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

• Ferris v. Gatke Corporation (1st Appellate District, 4th Division, 2003). Even assuming Sindell market share liability could apply to asbestos friction products, plaintiffs failed to supply its requisites, including proof of the defendant's share of the national market. A civil conspiracy claim requires that each defendant already owe the plaintiff an independent tort duty.
• Kinsman v. Unocal Corp. (1st Appellate District, 3rd Division, 2003). A premises owner is not liable to an independent contractor's employee for a dangerous condition created by a contractor unless the owner controlled the condition and exercised that control in a way that affirmatively contributed to the employee's injury. This limit applies whether the condition was created by the plaintiff's employer or another contractor, and does not require proof that the contractor was negligent or that the employer carried workers' compensation insurance.
• McGonnell v. Kaiser Gypsum Co., Inc. (1st Appellate District, 4th Division, 2002). A defendant can shift the burden on summary judgment by showing through the plaintiff's deposition that he had no knowledge of exposure to its products, and the plaintiff must then produce non-speculative evidence of exposure to the defendant's asbestos-containing product; mere possibility and a conclusory expert opinion are not enough.
• Hamilton v. Asbestos Corp., Ltd. (2000). Under Code Civ. Proc. § 340.2, the one-year limitations period runs from 'disability' (loss of work due to asbestos preventing the regular occupation), so a worker who retired for unrelated reasons had not started the clock, and filing an earlier action for a different disease does not start it; the rule against splitting a cause of action is not a limitations rule.
• Anderson v. Metalclad Insulation Corp. (1st Appellate District, 1st Division, 1999). A defendant seeking summary judgment on the asbestos limitations defense must present evidence that the plaintiff was disabled, meaning lost work time that precludes his regular occupation. Filing a workers' compensation claim for disability benefits does not by itself support that inference.
• Ehret v. Congoleum Corp. (2nd Appellate District, 4th Division, 1999). Under Proposition 51, a settlement that does not separate economic from noneconomic damages must be apportioned so that only the economic share is set off against a nonsettling defendant. A plaintiff who wants a different allocation must offer evidence of the settlement terms and timing showing good faith; without that evidence, the Espinoza percentage formula applies.
• General Dynamics Corp. v. Wcab (2nd Appellate District, 4th Division, 1999). Res judicata does not bar a workers' compensation claim for a different injury, and a prior compromise and release bars a later asbestos claim only if the asbestos injury existed when it was settled. The record here lacked the medical evidence needed to decide that.
• Howard v. Owens Corning (1st Appellate District, 3rd Division, 1999). A jury may reject expert testimony, even uncontradicted testimony and even where the defendant calls no expert, so long as it does not act arbitrarily. The rule that uncontradicted expert testimony is conclusive applies only in professional negligence cases where expert testimony sets the standard of care.
• Overly v. Ingalls Shipbuilding, Inc. (1st Appellate District, 2nd Division, 1999). A personal injury plaintiff may recover lost earnings, including pension, Social Security and household-services benefits, for the period by which his life expectancy was shortened. No deduction for his expected personal consumption during that period is required.
• Gatton v. AP Green Services, Inc. (1st Appellate District, 2nd Division, 1998). Deposition testimony from another action cannot be treated as an affidavit to avoid the former-testimony hearsay requirements of Evidence Code section 1292 (witness unavailability and a similar interest and motive); Williams v. Saga Enterprises was rejected on this point.
• Gutierrez v. Cassiar Mining Corp. (1st Appellate District, 2nd Division, 1998). Under Potter, a plaintiff may recover medical monitoring costs only for monitoring additional to or different from what preexisting conditions such as smoking already require, and a defendant is entitled on request to a jury instruction saying so when the evidence supports it.
• Buttram v. Owens-Corning Fiberglas Corp. (1997). For deciding whether Proposition 51 can be applied prospectively, a cause of action for a latent disease like mesothelioma accrues when the plaintiff is diagnosed or otherwise discovers the illness or injury, not when undetected cellular changes began.
• Rutherford v. Owens-Illinois, Inc. (1997). In asbestos-related cancer cases, no instruction shifting the burden of proof on causation to defendants is warranted. A plaintiff proves causation by showing that exposure to the defendant's product was, in reasonable medical probability, a substantial factor contributing to the risk of developing cancer, without showing that the defendant's fibers began the malignancy.
• Kellogg v. Asbestos Corp. Ltd. (1st Appellate District, 4th Division, 1996). When a plaintiff dies after submission of a bench trial but before final judgment, the court may still render judgment under CCP section 669, but under former Probate Code section 573(c) the judgment cannot include damages for pain and suffering. A defendant who seeks to reduce its share under Proposition 51 bears the burden of proving others' fault.
• Morton v. Owens-Corning Fiberglas Corp. (1st Appellate District, 2nd Division, 1995). The consumer expectations test for design defect can apply to asbestos insulation products. Evidence of what the scientific community knew about asbestos dangers is irrelevant under that test, which looks to ordinary consumers' expectations.
• Dumin v. Owens-Corning Fiberglas Corp. (1st Appellate District, 1st Division, 1994). Even under the more lenient standard for proving exposure to a defendant's asbestos product, circumstantial evidence must support a reasonable inference of exposure rather than conjecture. The alternative liability theory of Summers v. Tice only shifts the burden of proof among proven wrongdoers and does not excuse proof that the defendant's product was present.
• Smith v. ACandS, Inc. (1st Appellate District, 1st Division, 1994). A plaintiff must prove the defendant's asbestos products or activities were present at his work site, and speculation will not do. A landowner is not vicariously liable under the peculiar risk doctrine for one contractor's negligence that injures employees of other hired contractors.
• Williamson v. Plant Insulation Co. (1st Appellate District, 3rd Division, 1994). Under former Probate Code section 573(c), pain and suffering damages and unincurred future economic losses do not survive a plaintiff's death before judgment, and neither section 669 nor nunc pro tunc entry applies when the plaintiff dies during trial before the case is ready for judgment. Under Code of Civil Procedure section 340.2, substantial evidence supported the jury's finding that the asbestosis claim was timely.
• Hughes v. Western MacArthur Co. (1st Appellate District, 4th Division, 1987). A plaintiff must plead facts showing the defendant is a successor to the corporation that injured her. But a plaintiff who does not allege an employment relationship need not plead the dual capacity exception to workers' compensation exclusivity, because a complaint cannot be attacked by matters in the answer.
• Kaminski v. Western MacArthur Co. (1st Appellate District, 5th Division, 1985). Under Ray v. Alad Corp., successor liability for a predecessor's defective products can extend to a corporation that took over a distributor, not only a manufacturer. The successor's acquisition need only have caused or contributed to the loss of the plaintiff's remedies against the predecessor.
• JT Thorp, Inc. v. Workers'comp. Appeals BD. (3rd Appellate District, 1984). An employee with an occupational disease such as asbestosis may claim and receive workers' compensation for medical treatment before the statutory 'date of injury' (onset of disability), and such an award does not trigger the five-year limit on later awards for disability or further medical care. The board need not 'defer' a disability finding; a finding of no disability suffices.

Colorado

• Church v. Dana Kepner Company, Inc. (2013). Confidentiality agreements do not shield settlement information from discovery, but under Colorado's apportionment statutes settlement amounts with nonparties are not relevant to apportioning fault or calculating damages; only the fact of settlement is discoverable.
• Wallic v. Owens-Corning Fiberglass Corp. (1999). Fees and costs under 28 U.S.C. § 1447(c) turn on whether the removal was proper, not whether it was merely colorable, and bad faith is not required. A notice of removal filed after six days of trial, falsely claiming abandonment of claims against a non-diverse defendant, violated Rule 11.
• Fenton v. Fibreboard Corp. (5th Division, 1991). In a strict liability case the focus is on the product, not the manufacturer's knowledge, so evidence of what the manufacturer knew bears only on punitive damages. A set-off for a settlement not yet paid may be handled by ordering any later payment applied to the judgment, with the defendants remaining liable if it is never collected.

Connecticut

• Dougan v. Sikorsky Aircraft Corp. (2019). Even assuming Connecticut would recognize a medical monitoring claim without present physical injury and that the Massachusetts Donovan elements apply, each plaintiff must offer individualized expert evidence that monitoring is reasonably necessary. General expert statements about asbestos risk, and conclusory affidavits, do not meet that burden.
• Clark v. Aii Acquisition, LLC (2018). A district court's decision to invoke judicial estoppel is reviewed for abuse of discretion. Judicial estoppel is an equitable doctrine, not a mechanical rule, so a court must weigh the equities, and a debtor's failure to disclose a claim in bankruptcy that had only a de minimis effect on that proceeding does not justify barring the claim.
• RT Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Company (2017). In long-latency asbestos claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Pollution exclusions bar coverage only for traditional environmental pollution, while occupational disease exclusions reach claims by employees of any employer.
• Martin Franchises, Inc. v. Cooper US, Inc. (2016). An affidavit supporting a summary judgment motion, including one from a corporate officer, must affirmatively show personal knowledge of the matters stated. Without that showing the movant has not proved that no genuine issue of material fact exists.
• RT Vanderbilt Co. v. Hartford Acc. & Indem. (2016). For long-latency asbestos disease claims, Connecticut applies a continuous trigger as a matter of law, with pro rata time-on-the-risk allocation and an unavailability-of-insurance rule. Standard pollution exclusions bar coverage only for traditional environmental pollution, and occupational disease exclusions unambiguously reach claims by employees of other employers.
• Brochu v. Aesys Technologies (2015). A trial court may dismiss an action for lack of diligence under Practice Book § 14-3 when the plaintiff's representative, without explanation, waits years after the original plaintiff's death to substitute in, leaving the case dormant and prejudicing the defendants.
• BellSouth Telecommunications v. WR Grace (1996). Under the Connecticut Product Liability Act, an asbestos abatement claim accrues when the plaintiff knows or should know of actual contamination and of the causal link between the defendant's product and that contamination; it does not wait until the full extent of the loss is known.

Delaware

• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (2024). Under Texas Civil Practice and Remedies Code § 33.004, a defendant need only plead a factual basis showing a third party's potential responsibility to designate it. A bankruptcy proof of claim can support that pleading, and a designation after limitations has run is not barred where the defendant timely disclosed the third parties.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (2023). Interlocutory review under Supreme Court Rule 42 was not warranted because no exceptional circumstances existed and the benefits of review did not outweigh the inefficiency, disruption and costs of an interlocutory appeal.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (2023). Interlocutory appeal under Supreme Court Rule 42 was not warranted because the benefits of certification did not outweigh the costs of piecemeal litigation, with the first-impression question being one of Ohio rather than Delaware law and other defendants remaining in the case.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (2023). Predicting Ohio law, the court held that Ohio would recognize an exception to the bare metal rule. A manufacturer may have a duty to warn where its product is necessarily used with another product and the danger results from the two products used together.
• Droz v. Hennessy Industries, LLC (2022). Under Rule 56 and Stigliano, once a defendant shows it made both asbestos-containing and asbestos-free products at the time of exposure, the plaintiff need only show by direct or circumstantial evidence a genuine issue whether she was exposed to the asbestos-containing product; exclusive use or direct evidence is not required.
• Estate of Anderson v. American Seaboard Exteriors (2022). Under the last injurious exposure rule, the claimant bears the burden of proving the employer injuriously exposed the employee to a disease-causing substance, and the Board may choose between conflicting expert opinions. Prior deposition testimony from asbestos cases can be admissible under Rule 804(b)(1), but excluding it is harmless where it does not show the claimant's own exposure.
• In re Paddock Enterprises, LLC (2022). A bankruptcy court has post-confirmation subject matter jurisdiction over a subpoena dispute that has a close nexus to implementing and administering the confirmed plan and trust agreement, and although compliance burden was significant it did not outweigh relevance, so the subpoenas were not quashed but the responding party is entitled to reasonable expenses.
• Carnes v. General Dynamics Corp. (In re Asbestos Litigation) (2021). Under Texas law a plaintiff must prove that, more probably than not, he breathed asbestos fibers from the defendant's product, and an expert's speculation without record support of asbestos in the components cannot create a genuine factual dispute.
• In re Bestwall LLC (2021). A motion to quash a subpoena must be decided in the district of compliance, and transfer under Rule 45(f) requires exceptional circumstances that outweigh the nonparty's interest in local resolution. Subpoenas for confidential trust claimant data must be consistent with the protections in the earlier Delaware Bankruptcy Court access decision.
• In re Imerys Talc America, Inc. (2021). A creditor has no right to change a plan vote and must show cause under Bankruptcy Rule 3018, which presupposes a valid claim against the debtor. A presumption of cause in the solicitation procedures covers only changes made before the Voting Deadline. Designating a vote under § 1126(e) is a drastic remedy, and the movant carries a heavy burden.
• Pruitt v. Gardner Denver (In re Asbestos Litigation) (2020). Circumstantial evidence that a worker repaired a defendant's pumps with asbestos-containing gaskets and packing, with enough frequency and proximity, can create a jury question on whether the defendant's product was a substantial factor in causing the injury, even without a witness who identified the product by maker.
• Shaw v. American Friction (In re Asbestos Litigation) (2020). A court deciding whether to change a trial date under a scheduling order applies a good cause standard: whether the movant was generally diligent, whether the need for more time was foreseeable or its fault, and whether denial would create a substantial risk of unfairness. Review is for abuse of discretion, and arguments for a different standard not raised below will not be considered.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2020). A jury's damages verdict is not disturbed unless it results from passion, prejudice, partiality or corruption, or manifestly disregards the evidence or law, or is so grossly excessive that it shocks the court's conscience and sense of justice.
• Stimson v. AO Smith Corporation (2020). A new trial is warranted only where the evidence preponderates heavily against the verdict or the verdict clearly results from confusion; a jury may accept or reject expert testimony, and a jury-confusion objection not raised at trial is reviewed only for plain error.
• Evans v. Imo Industries, Inc. (2019). An expert may be qualified without direct experience in the subject, and lack of experience goes to weight; but expert testimony lacks "fit" and is excluded when the documents relied on do not govern the defendant's products. Late disclosure of reliance documents is harmless where the opposing party had notice and was not prejudiced.
• Evans v. John Crane, Inc. (2019). General maritime law and state survival statutes can supply survival damages where an asbestos injury is indivisible across the high seas and territorial waters, so DOHSA does not bar them. DOHSA does limit the wrongful death claim itself to pecuniary damages. An expert's lack of experience with the specific products or documents goes to weight, not admissibility.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2019). When deciding whether a jury's compensatory damages verdict is excessive, a court must look at the total damages the jury found, not the defendant's smaller share based on its percentage of fault.
• Stimson v. J-M Mfg. Co. (In re Asbestos Litigation) (2019). A plaintiff must show more than a possibility of exposure to the defendant's asbestos product, and a motion for reargument cannot rely on deposition testimony that counsel knew of and could have presented before the summary judgment ruling.
• Rogers v. Warren Pumps (In re Asbestos Litigation) (2019). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing injury; mere presence of a product at the workplace is insufficient. Under Delaware law, a plaintiff must show a product nexus, meaning proximity to the defendant's asbestos product when it was used.