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

• Amchem Products, Inc. v. Windsor (1997). A settlement-only class must still satisfy Rule 23(a) and (b)(3), including predominance and adequacy of representation, although the settlement is a relevant factor. A court cannot replace those criteria with a finding that the settlement is fair.
• McNeil v. Owens-Corning Fiberglas Corp. (1996). Asbestos-related cancer and non-malignant conditions are separate claims, so a jury's final finding on the cancer claim bars relitigating it. A new trial ordered for error on discrete issues is limited to those issues. A party must make a specific objection to preserve a challenge to a jury charge.
• Kirk v. Raymark Industries, Inc. (1995). Forcing a party to use peremptory challenges on jurors who should have been excused for cause impairs its statutory right under 28 U.S.C. § 1870, and that impairment requires reversal without any showing of prejudice. A federal court sitting in diversity may award Pennsylvania Rule 238 delay damages.
• Busfield v. AC & S., Inc. (1994). Under Marinari and Morrison, a plaintiff with a non-malignant asbestos disease cannot recover damages for fear of future cancer in the first suit, and under Giffear asymptomatic pleural thickening gives no cause of action at all.
• DiDio v. Philadelphia Asbestos Corp. (1994). Under Giffear, asymptomatic pleural thickening is not compensable and claims for fear and risk of cancer cannot support recovery where cancer is not present. A bankruptcy filing automatically stays an appeal against the debtor, and a severance of cross-claims makes the judgment on the main claim final and appealable.
• Georgine v. Amchem Products, Inc. (1994). A federal court that has approved a class settlement may, under the All-Writs Act and the Anti-Injunction Act, enjoin non-opted-out class members from pursuing the settled claims in other courts where necessary in aid of its jurisdiction, after weighing the four preliminary injunction factors.
• Behrendt v. GAF Corp. (1993). A jury award that bears no reasonable relation to uncontradicted losses warrants a new trial, and it cannot be upheld as a compromise verdict where the special interrogatories show the jury resolved the liability dispute and the dispute was all-or-nothing. A new trial may be limited to damages where liability was fairly determined, the trial was free from error, and the evidence supports liability.
• Dempsey v. Pacor, Inc. (1993). Under the separate disease rule adopted in Marinari, a plaintiff with a non-cancerous asbestos condition cannot recover damages for fear of cancer or increased risk of cancer. The rule applies retroactively to cases pending on appeal where the defendants preserved the underlying concerns.
• Giffear v. Johns-Manville Corp. (1993). Asymptomatic pleural thickening, without disabling consequences or manifest physical symptoms, is not a compensable injury and gives no cause of action. Damages for fear or increased risk of cancer are not recoverable where cancer is not present, because of the separate disease rule.
• Higginbotham v. Fibreboard Corp. (1993). Under Pennsylvania's separate disease rule, a plaintiff with a present nonmalignant asbestos condition cannot recover damages for the increased risk of, or fear of, a future cancer or mesothelioma. He may bring a second action if a malignancy develops later.
• Zenson v. Owens Corning Fiberglas Corp. (1993). Under Pennsylvania law, an asbestos plaintiff must show frequency, regularity and proximity of exposure to the specific defendant's product; the presence of asbestos in the workplace or fiber drift alone does not meet that burden.
• Sealover v. Carey Canada (1992). Under Pennsylvania law, punitive damages require proof that the defendant actually knew, before the plaintiff's exposure, that its finished products endangered construction workers and bystanders. Knowledge of disease among miners and plant workers, and the Saranac Lake animal studies, did not show that knowledge.
• Taliferro v. Johns-Manville Corp. (1992). An expert may rely on epidemiological studies that do not match the plaintiff's exposure or account for smoking, and such gaps go to the weight of the testimony rather than its sufficiency. Asymptomatic pleural thickening may be a compensable injury, and whether it is one is a jury question.
• Ierardi v. Lorillard, Inc. (1991). Under Pennsylvania law as stated in Walton v. Avco, no post-sale duty to warn is imposed where the defect cannot be remedied, the product is no longer in use, users cannot practicably be identified, and a warning would not have prevented the plaintiff's harm.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Manzi v. HK Porter Co. (1991). Pleural thickening is not an injury as a matter of law that triggers the limitations period and bars later suits; whether it is a compensable injury is a jury question, so a plaintiff whose jury finds no compensable injury may sue later if he develops a compensable asbestos disease.
• Moran v. G. & WH Corson, Inc. (1991). Under Charles v. Giant Eagle Markets, where releases reduce the verdict only by the settling tortfeasor's pro rata share, non-settling defendants must pay their shares even if the settlements exceed the verdict, and this applies to strict liability cases not governed by the Comparative Negligence Act. Punitive damages require evidence that the defendant knew or had reason to know of the hazard, and vague awareness of newspaper reports was not enough.
• Normann v. Johns-Manville Corp. (1991). Applying Pennsylvania's flexible interest-and-contacts choice-of-law analysis, the law of the state where the plaintiff was exposed to the defendant's products, and where the relationship was centered, governed liability. That state, New York, allows a state-of-the-art defense, and Pennsylvania did not.
• Ward v. Wcab (sun Refining) (1991). An employer's statutory subrogation right under Section 319 has no filing time limit, and laches did not apply where the employer was not told of the settlements until shortly before it filed. A referee may order a claimant or dependent to make an out-of-pocket lump sum payment to the employer or its insurer.
• Bushless v. GAF Corp. (1990). To defeat summary judgment in an asbestos products case, a plaintiff must present evidence that he was at a particular job site, was exposed to asbestos-containing products there, and that the defendant's asbestos product was at that site at about the same time. Lists of co-workers and statements that products were asbestos because they resisted heat are not enough.
• Peeples v. Wcab (foster Wheeler) (1990). An employer's statutory right of subrogation to a worker's third-party recovery under Section 319 is absolute, has no filing time limit, and is not defeated by laches absent employer knowledge of the settlement or prejudice to the claimant. A petition filed under the wrong section is treated as filed under the correct one.
• Eckenrod v. GAF Corp. (1988). To defeat summary judgment in an asbestos case, a plaintiff must present evidence that the decedent inhaled fibers shed by the specific defendant's product, which requires more than the presence of asbestos in the workplace; circumstantial proof depends on frequency of use and regularity of work near the product.
• Eagle-Picher Industries, Inc. v. US (1987). Under the Longshoremen's and Harbor Workers' Compensation Act, an employee injured while engaged in maritime employment on navigable waters is covered by § 905(b), without a separate admiralty-jurisdiction nexus test. A private shipowner could therefore have been sued in negligence, so the United States can be liable to a manufacturer for contribution under the Federal Tort Claims Act.
• Lowe v. Johns-Manville Corp. (1985). Under Pennsylvania's discovery rule, summary judgment on limitations is improper where there is a genuine factual dispute over whether the plaintiff was told of his injury. The duty to inquire arises only after he has been given facts putting him on notice that he has a disease.
• Colombo v. Johns-Manville Corp. (1984). Under the Federal Tort Claims Act the United States is treated like a private Pennsylvania shipyard employer, so the Pennsylvania Workmen's Compensation Act bars third-party contribution and indemnity tort claims against it, and Pennsylvania's dual capacity doctrine does not apply. The vessel-owner negligence claim under LHWCA section 5(b) survives because the state exclusivity bar does not apply to it, and the Tucker Act does not reach the implied-warranty claims.
• Doe v. Johns-Manville Corp. (1984). A declaratory judgment action cannot be used to change existing law; under Pennsylvania's discovery rule the limitations period starts when the plaintiff knows or should know of an objectively ascertainable injury, its cause and the causal link, and a new period does not start when a new disease develops from the same conduct.
• Amader v. Johns-Manville Corp. (1982). Under Pennsylvania law, which does not require mutuality of parties, a defendant that fully and fairly litigated an issue in an earlier case may be precluded from relitigating it. Prior verdicts that the losing party could not appeal do not support preclusion, and individual causation depends on too many variables to be precluded.
• Gill v. Pacor, Inc. (1982). A supplier's duty to warn the ultimate user of an asbestos product cannot be avoided by pointing to the employer's failure to provide a safe workplace. An employer's conduct is not a superseding cause unless it was so extraordinary that it could not reasonably have been foreseen.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.
• Staiano v. Johns-Manville Corp. (1982). Under the discovery rule, the two-year limitations period starts when the plaintiff knows or reasonably should know of his injury, its operative cause, and the causal link between them; it does not wait until he learns which manufacturers made the products. A later-developing related disease from the same exposure does not start a new period.
• Amader v. Johns-Manville Corp. (1981). Pennsylvania's Sinn v. Burd rule allowing recovery for emotional distress from witnessing injury to another requires a sudden and violent event, so it does not cover distress from the development of an occupational disease. A proposed amendment that fails to state a claim may be denied.
• Carbonaro v. Johns-Manville Corp. (1981). Under claim preclusion, a final judgment on a prior asbestos suit bars a later suit arising from the same transactions and exposure, even where a newly discovered cancer is alleged, because the earlier complaint embraced all present and future asbestos injuries.
• Amatex Corp. v. Aetna (1979). Under the Pennsylvania Declaratory Judgments Act, underlying tort claimants are indispensable parties to a coverage declaratory action between insured and insurer, and a request to decide coverage theories without an individual claimant is an advisory opinion outside the court's jurisdiction.

Rhode Island

• Soares v. Avon Products, Inc. (2024). Rule 25(c) substitution exists so that litigation is not defeated by a transfer away from the original defendant; it does not let a defendant extricate itself by insisting another party is more properly sued, and plaintiffs are masters of their complaint.
• Stadtler v. Aurora Pump Co. (2022). Under Rhode Island's liberal discovery rules, requested documents need only be relevant to the subject matter of the suit and reasonably calculated to lead to admissible evidence. A defendant cannot defeat a motion to compel by arguing that the plaintiff's existing evidence is too weak to establish its liability.
• Burdick v. NIBCO (In re Asbestos Litigation) (2021). To establish liability in an asbestos action, a plaintiff must identify the responsible defendant and show exposure. Summary judgment is improper where competent evidence on both sides allows more than one reasonable inference about exposure to the defendant's asbestos-containing product.
• Belac v. 3M Company (2018). A court need not allow a renewed summary judgment motion that repeats arguments already decided twice without an expanded record (law-of-the-case). Under Rule 41(a)(2), a court weighs the circumstances, and voluntary dismissal without prejudice may be granted where the plaintiff was diligent and had a sufficient explanation.
• Carson v. 3M Company (2018). Mesothelioma is an occupational disease under the Rhode Island Workers' Compensation Act, and an employee who did not preserve his common-law right to sue is barred by the exclusivity provision from suing his employer; a derivative loss of consortium claim fails with it.
• Belac v. Evenheat Kiln (In re Asbestos Litigation) (2017). A plaintiff can show product identification and causal connection at summary judgment by evidence of a specific period of exposure and the proximity and frequency of exposure, and the sham affidavit doctrine bars only an affidavit that contradicts the affiant's own prior deposition testimony.
• McCarthy v. Warren Pumps (In re Asbestos Litigation) (2017). A decedent's sworn statement made in good faith, on personal knowledge, before the action began is admissible under R.I. R. Evid. 804(c) and may be considered on summary judgment. Product identification is judged case by case using factors such as dates, proximity and frequency of contact, and is sufficient here to leave exposure and causation for the jury.
• Lepore v. AO Smith Corp. (2017). A court may limit discovery under Rule 26 to avoid undue burden, but evidence of later asbestos removal is discoverable and admissible as a subsequent remedial measure under Rule 407, with no knowledge requirement and allowing for the latency of asbestos disease.
• Pisano v. Sears, Roebuck and Co. (In re Asbestos Litigation) (2016). A dying person's affidavits made believing death was impending are admissible at summary judgment under the dying-declaration exception, and can supply product identification. A seller that did not take part in installing the product is not a protected "materialman" under Rhode Island's statute of repose.
• Murray v. Dana Companies (In re Asbestos Litigation) (2016). A foreign corporation incorporated and headquartered elsewhere is not subject to general jurisdiction in Rhode Island absent being 'at home' there, and a defendant that took part in limited early discovery and then timely moved to dismiss has not forfeited its personal jurisdiction defense.
• Santos v. AC McLOON Oil Co. (2015). A nonmovant cannot rely on allegations to defeat a properly supported summary judgment motion, but because summary judgment is a drastic remedy, the court may stay the motion to allow further discovery where plaintiff says competent evidence is forthcoming.
• Gallagher v. American Insulated Wire Corp. (2014). Under Rule 42(a), a court may consolidate asbestos cases for trial when they share common questions and consolidation will not prejudice a party's right to a fair trial. The court weighed eight factors drawn from Johnson v. Celotex: worksite, occupation, time of exposure, disease, living or deceased status, discovery status, counsel, and type of cancer.
• Reera v. AO Smith Corp. (2014). A plaintiff opposing summary judgment in a premises liability asbestos case must produce competent, admissible evidence that asbestos was present and that the plaintiff was exposed to it. A witness's later-acquired belief that insulation contained asbestos, and a promise of expert testimony at trial, do not meet that burden.
• Cary v. 3M Company (2013). Factual work product is discoverable on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship; mere inconvenience or expense of re-obtaining original documents is not undue hardship. Opinion work product protection does not extend to photos taken openly in the opposing counsel's presence.
• Cary v. American Optical Corporation (2013). Selling products to distributors who resell them in the forum does not alone show purposeful contacts; the defendant must have sought to serve the forum's market. Jurisdictional discovery is proper when the relevant facts are in the defendant's exclusive control and denial would prejudice the plaintiff.
• Sweredoski v. Alfa Laval, Inc. (2013). Crane could present evidence of the settled defendants' fault at trial to obtain a judgment reduction, but bankrupt entities reorganized under 11 U.S.C. § 524(g) were not 'joint tortfeasors' under the contribution act and public policy disfavored apportioning fault to them. Trust claim forms were not discoverable because they were not relevant to causation against the sole remaining defendant.
• Sweredoski v. Alfa Laval, Inc. (2013). In Rhode Island asbestos cases, causation is judged under the "frequency, regularity, proximity" test. "Each and every exposure" evidence may be presented to show the danger of asbestos but is legally insufficient to prove substantial-factor causation without a showing of frequency, regularity and proximity.