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.

California

• Galicinao v. McMASTER Carr Supply Company (2nd Appellate District, 3rd Division, 2011). A plaintiff opposing summary judgment in an asbestos case may show exposure to a defendant's product through circumstantial evidence supporting a reasonable inference of exposure. Evidentiary objections raised in a separate statement are argument, not disputed fact.
• Kelemen v. John Crane, Inc. (2nd District, Division 2, 2011). Punitive damages require evidence of the defendant's financial condition, and a defendant that refuses a court order to produce its financial records cannot then argue the plaintiff lacked such evidence. A future pain and suffering award is excessive when it is based on life expectancy without the disease rather than the plaintiff's actual short prognosis.
• Saffold v. Bondex International, Inc. (2nd Appellate District, 7th Division, 2011). A defendant that uses a special verdict form omitting liability findings for nonparty tortfeasors, and does not object or argue their fault to the jury, forfeits a later challenge to the jury's allocation of fault among them.
• Webster v. Exxonmobil Oil Corp. (2nd Appellate District, 4th Division, 2011). Trial testimony that contradicts clear admissions in a party's deposition is not substantial evidence, so it cannot defeat a nonsuit; without evidence of exposure there is no causation.
• Woodard v. Crane Co. (2nd Appellate District, 4th Division, 2011). Following Taylor v. Elliott Turbomachinery, a valve manufacturer whose own product was not defective is not strictly liable for failing to warn of hazards of asbestos-containing gaskets, packing and insulation made and supplied by third parties. The component part doctrine and foreseeable-modification arguments did not change this.
• Collins v. Plant Insulation Company (1st Appellate District, 1st Division, 2010). Federal sovereign immunity under the FTCA's discretionary function exception is an immunity from suit, not a determination that the government owes no duty or is not at fault, so fault may be apportioned to the Navy under Proposition 51.
• Davis v. Leslie Controls, Inc. (2nd Appellate District, 7th Division, 2010). A party who does not request an instruction defining the ordinary consumers for the consumer expectations test forfeits that claim. A design defect finding independently supports the judgment, so the court did not decide whether the sophisticated user defense applies when the employer is the sophisticated user. A non-economic damages award that is excessive as a matter of law requires remittitur or a new trial.
• Hankins v. Asbestos Defendants (bhc) (1st Appellate District, 4th Division, 2010). Under Code of Civil Procedure section 377.60 and 377.61 the trial court determines the heirs' respective shares of a wrongful death award, and an appellant must show error with an adequate record; on an inadequate record the allocation was not shown to be erroneous.
• Haver v. BNSF Railway Company (2nd Appellate District, 4th Division, 2010). Pleadings delimit the issues on summary judgment, so a plaintiff cannot defeat the motion with a new unpleaded factual theory raised in opposition without seeking leave to amend the complaint. Claims based on asbestos in locomotives are preempted by the federal Locomotive Boiler Inspection Act.
• McCann v. Foster Wheller, LLC (2nd Appellate District, 8th Division, 2010). Under Oklahoma's statute of repose, a boiler can be an improvement to real property and its manufacturer a designer of that improvement if substantial evidence supports those findings. Tax treatment is important but not dispositive of whether machinery is an improvement.
• Russell v. Ford Motor Company (2nd Appellate District, 8th Division, 2010). Substantial evidence can support a finding that a failure to warn caused a plaintiff's disease. A non-settling defendant must be allowed to review the evidence supporting a contested post-trial settlement offset, and the trial court may not review it only in camera.
• Saller v. Crown Cork & Seal Company, Inc. (2nd Appellate District, 1st Division, 2010). The consumer expectations test for design defect applies to asbestos-containing pipe insulation, and a worker's testimony about his exposure can support giving the instruction. Strict liability failure to warn is distinct from negligent failure to warn, so a verdict on the negligence claim does not make omitting the strict liability instruction harmless.
• Smith v. Pneumo Abex LLC (2nd Appellate District, 3rd Division, 2010). A trial court cannot, after the verdict, reduce a lump-sum medical-expense award that includes future expenses without speculating about the future portion, so the Hanif-Nishihama reduction could not be applied here. Settlement credits against economic damages are calculated by a three-step method, and the court need not accept the settling parties' allocations to wrongful death claims.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 5th Division, 2010). A raw asbestos supplier that gave no warning cannot rely on a sophisticated purchaser or intermediary to give warnings, and the sophisticated-user rule in Johnson turns on the user's own knowledge, not the purchaser's. A defendant seeking to shift fault to other asbestos suppliers bears the burden of proving their fault and its percentage.
• Teruel-Armstrong v. Borg-Warner Morsetec, Inc. (2nd Appellate District, 3rd Division, 2010). A court may impose an evidence sanction for a third-party deponent's failure to produce subpoenaed documents only if a discovery statute authorizes it or, under inherent authority, the misconduct is egregious. Neither was shown here.
• Union Carbide Corporation v. Superior Court of Los Angeles County (2nd Appellate District, 2nd Division, 2010). A deposition taken in an earlier action between the same parties on the same subject can be used in a later action under Code of Civil Procedure section 2025.620(g) and Evidence Code section 1291(a)(2). A party that had the opportunity to cross-examine, but chose not to, cannot keep the testimony out, and absent evidence of abusive litigation practice a court need not exercise its inherent power to preclude it.
• Whitmire v. Ingersoll-Rand Company (2nd Appellate District, 4th Division, 2010). A plaintiff must show with admissible evidence that he was exposed to the defendant's asbestos with enough frequency and regularity to be a substantial factor in causing his disease; a party cannot create a triable issue with a declaration that contradicts his earlier discovery responses without explanation, and mere possibility of exposure is insufficient.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2009). When a plaintiff accepts a remittitur reducing non-economic damages, the ratio of economic to total damages must be recalculated, which increases the settlement credit against the defendant's joint liability for economic damages under Civil Code section 1431.2 and Greathouse.
• Campbell v. American Standard, Inc. (2nd Appellate District, 4th Division, 2009). A trial court may not dismiss an action for delay in prosecution under Code of Civil Procedure section 583.410 before the action has been pending two years. A dismissal that rests on that ground cannot be affirmed on a forum non conveniens theory the trial court did not apply.
• Clemmer v. Thorpe Insulation Company (1st Appellate District, 4th Division, 2009). A plaintiff may prove exposure to a defendant's asbestos product through circumstantial evidence that the product was sufficiently prevalent at the work site to support a reasonable inference of exposure.
• Handley v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2009). The 15-day limit on continuances of a preferential trial date in Code of Civil Procedure section 36, subdivision (f), applies to a terminally ill litigant granted preference under subdivision (d). Counsel's schedules, a pending related case, and court convenience do not justify delay.
• Handley v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2009). A trial court abuses its discretion by granting summary adjudication as a sanction for a minor violation of the 20-page limit on opposition briefs without considering the merits of the arguments raised, given the policy favoring resolution of cases on the merits.
• Mahoney v. Georgia-Pacific, LLC (1st Appellate District, 1st Division, 2009). Under Rutherford, an asbestos plaintiff need not quantify dose; evidence of repeated, close exposure to a dusty product, plus expert testimony of substantial contribution to risk, supports causation. A trial court may grant a new trial limited to medical expenses when noneconomic damages are separable from them.
• Oxford v. Foster Wheeler LLC (1st Appellate District, 1st Division, 2009). The government contractor defense can apply to negligence claims as well as strict liability claims, but satisfying the Boyle elements for design does not by itself bar failure-to-warn claims. A finding of no failure-to-warn product defect is logically inconsistent with a finding of negligent failure to warn, and inconsistent special verdicts require a new trial.
• Ransford v. Griffin Wheel Company, Inc. (1st Appellate District, 2nd Division, 2009). State common law tort claims over asbestos in locomotive and rail car brake equipment are preempted by the Locomotive Boiler Inspection Act and the Safety Appliances Act, which the Federal Railroad Safety Act did not displace; the California Supreme Court's Scheiding and Carrillo decisions bind the court.
• Silvestro v. Kaiser Gypsum Company, Inc. (2nd Appellate District, 8th Division, 2009). Under Rutherford, expert testimony that cumulative asbestos exposures, including low-level chrysotile exposure, contribute to mesothelioma, together with the plaintiff's own account of regular exposure, is substantial evidence of causation. A fault allocation that cannot be reconciled with the plaintiff's own evidence about the relative potency of the fibers is not supported by substantial evidence.
• Valdez v. Superior Court of San Diego County (4th Appellate District, 1st Division, 2009). When a court grants trial preference under Code of Civil Procedure section 36 because of a serious medical condition, it must set trial within 120 days and has no authority to balance other parties' interests by choosing a later date.
• Walmach v. Wheeler (2nd Appellate District, 3rd Division, 2009). A judgment stands if an independent ground, here the unchallenged design defect verdict, supports it, so the sophisticated intermediary defense to the failure to warn claims did not need to be reached. Substantial evidence supported the apportionment of fault, and due process did not bar punitive damages for conduct that was directed at the decedent and occurred partly outside California.
• Behshid v. Bondex International, Inc. (2nd Appellate District, 3rd Division, 2008). In California asbestos cancer cases, a plaintiff need not show that fibers from the defendant's product began the malignancy. It is enough to show in reasonable medical probability that exposure to the product was a substantial factor contributing to the risk of cancer. A defendant seeking to assign fault to 'others' must offer substantial evidence that the others' products were defective and a cause of the injury.
• Cadlo v. Metalclad Insulation (1st Appellate District, 5th Division, 2008). A final judgment in the earlier personal injury action establishing that the defendant's products legally caused the plaintiff's mesothelioma bars the defendant from relitigating causation in the later wrongful death action, even with new evidence, absent unusual circumstances denying a full and fair opportunity to defend.
• Clemmer v. John Crane, Inc. (1st Appellate District, 4th Division, 2008). A remittitur may be used only when a new trial is warranted solely because damages are excessive, not to correct an improper apportionment of fault. Counsel's closing argument urging that two separate companies were the same entity, after counsel conceded they were separate, was misconduct that could justify a new trial.
• Crowley Maritime Corporation v. Boston Old Colony Insurance Company (1st Appellate District, 1st Division, 2008). An insurer's equitable contribution claim against co-insurers arises from equity, not contract, and a nonsignatory to the co-insurers' arbitration agreements with the insured cannot be compelled to arbitrate absent a recognized exception such as third-party beneficiary status, a preexisting relationship, or direct-benefit estoppel.
• Cunningham v. Buffalo Pumps, Inc. (2nd Appellate District, 7th Division, 2008). The consumer expectations test for design defect can apply to asbestos gaskets and packing in pumps and valves, and failure to warn is a distinct strict liability theory that cannot be made to depend on first finding a risk/benefit design defect. A maker of a finished product cannot escape liability by pointing to a component made by another.
• Norris v. Crane Company (2nd Appellate District, 5th Division, 2008). Under Rutherford's substantial factor test, exposure to asbestos from a defendant's product that adds to the cumulative dose can support causation. The consumer expectations test may be used for a design defect claim based on asbestos-containing valve gaskets and packing.
• Whitlock v. Foster Wheeler, LLC (1st Appellate District, 3rd Division, 2008). An order granting a new trial for juror misconduct, with a statement of reasons, is reviewed for abuse of discretion, including the prejudice finding. A juror's injection of outside specialized knowledge is misconduct that raises a presumption of prejudice.
• Bakkie v. Union Carbide Corporation (1st Appellate District, 2nd Division, 2007). A raw-asbestos supplier is not relieved of its duty to warn merely because the buyer-employer knew or should have known of asbestos hazards or was subject to OSHA rules. A noneconomic damages award that is grossly disproportionate to the evidence and was influenced by improper argument may be reduced or retried on appeal.
• Brumley v. Fdcc California, Inc. (1st Appellate District, 1st Division, 2007). The relation-back doctrine applies to the five-year trial rule (section 583.310), so claims added by amendment that do not relate back to the original complaint are not dismissed for failure to reach trial within five years of the original filing. Wrongful death and loss of consortium claims by heirs, and a later-arising cancer claim, do not relate back.
• Cadlo v. Metalclad Insulation Corporation (1st Appellate District, 5th Division, 2007). When a trial court validly enters a judgment nunc pro tunc to a date before the plaintiff's death, that date decides whether Code of Civil Procedure section 377.34 bars pain-and-suffering and future economic damages. A verdict exceeding a plaintiff's section 998 offer is prima facie evidence the offer was reasonable.
• Foster Wheeler LLC v. Superior Court OF San Francisco County (1st Appellate District, 2nd Division, 2007). A trial court's discretion to consolidate cases under Code of Civil Procedure section 1048(a) is limited. Courts may use the Malcolm v. National Gypsum factors (worksite, occupation, time of exposure, disease, living or deceased, discovery status, counsel, cancer type), and consolidation was an abuse of discretion where most factors weighed against it.
• Frastaci v. Vapor Corporation (1st Appellate District, 4th Division, 2007). The Locomotive Boiler Inspection Act preempts state tort claims against locomotive manufacturers over the design and materials of locomotives, including asbestos, whether or not the locomotive was "in use" or off line in a roundhouse or repair shop.
• Garcia v. Duro Dyne Corporation (1st Appellate District, 1st Division, 2007). A nonsettling defendant is not entitled to a Code of Civil Procedure section 877 offset for settlement monies until they are actually paid, and cost-waiver releases with defendants who would have prevailed at trial have offset value, with the burden of proving that value on the settling plaintiffs.
• Honer v. Ford Motor Company (2nd Appellate District, 7th Division, 2007). Under Code of Civil Procedure section 361, a California-citizen plaintiff who held the cause of action from accrual is not barred by another state's statute of repose. A premises owner was not entitled to summary judgment where the record on its knowledge and control was disputed.
• Kinsman v. Unocal Corporation (1st Appellate District, 3rd Division, 2007). A premises owner that relies on an industry exposure limit (TLV) as a defense to negligence bears the burden of showing it knew of and complied with that standard. The plaintiff need not prove exposure above the limit, and substantial evidence that the owner knew or should have known of asbestos hazards supports a negligence verdict.
• Rosen v. Regents of University of California (1st Appellate District, 4th Division, 2007). A negligent failure-to-warn claim requires that the risk was known or reasonably should have been known when the product was supplied. Without evidence of foreseeability there is no duty to warn, and nonsuit on negligence is proper.
• Boyle v. Certainteed Corporation (1st Appellate District, 4th Division, 2006). A local court's general order allowing expedited summary judgment in asbestos cases on 60 days' notice, supported only by an attorney certification, conflicts with Code of Civil Procedure section 437c (75 days' notice and supporting evidence) and is invalid.
• Lyons v. Chinese Hospital Association (1st Appellate District, 2nd Division, 2006). A plaintiff who obtains injunctive relief on a significant issue is a successful party under section 1021.5, even without winning his primary damages claim. The private-burden test compares the estimated value of the plaintiff's own stake, discounted for the chance of success, with litigation costs, not the public benefit with his personal stake. The "interests of justice" clause does not apply where there was no monetary recovery.
• Weber v. John Crane, Inc. (1st Appellate District, 1st Division, 2006). A defendant moving for summary judgment cannot shift the burden to the plaintiff merely by showing the plaintiff's deposition testimony that he does not recall the defendant's product; it must show in some way that the plaintiff does not have and cannot reasonably obtain evidence of causation.
• Kinsman v. Unocal Corporation (2005). A landowner that hires an independent contractor may be liable to the contractor's employee, even without retained control, if it knew or should have known of a concealed preexisting hazard, the contractor did not know and could not reasonably discover it, and the landowner failed to warn.
• Cadlo v. Owens-Illinois, Inc. (1st Appellate District, 5th Division, 2004). A former manufacturer that sold its product line before the plaintiff's exposure is not liable in fraud, concert of action or strict liability for the successor's later-made product absent any role in the design, manufacture, distribution or marketing of the product that exposed him.
• Chavers v. Gatke Corp. (1st Appellate District, 4th Division, 2003). In California a civil conspiracy can be formed only by parties who already owe the plaintiff an independent tort duty, and concert of action cannot make a manufacturer liable for an industry's products absent evidence its own product caused the injury.