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.

Rhode Island

• Sweredoski v. Alfa Laval, Inc. (2013). Rule 8(c) does not automatically bar adding an omitted affirmative defense; under Rule 15(a), leave to amend is freely given and may be denied only if the nonmoving party shows undue prejudice, and delay alone is not enough.
• Burdick v. Air & Liquid Systems Corporation (2012). Under Rhode Island's significant relationship approach, choice of law in tort cases is fact-intensive, so a court cannot decide it on a Rule 12(b)(6) motion when the complaint lacks facts to apply the choice-of-law factors.
• Brandt v. AW Chesterton Company (2011). A sworn exposure chart of a dying plaintiff is admissible as a dying declaration, and showing work with or near a defendant's asbestos products is enough to reach a jury on product identification at summary judgment.
• Carlson v. 84 Lumber Company (2011). Under Rhode Island's interest-weighing choice-of-law approach, the place of injury for a latent disease like mesothelioma is where the disease was diagnosed and symptoms began, and the state with the most significant relationship governs. Rule 44.1 notice of intent to apply foreign law need not include argument and sets no definite deadline.
• Cone v. Agco Corp. (2011). A company that buys another's assets may be liable as a mere continuation of the seller, a highly fact-dependent question that precluded summary judgment here. Whether a product contained asbestos, and proximate cause, are ordinarily jury questions.
• Hopkins v. Buffalo Pumps, Inc. (2011). A trial justice may consolidate actions with common questions of law or fact for trial when it serves convenience and economy, and any prejudice from a close trial date can be cured by a short continuance. Consolidation is for trial only and the actions remain separate.
• Sharp v. Afc-Holcroft (2010). The Rhode Island construction statute of repose, § 9-1-29, does not protect a passive manufacturer that did not install or take part in the construction of the improvement, where the alleged defect (asbestos in tiles) existed from manufacture and had nothing to do with later third-party negligence.
• Benoit v. AW Smith Corporation (2009). In asbestos cases a plaintiff can show product identification at summary judgment by evidence that he worked with or in close proximity to the defendant's products; whether a product contains asbestos is for the jury, and summary judgment may be denied as premature where discovery responses are incomplete.
• Clayton v. American Biltrate (2008). Summary judgment is premature while the moving defendant has not completed its own discovery obligations, such as responding to Master Interrogatories. In asbestos litigation the plaintiff must still identify the defendant's asbestos product and show that it proximately caused the injury.
• Dyer v. Aurora Pump Co. (2008). Leave to amend to add new defendants is within the court's discretion and is freely given; a plaintiff has no automatic right to add parties just because the new parties have not answered, and delay without extreme prejudice, which an extension of discovery can cure, does not justify denial.
• Hicks v. Biltrite (2007). Summary judgment is premature while discovery is ongoing, and a plaintiff's deposition testimony about the product used creates a genuine issue of fact on product identification and causation; the court may not weigh credibility on summary judgment.
• LaPOINTE V 3M Company (2007). Summary judgment on product identification was premature where the defendant had not fully answered court-approved discovery and its employee's unsupported affidavit left a genuine factual issue about whether its products contained asbestos.
• LaPOINTE v. 3M Company (2007). Installing burners is an improvement to real property under the Rhode Island statute of repose, but servicing, repairing and maintaining them is not, so claims based on repair exposure are not repose-barred. Whether the burners contained asbestos and whether a duty to warn existed are jury questions.
• Lapointe v. 3M Company (2007). Summary judgment on product identification is premature where the plaintiffs cannot learn whether the defendant made the boilers the worker serviced until the defendant gives responsive answers to court-approved discovery requests.
• US v. Hugo Key and Son, Inc. (1989). Violations of the Clean Air Act and the asbestos NESHAP work practice standards, including failure to answer EPA reporting requirements and compliance orders, carry strict liability, and a demolition contractor is an "owner or operator" subject to those standards.
• Westfall v. Whittaker, Clark & Daniels (1983). Amendments to Rhode Island's wrongful death limitations period do not apply retroactively, and the discovery rule concerns discovery of the wrongful act, not of a particular defendant. In a federal diversity case, John Doe pleading under R.I.Gen.Laws § 9-5-20 is allowed, but only if the fictitious defendants are duly served within a reasonable time.

South Carolina

• Covil Corporation EX rel. Protopapas v. Pennsylvania National Mutual Casualty Insurance Company (2024). The notice-prejudice rule applies only where innocent third parties' rights are at stake, but an insurer may escape coverage for late notice only if the insured's breach of the notice provision was material under Restatement (Second) of Contracts § 241. Attending mediation and expressing willingness to contribute did not waive the notice right, and the products hazard and completed operations exclusions did not apply.
• Jolly v. Fisher Controls International, LLC (2024). A trial court may grant a new trial nisi additur when a verdict is inadequate but not grossly so, giving substantial deference to the jury and stating compelling reasons. A setoff judge must make a reasonable allocation of settlement funds among the claims and may set off only settlements for the same injury.
• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Protopapas v. Wall, Templeton & Haldrup, PA (2023). A dissolved corporation's statute of repose under S.C. Code § 33-14-107 applies only if a statutorily compliant notice of dissolution was published, and the party asserting the defense bears the burden of proving publication.
• Amerisure Mutual Insurance Company v. Metal Masters, Inc. (2022). A federal court may decline to hear an insurer's declaratory judgment action where a parallel state action involving the same issues and parties is pending, based on the Nautilus factors of state interest, efficiency, entanglement and procedural fencing.
• Covil Corporation EX rel. Protopapas v. Pennsylvania National Mutual Casualty Insurance Company (2022). An insurer's attendance at mediation and expressed willingness to contribute to a settlement can support an inference that it waived its policy's timely-notice requirement. The products hazard and completed operations exclusions did not apply where the asbestos exposure occurred during the insured's ongoing work within the policy period.
• Jolly v. General Elec. Co. (2021). Under South Carolina's frequency, regularity and proximity test, regular close-range exposure to a defendant's asbestos gaskets supports a jury finding of substantial-factor causation. Expert testimony that exposures add to cumulative dose is not the unreliable 'each and every exposure' theory. A supplier asserting the sophisticated intermediary defense must show it actually relied on the intermediary to warn.
• Keene v. Cna Holdings, LLC (2019). A maintenance contractor's employee is not a statutory employee of the plant owner under S.C. Code § 42-1-400 merely because the maintenance was important or essential to the owner's operations; the work must actually be part of the owner's own trade, business or occupation.
• Haskins v. 3M Company (2017). Under maritime law, a plaintiff must show the defendant's product was a substantial factor in causing the injury, assessed defendant by defendant. An expert opinion that any exposure contributing to cumulative dose is causative, without defendant-specific analysis, is inconsistent with that standard and excludable under Rule 403.
• Sparkman v. Goulds Pumps, Inc. (2015). A federal court predicted that the South Carolina Supreme Court would reject the bare metal defense and would hold a manufacturer subject to a duty to warn about asbestos parts of its product that it did not make or supply, at least where it specified asbestos parts for the product. A state trial judge's ruling that the court had overlooked was treated as persuasive evidence of how the state's highest court would rule.
• Sparkman v. AW Chesterton Company (2014). Under South Carolina law, a plaintiff must show exposure to a specific defendant's asbestos product with frequency, regularity and proximity (the Lohrmann test), including for mesothelioma claims, and the mere presence of static asbestos is not exposure.
• Henderson v. Allied Signal, Inc. (2007). Under the Door Closing Statute, a nonresident plaintiff must show the foreign corporation's asbestos exposure of the victim occurred in South Carolina, and exposure is actionable only if it meets the "frequency, regularity, and proximity" test; mere presence near static asbestos is not exposure.
• Murphy v. Owens-Corning Fiberglas Corp. (2001). Under South Carolina's Door Closing Statute, a cause of action 'arises' where the act or omission giving rise to the claim originated (here, the asbestos exposure), even though it does not 'accrue' until diagnosis elsewhere. An order dismissing some but not all defendants under Rule 12 is directly appealable.

Tennessee

• Stockton v. Ford Motor Company (2017). In a Tennessee products liability case, whether pleaded as negligence or strict liability, the jury must find that the product was defective or unreasonably dangerous, and must decide foreseeability, before it can find negligence. A verdict that omits these findings is inconsistent and cannot stand.
• Payne v. CSX Transportation, Inc. (2015). In a FELA case a jury verdict of negligence per se stands unless the evidentiary and instructional errors were substantial, and FELA bars reducing damages for the employee's contributory negligence where the railroad violated a safety regulation. Experts need not have specific dose information to testify on causation, particularly where the railroad never monitored exposure, and a differential diagnosis is a reliable method.
• Russell v. Illinois Central Railroad Company (2015). Expert causation opinions based on differential diagnosis and a qualitative assessment of workplace exposure can be reliable and admissible even when the dose of the exposure was not quantified. Under 45 U.S.C. § 55 and the railroad health and welfare agreement, a railroad may set off medical benefits the plan paid, even though the employee paid part of the premium.
• Segroves v. Union Carbide (2015). Res judicata does not bar a later asbestos-related disease claim when the earlier complaint and settlement order referred only to unspecified breathing impairments and the record does not show the asbestos disease was at issue or detectable; an agreement that prospectively relieves an employer of workers' compensation obligations is unenforceable.
• Nye v. Bayer Cropscience, Inc. (2011). A non-manufacturing seller may be sued in strict liability under Tenn. Code Ann. 29-28-106(b) when the manufacturers cannot be served because of bankruptcy stays or channeling injunctions. The learned intermediary doctrine does not apply to an employee's claim over asbestos products bought by his employer, and the employee, not the employer, is the consumer who must be warned.
• Nye v. Bayer Cropscience, Inc. (2009). Tennessee has not extended the learned intermediary or sophisticated buyer doctrine beyond medical products, so a jury may not be told that a seller cannot be liable for failure to warn because the employer already knew the danger. Combining that instruction with a proper sole-cause instruction confused the jury.
• Satterfield v. Breeding Insulation Company, Inc. (2007). An employer owes a duty of care, under Tennessee's foreseeability-based balancing test, to members of employees' households who routinely come into close contact with contaminated work clothing over an extended period. The duty does not extend to people whose contact is sporadic or unpredictable.
• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.
• Lynch v. CF Industries, Inc. (2004). A party claiming workers' compensation death benefits must prove by a preponderance of the evidence, usually through expert medical testimony, that the death was due to a compensable injury or occupational disease; a trial court may credit one expert over another.
• Denton v. Southern Ry. Co. (Eastern Section, 1993). Under FELA, the employee's causation burden is slight and other causes do not reduce recovery against a negligent employer, and a plaintiff with asbestosis may present evidence of reasonable fear of cancer and future cancer-monitoring costs, with federal law governing the measure of damages.
• Johnson County, Tenn. v. US Gypsum Co. (1984). The asbestos exception in Tennessee's ten-year products liability ceiling, T.C.A. § 29-28-103(b), covers any action resulting from exposure to asbestos, including a school's property damage and economic loss claims, and a county school system gets no sovereign exemption from limitations periods for such claims.
• Clay v. Johns-Manville Sales Corp. (1983). Tennessee's 1979 amendment excluding asbestos-related disease actions from the ten-year products limitations statute applies, because the vested rights doctrine no longer bars it. A deceased witness's prior deposition is admissible under Rule 804(b)(1) when a party in the earlier case had a like motive to cross-examine, read generously as a 'predecessor in interest'.
• Daniels v. Combustion Engineering, Inc. (Eastern Section, 1978). A court may exclude evidence of asbestos-related cancers where the plaintiff has only mild asbestosis and no cancer. Prior deposition testimony from different cases with different plaintiffs and no privity is not admissible. A charge on unavoidably unsafe products is proper where the plaintiff's own complaint put failure to warn in issue.

Texas

• Gallo v. Air & Liquid Systems Corporation (2023). A court has broad discretion to stay discovery pending preliminary questions, but a magistrate judge may instead consider severing claims against a defendant seeking arbitration so discovery can go forward against the other defendants.
• United Refining Co. v. Dorrion (2023). Under the Bankruptcy Code's broad definition of claim and the Fifth Circuit's prepetition-relationship test, a worker's asbestos exposure by the debtor before the bankruptcy filing created a contingent prepetition claim that was discharged, even though mesothelioma appeared decades later, if notice was adequate.
• United Refining Company v. Dorrion (2023). Under the prepetition-relationship test followed in the Fifth Circuit, a former employee exposed to asbestos before the debtor's bankruptcy filing held a contingent prepetition claim that was discharged by a confirmed plan, even though mesothelioma appeared decades later, where adequate notice was given.
• Fisher v. BNSF Railway Company (2nd District, 2022). A FELA release given in settlement of an existing asbestos claim that clearly covers future asbestos-related cancer is enforceable under Section 5, whether tested under the Wicker rule or the Mendoza-Gomez analysis. Once the employer shows the release, the party attacking it must produce evidence of invalidity.
• Felix v. Novelis Corporation (2021). Under the Texas borrowing statute, a nonresident plaintiff must sue within the Texas limitations period, and the Texas savings statute (§ 16.064) only suspends a limitations period that has not already run, so it cannot revive claims that expired before the first filing's dismissal.
• In re United Refining Company (2021). A claim based on prepetition asbestos exposure is a prepetition bankruptcy claim even if the disease appears after confirmation, and with no official record the Confirmation Order's findings of proper notice are accepted as uncontroverted evidence that the claim was discharged.
• LaFRENTZ v. Lockheed Martin Corporation (2021). A party has no preexisting duty to preserve tissue or perform an autopsy until a Rule 35 request is shown to be justified by good cause and ordered by the court, so an adverse inference requires bad faith, which was not shown. The court may still give a lesser curative instruction when counsel ignored a preservation request.
• Neely EX rel. Estate OF Goehring v. Union Carbide Corporation (14th District, 2021). Under Flores and Bostic, a plaintiff must offer reliable, defendant-specific evidence of dose, supported by epidemiology showing the exposure more than doubled the risk, to prove asbestos causation. An expert affidavit with unexplained calculations and studies not shown to match the plaintiff's exposure is unreliable and counts as no evidence.