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.

Pennsylvania

• Gorton v. Air & Liquid Systems Corporation (2022). Under Federal Rule of Civil Procedure 5(a)(2), a pleading asserting a new claim against a party in default for failing to appear must be served under Rule 4, so a default judgment entered without such service is void.
• Gorton v. Gardner Denver, Inc. (2022). A plaintiff's notice of voluntary dismissal filed under Rule 41(a)(1)(A)(i) before the defendant serves an answer or summary judgment motion automatically dismisses the claims without prejudice. No court order or signed stipulation is needed, and the court then lacks subject-matter jurisdiction over those claims.
• In re All Matters Related TO North American Refractories Company (2022). A right of public access under 11 U.S.C. §107 or the common law applies only to documents filed with the court or otherwise made judicial records, and parties may redact exhibits they choose to introduce without making the unredacted versions public.
• Smith v. AO Smith Corp. (2022). A purchaser of a corporation's assets is not liable for its debts unless an exception applies; the record here did not meet the de facto merger or mere continuation tests, and a prior case's summary judgment ruling on a different factual record is not binding precedent. Hearsay deposition testimony from an earlier case is inadmissible under the former-testimony exception where the party lacked a similar motive to examine the witness.
• Data v. AO Smith Corporation (2021). Under Pennsylvania law a plaintiff must show frequent, regular and proximate exposure to the specific defendant's asbestos product, and mere presence of the product or de minimis exposure is not enough. Under maritime law the plaintiff must show exposure to the product and that it was a substantial factor in causing the injury, and the bare-metal defense is not available.
• Gay v. AO Smith Corp. (2021). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Minimal exposure, or mere presence of the product aboard the ship, is not enough.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law, a plaintiff must show exposure to asbestos from the defendant's own product with sufficient frequency, regularity and proximity. Showing that the product was present at the workplace, or that a manufacturer's interrogatory answers say some products may have contained asbestos, is not enough.
• Gay v. AO Smith Corporation (2021). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the disease. A few minutes of exposure within a nearly fifty-year career, and inconsistent testimony about other work, did not meet that standard.
• Gorton v. Air & Liquid Systems Corporation (2020). Under Ohio law, which applied to the employment-based claims, workers' compensation exclusivity bars negligence and recklessness claims against an employer. It does not bar a plausibly pleaded intentional tort claim, or claims against the employer in its separate capacity as manufacturer and supplier to other employers.
• Traser v. Sea Land Services (In re Asbestos Products Liability Litigation) (2020). A dismissal order ends all proceedings and the district court relinquishes jurisdiction, so later orders in that case are void even if the court and parties mistakenly kept litigating; counsel's failure to notice the dismissal and timely appeal or seek relief does not make the order a nullity.
• Schrader v. Ameron International Corporation (2020). A trial court abuses its discretion when it denies a jury's specific request to view a duly admitted exhibit based only on a general preference and speculation about prolonged deliberations, and the error requires a new trial where it could have affected the verdict. The court also found that Delaware law does not necessarily bar a negligence claim against pump makers who specified asbestos-containing replacement parts.
• Hassell v. Budd Company (2019). The Locomotive Inspection Act preempts state strict liability and negligence claims about asbestos in locomotive equipment, including pipes originating in the locomotive and brake-system insulation on passenger cars, but not pipes self-contained to a railcar. The Safety Appliance Act preempts only the specific equipment it lists, and pipe insulation is not listed.
• Kardos v. Armstrong Pumps, Inc. (2019). A non-movant may use a properly executed affidavit and a deceased plaintiff's deposition testimony to oppose summary judgment where the deposition arguably meets the former-testimony hearsay exception because defendants had an opportunity to cross-examine him.
• Kraus v. Alcatel-Lucent (2019). Product identification evidence need not be enough to survive summary judgment to justify further discovery; it is enough that it suggests the plaintiff might have been near asbestos-containing products. Overbroad requests are narrowed, and requests about employees or factories are denied where the plaintiff never worked for the defendant.
• Kraus v. Alcatel-Lucent (2019). A party moving to compel must identify the specific discovery requests and how the responses are deficient. Discovery against a defendant is limited to asbestos-containing products the plaintiff could have encountered at the alleged exposure sites, but it cannot be limited to products the current evidence shows he was exposed to. A motion to compel is not a vehicle for determining liability.
• Kraus v. Alcatel-Lucent (2019). A Rule 26(a)(1) disclosure may describe documents by category and location rather than produce them, so an informal letter request is not grounds to compel. A motion to compel discovery cannot be used to decide liability or interpret contracts, and Rule 37(b) relief requires a prior order violation.
• Walker v. Blackmer Pump Co. (2019). A deceased witness's deposition is not admissible under the former-testimony hearsay exception against defendants who had no meaningful opportunity to cross-examine him. Maritime law governs shipboard Navy exposure, and under it the bare-metal defense turns on foreseeability, which makes circumstantial exposure evidence enough to reach a jury.
• Walker v. Viad Corp. (2019). A court may accept an untimely answer on a finding of excusable neglect, after balancing the four Pioneer factors. Motions to strike are disfavored, and cases should be decided on the merits.
• Walker v. Viad Corp. (2019). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury, and the bare-metal defense is a foreseeability standard rather than a bright-line rule. A summary judgment movant may not raise a new argument and evidence for the first time in a reply brief.
• Gorton v. Air & Liquid Systems Corp. (2018). A foreign corporation registered in Pennsylvania consents to general personal jurisdiction under 42 Pa. C.S. § 5301 for acts or omissions occurring while it was registered after that statute took effect, and Bane remained good law after Daimler. A federal court applies Iqbal/Twombly pleading standards to a removed case, and conclusory asbestos allegations fail them.
• Steiner v. Hollingsworth & Vose Company (2018). A discovery order is appealable as a collateral order only if separability, importance and irreparable loss are each clearly present; a bare assertion of privacy or privilege over litigation lists does not meet the importance prong.
• Geier v. Board OF Public Education OF School District OF Pittsburgh (2017). A public employer has a common law duty to create reasonably safe conditions of employment, so a local agency can be liable to an employee for workplace asbestos exposure if the condition causing it falls within an exception to governmental immunity under the Tort Claims Act.
• Roverano v. John Crane, Inc. (2017). The Fair Share Act applies to strict liability asbestos cases, so a fact-finder must allocate liability among strictly liable tortfeasors in proportion to their liability rather than per capita. Settlements with bankrupt entities may be considered in that allocation because the Act bars use of the allocation against them and so does not conflict with the Bankruptcy Code.
• Smith v. Wenerowicz (2017). A prisoner states an Eighth Amendment claim by alleging that officials who knew of a known carcinogen like asbestos in the prison were deliberately indifferent to his exposure to unreasonably high levels of it. Allegations of delayed care or a missed diagnosis against medical providers sound in negligence or malpractice, not a constitutional violation.
• Campbell v. AO Smith Corporation (2016). An adult child must prove pecuniary loss, meaning a reasonable expectation of continuing financial benefit such as consistent gifts or services from the decedent, to share in wrongful death proceeds under Pennsylvania law. Court approval and apportionment between survival and wrongful death claims is required to finalize a settlement even after funds are received.
• Hassell v. The Budd Co. (In re Asbestos Products Liability Lit.(no. VI)) (2016). A court deciding a Rule 12(b)(6) motion may consider only the complaint's allegations, and if the motion is treated as one for summary judgment, preemption cannot be found where the movants offered no evidence and the record shows a genuine factual dispute.
• Ney v. Owens-Illinois, Inc. (2016). After removal, a federal court may vacate or modify a state court's interlocutory orders under 28 U.S.C. § 1450. A foreign blocking statute such as Quebec's QBCRA does not bar compelled production, and the comity factors here favored limited production.
• Rabovsky v. Air & Liquid Systems Corporation (2016). Under the law of the case doctrine, a prior ruling in the same case that the manufacturer could be liable under Schwartz was not reopened. Under Schwartz, a manufacturer may be liable for negligent failure to warn about asbestos components it neither made nor supplied if it knew its product would be used with such components, knew asbestos was hazardous, and gave no adequate warning.
• Rost v. Ford Motor Co. (2016). An expert may tell the jury that every asbestos exposure adds to a person's cumulative dose without offering barred "each and every breath" testimony. Where exposure to the defendant's product was frequent, regular and proximate and competent medical testimony supports substantial-factor causation, the jury decides causation, and the expert need not compare the plaintiff's exposures to other asbestos products.
• Zenak v. Police Athletic League OF Philadelphia (2016). There is no right to a jury trial on a claim under the Pennsylvania Whistleblower Law, and submitting such a claim to a jury was prejudicial rather than harmless here. Where an asbestos exposure plaintiff shows no physical injury, emotional distress damages are not recoverable, and the Workers' Compensation Act bars a negligence suit against the employer.
• Amato v. Bell & Gossett (2015). A psychology expert on memory was properly excluded because jurors can judge the reliability of old or prompted recollections themselves. Settlements by non-parties not found to be joint tortfeasors do not offset a verdict. Tincher applies to failure-to-warn instructions, but Crane was not entitled to its instruction because it argued Cranite posed no risk. Pennsylvania has not adopted the sophisticated user defense. Wrongful death (post-death) and loss of consortium (pre-death) damages are not duplicative.
• Frank v. Honeywell International Inc. (2015). A non-party subpoena may be quashed as unduly burdensome when, even if the material is relevant, the subpoenaing party has not shown a need for it because it already holds the evidence it seeks to use.
• In re All Matters Related TO North American Refractories Company (2015). A party seeking a preliminary injunction must show irreparable harm; a purely monetary loss, even if unrecoverable, is not irreparable unless it causes special or serious harm to the movant. Honeywell also did not show a likelihood of success in interpreting the trust documents under Delaware law, because the record on the circumstances of the Trust's creation was insufficient.
• McCloskey v. Cemline Corporation (2015). The Workers' Compensation Act's exclusivity provision does not bar a common law action where the employee's claim is not compensable under the Act, as in mesothelioma diagnosed more than 300 weeks after the last workplace exposure (Tooey, which abrogated Sedlacek). An order disposing of all remaining parties makes the case final and appealable.
• Wygant v. General Electric Company (2015). After Neiman struck down Act 152, 42 Pa.C.S. § 5524(8) remained operative, and its two-year limitations period for asbestos injury or death claims runs from the physician's diagnosis of the afflicted person, including for wrongful death actions.
• Graver v. Foster Wheeler Corp. (2014). The 12-year statute of repose for improvements to real property (42 Pa.C.S. § 5536) applies to asbestos personal injury claims against those who design or construct such improvements; the Abrams dictum that no repose exists in asbestos cases does not displace it.
• Haldaman v. Eaton Corporation (2014). To survive summary judgment, a plaintiff must show frequent, regular and proximate exposure to the specific defendant's asbestos-containing product. Showing only that asbestos was generally present in the workplace is not enough.
• Crawford v. Alcoa (In re Asbestos Products Liability Litigation) (2014). A district court in an asbestos MDL does not abuse its discretion by dismissing a case under Rule 41(b) when the plaintiff fails to submit a medical report meeting the court's AO 12 requirements, even without expressly applying the Poulis factors. Strict compliance with MDL case management orders is especially important.
• Mt. McKinley Ins. Co. v. Pittsburgh Corning Corp. (2014). An excess insurer has no standing to object to an asbestos reorganization plan when insurance-neutrality language preserves its policy rights and the plan does not materially increase the quantum of liability or administrative burdens, distinguishing In re Global Industrial Technologies.
• Nelson v. Airco Welders Supply (2014). Expert causation testimony resting on the 'any-exposure' theory is inadmissible under Betz v. Pneumo Abex, and plaintiff's counsel may not give the jury a formula or amount for non-economic damages. Strict liability, including failure to warn, is limited to a product's intended use by an intended user, and intended use includes the intermediate steps needed to fulfill the product's purpose.
• Painter v. Sears, Roebuck and Co., Inc. (2014). To survive summary judgment, a plaintiff must show regular work in physical proximity to the defendant's asbestos-containing product, with frequency, regularity and proximity sufficient for a jury to infer inhalation of its fibers. Vague testimony that a brand was used, without details, leaves a jury to speculate.
• Rost v. Ford Motor Company (2014). Betz v. Pneumo Abex does not bar all 'any exposure' expert opinion, and on review of a post-trial motion for judgment as a matter of law the record is viewed in the verdict winner's favor. Under Moore v. Ericsson, an asbestos-containing product may be treated as defective as a matter of law because it contains asbestos.
• Howard v. AW Chesterton Co. (2013). In dose-responsive diseases, the any-exposure theory (each and every exposure is a substantial cause) cannot establish substantial-factor causation, and bare de minimis exposure is insufficient; experts must make an individualized assessment of exposure history, and summary judgment is available in such cases.
• Williams v. Lockheed Martin Corp. (In re Asbestos Products Liability Litigation) (2013). Pennsylvania Rule 4.2 bars ex parte contact with a represented organization's employee whose acts or omissions in the matter may be imputed to it, and counsel may not close his eyes to that employee's status. Disqualification is a draconian remedy that requires showing severe prejudice, and lesser sanctions such as partial fees may be imposed instead.
• Kurns v. Soo Line RR (2013). When a case is removed to federal court, earlier state-court interlocutory orders become orders of the federal district court, so an appellant who does not challenge them in the federal appeal cannot raise them in a later state appeal.
• Nelson v. Airco Welders Supply (2013). Following Betz v. Pneumo Abex, expert testimony that each and every asbestos exposure is a substantial contributing factor to mesothelioma is inadmissible. Plaintiff's counsel also may not suggest a specific dollar value for non-economic damages, and the instructions here did not cure that suggestion.
• Webber v. Ford Motor Company (2013). A judgment entered by the prothonotary under Pa.R.C.P. 227.4(1)(b) after 120 days of pending post-trial motions cannot be opened, vacated or reconsidered by the trial court. A jury verdict is recorded when docketed absent ambiguity, and a new trial is not warranted where a reasonable theory supports the jury's answers.
• Betz v. Pneumo Abex LLC (2012). A Frye hearing is warranted when a trial judge has articulable grounds to believe an expert did not apply accepted scientific methodology in a conventional way, and the 'any-exposure' opinion that every fiber is a substantial contributing factor conflicts with dose-response science and the substantial-factor standard, so excluding it was not an abuse of discretion.
• Daley v. AW Chesterton, Inc. (2012). Under Pennsylvania's separate disease rule, a plaintiff who previously sued for one malignant asbestos-related disease may bring a later action for a separate and distinct malignant asbestos-related disease from the same exposure that was unknown at the time of the first suit, if filed within the limitations period.
• Thurmon v. Scapa Waycross (In re Asbestos Products Liability Litigation) (2012). A Rule 30(b)(6) deposition notice served one day before the deposition, after discovery closed, and seeking all asbestos products a defendant sold over sixty years without evidence tying a defendant's product to the decedent, is improper. A motion to compel that overlaps a Rule 56(d) request is better resolved in the summary judgment context.