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

• Millsaps v. Aluminum Company of America (2012). The consulting-expert protection of Rule 26(b)(4)(D) does not bar deposing a witness who has relevant knowledge outside his consulting role, and objections to protected information can be raised during the deposition. Overlap with a corporate designee deposition does not bar it, though duplication can be managed by sequencing.
• Petrina v. Allied Glove Corp. (2012). Answers to interrogatories are part of the summary judgment record under the Pennsylvania rules, and a corporation's sworn answers are its own statements, not hearsay from the individual who signed them. They could also be used as a prior inconsistent statement of the corporation under Pa.R.E. 803.1(1).
• Rabovsky v. Air & Liquid Systems Corp. (2012). A defendant waives the defense of insufficient process by failing to raise it by pre-answer motion or in its answer, and Gregg's frequency, regularity and proximity test does not bar expert 'each and every exposure' opinions on mesothelioma causation under Rule 702.
• Shelhamer v. Crane (2012). A party seeking post-trial relief because a jury's answers to special interrogatories are inconsistent must object when the verdict is rendered; failing to object waives the claim and bars a new trial on that ground.
• Tooey v. AK Steel Corporation (Western District, 2012). Claims for an occupational disease that manifests more than 300 weeks after the last exposure fall outside the Workers' Compensation Act, so the Act's exclusivity provision does not bar a common law action against the employer.
• Graver v. Allentown Cement Co. (In re Asbestos Products Liability Lit.(no. VI)) (2011). Under the voluntary/involuntary rule, a case that was not removable when filed becomes removable only through the plaintiff's voluntary act, so a court-ordered summary judgment dismissing the last non-diverse defendant does not make it removable. Summary judgment for a defendant also does not show it was fraudulently joined, since the claim need only be colorable.
• Taylor v. Alcatel Lucent USA (In re Asbestos Products Liability Litigation) (2011). A party may object to a request for admission that is vague or calls for a medical opinion, and need not answer until the court rules on the objection. Supplemental expert declarations that add no new substantive opinions may be allowed despite timing objections.
• Wingfield v. John Crane (In re Asbestos Products Liability Litigation (NO. VI)) (2011). Under Federal Rule of Evidence 804(b)(1), a deceased witness's deposition is not admissible as former testimony unless the opposing party had a meaningful opportunity to cross-examine; defendants who could not meaningfully cross-examine a gravely ill deponent did not have that opportunity.
• Graver v. Allentown Cement Co. (In re Liability Litigation) (2011). Under the voluntary/involuntary rule, a case not removable when filed becomes removable only through the plaintiff's voluntary act, so a state court's involuntary summary judgment for a non-diverse defendant does not make it removable. A non-diverse defendant dismissed on summary judgment was not fraudulently joined if the claim against it was colorable.
• Breedlove v. CSX Transportation (In re Liability Litigation) (2011). An expert may rely on exposure summaries and deposition excerpts prepared by plaintiff's counsel if they have a factual foundation in the record, and weaknesses go to cross-examination. HIPAA does not bar asking a non-covered-entity defendant about asbestos claims that non-parties have brought in litigation.
• McCloskey v. Allis-Chalmers Products Liability Trust (2011). A court may deny permissive intervention where the intervenor would add new issues and parties that unduly complicate the case. Separate actions against different defendants for a single harm are not barred by claim splitting or res judicata.
• Millsaps v. Aluminum Company of America (2011). A party is not entitled to a wholesale turnover of a defendant's entire document collection, and documents offered in a settled earlier case do not waive objections here. The defendant must promptly search its word-searchable database using search terms the parties agree on or the court sets, and produce the relevant documents.
• Rabatin v. Allied Glove Corp. (2011). A manufacturer that designs and builds a large permanent turbine installed as an improvement to real property can invoke the § 5536 statute of repose. The 'control' exception in § 5536(b)(2) applies only to an owner, tenant or other holder of a possessory interest in the real property, not to a manufacturer that merely supervises or repairs.
• Sabol v. Allied Glove Corp. (2011). A graduate student who was both a paid research assistant and a Ph.D. student is not an employee as a matter of law for workers' compensation exclusivity; a fact-finder must resolve how much asbestos exposure occurred while he was acting as a student rather than as an employee.
• Betz v. Pneumo Abex LLC (2010). A Frye challenge requires the trial court first to find that the challenged evidence is novel scientific evidence and then to decide whether its methodology is generally accepted. A trial court may not exclude causation testimony on scientific theories the parties never raised and no expert supported, and extrapolation from higher to lower doses and the absence of supporting epidemiology do not by themselves defeat general acceptance.
• Cowley v. Acands, Inc. (2010). Deposition testimony from an earlier case is inadmissible against a defendant who was absent from it when that testimony goes to product identification, because the earlier defendants lacked a similar motive to cross-examine. Under Maryland's frequency, regularity and proximity test, the plaintiff must then show some admissible evidence placing him near the defendant's asbestos work.
• Dent v. Westinghouse (2010). A party seeking discovery of settlement information must make a particularized showing that it is relevant and likely to lead to admissible evidence, given Federal Rule of Evidence 408. Seeking it to challenge the validity or amount of the claim is a purpose Rule 408 forbids.
• Travis v. United Gilsonite Laboratories (In re Asbestos Products Liability Litigation) (2010). Under Pennsylvania law a plaintiff must first show exposure to the particular defendant's asbestos product, and then show frequency, regularity and proximity of exposure; testimony identifying a different manufacturer does not raise a genuine issue as to the defendant's product.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (2010). A magistrate judge's expert-admissibility ruling is reviewed for clear error. An expert need not rely on epidemiological studies or rule out every alternative cause for the testimony to be reliable under Rule 702; those points go to weight.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (2010). Expert testimony is admissible under Rule 702 if the expert's method is reliable and fits the case; disagreement among experts or the existence of contrary studies goes to weight and credibility for the jury, not admissibility. Epidemiology is not always required, and differential diagnosis is an accepted method.
• In re Lindemann v. Edison (2010). Under Pennsylvania law, mere title to premises does not impose premises liability; the plaintiff must produce evidence that the owner had possession, meaning occupation of the land with intent to control it. Where a federal rule conflicts with a state procedural rule, the federal rule applies after removal.
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• Summers v. Certainteed Corp. (2010). A plaintiff survives summary judgment when a sufficiently supported expert opinion attributes his condition to both asbestos and non-asbestos causes, because competing medical evidence on causation is for the jury. An appellate court reviewing summary judgment must apply de novo review to the question whether any genuine issue of material fact exists.
• Burger v. Owens-Illinois, Inc. (2009). A plaintiff opposing summary judgment in an asbestos case must produce evidence that he inhaled asbestos fibers from the particular defendant's product, and the presence of asbestos in the workplace is not enough. A party may supplement the record with an affidavit, but the trial court may disregard it if it is not wholly credible. A plaintiff who lacks standing cannot challenge the constitutionality of the statute limiting Crown Cork's successor liability.
• Estate of Hicks v. Dana Companies, LLC (2009). Under Gregg's flexible frequency, regularity and proximity test, forty years of direct exposure to a defendant's asbestos gaskets and packing, with expert testimony that cumulative low-dose exposure contributed to mesothelioma, was enough for the jury, and conflicting expert opinion on dose did not support JNOV. OSHA and EPA exposure standards are inadmissible in a Pennsylvania strict liability case to show lack of defect, or lack of causation, because they inject negligence concepts.
• Gregg v. VJ Auto Parts Co. (2009). At summary judgment, courts apply the frequency, regularity and proximity factors in an evaluative way (the Tragarz approach) to decide whether a jury could infer that the defendant's product caused the harm. Generalized expert opinions do not create a jury question where exposure to the defendant's product is minimal.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• Anderson v. Bondex Int'l (In re Asbestos Products Liability Litigation) (2009). An amended pleading relates back under Rule 15(c)(1)(B) only if it arises from the conduct, transaction or occurrence set out in the original pleading; facts differing in time and type do not relate back, and an amendment that would be time-barred is futile. Defendants' notice from discovery does not substitute for a common core of operative facts in the two pleadings.
• Anderson v. Bondex Int'l (In re Asbestos Products Liability Litigation) (2009). Under Virginia's statute of repose, an ordinary building material such as joint compound is "incorporated" into an improvement to real property only when its installation is complete. Exposures during the sanding and cleanup phases of installation therefore fall outside the statute.
• In re Asbestos Products Liability Litigation (2009). Physicians whose screening diagnoses plaintiffs rely on in asbestos litigation are not covered by HIPAA, cannot claim physician-patient privilege or consulting-expert protection, but subpoenas to them may be narrowed as overbroad and burdensome.
• Kurns v. AW Chesterton (2009). The Boiler Inspection Act (Locomotive Inspection Act) occupies the field of locomotive equipment, parts and appurtenances, so state-law tort claims over asbestos in locomotive brake pads and engine valves are preempted. A federal court may reexamine a state court's interlocutory denial of summary judgment after removal, and federal law governs preemption.
• Bednar v. Dana Corp. (2008). Pa.R.C.P. 221 unambiguously gives each party four peremptory challenges, including when the jury has fewer than twelve members. Denying that right is reversible error without a showing of prejudice.
• Weible v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test, a plaintiff must show more than the presence of asbestos in the workplace. Evidence that the plaintiff was regularly near the defendant's identified product when it was used is enough to let a jury infer causation, and the court need not disregard product identification testimony merely because it responded to leading questions.
• Wright v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test of Eckenrod, as applied in Gregg, a plaintiff defeats summary judgment if the evidence would let a jury reasonably infer he inhaled fibers shed by the defendant's product. Co-worker testimony can supply that evidence even if the plaintiff cannot identify the product or its maker.
• Bugosh v. Allen Refractories Co. (2007). A plaintiff in asbestos litigation can show exposure to a defendant's product by direct evidence or by showing the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked for verification of the plaintiff's Manville Trust claim before trial has not preserved a request to reduce the verdict by Trust payments.
• Bugosh v. Allen Refractories Company (2007). A plaintiff proves product exposure through the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked the Manville Trust for verification under the Trust Distribution Process did not preserve a claim to reduce the verdict by Trust payments.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Chenot v. AP Green Services, Inc. (2006). A landowner that possesses superior knowledge of asbestos hazards owes a duty to warn an independent contractor's employees, and the landowner bears the burden of showing the contractor or employee knew as much or more. A peculiar-risk theory may also present a triable issue.
• Rudy v. A-Best Products Company (2005). A possessor of land is generally not liable to an independent contractor's employee unless the plaintiff meets the Gutteridge/Summers test or shows the peculiar risk or superior knowledge exception; a defendant that did not occupy the land with intent to control it is not a possessor.
• Smalls v. Pittsburgh-Corning Corp. (2004). Evidence of a later product warning is admissible to impeach a defendant's claim that its product created no dust, and an expert's 'each and every breath' causation opinion is admissible; a verdict unsupported by the evidence of injury and loss of consortium is excessive and warrants a new trial on damages.
• Harahan v. AC & S, Inc. (2003). A plaintiff opposing summary judgment must show she inhaled asbestos fibers from the defendant's specific product and worked in its vicinity; co-worker testimony that the product created dust when dried and was regularly breathed is enough to create a genuine issue of fact.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Gatling v. Eaton Corp. (2002). Under Pennsylvania's two-disease rule, a plaintiff who already sued for symptomatic nonmalignant asbestos disease cannot bring a second claim for another nonmalignant disease; the limitations period began when that disease was discovered.
• Gutteridge v. AP Green Services, Inc. (2002). A plaintiff can defeat a manufacturer's summary judgment motion with co-worker testimony that he worked close to where the defendant's asbestos products were used, and credibility cannot be decided at that stage. A landowner that has superior knowledge of a hazard owes a duty to warn an independent contractor's employees, even if it is out of possession.
• Wilson v. AP Green Industries, Inc. (2002). In an asbestos case, including mesothelioma, a plaintiff must show she worked regularly in physical proximity to the defendant's product so that a reasonable inference arises that she inhaled its fibers; vague testimony and answers to improper leading questions do not meet this standard.
• In re Collins (2000). The word "claim" in 28 U.S.C. § 1407(a) is broad enough to cover a request for punitive damages. The Panel may therefore remand compensatory claims while retaining punitive damages claims, and mandamus is available only for a clear and indisputable right or a judicial usurpation of power.
• In re Patenaude (2000). Individual settlement negotiations and discovery in an MDL are coordinated pretrial proceedings under 28 U.S.C. § 1407(a), so plaintiffs did not show a clear and indisputable right to remand, and the Panel did not abuse its discretion in refusing it.
• Lonasco v. A-Best Products Co. (2000). A plaintiff diagnosed with asbestosis and pleural disease who also has asbestos-related shortness of breath has a symptomatic, compensable condition. A prima facie case against a manufacturer requires evidence that the plaintiff inhaled fibers from its product while working in the vicinity of its use, and a defendant that offers no evidence of the plaintiff's knowledge does not rebut the presumption that he would have heeded a warning.
• Coward v. Owens-Corning Fiberglas Corp. (1999). Where a warning is required to make a product non-defective and none was given, the plaintiff may use a rebuttable presumption that he would have followed an adequate warning, and the defendant must produce evidence that a warning would not have been heeded. Product-identification sufficiency (regularity, frequency, proximity) is separate from the jury's causation question, which asks whether exposure was a substantial contributing factor.
• Greenleaf v. Garlock, Inc. (1999). Under Pennsylvania law, a state jury's damages verdict in a reverse-bifurcated trial can be final enough to bar relitigation of damages in a later federal action, even though it was not immediately appealable. Eckenrod's "frequency, regularity and proximity" language is not a required jury instruction in asbestos cases.