lenox Instrument Co., Inc. (2024). A trial court may limit a toxicologist who is not a physician and has no experience diagnosing patients to general causation. Under Pa.R.Civ.P. 238, delay damages are excluded only for delay the plaintiff caused, not for administrative or COVID-related court delays. A Supreme Court reading of the Workers' Compensation Act that lets a mesothelioma claim proceed in tort does not take away a vested defense.
• Constantine v. Lenox Instrument Company (2024). A successor judge violates the coordinate jurisdiction rule by granting, as a motion in limine, what is in substance a second summary judgment motion on the same issue and evidence, absent a substantial change in law, facts or evidence. Procedural posture alone does not make the rule inapplicable.
• Fisher v. American International Industries (2024). A plaintiff must first show that the defendant's product actually contained asbestos before the frequency, regularity and proximity test applies. In a strict liability asbestos case, liability under the Fair Share Act is apportioned per capita among the liable defendants, and a defendant removed from the verdict cannot have its share added to a successor.
• Gay v. AO Smith Corporation (2024). A contractor operating a government-owned laboratory under government contract and direction is derivatively immune from a failure-to-warn claim under either the Yearsley test or the Boyle government contractor test, where the government approved and controlled its work and GE had no superior knowledge of asbestos hazards.
• Washington Penn Plastic Co., Inc. v. the Phoenix Insurance Company (2024). Claims manuals, guidelines and procedures are relevant and discoverable in insurance bad faith litigation where they contain instructions on how employees process claims. A party relying on other produced documents in its responses must identify them specifically. Privilege disputes need an adequate privilege log before the court can rule.
• Data v. Pennsylvania Power Company (2023). Under the Commonwealth Court's Herold decision, mesothelioma that develops more than four years after last workplace asbestos exposure is outside the ODA's exclusive-remedy provision. Once the federal-officer defendants were dismissed, the court declined to keep supplemental jurisdiction because fairness, convenience and judicial economy did not favor it.
• Data v. Pennsylvania Power Company (2023). A federal court may stay a common-law asbestos tort suit against an employer until the Pennsylvania Occupational Disease Act administrative process and its appeals are fully and fairly resolved, because the outcome could bar the claims. Review of a magistrate judge's nondispositive order is for clear error or contrary to law.
• Mullen v. American Circuit Breaker Corporation (2023). Under the frequency, regularity and proximity test, which is less demanding in mesothelioma cases, co-worker testimony that a worker stood next to dust from removing asbestos-like packing from the defendant's valves was enough to send the question of causation to a jury.
• Pine v. John Crane, Inc. (2023). Under maritime law, a plaintiff needs evidence of exposure to the defendant's product high enough to make substantial-factor causation more than conjectural, and coworker testimony that only the defendant's gaskets were used can meet that. Survival, non-pecuniary and punitive damages are not available under general maritime law against a non-employer manufacturer in a seaman's death claim.
• Smith v. Beckman Coulter, Inc. (2023). A trial court does not abuse its discretion in transferring venue under Rule 1006(d)(1) when the chosen forum is more than 100 miles from the site of exposure, witnesses and documents, because that distance can make trial there oppressive to the defendant.
• Vitcavich v. Owens Corning/fibreboard Asbestos Personal Injury Trust (2023). Claimants against a Section 524(g) asbestos trust may litigate only the tort claims the trust distribution procedures authorize. Those claims accrue when the trust issues its authorization letter and are subject to the two-year Pennsylvania limitations period.