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

• Hargrave v. Fibreboard Corp. (1983). A foreign parent is not subject to long-arm jurisdiction, or alter ego liability, for its subsidiary's acts merely because it owns all the stock and sets general policy while corporate separateness is observed. A party that does not raise fact issues on its pleaded theories in opposing summary judgment abandons them.
• Hardy v. Johns-Manville Sales Corp. (1981). A federal court sitting in diversity predicted that Texas would adopt some form of Sindell market-share liability in asbestos cases, so market share discovery may lead to admissible evidence. The court also held that Borel precludes relitigating whether asbestos causes asbestosis and mesothelioma, and that the Borel duty-to-warn findings preclude warning and state-of-the-art evidence for insulation products.
• Flatt v. Johns-Manville Sales Corp. (1980). Under federal law, offensive collateral estoppel based on Borel could bar defendants from relitigating whether asbestos-containing products are defective and unreasonably dangerous and whether asbestos dust can cause mesothelioma and asbestosis. State-of-the-art evidence is irrelevant in a strict liability action.
• Migues v. Nicolet Industries, Inc. (1980). In a Texas-law diversity case involving an industry-wide asbestos tort among strictly liable producers, the non-settling defendant that went to trial receives a credit for the settlement amount rather than pro rata apportionment among settling defendants. An excessive verdict requires remittitur or a new trial.
• Mooney v. Fibreboard Corp. (1980). Offensive collateral estoppel may be used in an asbestos case, so defendants who had a full and fair opportunity to litigate the defect issue in earlier federal judgments are barred from relitigating it; federal law governs the preclusive effect of a prior federal diversity judgment, and Texas law would give the same result. The court also treated Borel as establishing as a matter of law that asbestos products are unreasonably dangerous.

Utah

• Hipwell v. Air & Liquid Systems Corp. (2022). A party seeking to exclude an entire category of evidence without specifying the particular items cannot show irrelevance or unfair prejudice, and whether an intervening cause was foreseeable is generally a jury question. The Navy's knowledge of asbestos hazards is relevant to the failure-to-warn claim and to the government contractor and DeVries defenses.
• Sylvester v. Blue Bird Corporation (2022). A plaintiff in an asbestos case must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Generic evidence that a defendant sold some asbestos products, without evidence the decedent likely encountered them, is too speculative to defeat summary judgment. Evidence not disclosed under Rule 26 may be excluded under Rule 37(c)(1).
• Riggs v. Georgia-Pacific LLC (2015). Under Utah Code section 78B-3-106, a wrongful death action is an independent cause of action that is not barred because the decedent won a judgment in a related personal injury suit during her lifetime; double recovery of the same damages is not permitted.
• Anderson v. Ford Motor Company (2014). A party may not obtain leave to file a dispositive motion that repeats an argument already rejected by the MDL court and by the transferee court on reconsideration; the court would not revisit that ruling or define Utah law on liability for other makers' asbestos products.
• Anderson v. Ford Motor Company (2013). A replacement causation expert may be allowed after the original expert's death, but testimony on the 'every exposure' theory of causation is barred because the district judge ruled it does not meet Rule 702 and Daubert.
• Larson v. Bondex International, Inc. (2011). Under Rule 403, references to a plaintiff's former husband's criminal conviction are irrelevant to the exposure, disease and damages issues and unfairly prejudicial, so they are excluded.
• Kilpatrick v. Bullough Abatement, Inc. (2008). Dismissal as a discovery sanction requires a factual finding of willful noncompliance (intentional failure, not mere prejudice or unintentional noncompliance); 'fault' does not include unintentional behavior.
• Tisco Intermountain v. Industrial Com'n of Utah (1987). Under the last-injurious-exposure rule, an award against an employer must rest on competent evidence of exposure during employment with that employer. An unsworn offer of proof is hearsay and cannot support the award, and liberal construction of the statute cannot fill the gap.

Virginia

• Mullinex v. John Crane, Inc. (2022). When a defendant's answer neither admits nor denies material allegations of the complaint, those allegations are deemed admitted under Rule 8, and a plaintiff may obtain judgment on the pleadings on liability. Damages allegations are not admitted by a failure to deny.
• Goodrich v. John Crane, Inc. (2018). A manufacturer cannot offer evidence of the Navy's knowledge or negligence as a superseding cause, because the Navy's failure to protect workers from asbestos was foreseeable. Evidence of the Navy's knowledge also is not state-of-the-art evidence, because it shows the hazards were known to experts and so supports a duty to warn.
• Hopeman Brothers, Inc. v. Continental Cas. Co. (2018). Under New York law, as stated in Viking Pump, non-cumulation clauses like these call for all-sums allocation and vertical exhaustion for long-tail claims. Such clauses reduce limits only to the extent the insured has already recovered for the same loss from prior insurance in the same coverage layer.
• Anheuser-Busch Companies, Inc. v. Cantrell (2015). A demurrer is a dispositive motion, so a case is 'submitted to the court for decision' under Code § 8.01-380(A) once demurrers have been fully briefed and argued, and the plaintiff can no longer take a nonsuit.
• Wilson v. AC&S, Inc. (2015). Whether under maritime law (exposure to the product as a substantial factor) or Virginia law (exposure more likely than not sufficient to cause the illness), a plaintiff needs evidence that the defendant's product released enough asbestos fibers to cause the disease. A belief that a part looked like asbestos, plus visible dust, did not supply that evidence.
• Exxon Mobil Corporation v. Minton (2013). Under the LHWCA's 1972 amendments, a shipowner's duty to intervene turns partly on whether it could rely on the shipyard, so evidence of the shipyard's knowledge and safety programs is relevant. Section 905(b) makes the negligence action against the vessel exclusive, which bars punitive damages.
• Ford Motor Co. v. Boomer (2013). In Virginia mesothelioma cases involving multiple exposures, causation is judged by whether the defendant's exposure was more likely than not sufficient by itself to cause the disease (concurring or multiple sufficient causes), not by a "substantial contributing factor" instruction. A jury may infer from the evidence that an injured person would have heeded an adequate warning.
• Gibbs v. Newport News Shipbuilding and Drydock Company (2012). The Virginia Workers' Compensation Act's exclusivity bar does not apply to an active-duty service member's estate, because the Navy could not be subject to the Act. The Navy was therefore not the Shipyard's statutory employer, and the member had no right to compensation under the Act.
• John Crane, Inc. v. Hardick (2012). Nonpecuniary damages are not recoverable in a wrongful death action for a seaman, whether under DOHSA, the Jones Act, or general maritime law, and a Navy sailor who contributed to the function of vessels and had a substantial connection to them is a seaman. Arguments not briefed under Rule 5:27 are waived.
• John Crane, Inc. v. Jones (2007). General maritime law applies to a shipyard worker's asbestos injury when the location and connection tests are met, including where the manufacturer marketed its products for marine use. Virginia courts decide whether a verdict is excessive from the facts of each case, not by comparing it with verdicts in other cases.
• Owens-Corning Fiberglas Corp. v. Watson (1992). A manufacturer has a duty to warn only if it knows or has reason to know its product is dangerous. Circumstantial evidence can prove exposure to a particular manufacturer's product. Evidence of conscious concealment of a known hazard can support punitive damages. The attorney-client privilege does not cover a memorandum that reveals a fraud on a court.
• Saunders v. HK Porter Co., Inc. (1986). The Fourth Circuit's Oman decision, which rejected admiralty jurisdiction in land-based shipyard worker asbestos cases, applies retroactively, so Virginia's two-year personal injury limitations period governs. Virginia Code § 8.01-249(4), under which asbestos claims accrue when diagnosis is communicated, applies only prospectively to cases filed after July 1, 1985.

Washington

• Johnson v. Air & Liquid Systems Corporation (2025). A scheduling order deadline may be modified only for good cause, which turns on the moving party's diligence; carelessness, such as filing the wrong document and not noticing for weeks, is incompatible with diligence.
• Cockrum v. Murphy (1st Division, 2024). The deliberate injury exception to workers' compensation immunity requires evidence that the employer had actual knowledge that injury was certain to occur; knowledge that asbestos is hazardous, or that other employees developed asbestos disease, is not enough.
• Johnson v. Air & Liquid Systems Corporation (2024). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts only when a paper makes the ground for federal officer removal unequivocally clear and certain. Here that was Robert Stubblefield's declaration and deposition, not the earlier pleadings or discovery.
• Olson v. Air & Liquid Systems Corp. (1st Division, 2024). Where the injury-producing events predated 1981, common law negligence applies, and a proposed instruction that a duty to warn attaches whenever a reasonable user would want to know of a risk misstates the law. Instructions that let a party argue its theory of the case are sufficient, even without a requested ongoing-duty instruction.
• Perkins v. United States (2024). Motions in limine and pre-admission requests that depend on evidence as it comes in at a bench trial are premature and may be revisited at trial. A Rule 30(b)(6) deponent's testimony does not bind the organization like a judicial admission, but can be used for impeachment.
• Perkins v. United States (2024). Under Rule 702 the court acts as gatekeeper and tests the soundness of an expert's methodology, not the correctness of conclusions; the government's objections to assumptions and exposure assessment went to weight rather than admissibility.
• Perkins v. United States (2024). For good cause under Rule 26(c)(1)(G), a protective order may cover Department of Defense technical information not approved for public release, because the government's national security interest outweighs the public's interest in an open court record.
• Sorrentino v. Ammco Tools, Inc. (1st Division, 2024). In a pre-WPLA failure-to-warn claim, a jury may infer a plaintiff would have heeded an asbestos warning from evidence he read manufacturer materials and would have heeded intermediary warnings. The substantial factor causation test applies in asbestos cases where it is hard to identify the exact source of harm, and personal jurisdiction over a foreign manufacturer was proper given its importer agreement requiring marketing in Washington.
• Buckholtz v. American Optical Corporation (2nd Division, 2023). A company that owns a ship being dismantled and retains the right to control the work can owe a duty to the dismantling contractor's employee, but guaranteeing the contractor's lease creates no such duty. Spoliation sanctions require a duty to preserve evidence and bad faith or conscious disregard, and destroying documents amid only a vague possibility of future litigation did not qualify.
• Holdsworth v. Scapa Waycross, Inc. (1st Division, 2023). A plaintiff in an asbestos case may prove exposure to a defendant's product through circumstantial evidence, and expert testimony that all asbestos exposure cumulatively contributes to the disease, together with that exposure, supports a reasonable inference that the product was a substantial factor. A judge's curative instruction to disregard one statement in closing argument did not require reversal, because any error was cured by the written instructions.
• Welch v. Brand Insulations, Inc. (1st Division, 2023). Under Condit, the construction statute of repose applies only if the defendant's activities contributed to the construction of a structural improvement or of a system integral to the improvement and required for it to function as intended. A defendant moving for summary judgment must prove those facts with evidence, and it is not enough that its work was related to or part of an original construction.
• Welch v. Crane Co. (2023). Expert reports satisfy Rule 26(a)(2)(B) if they give a complete statement of the opinions and their basis, even without case-specific review of the plaintiff's circumstances. The lack of case-specific review goes to cross-examination, not admissibility.
• Wright v. 3M Co. (2023). Jury instructions on Restatement (Second) of Torts §§ 343 and 343A need not always be given together. A § 343A instruction is within the trial court's discretion and required only when supported by substantial evidence, and appellate courts defer to a reasonable decision on that question.
• Budd v. Kaiser Gypsum Company, Inc. (1st Division, 2022). Washington courts apply a more lenient standard of proof to product identification in asbestos cases, given the long latency period. In a failure-to-warn case, evidence that the plaintiff would have heeded a warning can establish cause in fact.
• Carroll v. Akebono Brake Corporation (1st Division, 2022). A court may strike a complaint as a discovery sanction only if the record clearly shows a willful violation, substantial prejudice to the opponent's trial preparation, and explicit consideration of a lesser sanction. Court rules and style orders cannot impose a duty on a nonlitigant to preserve evidence before a lawsuit begins.
• Roemmich v. 3M Company (1st Division, 2022). Where a plaintiff's mesothelioma results from cumulative asbestos exposure from multiple sources, the substantial factor test governs proximate cause and a combined but-for and substantial factor instruction is error. A superseding cause instruction is unsupported when the intervening employer negligence was foreseeable and no evidence showed the employer had specific knowledge of the defect.
• Strong v. Honeywell International, Inc. (2022). Where the parties dispute material facts about the decedent's exposure to other forms of asbestos that may have caused the disease, summary judgment cannot be granted, and evidence of alternative causation is admissible.
• United States Fidelity & Guaranty v. Ulbricht (2022). Under Washington law, an insurer's duty to defend is triggered where the policy conceivably covers the complaint, and refusing to defend on the basis of certificates of insurance until full lost policies were found was bad faith; terms of lost policies must be shown by clear, cogent and convincing evidence.
• Atchinson v. Howmet Aerospace, Inc. (2021). Under Walston v. Boeing, asbestos exposure does not meet the Washington Industrial Insurance Act's "deliberate injury" exception because exposure is not certain to cause disease, so a plaintiff must show the employer knew he was certain to be injured.
• Behrmann v. Abb, Inc. (2021). Maritime law applies to asbestos exposure on ships in drydock when the locality and connection tests are met, and under it a plaintiff must show substantial exposure to the defendant's asbestos for a substantial period. A court may defer summary judgment under Rule 56(d) when the nonmovant identifies specific facts it expects discovery to produce.
• Coogan v. Borg-Warner Morse Tec Inc. (2021). An appellate court may set aside a jury's damages verdict supported by substantial evidence only if the record unmistakably shows it was based on passion, prejudice or another improper consideration; the size of the verdict alone is not enough.
• Jack v. Dco, LLC (2021). Under Washington law, a take-home exposure claim fails without evidence of asbestos on the premises and without evidence that the risk to a worker's family was foreseeable at the relevant time. A post-sale failure-to-warn claim fails without specific evidence that an adequate warning would have led the plaintiff to avoid injury.
• Strong v. Honeywell International, Inc. (2021). Under Washington law a witness is presumed competent, and a dementia diagnosis shortly before a deposition does not by itself make a witness incompetent or require a competency hearing. Late discovery of records the movant could have sought earlier, and which the opposing party does not control, may be barred by protective order.
• Strong v. Honeywell International, Inc. (2021). A party seeking a protective order under Rule 26 must show undue burden; Honeywell did not show that reviewing plaintiff's designations was unduly burdensome, so its remedy was to oppose the designations substantively.
• Varney v. Goodyear Tire & Rubber Company (2021). A declaration offered as a dying declaration was properly excluded where the evidence did not show the declarant had personal knowledge of its contents; the district court's factual findings were reviewed for clear error and its evidentiary ruling for abuse of discretion.