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.

Washington

• Welch v. Air & Liquid Systems Corporation (2021). Under Washington CR 41(a)(1)(B), a plaintiff's right to voluntary dismissal is absolute and fixed when the motion is filed, so no claims against the defendant remained pending to be removed, and removal without an objectively reasonable basis supports fees under 28 U.S.C. § 1447(c).
• Wright v. 3M Company (1st Division, 2021). An owner does not retain control over an independent contractor's work merely by requiring compliance with safety laws and general safety rules, but an erroneous retained-control instruction did not require reversal because the verdict also rested on premises liability. RCW 4.22.060 requires settling parties to provide a copy of the proposed settlement agreement, so a reasonableness ruling made without the full agreements is an abuse of discretion.
• Clevenger v. John Crane, Inc. (1st Division, 2020). A party is entitled to an instruction that lets her argue her theory of the case when substantial evidence supports it. In this asbestos case, a proximate cause instruction limited to mesothelioma was misleading because the evidence supported either mesothelioma or an asbestos-related lung cancer as the cause of death.
• Coogan v. Borg-Warner Morse Tec Inc. (2nd Division, 2020). A trial court acts as gatekeeper and abuses its discretion by excluding an expert opinion because it disagrees with the conclusion rather than because the foundation is inadequate. A noneconomic damages verdict can be set aside under CR 59(a)(5) when it shocks the court's conscience, even without a finding of passion or prejudice.
• Ulbricht v. United States Fidelity and Guaranty Company (2020). Under Federal Rule of Civil Procedure 42(a), a court has broad discretion to consolidate actions with common questions of law or fact, weighing judicial economy, speed, risk of inconsistent results and prejudice.
• Wineland v. Air & Liquid Systems Corporation (2020). The Court did not rule on Puget Sound Commerce Center's Daubert motion; it renoted the motion and allowed plaintiffs to file a sur-reply on the reliability of the experts' substantial contributing factor opinions.
• Cameron v. Atlantic Richfield Company (1st Division, 2019). The date of substantial completion of construction determines which version of the construction statute of repose applies, and the 2004 amendment is not retroactive. The 1967 statute bars claims arising from covered construction activities but not claims based on a defendant's activities as a premises owner.
• Clayton v. Air & Liquid Systems Corp. (2019). A scheduling order may be modified for good cause; good cause existed because discovery closed before a wrongful death claim was added to the case, so the defendant had no notice it would need discovery on cause of death.
• Deem v. Air & Liquid Systems Corporation (2019). A party invoking admiralty jurisdiction must show by a preponderance of the evidence that some exposure occurred on a vessel on navigable waters and that the connection test is met. Coworker testimony about dusty work aboard ships in the shipyard met that burden. A plaintiff moving to apply maritime law has no general burden to show a conflict with state law.
• Deem v. Air & Liquid Systems Corporation (2019). Under the law of the case doctrine, the court would not reconsider its earlier decision granting summary judgment on Washington statute of limitations grounds to similarly situated defendants, and applied it to Cleaver-Brooks.
• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. The court deferred applying this standard pending further briefing.
• Hoffman v. Ketchikan Pulp Co. (2nd Division, 2019). The law of the case from an earlier appeal decided under the CR 12(b)(6) standard did not bar summary judgment. Under Alaska law, none of the exceptions to the repose statute (gross negligence, hazardous waste, foreign body) applied, so Alaska law conflicted with Washington law and governed, and the claim was barred.
• Jack v. Dco, LLC (2019). Under Washington law a manufacturer of asbestos products can have a continuing post-sale duty to warn, but a claim based on it fails where there is no evidence the plaintiff would have acted on a warning in a way that materially reduced his exposure, because that causal chain is speculative.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law (Lockwood), a plaintiff must show a reasonable connection between the injury and the particular defendant's product, and general evidence of asbestos on ships does not suffice. A defendant that files its answer after discovery closes, causing prejudice, waives an affirmative limitations defense.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington's Lockwood factors, a plaintiff can show product-specific causation by evidence of proximity, duration, handling, fiber release and other sources, and a jury may find that exposure to Bendix brakes was a causative factor in mesothelioma despite other possible exposures.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must identify the manufacturer of the product that caused the injury, and the Lockwood factors guide whether the evidence is enough for a jury on causation. Evidence of extensive dusty brake work with Rayloc brakes attributed to Pneumo Abex was enough to reach a jury.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). A party must make a reasonable inquiry into the factual basis of its discovery responses under FRCP 26(g), and its later effort to supplement responses does not excuse a failure to inquire in the first place.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). In the Ninth Circuit, the scope of a Rule 30(b)(6) deposition is set by Rule 26 relevance and proportionality, and discovery is read liberally. A party seeking a protective order carries a heavy burden to show why discovery should be limited.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law (Lockwood), a plaintiff must show a reasonable connection between the injury, the product and the particular defendant's product. A plaintiff cannot rely on an exposure theory dropped from the operative complaint to defeat summary judgment.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). A party must give complete, non-evasive answers to discovery requests within Rule 26's scope, and the court will not compel production of materials that do not exist. Sanctions under Rule 37 were within the court's discretion and were declined at this time.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Washington's product seller statute (RCW 7.72.040) makes a non-manufacturer seller liable only for negligence, breach of express warranty or intentional misrepresentation, and applies to claims arising on or after July 26, 1981. Disputed facts about purchases before that date and about the seller's alleged negligence precluded summary judgment.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Leave to amend under Rule 15(a)(2) is freely given and is denied only on a showing of bad faith, undue delay, futility or undue prejudice; the court weighed these factors and found the balance favored amendment despite earlier amendments.
• Leren v. Kaiser Gypsum Company, Inc. (1st Division, 2019). The product line doctrine of successor liability can apply to a distributor of raw asbestos, not only to manufacturers, where the successor acquired the distributor's assets and goodwill and held itself out as its continuation. The dissolved-corporation limitations statute (RCW 23B.14.340) does not bar such a successor liability claim.
• Noll v. Special Electric Company, Inc. (1st Division, 2019). A preliminary hearing under CR 12(d) to decide personal jurisdiction is an action tried on the facts and requires written findings under CR 52(a)(1); when the reviewing court cannot determine the trial court's understanding of the facts and law, it remands for findings.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington law and the Lockwood factors, a plaintiff may identify a manufacturer through a co-worker's testimony about products present at the workplace, and a minimally sufficient showing of exposure and causation creates a genuine issue of fact. Summary judgment evidence need not be in a form admissible at trial.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law (and maritime law), a plaintiff must offer admissible evidence connecting the injury to the defendant's product. Without the excluded affidavit and expert opinion, the plaintiffs could not show that Warren's products caused the disease.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law, a plaintiff must show a reasonable connection between the injury, the product, and the manufacturer; without admissible evidence of causation, summary judgment for the defendant is proper.
• Yaw v. Air & Liquid Systems Corporation (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b)(4), and the plaintiff's husband's death just before the deadline met that standard. Because DeVries announced a new maritime-law duty-to-warn standard after briefing, the court required supplemental briefing before deciding summary judgment.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may not order a new trial on damages unless it has a firm conviction the jury erred, and may not grant judgment as a matter of law where substantial evidence, including admissible expert testimony on causation and exposure, supports the verdict.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may use its inherent power to sanction an attorney who fails to comply with its evidentiary rulings, here by reading to the jury from a document the court had excluded as hearsay.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). Under Washington law, a plaintiff may use circumstantial evidence, such as sales records showing which machines received a defendant's asbestos-containing products and the plaintiff's work on those machines, to let a jury infer exposure and causation without direct identification of the product.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). Expert causation opinions resting on an "every exposure" or "cumulative exposure" theory, under which any exposure that adds to total dose is a substantial factor, are unreliable and inadmissible under Rule 702 and Daubert. Differences between test conditions and actual workplace conditions go to weight rather than admissibility.
• Barabin v. Scapa Dryer Felts, Inc. (2018). Under Federal Rule of Evidence 403, a court may exclude an expert's testimony when its probative value is minimal and it substantially duplicates another expert's testimony; a different specialty alone does not make substantially identical testimony non-cumulative.
• Brandes v. Brand Insulations, Inc. (1st Division, 2018). A wrongful death claim is barred where the decedent, after injury, pursued prior litigation to judgment against the same defendant, but not against defendants who were not parties to or in privity with parties in that litigation. Res judicata, double recovery and joinder concerns did not bar the claims against the non-party defendants.
• Clayton v. Air & Liquid Systems Corporation (2018). Under Washington law (RCW 23B.14.340), a claim against a dissolved corporation is barred if suit is filed more than three years after dissolution, and equitable remedies, tolling for known claimants, or receivership did not allow a claim against the dissolved corporation itself.
• Clayton v. Air & Liquid Systems Corporation (2018). A plaintiff with a terminal illness is not entitled to a priority trial in federal court under RCW 4.44.025, and the court's trial calendar controls the setting of a trial date.
• Jack v. Asbestos Corporation Ltd. (2018). The court approved the parties' stipulation and extended defendant M.W. Custom Papers' expert disclosure deadline for Dr. Godwin from April 18, 2018 to May 2, 2018.
• Jack v. Borg-Warner Morse Tec LLC (2018). Expert testimony on asbestos exposure is admissible under Rule 702 if it is relevant and reliable, and disputes between experts go to weight. 'Every exposure' and 'cumulative exposure' theories are unreliable, and an expert must be qualified in the specific field he testifies about.
• Jack v. Borg-Warner Morse Tec, LLC (2018). A motion for reconsideration requires manifest error or new facts or authority that could not earlier have been presented, and it cannot be used to submit evidence or arguments that could have been raised before. Under Washington law, a plaintiff must first show actual exposure to asbestos resulting from the defendant's conduct to establish proximate causation.
• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Varney v. Air & Liquid Systems Corporation (2018). Under Fed. R. Civ. P. 56(d), a court may deny a summary judgment motion without prejudice as premature when the nonmovant needs more time for discovery and ample time remains under the scheduling order.
• Varney v. Air & Liquid Systems Corporation (2018). A complaint stating the disease, the timeframe and place of exposure, and a theory of causation is sufficient under Rule 8. Allegations that defendants placed asbestos products into Washington's stream of commerce make a prima facie showing of specific personal jurisdiction.
• Advance Environmental Inc. v. Director Washington State Department OF Labor and Industries (1st Division, 2017). Under WISHA, the Board's findings are conclusive if supported by substantial evidence. Cutting asbestos-containing flooring out by mechanical methods is an asbestos project requiring 10-day notice, and the Board did not improperly shift the burden of proof once the Department made its case.
• Barabin v. AstenJOHNSON, Inc. (2017). The court granted the parties' stipulated motion and continued the initial disclosure, Rule 26(f) conference and joint status report deadlines until one month after it rules on Plaintiff's motion to remand.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Hodjera v. BASF Catalysts LLC (2017). Specific personal jurisdiction requires that the claim arise out of the defendant's purposeful contacts with the forum; a plaintiff exposed to similar products only in another jurisdiction (Toronto) does not meet that requirement in Washington.
• Hodjera v. BASF Catalysts LLC (2017). The court denied as moot the plaintiffs' motion for a priority trial setting, because the existing March 5, 2018 trial date already matched the seven-month timeline they requested.
• Hodjera v. BASF Catalysts LLC (2017). A proposed amendment is futile if it does not remedy jurisdictional deficiencies. Specific jurisdiction requires that the claim arise out of the defendant's forum contacts, and the plaintiffs alleged no but-for link between the defendants' Washington contacts and the exposure in Canada.
• Jack v. Asbestos Corporation, Ltd. (2017). Under Rule 35, a party seeking an autopsy must show the decedent's condition is in controversy and that an autopsy is the most medically reasonable method compared with the alternatives. The defendants made that showing here, and it outweighed the widow's moral objections.
• Curtis v. Abb Incorporated (2015). A plaintiff must show exposure to the defendant's product and that the product was a substantial factor in causing the injury. Arguably inconsistent deposition testimony is not conclusive against the nonmovant at summary judgment, and discrepancies raise credibility issues for the factfinder.