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

• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• Sprague v. Pfizer, Inc. (2015). Applying Washington law as it predicted, Restatement (Second) of Torts § 400 applies only to defendants in the chain of distribution who "put out" the product; a parent-subsidiary relationship and shared logos alone do not make the parent an apparent manufacturer.
• Ehlert v. Brand Insulations, Inc. (1st Division, 2014). A contractor that installs insulation chosen from the general contractor's list and is merely reimbursed for materials is not a seller engaged in the business of selling under Restatement § 402A, so strict liability does not apply. A trial court does not abuse its discretion by giving a general negligence instruction or excluding newspaper articles not shown to be relevant to the defendant's knowledge.
• Kennedy v. Saberhagen Holdings, Inc. (2nd Division, 2014). Asbestos plaintiffs in Washington may prove exposure to a defendant's product through circumstantial evidence, such as witnesses who say the defendant's products were present at the workplace. A summary judgment motion can be decided only on the grounds stated with particularity in the motion.
• Lipson v. ON Marine Services Co. LLC (2014). A motion for reconsideration of an evidence ruling requires manifest error or newly discovered evidence that could not have been found earlier with reasonable diligence. A mistrial does not give a party a chance to relitigate deficiencies identified in the first proceeding.
• Lipson v. ON Marine Services Company, LLC (2013). Under Rule 702 and Daubert, challenges such as dissimilar test conditions, inability to quantify dose or identify a threshold, non-peer-reviewed sources, and lack of direct product evidence go to the weight of expert testimony, not its admissibility, and are for cross-examination.
• Stevens v. CBS Corporation (2012). Discovery under Rule 26 may reach equipment on the vessels the plaintiff worked on during his years of exposure, but requests for every asbestos-containing component sold to all customers over thirty years are overly broad and unduly burdensome without more than conclusory reasoning.
• Abbay v. Aurora Pump Company (1st Division, 2011). Where a pleading's wording can fairly be read in more than one way, the plaintiff may clarify its meaning in summary judgment briefing, and grammar rules did not require reading the relative clause as limited to its nearest noun.
• Arnold v. Saberhagen Holdings, Inc. (2nd Division, 2011). Under the law of the case doctrine, a second appellate court will not revisit the first appeal's holding absent manifest error or an intervening change in law, so reversing the denial of the motion would give the plaintiffs no relief.
• Cashman v. Pacific Scientific Company (1st Division, 2010). A party who does not object in the trial court to evidence considered on summary judgment cannot challenge its admissibility on appeal. A manufacturer has no duty to warn about asbestos insulation made by others and added later, and trial courts have broad discretion to choose a spoliation sanction short of dismissal.
• Butler v. Amtico International Inc. (1st Division, 2008). An asbestos plaintiff need only show that the defendant's asbestos-releasing product was in his work environment during the period of cumulative exposure that caused the disease; separate expert testimony that the defendant's product alone was a substantial factor is not required. Reasonable inferences on product exposure are drawn in the nonmovant's favor.
• Kimball v. Asbestos Corporation Ltd. (1st Division, 2008). Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.
• Sales v. Weyerhaeuser Company (2008). In a forum non conveniens analysis, a court may and must consider the effect of removal to federal court and transfer to the asbestos MDL on the convenience of the alternative forum, and it may condition dismissal on a stipulation that the defendant will litigate in that forum.
• Taylor v. Union Carbide Corporation (2nd Division, 2008). A plaintiff may use circumstantial evidence to show exposure to a defendant's asbestos, and need only show the defendant's asbestos was among that in his work environment and was a substantial factor in causing his disease. Evidence that a joint compound maker used the defendant's asbestos fiber is enough to raise a fact question for trial.
• Herring v. Texaco, Inc. (2007). A debtor need not give actual notice of its bankruptcy to a claimant's union when the debtor had no knowledge of the particular claimant's claim. An unknown creditor is only entitled to publication notice, and notice to the union would not be actual notice to the claimant.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2007). Once Washington courts applied strict product liability under Restatement § 402A to the parties in earlier asbestos exposure cases, it applies retroactively to all later litigants whose exposure predates its adoption; selective prospective application and the Chevron Oil test are unavailable under Robinson.
• Sales v. Weyerhaeuser Company (2nd Division, 2007). A trial court has discretion to condition an inconvenient-forum dismissal on the defendant's stipulation to submit to jurisdiction in the alternative forum, and it abuses its discretion by failing to recognize that authority where removal to the asbestos MDL could defeat the alternative forum's adequacy.
• Bashore v. Fraser's Boiler Service, Inc. (1st Division, 2006). Asbestos plaintiffs can establish exposure to a defendant's products through circumstantial evidence, and evidence called to the trial court's attention, including supplemental submissions responding to an issue first raised in reply, is properly before the appellate court.
• Creech v. Agco Corporation (1st Division, 2006). A purchaser that assumed liabilities "existing and outstanding" at the closing date did not assume a product claim that had not yet arisen at that date, even if the claim arose from a product the seller made before closing. Earlier decisions on the same assumption agreement did not decide that issue, so collateral estoppel did not apply.
• Fox v. Alcoa, Inc. (1st Division, 2005). Default is a drastic sanction reserved for willful discovery violations that substantially prejudice the opponent's trial preparation, and the trial court has wide discretion in choosing a sanction. An adverse inference instruction requires a showing that the withheld evidence was relevant to the party's claim.
• Berry v. Crown Cork & Seal Co., Inc. (1st Division, 2000). The Marshall rule, which bars a later affidavit that clearly contradicts earlier testimony, did not apply to a fact witness's statements that were arguably inconsistent but not clearly contradictory. Circumstantial evidence under the Lockwood factors was enough to raise a fact issue on exposure to the defendant's products.
• Mavroudis v. Pittsburgh-Corning Corp. (1st Division, 1997). In multi-supplier asbestos cases where the expert says all of the plaintiff's exposure probably played a role and the actual cause cannot be identified, a substantial-factor causation instruction is proper instead of but-for. A claim arises under the Washington Product Liability Act when the plaintiff is exposed to asbestos, not when the disease is discovered.
• Viereck v. Fibreboard Corp. (1st Division, 1996). The 1981 Washington products liability act does not apply to a mesothelioma claim where substantially all the injury-producing asbestos exposure occurred before the act's effective date, even if the disease was diagnosed afterward. The applicable law is the law in effect when the exposure causing the harm occurred.
• Krivanek v. Fibreboard Corp. (1st Division, 1993). The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.
• Bowers v. Fibreboard Corporation (2nd Division, 1992). Jury instructions are not erroneous if they let each party argue its theory, are not misleading, and properly inform the jury of the law when read as a whole. A surviving spouse's wrongful death damages may be shown with evidence of the pre-illness relationship, and a government-published ship history over 20 years old may be admitted as an ancient document.
• Koker v. Armstrong Cork, Inc. (1st Division, 1991). Claims from continuous asbestos exposure that occurred before July 26, 1981 'arose' before the 1981 tort reform act, so pre-Act law governs; when the claim accrued is a jury question. A plaintiff with no present cancer cannot recover for increased risk or lost chance of survival, only for a reasonable present fear of cancer.
• Falk v. Keene Corp. (1989). A design defect claim under Washington's 1981 tort reform act (RCW 7.72.030) remains a strict liability claim judged by risk-utility balancing and consumer expectations, not ordinary common law negligence; instructions letting the jury apply general negligence instructions to it are reversible error.
• Falk v. Keene Corporation (1st Division, 1989). Design defect claims under Washington's product liability act are governed by the strict liability test of Seattle-First National Bank v. Tabert, not a negligence standard, so a design defect instruction that uses the word "negligence" alongside standard negligence instructions is misleading and prejudicial.
• IN the Matter of Estate OF Foster (1st Division, 1989). Willful violation of a discovery order justifies excluding evidence only if it substantially prejudices the opponent's preparation for trial. RCW 7.72.050(2) gives an absolute defense for compliance with a specific mandatory government contract specification, and that defense is not lost merely because the government consulted the manufacturer about the specification.
• Sofie v. Fibreboard Corp. (1989). A statutory limit on noneconomic damages that reduces a jury's damages finding violates article 1, section 21 of the Washington Constitution, because determining damages is part of the jury's protected fact-finding role. The asbestos case also fell within the hazardous-substances exception to the limit on joint and several liability.
• Sorenson v. Raymark Industries (2nd Division, 1988). Evidence of increased cancer risk from asbestos exposure is admissible to show the reasonableness of the plaintiff's fear of contracting cancer, which is a compensable damage element. A quotient-style verdict is not juror misconduct where jurors did not agree in advance to be bound by the calculation.
• Lockwood v. AC & S, Inc. (1987). A plaintiff may prove exposure to a defendant's asbestos product through witnesses who identify the products present at the workplace, rather than by his own identification. A manufacturer also has a continuing duty after exposure ends to use reasonable care to warn of known dangers if a warning could prevent or lessen harm.

West Virginia

• Amick v. Ohio Power Company (2014). Discovery relevance is broad, but a party may be protected from burdensome inquiry when the anticipated benefit is outweighed by the burden; a topic calling for a legal conclusion about foreseeability is improper, though factual questions on the same subject are allowed.
• Amick v. Ohio Power Company (2013). Discovery relevance is broader than admissibility, and the party resisting discovery must substantiate its objections. Confidential settlement agreements are not privileged, and basic information about who settled is discoverable, especially where the agreements permit disclosure by court order.
• Adams v. Consolidated Rail Corp. (2003). Under FELA, a railroad employee's smoking can be raised as contributory or comparative negligence that reduces damages, and a court may exclude smoking evidence where the disease is mesothelioma, which smoking does not bear on.
• Lamphere v. Consolidated Rail Corp. (2001). A trial judge may weigh the evidence and assess credibility in ruling on a new trial motion and may set aside a verdict against the clear weight of the evidence, even if supported by substantial evidence; the decision is reviewed only for abuse of discretion.
• State Ex Rel. Allman v. MacQueen (2001). The court held that a trial management plan for mass asbestos litigation under Trial Court Rule 26.01 must include methods for fairly and expeditiously disposing of the cases, and that the Court's supervisory power over the court system allows it to require supplementation of the plan. It also held that constitutional objections to mass trials were premature.
• In re Celotex Corp. (1997). A contribution action against a debtor's contractual indemnitee is "related to" the bankruptcy case under the Pacor test, giving federal subject matter jurisdiction. Stream-of-commerce allegations without conduct purposefully directed at the forum cannot support personal jurisdiction over a successor, and a forfeited error is corrected on civil appeal only if the Olano plain-error requirements are met.
• Newman v. Richardson (1991). When a claim alleges asbestosis or another disease the statute defines as occupational pneumoconiosis, the Commissioner must limit the initial determination to exposure and other non-medical facts and may not rule on medical causation without referral to the Occupational Pneumoconiosis Board.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Kilty v. Weyerhaeuser Company (2019). An interlocutory appeal from denial of a motion to dismiss on worker's compensation immunity grounds becomes moot when the district court later enters summary judgment for the appellant on the merits, and the appellant is not harmed by the earlier ruling.
• Ahnert v. Employers Ins. Co. of Wausau (2018). A motion to reconsider a non-final order is treated under Rule 54(b) and granted only to correct a manifest error of law or fact or to present newly discovered evidence; evidence that was newly created or could have been submitted earlier, and a different judge's contrary ruling in another case, did not meet that standard.
• Kappel v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act does not bar claims based on community or environmental asbestos exposure, and a complaint that alleges the specific diagnosis and date of death need not be dismissed for lack of specificity. The nuisance claims were time-barred, as the court had held in the related Kilty and Spatz cases.
• Kilty v. Weyerhaeuser Co. (2018). Plaintiffs claiming mesothelioma from non-occupational (household or community) exposure must offer evidence from which a jury could find that exposure was a substantial contributing factor. The mere scientific possibility that a small exposure contributes is not enough, and expert opinions resting on unsupported assumed exposures cannot defeat summary judgment.
• Carroll v. John Crane, Inc. (2017). Plaintiffs' expert may say that an asbestos fiber theoretically could cause mesothelioma if the science supports it, but may not suggest that this alone shows liability. Plaintiffs may impeach defendant's experts with extrinsic evidence, with admission of that evidence reserved.
• Carroll v. John Crane, Inc. (2017). Expert opinion that low chrysotile exposure carries little mesothelioma risk is admissible under Rule 702, but an opinion that there is no risk at some exposure level is not. An "every exposure" theory does not show that a product was a substantial contributing factor.
• Carter v. Henry Carlson's Construction Company (2017). A pro se complaint must give fair notice of the claim under Rule 8, and an asbestos exposure claim must allege facts suggesting the plaintiff was injured or that injury is imminent.
• Pecher v. Owens-Illinois, Inc. (2017). Claims by employees whose asbestos injuries arose from their plant work are barred by Wisconsin's workers' compensation exclusive remedy, and plaintiffs cannot avoid it by recasting the injuries as off-the-job nuisance harms. Product liability does not attach to a patent holder that merely licenses a patent to a manufacturer.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wisconsin's safe place statute, a jury must decide whether asbestos dust released during outage work was an unsafe condition and whether the owner kept supervision or control; the owner's duty to those on its premises cannot be delegated to a contractor. The construction statute of repose does not bar the claim as a matter of law when it is unclear whether the work was an improvement or maintenance and repair.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wis. Stat. § 893.89, a company that specified and erected a boiler is protected from suit brought more than ten years after installation unless it manufactured or produced the allegedly defective material. The statute of repose does not violate the Wisconsin Constitution's right-to-remedy provision.