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.

Texas

• Andrews v. John Crane, Inc. (14th District, 2020). General maritime law preempts state law for a Navy sailor's asbestos products claims against a gasket maker, and DOHSA does not bar a general maritime survival recovery for the decedent seaman's pre-death pain and suffering.
• Massachusetts Bay Insurance Company v. Adkins (1st District, 2020). A defendant waives its special appearance by filing an answer in a Texas court before challenging personal jurisdiction, and a transfer to the MDL court does not create a new proceeding for that rule. Claimants whose pre-2003 asbestos case was transferred under section 90.010(b) for failing to serve a section 90.003 medical report must serve a compliant report to obtain remand.
• Massachusetts Bay Insurance Company v. Adkins (1st District, 2020). The court ordered the parties to file post-argument briefs on the proof needed to show a malignant mesothelioma or other asbestos-related cancer diagnosis under section 90.010(a)(3), whether the MDL court must make a written finding, and the standard of review; it decided nothing else.
• In re Reed (2016). Collateral estoppel from a Texas Rule 202 personal-jurisdiction dismissal does not bar a federal Rule 27(a) petition to perpetuate testimony, because the rules differ and Rule 27 does not require personal jurisdiction over expected adverse parties. A petitioner relying on serious illness must still make a particularized showing, such as medical evidence, that her testimony will probably be lost.
• Erica P. John Fund, Inc. v. Halliburton Company (2015). At class certification, the defendant bears the burdens of production and persuasion to show a lack of price impact to rebut the Basic presumption of reliance, and the court does not decide as a matter of law whether disclosures were corrective.
• In re EI DU Pont DE Nemours and Company (9th District, 2015). A trial court may set aside a jury's "no" finding as against the great weight of the evidence only if the record supports its stated reasons. An appellate court can check those reasons in mandamus, and conflicting evidence on a disputed issue does not justify overturning the verdict.
• Union Carbide Corporation v. Synatzske (2014). The Chapter 90 safety valve requires that pulmonary function testing be relevant to the physician's diagnosis of functional pulmonary impairment, so decades-old normal tests do not qualify. Applying that requirement to a claim that accrued before Chapter 90 took effect is not unconstitutionally retroactive, given the compelling public interest and the claimants' lack of settled expectations.
• Hearn v. Snapka (13th District, 2012). A party who offers expert evidence bears the burden of proving it reliable once the other side objects, and a trial court may strike it if that burden is not met. When a summary judgment order does not state its grounds, the appellant must challenge every ground, and an unchallenged ground requires affirmance.
• Union Carbide Corp. v. Synatzske (2012). Under Chapter 90's safety-valve provision, the pulmonary function testing a physician must verify has to be relevant to the physician's impairment diagnosis, but a trial court may consider supplemental reports served after a section 90.010(f) hearing was invoked. A plurality held that applying the testing requirement to bar these claims, for a worker who died before Chapter 90 took effect and could not be tested, violated the Texas ban on retroactive laws.
• Union Carbide Corporation v. Synatzske (1st District, 2012). A physician report under Texas Civil Practice and Remedies Code § 90.010(f)(1)(B)(ii) must rest on pulmonary function testing relevant to the diagnosis of impairment. A plurality held that applying that requirement to these claimants was an unconstitutional retroactive law under Texas Constitution art. I, § 16.
• In re Kansas City Southern Railway Company (14th District, 2011). Because Texas Civil Practice and Remedies Code section 51.014(a)(11) allows an interlocutory appeal from an order denying a section 90.007 motion to dismiss, the party has an adequate remedy by appeal and mandamus is not available.
• Union Carbide Corporation v. Synatzske (1st District, 2011). Texas Civil Practice and Remedies Code section 90.010(f)(1)(B)(ii), which requires verification of pulmonary function testing, violates the Texas Constitution's ban on retroactive laws as applied to claimants whose decedent died before Chapter 90 took effect and could not be tested. The court applied the Robinson three-factor test.
• Uop, LLC v. Kozak (1st District, 2010). Under former section 150.002, a certificate of merit is mandatory and cannot be waived by the trial court. It is required for a negligence-based failure-to-warn claim against an engineering firm when the claim rests on the firm's engineering knowledge and expertise, whether the firm is sued as designer or as general contractor.
• In re EI DU Pont DE Nemours and Company (2009). A trial court abuses its discretion when it sets aside a jury verdict and grants a new trial without specifically stating its reasons, following In re Columbia Medical Center of Las Colinas. The court does not presume the trial court limited itself to the grounds in the motion.
• In re Wilhite (2009). A judge is constitutionally disqualified only if he or his former firm represented a party in the same matter in controversy. General similarities between asbestos suits against the same company at the same plant in the same period are not enough.
• Union Carbide Corporation v. Smith (1st District, 2009). A premises owner under Tex. Civ. Prac. & Rem. Code ch. 95 is liable only if it exercised or retained control over the manner of the contractor employee's work; supplying specifications and materials is not enough. The workers' compensation exclusive remedy bars claims against an employer for pre-merger exposure as the predecessor's employee, and the dual-persona doctrine does not avoid it.
• In re Global Sante FE Corporation (2008). The Jones Act does not preempt Chapter 90's expert-report requirements or its MDL pretrial consolidation, which are procedural and general in nature, but it does preempt the minimal-impairment requirement for silicosis claims and any higher causation standard than the federal one.
• Kozak v. Guard-Line, Inc. (2008). A removing defendant must show there is no reasonable basis to predict the plaintiff might recover against the in-state defendant, and ambiguity in state law is resolved for the plaintiff. A removing defendant also cannot add new grounds for improper joinder in opposing remand that were not in its notice of removal.
• N RE General Electric Company (2008). Under Tex. Civ. Prac. & Rem. Code § 71.051(b), the court must consider the listed factors without placing a burden of proof on the movant, and must dismiss when they weigh in favor of an outside forum. Comparative delay in the alternate forum, including a possible federal asbestos MDL transfer, gets little weight unless the forum offers no remedy at all.
• Satterfield v. Crown Cork & Seal Co., Inc. (3rd District, 2008). A common law cause of action that has accrued and is pending is a vested right, and a statute that retroactively eliminates it without a grace period violates the Texas Constitution's ban on retroactive laws (art. I, § 16), and the police power does not override that ban.
• Jacobs v. Tapscott (2007). A jury verdict cannot rest on speculation, and the evidence did not show that the attorney knew the Pittsburgh Corning settlement had been pulled when he told the clients the whole case had settled. A concealment theory that was not part of the claim surviving summary judgment or the joint pretrial order could not be used to uphold the verdict.
• Brooks v. Armco, Inc. (6th District, 2006). A trial court does not abuse its discretion by refusing to strike jurors for cause when their initial views on the burden of proof were equivocal and they indicated they would follow the court's instruction. Courts must give a reasonable opportunity to cross-examine in an Edmonson hearing, and an extra peremptory strike given after a voided strike is at most harmless error.
• In re Fluor Enterprises, Inc. (3rd District, 2006). Section 90.010(b) does not create a right to transfer asbestos cases filed after September 1, 2003 to the MDL court independent of the MDL rules, and section 90.010(d) does not require the MDL court to keep cases not transferred under those rules. Even if such a right existed, the defendants waived it by waiting until the eve of trial.
• Jacobs v. Tapscott (2006). Under Texas law a client cannot split a legal malpractice claim into separate negligence, contract and similar claims, though breach of fiduciary duty can stand where the conduct is a deliberate lie or self-dealing. Fee forfeiture for breach of fiduciary duty does not require proof of actual damage.
• Mobil Oil Corp. v. Bailey (9th District, 2006). Under Havner and Robinson, expert testimony that is not scientifically reliable is no evidence. A plaintiff in a toxic tort case must offer reliable evidence of specific causation and must exclude other plausible causes, such as heavy smoking, with reasonable certainty.
• In re Roc (4th District, 2004). To survive a no-evidence summary judgment, plaintiffs had to show with reliable evidence that they were exposed to an injurious form of asbestos or silica from the defendants' products and that they were reliably diagnosed. Expert diagnoses that assumed exposure and did not rule out other causes were unreliable and could be excluded.
• In re Sears, Roebuck and Co. (9th District, 2004). Discovery requests must be narrowly tailored to relevant time periods, locales, products and exposures; requests that are not so limited are overly broad, and a trial court abuses its discretion by ordering compliance, which is correctable by mandamus.
• In re Sears, Roebuck and Co. (2003). Discovery orders compelling a defendant to produce information about products the plaintiff never identified as sources of his exposure are overbroad and an abuse of discretion, and mandamus is available because the burden far exceeds the likely benefit. A trial court also may not modify an order that an appellate court has stayed.
• Vaughn v. Ford Motor Co. (11th District, 2002). Under Illinois law, a plaintiff must show frequent, regular and proximate exposure to each particular defendant's asbestos product (the Thacker test); without such evidence, directed verdicts for each brake manufacturer are proper, and an erroneous expert exclusion is harmless if the experts' testimony would not bear on that gap.
• In re Kellogg-Brown & Root, Inc. (12th District, 2001). Deemed admissions may be withdrawn or amended on a showing of good cause, meaning the failure to respond was accident or mistake rather than conscious indifference, if the other side is not unduly prejudiced and the merits are served. Refusing withdrawal of admissions that would eliminate any defense is a clear abuse of discretion not correctable by appeal.
• Pustejovsky v. Rapid-American Corp. (2000). A person who sues on or settles a claim for a non-malignant asbestos-related disease is not precluded from a later action against another defendant for a distinct malignant asbestos-related condition. The malignant condition is a new cause of action, and limitations runs from when symptoms and the likely work-relatedness of that condition are, or should be, known.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• White v. CBS Corp. (3rd District, 1999). Under the Texas ten-year statute of repose for improvements to real property, an item is not an improvement until it is annexed to the realty, so exposure occurring while asbestos was still a chattel or within a chattel not yet installed is not barred as a matter of law.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.
• In re Ethyl Corp. (1998). A trial court's grouping of asbestos claims for a single trial is reviewed for abuse of discretion, using the Maryland factors (worksites, occupations, time of exposure, disease type, living or deceased, and others) to ask whether the trial will be fair and impartial. Because the record was silent on many of those factors, the defendants did not show an abuse of discretion.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Owens-Corning Fiberglas Corp. v. Sitz (11th District, 1998). Offensive collateral estoppel should not be applied where it would be unfair to the defendant. A prior asbestos verdict does not establish that the defendant's product was defective or unreasonably dangerous at all relevant times.
• Owens-Corning Fiberglas Corp. v. Keeton (3rd District, 1996). Correspondence from other asbestos makers about known hazards was relevant to what Owens-Corning knew or should have known for a negligent failure-to-warn claim under Alabama law. A contributory-negligence issue was properly refused because the plaintiffs did not consciously appreciate the danger, and the company also failed to preserve the point.
• Owens-Corning Fiberglas Corp. v. Schmidt (9th District, 1996). A defendant seeking a settlement credit must prove the settled claim compensated the same damages. A defendant that timely elects a dollar-for-dollar credit under Chapter 33 cannot later switch to a pro rata credit, and prejudgment interest must be calculated after settlement credits.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.
• Able Supply Co. v. Moye (1995). A trial court clearly abuses its discretion by refusing to compel answers to an interrogatory asking which physicians have attributed a plaintiff's injury to a specific defendant's product. Mandamus is available where, after years of delay, the denial goes to the heart of the defense and imposes a burden far out of proportion to any benefit to the plaintiffs.
• Keene Corp. v. Rogers (6th District, 1993). A judge need not be recused merely because his son-in-law, a salaried associate, joined the firm trying the case before him when there is no showing that the relative worked on the case or was substantially affected by its outcome. Erroneously admitted evidence that is merely cumulative of properly admitted evidence is harmless.
• Srite v. Owens-Illinois, Inc. (1993). A jury's award of zero damages is reviewed under the great-weight-and-preponderance standard, not a per se rule requiring damages whenever liability is found. For pre-1987 Texas cases, prejudgment interest on asbestos-disease damages runs from six months after the worker's last workplace exposure.
• Keene Corp. v. Gardner (5th District, 1992). A plaintiff's evidence of frequent, regular work near a defendant's asbestos product can support a finding of exposure, and a Texas court may not order mediation over a party's request for the statutory ten-day period to object.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.
• Carter v. Johns-Manville Sales Corp. (1983). Under Texas law, a strict liability failure-to-warn claim requires that the danger was reasonably foreseeable to a manufacturer held to the knowledge of an expert, so unforeseeability defeats it. Unforeseeability is irrelevant to a strict liability design defect claim, which weighs the product's dangers against its utility.