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.

Wisconsin

• Boyer v. Weyerhaeuser Company (2016). A party seeking reconsideration under Rule 59(e) must show newly discovered evidence or a manifest error of law or fact. The rule cannot be used to relitigate old matters, raise arguments that could have been made earlier, or undo procedural failures.
• Boyer v. Weyerhaeuser Company (2016). Plaintiffs claiming non-occupational asbestos exposure need not show it was the main cause, but they need reliable expert evidence of significant non-occupational exposure to show it was a substantial factor. For mesothelioma, living within 1.25 miles of the plant for at least a year could support that opinion.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Springer v. Nohl Electric Products Corporation (4th District, 2016). Under the fraudulent-transfer exception to the rule against successor liability in asset sales, courts apply the factors of Wisconsin's Uniform Fraudulent Transfer Act (Wis. Stat. § 242.04), and a jury could reasonably infer fraudulent intent from the evidence, so summary judgment was improper.
• Ahnert v. Brand Insulation Inc. (2015). Under Wisconsin claim preclusion law, a prior dismissal with prejudice of an asbestosis suit bars a later mesothelioma suit against the same defendants where the plaintiff knew of the mesothelioma diagnosis before the earlier dismissal and could have added it; the Sopha exception did not apply.
• Arendt v. Owens-Illinois, Inc. (2015). A dismissal with prejudice of an earlier suit, in which the plaintiff conceded that a non-malignant asbestos claim was time-barred, can be given preclusive effect. Under Wisconsin's two-disease rule, a non-malignant diagnosis starts the three-year limitations period for non-malignant claims, so a later suit for non-malignant disease is barred where no malignancy ever developed.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Herr v. Linde LLC (2015). A plaintiff must produce evidence that he inhaled asbestos from the defendant's own product, and unlabeled gloves cannot be tied to a defendant whose gloves were labeled. A Pierringer release of a settling distributor also releases a strict liability claim against a non-settling defendant in the same chain of distribution.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.
• Spychalla v. Boeing Aerospace Operations Inc. (2015). The court did not decide whether Wisconsin recognizes the bare metal defense. Even assuming it does, it would not apply to makers of completed aircraft and engines when unrebutted expert evidence showed they specified asbestos-containing replacement parts. Issues already decided by the MDL court on product identification and causation would not be reopened.
• Suoja v. Owens-Illinois, Inc. (2015). Objections to a plaintiff's status as the estate's special administrator and to the claim's mootness under state-law requirements are not jurisdictional and can be forfeited if not timely raised. A settlement of an earlier case does not "determine" an issue, so it cannot support issue preclusion under Wisconsin law.
• Sydow v. Weyerhaeuser Company (2015). Rule 25(a) no longer requires dismissal with prejudice when substitution is late, and leave to amend under Rule 15(a) is granted absent undue delay, bad faith, repeated failure to cure, or prejudice.
• Ahnert v. Brand Insulation Inc. (2014). Under Wisconsin law, claim preclusion barred the later suit. The Sopha exception for a later-diagnosed malignancy did not apply, because the plaintiff knew of the mesothelioma diagnosis for about three years before she stipulated to dismissal with prejudice.
• Boyer v. Weyerhaeuser Company (2014). Wisconsin's Workers' Compensation Act is the exclusive remedy against an employer for asbestos injury arising from employment, including exposure carried home on clothing. A mere patent licensor owes no negligence duty and is not a seller for strict liability based only on licensing a technology.
• Estate OF Gregovich v. Auer Steel & Heating Supply (1st District, 2014). A circuit court erroneously exercises its discretion by disregarding summary-judgment submissions for page-limit or lateness violations without a showing of egregious conduct or bad faith. A plaintiff must produce evidence that a defendant's product actually contained asbestos.
• Anderson v. Procter & Gamble Paper Products Co. (2013). Under Wis. Stat. § 893.89(4)(d), 'damages that were sustained prior to April 29, 1994' means damages tied to an accrued claim, not mere physical damage from asbestos exposure, so the exception did not save a claim that accrued in 2009.
• Lemberger v. Honeywell International, Inc. (1st District, 2013). A trial court may not change jury answers that are supported by any credible evidence, even if it thinks the jury misread the verdict form or instructions. Its options in that situation are to send the jury back to reconsider or to order a new trial.
• Viola v. Wisconsin Elec. Power Co. (2013). Airborne asbestos dust released during regular maintenance and repair work at a premises can be an unsafe condition associated with the structure under the Safe Place statute, not merely a negligent act of operation, when the injured worker did not negligently cause it.
• Delsart v. Albany Felt Company, Inc. (3rd District, 2012). When leave to amend is sought after summary judgment, there is no presumption favoring amendment; the movant must give a reason sufficient to overcome the value of finality of judgment, and a court may correct a manifest error of law by reconsidering its earlier use of the 'freely given' standard.
• Risse v. Building Services Industrial Supply, Inc. (1st District, 2012). To survive summary judgment, a plaintiff must produce evidence showing the worker was probably exposed to the defendant's asbestos-containing product and that the exposure was a substantial factor in the illness; evidence leaving exposure to speculation or conjecture is not enough.
• State v. Harenda Enterprises, Inc. (2008). Where an asbestos testing rule is ambiguous, an agency's interpretation of its own rule controls unless it is inconsistent with the rule or clearly erroneous; the EPA's clarifications that each layer of a multi-layer sample is tested separately are valid interpretive rules, so material is ACM if any single layer exceeds one percent asbestos.
• Sybron Transition v. Security Ins. Co. of Hartford (2000). Under New York's injury-in-fact, time-on-the-risk allocation, a partial-year policy is charged only for the months it was in effect, although its full policy limit remains available. The insured bears the share of an insolvent insurer, and a fee award in a Wisconsin declaratory judgment action is discretionary.
• Sopha v. Owens-Corning Fiberglas Corp. (1999). A diagnosis of a non-malignant asbestos-related condition does not start the statute of limitations for a later diagnosed, distinct malignant asbestos-related condition. Claim preclusion also does not bar the second action, because asbestos cases present a special circumstance justifying an exception.

Wyoming

• Johnson v. Allis-Chalmers Corp. Prod. Liab. Trust (2014). In an asbestos case, a plaintiff must offer competent evidence that the defendant's product or conduct was a substantial factor in causing the harm. Witnesses who admit in deposition that they lack personal knowledge of what the insulation contained, or who made it, cannot supply that evidence. The court also applied Pennsylvania's 12-year construction statute of repose, in the alternative, to Bechtel, CBS and GE.
• Johnson v. Allis-Chalmers Corporation Product Liability Trust (2014). Under the substantial-factor causation test, a plaintiff must have admissible, personal-knowledge evidence linking a particular defendant's asbestos to the plaintiff's exposure. Witnesses' deposition testimony that contradicts their earlier affidavits is treated as more reliable at summary judgment, and a real-property-improvement statute of repose can bar claims over permanent improvements.