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

• In re Usg Corp. (2003). Bankruptcy jurisdiction does not displace state law governing the substance of claims, so the court has discretion over claims administration but none over substantive law. It may therefore sequence estimation to address the cancer claimants first.
• Arnold v. Garlock, Inc. (2001). A non-debtor co-defendant that has no valid contribution claim against a bankrupt co-defendant cannot rely on bankruptcy 'related to' jurisdiction to transfer personal injury and wrongful death cases under 28 U.S.C. § 157(b)(5). Nor can it obtain a discretionary stay pending appeal, because it was unlikely to succeed on the merits and a stay would harm the plaintiffs.
• Threadgill v. Armstrong World Industries, Inc. (1991). There is no 'law of the district' binding one district judge to another's ruling, and a court must independently assess authenticity under Rule 901(b)(8), which asks whether a document is what it purports to be, not whether its content is complete or reliable.
• Farrall v. AC & S. Co., Inc. (1990). Under 10 Del.C. § 6304, the reduction of a plaintiff's award is the greater of the total paid by all released tortfeasors or their combined pro rata share, applied once as an aggregate and not separately for each released tortfeasor. A lump-sum settlement is credited in full and is not allocated among diseases.
• Nutt v. AC & S., Inc. (1983). Under Delaware's workmen's compensation exclusivity, an employer's fraud or concealment before the injury is manifested is not separately actionable, and a wife's consortium claim against the employer is derivative and barred too. Wives' mental anguish claims for witnessing a spouse's illness or fearing future asbestos disease, without a traumatic event or physical manifestation, are not cognizable, and fraud must be pleaded with particularity.

District of Columbia

• Wannall v. Honeywell International, Inc. (2013). Under Virginia law as stated in Boomer, a plaintiff in a multiple-exposure mesothelioma case needs expert evidence of what level of exposure is sufficient to cause mesothelioma and that the defendant's exposure was sufficient. Substantial-contributing-factor opinions and 'no safe level' risk opinions do not meet that standard, and a late expert declaration filed without leave can be excluded under Rules 26 and 37.
• Consolidated Rail Corp. v. Ray EX rel. Boyd (2010). The Rail Act's requirement that rail assets be conveyed "free and clear of any liens or encumbrances" covers in rem property interests and does not categorically bar state-law successor liability for in personam FELA tort claims arising from pre-conveyance asbestos exposure.
• Alliegro v. ACandS, Inc. (1997). On a directed verdict motion, evidence is viewed in the plaintiff's favor, and proof that the plaintiff and the defendant's asbestos products were in the same place at the same time, with expert testimony that exposure was a substantial factor, is enough for the jury.
• Owens-Corning Fiberglas Corp. v. Henkel (1997). A Batson objection must be raised before the jury is sworn or it is waived; state-of-the-art evidence of what the industry knew is admissible to show what a manufacturer should have known; and the new one-year asbestos limitations statute (D.C. Code § 12-311) cannot be applied to bar a claim already accrued and timely under the prior three-year statute.
• Carey Canada v. California Union Ins. Co. (1989). Whether a contract term is ambiguous is a question for the trial judge, and where an insurance exclusion for "asbestosis" is ambiguous, extrinsic evidence may be admitted to show the parties' intent, so summary judgment is inappropriate when intent remains disputed.
• Keene Corp. v. Insurance Co. of No. America (1981). Under occurrence-based general liability policies, coverage for asbestosis, mesothelioma and bronchogenic carcinoma is triggered by the claimant's exposure to asbestos, when bodily injury to tissue begins, not when the disease manifests; each insurer on the risk during exposure bears a pro rata share, and the insured bears a share for uninsured periods.

Florida

• Israel v. John Crane, Inc. (2022). Under the maritime three-year statute of limitations, a claim accrues when the plaintiff knew or should have known of the injury and its cause, which does not require actual knowledge or a physician's confirmation. Deposition testimony that irreconcilably contradicts an earlier interrogatory response may be disregarded under the sham affidavit rule.
• Ripple v. CBS Corporation (4th District, 2022). A spouse who married the decedent after the injury cannot recover consortium-type damages under section 768.21(2) of the Wrongful Death Act because the Act does not abrogate the common-law marriage-before-injury rule. Because the defendants successfully argued the wife was not a surviving spouse for that purpose, the adult children may recover under section 768.21(3).
• Union Carbide Corporation v. Font (3rd District, 2020). A defendant may present evidence of alternative causes, such as a decedent's own sworn asbestos claims against non-parties, without proving those non-parties' fault by expert testimony; and a learned intermediary instruction must let the jury understand that reasonable reliance on an intermediary fulfills or discharges the duty to warn.
• Bechtel Corporation v. Batchelor (3rd District, 2018). Premises liability requires control of the premises amounting to the ability to control access or exclude others, and a contractor's size, service contracts and insurance terms did not support an inference of such control. An adverse-inference instruction is unavailable as a discovery sanction without a prior court order that was violated.
• Highland Stucco and Lime v. Onorato (3rd District, 2018). Florida's exercise of personal jurisdiction over an out-of-state product maker requires minimum contacts showing purposeful availment of the forum. Foreseeability that a product may reach Florida, or placing goods in the stream of commerce, is not enough.
• Doolin v. American Optical Corporation (2017). Rule 11 sanctions were not warranted because Morse TEC's argument that Florida's Asbestos Act applied in federal court was contrary only to non-binding district court decisions, so it was not objectively frivolous.
• Northrop Grumman Systems Corporation v. Britt (3rd District, 2017). A suggestion of death must be filed with the court and served to start Florida's 90-day substitution period under Rule 1.260(a)(1). Competent, substantial evidence of causation may support a mesothelioma verdict even without precise dose quantification, particularly where the premises owner did not monitor airborne asbestos.
• Volkswagen Aktiengesellschaft v. Jones (2nd District, 2017). A plaintiff proceeding on specific jurisdiction must show the nonresident defendant's own suit-related contacts with the forum; a plaintiff's or third party's unilateral activity, an unshown parent-subsidiary control, or an online order for a product does not establish purposeful availment.
• Batchelor v. American Optical Corp. (2016). A defendant has no colorable federal defense supporting federal officer removal when the plaintiff has expressly disclaimed all claims based on asbestos exposure during military service, because the defense would address claims that do not exist.
• Crane Co. v. DeLisle (4th District, 2016). A trial court must act as an active gatekeeper under section 90.702 and Daubert, and an expert's 'every exposure above background' causation opinion unsupported by tested data or explained methodology is inadmissible. Counsel's invitation to measure damages by the defendants' expert fees is an improper basis for an award.
• Dugas v. 3M Company (2016). Where the parties do not dispute that the decedent died of the injury at issue, the surviving spouse's loss of consortium claim must be brought through the personal representative's wrongful death action under Florida law, not as a separate individual claim. The wrongful death statute requires pleading only the identity and relationship of survivors, not their ages or dependency.
• Font v. Union Carbide Corp. (3rd District, 2016). Under the Florida Supreme Court's decision in Aubin II, the consumer expectations test remains available as an alternative to the risk utility test in design defect strict liability cases, so a plaintiff who meets the criteria is entitled to the standard instruction (PL 5) covering both tests.
• Aubin v. Union Carbide Corporation (2015). Florida keeps the consumer expectations test from the Second Restatement for strict liability design defect and does not require proof of a reasonable alternative design. Causation is judged by ordinary causation rules rather than by comparing the product with raw asbestos. A manufacturer may argue that it reasonably relied on a learned intermediary to warn end users, but it must request an accurate instruction on the defense.
• Dugas v. 3M Company (2015). Florida's heightened asbestos pleading requirement (Fla. Stat. 774.205) conflicts with Federal Rule 8 and does not apply in federal court. Fraudulent concealment claims must be pleaded with particularity under Rule 9(b), and lumping defendants together fails that standard.
• Peruyero v. Airbus Sas (2014). The Florida long-arm statute in effect when the allegedly asbestos-containing product was made or distributed controls. Under the 1955/1957 version, §47.16, specific jurisdiction requires a causal connection between the defendant's Florida activities and the claim, and a plaintiff who does not show that connection cannot establish jurisdiction.
• Rothchild v. Crane Co. (2014). A motion to strike under Rule 12(f) is a disfavored, drastic remedy that is usually denied unless the allegations have no possible relation to the controversy and may prejudice a party.
• Rothchild v. Crane Co. (2014). A complaint must plead factual content specific to each defendant that supports a reasonable inference of that defendant's liability; the expectation that discovery will supply those facts does not satisfy Rule 8 pleading standards.
• Rich v. Kaiser Gypsum Company, Inc. (4th District, 2012). Florida Statute 90.804(2)(a) does not require strict privity between a party and a "predecessor in interest" for former testimony of an unavailable witness to be admitted; it is enough that the earlier party had an opportunity and similar motive to develop the testimony.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts doctrine, adopted in this district, a component seller is liable for a design defect only if the defective design, not the raw material's natural dangers, caused the harm. Whether a bulk supplier could discharge its duty to warn by reasonably relying on intermediaries is a jury question, and an instruction omitting that was misleading.
• Union Carbide Corporation v. Aubin (3rd District, 2012). Under the Third Restatement's component parts rule, which binds the Third District, a component supplier is liable for design defect only if the design, not the raw material's natural dangers, caused the harm. Whether a supplier discharged its duty to warn by reasonably relying on an intermediary is a jury question, and the jury must be told so.
• Honeywell International, Inc. v. Guilder (3rd District, 2009). A non-party's fault must go on the verdict form for apportionment when the defendant pleaded it and presented sufficient evidence. A child's parental consortium claim under section 768.0415 requires a negligent act on or after October 1, 1988, measured by the last exposure. Settlement proceeds are set off against the verdict.
• Honeywell International, Inc. v. Guilder (3rd District, 2009). A non-party's fault must be listed on the verdict form for apportionment once the defendant pleads it and presents sufficient evidence, and a child's parental consortium claim under section 768.0415 requires negligent acts on or after October 1, 1988, measured by the last exposure. Settlement proceeds are set off against the verdict in the same economic and noneconomic proportion as the jury's award.
• Fernandez v. Union Carbide Corp. (3rd District, 2006). A trial court acts within its discretion in admitting a medical report found in a chart while excluding unexplained handwritten notes, because the rule of completeness applies only where fairness requires considering the other writing contemporaneously.
• Owens-Corning Fiberglas Corp. v. Ballard (1999). A punitive award above three times compensatory damages can overcome the statutory presumption of excessiveness under section 768.73(1) when clear and convincing evidence shows egregious misconduct; appellate courts review the denial of remittitur only for abuse of discretion.
• ACandS, Inc. v. Redd (3rd District, 1997). A spouse's loss of consortium claim is derivative and abates when the injured spouse's personal injury action abates on his death from the injuries, so recovery lies only under the Wrongful Death Act. Prejudicial testimony and an excessive verdict also warranted a mistrial or new trial.
• Matter of Celotex Corp. (1997). Under Illinois law, timely and reasonable notice is a condition precedent to excess coverage, and a sophisticated insured must give notice when a reasonably prudent insured would believe the excess layers would be affected; the debtor bore the burden of proving notice and did not.
• Snoozy v. US Gypsum Co. (3rd District, 1997). A defendant that wants non-parties placed on the verdict form for apportionment of fault must produce evidence of the specifics of the different asbestos products, how often they were used, and their toxicity as used. Minor children cannot be awarded zero damages for a parent's wrongful death when the record shows undisputed evidence of their loss.
• Davies v. Owens-Illinois, Inc. (3rd District, 1994). Knowledge that an officer or director acquires within the scope of his authority is imputed to the corporation, so a deposition showing a director's knowledge of asbestos dangers should not have been excluded as non-imputable to the defendant.
• Matter of Celotex Corp. (1994). Under the plain-meaning rule of Florida, Illinois, New York and Ohio law, extrinsic evidence cannot create an ambiguity in an insurance exclusion. "Asbestosis" is a single non-malignant disease, and "related diseases" covers only diseases resulting from asbestosis.
• WR Grace & Co.—Conn. v. Dougherty (2nd District, 1994). A jury may be instructed on, and asked to apportion fault to, nonparties under Fabre and section 768.81 only if there is evidence of the nonparties' fault. In asbestos cases that evidence must cover the specifics of the products, how often they were used and their toxicity as used. Evidentiary objections not raised at trial are not preserved for appeal.
• Hammer v. Rosenthal Jew. Sup. Corp. (4th District, 1990). Ordering exhumation and autopsy was warranted despite the widow's sincere religious objection, because it would likely yield relevant information, and dismissal for refusing was upheld. Given the severity of dismissal as a sanction, the widow was allowed a final chance to comply.
• Landrum v. Armstrong World Industries, Inc. (3rd District, 1988). An order requiring autopsy of a plaintiff's body if he dies during asbestos litigation does not depart from the essential requirements of law, given the principle that an autopsy useful to ascertain facts in litigation should be performed.
• Eagle-Picher Industries, Inc. v. Cox (3rd District, 1985). A plaintiff with asbestosis cannot recover damages for an enhanced risk of future cancer, but keeps the right to sue later if cancer develops, and that later suit is not barred by the rule against splitting causes of action. Evidence of the cancer risk is admissible to prove present fear-of-cancer distress, because inhaling asbestos counts as a physical impact and asbestosis supplies the required physical injury.
• Meehan v. Celotex Corp. (3rd District, 1985). For Florida's borrowing statute, a tort cause of action arises when the plaintiff knew or should have known of the cause of action or the invasion of his legal rights, not at the time of exposure; the prior Marano holding to the contrary was overruled.
• Nance v. Johns-Manville Sales Corp. (3rd District, 1985). Under Florida's borrowing statute, a tort claim arises where the last act necessary to establish liability occurs, which is where the plaintiff knew or should have known of the right to sue. Whether Florida's or Virginia's limitations period applies therefore turns on where that knowledge arose.
• Copeland v. Celotex Corp. (3rd District, 1984). A complaint alleging long-term cumulative exposure to asbestos products need not plead a specific time and place of exposure. Where the plaintiff cannot identify which manufacturer's product caused the injury, the court adopted market share liability, applied through Restatement (Second) of Torts § 433B(2) in asbestosis cases.

Georgia

• Georgia Power Company v. Campbell (2021). An owner owes no duty to a contractor's employees only if it relinquished possession and did not control the work, and contract terms showing retained control raise fact questions. A trial court must act as gatekeeper and rule on a challenge to an expert's qualifications; an appellate court will not decide an argument the trial court did not address.
• Union Carbide Corp. v. Brannan (2021). A plaintiff may voluntarily dismiss and refile under OCGA § 9-11-41(a) even though no proper substitution of a deceased party's representative was made within 180 days, so the prior pending action doctrine did not bar the refiled claims.
• McKENNEY'S Inc. v. Sinyard (2019). A superior court must uphold a Workers' Compensation Board finding supported by any competent evidence unless the Board clearly relied on an erroneous legal theory. A claimant's earlier unverified complaint can be used as an evidentiary admission, and the claimant bears the burden of proving the employer of last injurious exposure.