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.

Delaware

• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (2019). A court will not overturn a jury verdict as inconsistent if the differently worded interrogatory answers can be logically reconciled, and will not set aside or reduce a damages award unless it was the product of passion, prejudice or disregard of the evidence or law.
• In re Imerys Talc America, Inc. (2019). A non-debtor seeking wholesale provisional transfer of thousands of personal injury cases under 28 U.S.C. § 157(b)(5) must show grounds for immediate, ex parte relief, such as irreparable harm and no fault in creating the emergency. J&J did not make that showing, and the cases it cited did not support routine provisional transfer for a non-debtor.
• Richards v. Copes-Vulcan, Inc. (2019). Under Ohio law, Ohio Rev. Code § 2307.96 and its manner-proximity-frequency factors address only whether exposure to each defendant's asbestos was more than minimal. A plaintiff must still offer expert medical evidence of specific causation to survive summary judgment.
• Thomas-Fish v. Avborne Accessory Group, Inc. (2019). A plaintiff asserting successor liability must plead facts plausibly falling within an exception to the general rule that an asset purchaser is not liable for the seller's debts; conclusory allegations of corporate succession and bare claims of willful conduct do not suffice.
• Thomas-Fish v. Avborne Accessory Group, Inc. (2019). Under federal pleading standards, a complaint that makes collective allegations against all defendants, without facts tying a particular defendant to the exposure or to successor liability, fails to state claims for strict liability, negligence, warranty, failure to warn, conspiracy, or punitive damages. Marketing an 'ultra-hazardous product' is not an independent cause of action under New Jersey law.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (2018). A party seeking to supplement an expert report after summary judgment must show good cause or excusable neglect, and plaintiffs who never sought leave before judgment was entered did not do so.
• Pieno v. Crosby Valve (In re Asbestos Litigation) (2018). Under maritime law, a plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. Vague recollection of a brand name, with no link to a particular ship or product, does not meet that burden, even when the motion is unopposed.
• Kister v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2018). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing the injury; with no product identification, summary judgment follows even when the motion is unopposed.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (2018). Under 10 Del. C. § 8121 the shorter Louisiana one-year limit applied, and wrongful death and survival claims filed after that period are supplemental rather than amended pleadings, so under Delaware procedural rules they do not relate back to the original complaint.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2018). Deposition testimony of an unavailable declarant is not admissible under D.R.E. 804(b)(1) or Superior Court Civil Rule 32 when the opposing party did not have a meaningful opportunity to cross-examine; postponing cross-examination is not a waiver.
• Charlevoix v. Caterpillar, Inc. (2017). Under both maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; mere presence of a product, or minimal exposure, is not enough.
• Evans v. CBS Corp. (2017). Under maritime law (and Colorado law for land-based claims), a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury, and a manufacturer is not liable for asbestos parts it did not make or distribute (the bare metal defense). Even an unopposed summary judgment motion requires the court to find the undisputed facts warrant judgment.
• Evans v. Flowserve US Inc. (2017). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-containing product and that it was a substantial factor in causing the injury. Even when a motion is unopposed, the court must find that the undisputed facts support judgment.
• Evans v. John Crane (In re Asbestos Litigation) (2017). Summary judgment on punitive damages is improper where a genuine factual dispute exists about whether the defendant knew its asbestos products were harmful and sold them anyway with willful, wanton or reckless disregard. Credibility of a corporate witness cannot be judged at summary judgment.
• Charlevoix v. John Crane (In re Asbestos Litigation) (2017). Under maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Evidence that does not show regular exposure over an extended period does not meet this test. A failure to respond to a summary judgment motion does not alone justify judgment.
• Walls v. Ford Motor Co. (In re Asebestos Litigation) (2017). An error in a ruling that a manufacturer had no duty to warn about third-party replacement parts is harmless where the jury found the manufacturer was not negligent in failing to warn about its own original and replacement parts. The court did not decide whether an automobile manufacturer has a duty to warn about third-party replacement brake parts.
• Denbow v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2016). Where the plaintiff, after adequate discovery, offers no evidence that the decedent was exposed to a defendant's product, summary judgment for that defendant is warranted, even on an unopposed motion, under Rule 56(e)(3).
• Tetteh v. Alcatel-Lucent USA, Inc. (2016). Under Georgia law and Restatement (Second) of Torts § 324A, a parent corporation that gives its subsidiary safety recommendations and guidance has not assumed the subsidiary's duty to protect the subsidiary's employees. The plaintiff also failed to satisfy any of the § 324A(a), (b) or (c) requirements.
• Winhauer v. Air & Liquid Systems Corporation (2016). Under Mississippi's frequency, regularity and proximity test, a plaintiff must show exposure to a particular defendant's asbestos-containing product with sufficient frequency, regularity and proximity to support causation. Under the bare metal defense, a manufacturer is not liable for asbestos products made by others that were used with its product.
• In re Energy Future Holdings Corp. (2015). Bankruptcy Rule 3003(c)(3) requires the court to fix a bar date, and nothing makes a section 524(g) channeling injunction a prerequisite for unmanifested asbestos claims. Those claims arose at pre-petition exposure, and publication notice may satisfy due process, so discharge may be available.
• Malone v. Air & Liquid Systems Corporation (2015). Where a plaintiff has had adequate opportunity for product identification discovery and files notice of non-opposition to summary judgment, Rule 56(e)(3) permits the court to grant summary judgment against the plaintiff.
• Malone v. Air & Liquid Systems Corporation (2015). Where plaintiffs have had adequate fact discovery on product identification and give notice that they do not oppose summary judgment motions, the court may grant those motions and dismiss the moving defendants under Fed. R. Civ. P. 56(e)(3).
• Malone v. Air & Liquid Systems Corporation (2015). A court may not consider materials outside the pleadings, such as an affidavit, on a Rule 12(b)(6) motion without converting it to a Rule 56 summary judgment motion and giving all parties a reasonable opportunity to present pertinent material.
• Dabaldo v. Urs Energy & Construction (2014). Delaware treats each asbestos-related disease as a separate claim with its own two-year limitations period. The period for asbestosis began only when the plaintiff was actually diagnosed with it, not when he was diagnosed with pleural disease or when a report loosely used the word asbestosis.
• Dougherty v. AO Smith Corporation (2014). A complaint's jurisdictional disclaimer does not defeat federal officer removal, but a post-removal express disclaimer of the claims supporting removal can be given effect, and the court then must decline supplemental jurisdiction over the state-law claims absent affirmative justification, favoring remand.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (2014). Under New Jersey law a plaintiff must show frequent and regular exposure in close proximity to friable asbestos from the named defendant's product, and a handful of brake jobs over several years does not support that inference even for mesothelioma. Reargument requires a misapprehended law or fact that would change the outcome.
• Pavlick v. AM General (In re Asbestos Products Liability Litigation) (2014). Speculation that a worker may have worked on a defendant's vehicles does not create a genuine dispute of fact on product identification; being the Army's prime contractor for the truck types does not imply exclusivity.
• Mine Safety Appliances Company v. Aiu Insurance Company (2014). The expected/intended policy language functions as an exclusion, so once the insured shows a prima facie case the insurers bear the burden to prove it applies. It applies only if the insured was substantially certain that a known failure of its product would cause the plaintiff's injury, not merely aware of general disease hazards.
• RT Vanderbilt Co. Inc. v. Galliher (2014). A trial court must instruct the jury on the substance of the governing law, here the employer's duty of care under Ohio law, when the defendant blames the employer. A new trial is required where an expert's inadmissible hearsay about the defendant's lying and bribery is not cured.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (2013). Under Delaware law, a manufacturer has no duty to warn of dangers from replacement parts it did not manufacture or distribute, and a motion for reargument fails when it only rehashes arguments the court already decided.
• In re Motions for Access OF Garlock Sealing Technologies LLC (2013). Rule 2019 exhibits filed with the bankruptcy court are judicial records carrying a presumptive common-law right of public access, which the objecting parties did not rebut. Alternatively, there was good cause to modify the 2019 Orders to allow access.
• Motions for Access OF Garlock Sealing Technologies LLC (2013). Rule 2019 exhibits filed with the bankruptcy court are judicial records carrying a presumptive common law right of public access, and the party opposing access must show that secrecy outweighs it. Alternatively, the court found good cause to modify the confidentiality-type orders under the Pansy balancing test.
• Edmisten v. Greyhound Lines, Inc. (2012). Testimony so inconsistent that no reasonable juror could accept it does not raise a genuine issue of material fact. A plaintiff must also show that the particular defendant's asbestos-containing product was used at the job site and that the plaintiff was near it.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (2012). A late-identified expert's testimony may be allowed, with a trial continuance to cure prejudice, where the opposing party consented to the late report and did not timely object. The court called this a rare exception to the rule that late-identified experts are precluded.
• In re WR Grace & Co. (2012). Rule 60(b) generally does not apply to a district court's appellate orders in bankruptcy. Even if it did, a later Third Circuit decision applying an earlier ruling is a development in the law, not the extraordinary circumstance needed for relief, and the motion cannot substitute for an appeal.
• In re WR Grace & Co. (2012). A § 524(g) asbestos trust and channeling injunction may be confirmed where they are fair and equitable in light of the contributions made to the trust, they cover only derivative third-party liability, and the plan treats similar claims in substantially the same manner. Bankruptcy Code § 1123(a)(5)(B) preempts anti-assignment clauses in insurance policies so that the policy rights can be transferred to the trust.
• In re WR Grace & Co. (2012). A Chapter 11 asbestos plan satisfies Section 524(g) and the Bankruptcy Code if its trusts, channeling injunction, claim classifications and payment procedures treat similar claims alike. Liability insurance policies and their proceeds are property of the debtor's estate, and Bankruptcy Code Section 1123(a)(5)(B) preempts anti-assignment clauses in insurance policies.
• Martinez v. EI DuPont De Nemours and Co. (2012). A parent corporation cannot be sued for its subsidiary's workplace conduct without specific pleaded facts of its own tortious acts. An absent foreign subsidiary that employed the worker and owned the plant is an indispensable party under Rule 19. Delaware forum non conveniens dismissal was warranted where the defendant was wrongly named in place of the foreign employer.
• Pease v. Ford Motor Company (2012). A transferee MDL court's earlier summary judgment ruling rejecting the bare metal defense stood, and a defendant that did not seek reargument there could not relitigate the same arguments on remand. The MDL ruling would have been the same under Delaware or maritime law.
• Dana Companies, LLC v. Crawford (2011). A trial court must assess the adequacy of each damages award (survival pain and suffering, wrongful death) separately on the evidence for that claim, consistent with the jury instructions, and may not uphold an award by reference to other awards shared by the same beneficiaries.
• In re ACandS, Inc. (2011). A non-party with no claim in the bankruptcy cases, alleging only speculative injury from its own past tort settlements, lacks Article III and prudential standing to intervene, and Rule 2019 statements are not a discovery tool to be opened to it for a private purpose.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (2011). In an asbestos case the limitations period begins when the plaintiff is chargeable with knowledge that the condition is attributable to asbestos exposure; reviewing a death certificate listing mesothelioma put the plaintiffs on inquiry notice, so the discovery rule tolled the period only until December 1997.
• Henderson v. Dana Companies (In re Asbestos Litigation) (2011). A prevailing party may recover expert witness fees for testifying time and reasonable travel expenses, but travel time is not paid at the expert's testimonial rate and the party must itemize its claimed costs. A transcript fee is not recoverable when the deposition was played by video at trial.
• Turchen v. County Insulation Co. (In re Litigation) (2011). Rule 11 imposes a duty of reasonableness under the circumstances, so a subjective good faith belief does not suffice. Counsel who cites unverified authority or ignores directly adverse authority known to him may be sanctioned.
• General Motors Corporation v. Grenier (2009). A trial court's decision to admit expert testimony under Daubert and D.R.E. 702 is reviewed for abuse of discretion, and experts may reliably conclude that chrysotile from friction products is carcinogenic without epidemiological studies showing that association. Isolated errors in evidence and in closing argument did not require a new trial.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (2009). A plaintiff's expert need not disprove a defendant's unproven hypothesis to satisfy Daubert; an expert who reviews all available evidence and finds no reliable support for the hypothesis uses a reliable methodology. Occupation-specific epidemiology is not required as a matter of law to show that chrysotile in friction products can cause asbestos disease.
• Riedel v. Ici Americas Inc. (2009). Under the Restatement (Second) of Torts, an employer owes no duty to an employee's spouse absent a legally significant special relationship for a nonfeasance claim, and a party cannot argue on appeal a misfeasance theory not fairly presented to the trial court. The court declined to adopt the Restatement (Third) of Torts duty provisions.
• In re Asbestos Litigation (2006). Under Daubert, plaintiffs' experts may testify that friction products increase the risk of asbestos disease, because their methods were reliable. Occupation-specific epidemiology is not required as a matter of law, and the court does not choose between competing reliable scientific views.
• In re WR Grace & Co. (2006). A property damage claimant must show that an asbestos-containing product creates an unreasonable risk of harm at the exposure levels actually encountered; contamination and fiber release on disturbance, without reliable evidence of risk, are not enough. Expert evidence must meet Daubert reliability and fit requirements to defeat summary judgment.
• Roca v. EI du Pont de Nemours and Co. (2004). An issue not identified in the summary of argument and argued in the body of the opening brief is waived on appeal, even if it was preserved below; raising it for the first time at oral argument is insufficient.