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.

Georgia

• Scapa Dryer Fabrics, Inc. v. Knight (2015). Where a plaintiff has multiple asbestos exposures involving multiple defendants, each defendant's conduct need only be a contributing cause, not a substantial one. Expert testimony that Scapa's exposures were substantial causes was reliable enough to be admitted, and a pretrial reliability hearing is discretionary, not mandatory.
• Georgia-Pacific, LLC v. Fields (2013). A party may rely on allegations and admissions in the opposing party's pleadings as evidence to contest summary judgment, even if later amended or withdrawn, and an appellate court cannot affirm on a ground such as causation that the movant never raised in its summary judgment motion.
• Adamson v. General Elec. Co. (2010). To survive summary judgment, a plaintiff must present evidence that the defendant's asbestos-containing product was used at the plaintiff's work location and that the plaintiff was in proximity to it while it was being used; generalized or speculative testimony is not enough.
• DaimlerChrysler Corp. v. Ferrante (2006). A statute that adds a new requirement of prima facie proof that asbestos exposure was a substantial contributing factor affects substantive rights and cannot be applied retroactively to claims that accrued before its effective date. The unconstitutional provisions could not be severed because they were the heart of the Act, so the whole Act fell.
• Flowers v. Union Carbide Corp. (2005). A party who induces an alleged trial error, or who declines a court's offered remedy, cannot complain of it on appeal. A trial court does not abuse its discretion by excluding former testimony of a witness whom the proponent never tried to subpoena, or by barring a non-physician epidemiologist from opining on individual medical records.
• John Crane, Inc. v. Highsmith (2004). The court followed the Georgia Supreme Court's decision in John Crane v. Jones in rejecting the requested "substantial" contributing factor charge. It also held that a jury verdict stands if any evidence supports it, and that the evidence of defect and exposure was sufficient.
• John Crane, Inc. v. Jones (2004). Where several defendants' tortious acts may have combined to cause an injury, Georgia law does not require each defendant's conduct to be a "substantial" contributing factor to be a proximate cause; it is enough that the conduct was a contributing factor.
• John Crane, Inc. v. Jones (2003). A trial court need not charge that exposure to a defendant's product must be a 'substantial' contributing factor; Georgia's joint tortfeasor rule requires only that the defendant's negligence be a contributing cause. A verdict will be upheld if any evidence supports it.
• Kellogg Co. v. Pinkston (2001). An employee's damages claim against her employer for asbestos exposure arising out of employment is barred by the exclusivity provisions of the Workers' Compensation Act, so a court lacks subject matter jurisdiction over it. A default judgment on new claims also requires written notice to the defaulting party.
• John Crane, Inc. v. Wommack (1997). A jury verdict approved by the trial judge must be affirmed if any evidence supports it. Here there was evidence that the manufacturer knew or should have known of asbestos hazards, owed a duty to warn, that its packing released respirable fibers in foreseeable use, and that it contributed to the plaintiff's disease.
• In re Temple (1988). A mandatory Rule 23(b)(1) class in a mass tort case, certified without notice to class members or an adversarial hearing on the claimed limited fund, and without showing commonality and typicality, is clearly erroneous and warrants mandamus.

Hawaii

• Agena v. Cleaver-Brooks, Inc. (2020). Under Rule 42(b), separate trials are warranted where each plaintiff must individually prove fraudulent inducement of a settlement, including reliance and settlement-value damages, and a single jury could not realistically keep the differing facts apart, even with limiting instructions.
• Dias v. Fisher Controls Int'l (In re Hawaii State Asbestos Cases) (2017). Under HRS § 663-15.5 and Troyer v. Adams, a trial court has discretion to find a settlement in good faith under the totality of the circumstances. Where settlements are confidential, disclosing the settling parties and the aggregate amount can give non-settling defendants sufficient information.
• Cabasug v. Crane Company (2013). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the exposure was a substantial factor in causing his injury. A manufacturer has no duty to warn about, and is not liable for, asbestos-containing replacement parts it did not manufacture or distribute.

Idaho

• Stephens v. Union Pacific Railroad Company (2018). Field preemption under the Locomotive Inspection Act is an affirmative defense that is waived if not pleaded, not a challenge to subject matter jurisdiction. A plaintiff must prove exposure as a threshold matter and must produce evidence that the defendant's asbestos was a substantial factor in causing the disease.

Illinois

• JM Manufacturing Company, Inc. v. Simmons Hanly Conroy, LLP (2025). A RICO claim requires an enterprise distinct from the defendant persons. A law firm and its employees cannot be both person and enterprise, and adding clients, witnesses and co-counsel who were involved only in separate individual cases does not plausibly plead an association-in-fact enterprise.
• Ramirez v. Avon Products, Inc. (1st District, 5th Division, 2024). A trial court's decision to sever and stay third-party contribution claims, made by weighing competing factors and managing its docket, is reviewed for abuse of discretion. There is only a policy preference, not a rule, for trying contribution claims together with the underlying action.
• Johnson v. Edward Orton, JR. Ceramic Foundation (2023). Under Illinois law, a manufacturer is held to an expert standard of knowledge, including for the packaging it uses to ship its product, and is judged by the present state of human knowledge rather than the knowledge of its own industry.
• LaFever v. Ford Motor Company (3rd District, 2023). A trial court's grant of a new trial is reviewed for abuse of discretion; violating a specific order in limine, where the violation is clear and prejudices the moving party, can justify a new trial.
• McNamara v. Ico Polymers North America, Inc. (1st District, 2nd Division, 2023). A trial court abuses its discretion when it arbitrarily requires a witness with documented hardships to testify in person when remote video testimony is permitted under Supreme Court Rule 241. A pre-suit evidence deposition is not admissible against defendants who had no notice and whose motive to cross-examine differed from that of those present.
• Daniels v. Venta Corp. (2nd District, 2022). An employer's directive to a worker to do work that violates a licensing statute makes the employment contract unenforceable, so the workers' compensation exclusive remedy does not bar the claim. An allegation that the employer deliberately directed the worker to remove asbestos, knowing it would injure him, pleads an intentional tort, and a landowner who knows of a dangerous condition may owe a duty to a business invitee.
• Lishman v. Air & Liquid Systems Corporation (2022). A defendant does not waive a personal jurisdiction defense by a brief delay or by preliminary pretrial participation, and specific jurisdiction requires that the plaintiff's injury arise from or relate to the defendant's contacts with the forum state.
• Johnson v. Orton (2021). Under Krik v. Exxon Mobil, an expert's 'cumulative exposure' causation opinion that ignores the amount and duration of exposure to each defendant's product is unreliable under Rule 702 and Daubert. Experts may rely on facts established by other experts, and chain-of-custody gaps go to weight, not admissibility.
• Jones v. Pneumo Abex LLC (5th District, 2021). A civil conspiracy based on circumstantial evidence must be proved by clear and convincing evidence of a knowing agreement. Evidence consistent with innocence, parallel conduct, or a conspiracy that ended before the plaintiff's exposure does not establish it.
• Krumwiede v. Tremco, Inc. (4th District, 2020). Under Illinois's frequency, regularity and proximity test, a plaintiff must show more than de minimis exposure to respirable asbestos fibers released from the defendant's product; proof of frequent contact with a product merely capable of releasing fibers is not enough.
• Linder v. AW Chesterton Co. (5th District, 2020). A protective order under Rule 201(c)(1) is within the trial court's discretion and need not rest on confidentiality or trade secrets. Specific personal jurisdiction over a seller exists where it purposefully sold the allegedly asbestos-containing pumps in Illinois, without the plaintiff first proving a defect.
• Amling v. Schlage Lock Co. (2019). A declaratory judgment about who must indemnify a liability is generally not ripe until liability has been found in the underlying suit. Even if jurisdiction existed, a court may decline to hear a declaratory suit whose result could be irrelevant if the underlying case finds no liability.
• Daniels v. ArvinMeritor, Inc. (1st District, 4th Division, 2019). A trial court may use the standard Illinois pattern proximate-cause instruction in an asbestos case, and need not give a 'substantial factor' instruction. A manufacturer that actually knew of the danger is not entitled to a 'state of the art' instruction, and settled defendants need not appear on the verdict form.
• Johnson v. Edward Orton JR. Ceramic Foundation (2019). A trust's citizenship for diversity purposes is that of its trustees, and a removing defendant may, after the 30-day removal period, cure a technical defect in its jurisdictional allegations (such as mislabeling a trust as a foundation) without asserting a new jurisdictional ground.
• Jones v. Pneumo Abex LLC (2019). Where the full evidentiary record is already before the court and would leave nothing for a jury, the summary judgment standard is the same as for a directed verdict or judgment n.o.v., so precedent decided on judgment n.o.v. in asbestos civil conspiracy cases cannot be distinguished on that basis.
• Betzner v. Boeing Co. (2018). A notice of removal under the federal officer removal statute, 28 U.S.C. § 1442(a), need only contain a short and plain statement meeting Rule 8(a) pleading standards and need not include evidentiary submissions; plausible allegations of a colorable federal defense suffice.
• Jones v. Pneumo Abex LLC (5th District, 2018). At summary judgment, plaintiffs need only present facts, viewed favorably to them, from which a trier of fact could find a civil conspiracy by clear and convincing evidence. Fourth District cases decided on judgment n.o.v. do not control that standard.
• Lamorak Ins. Co. v. Kone, Inc. (1st District, 2nd Division, 2018). A policy that refers to a self-insured retention is not automatically excess insurance; characteristics such as immediate notice duties, a duty to defend, and premium size can show it is primary, and contemporaneous documents may resolve ambiguity. Documents a party produced in discovery and did not dispute producing can be treated as authenticated.
• McKinney v. Hobart Bros. Co. (4th District, 2018). A manufacturer owes no duty to warn of a hazard that was unknown to its industry when the product was made, and knowledge that raw asbestos was dangerous does not show knowledge that a product with encapsulated asbestos was dangerous. A plaintiff must also present evidence that exposure to the defendant's product was a substantial factor in causing the disease.
• Krik v. Exxon Mobil Corp. (2017). A district court may exclude expert testimony that every asbestos exposure, whether framed as "each and every" or "cumulative" exposure, is a substantial contributing factor, because it is not tied to dose and shifts the burden of proof on causation. A new trial for improper juror-related contact requires a showing of prejudice.
• Adams v. Employers Insurance Company OF Wausau (3rd District, 2016). Section 12.80 of the Business Corporation Act bars suits against a dissolved corporation, and its shareholders, after the five-year wind-up period. A declaratory action to reach the dissolved corporation's liability insurance without a liability determination is a prohibited direct action against insurers, and courts will not use equity to override the statute.
• Neumann v. Borg-Warner Morse Tec LLC (2016). Because Illinois courts had not recognized a duty running to family members in take-home asbestos cases, the court, choosing the narrower reading of state law that restricts liability, found no duty owed to the plaintiff and applied that ruling equally to all defendants.
• Quirin v. Lorillard Tobacco Company (2015). A defendant owes no duty to a spouse for loss of consortium if the couple was not married when the asbestos exposure occurred, and insurance-policy 'continuous occurrence' cases do not create a continuous-exposure theory of liability.
• Smith v. Illinois Central R. Co. (4th District, 2015). In an asbestos case a defendant may present evidence of the plaintiff's other asbestos exposure to rebut proximate cause, without conceding the disease or disclosing its own causation expert. Excluding that evidence was not harmless where the plaintiff's case relied on dust from the neighboring UNARCO plant.
• Folta v. Ferro Engineering (1st District, 5th Division, 2014). An asbestos-injured employee whose workers' compensation claim was barred by the statute of repose before he learned of his injury has an injury "not compensable under the Act," so the exclusivity provisions do not bar a common-law suit against the employer.
• Hasenberg v. Air & Liquid Systems Corp. (2014). A defendant meets the federal officer removal statute, 28 U.S.C. 1442(a)(1), by showing it is a person acting under a federal officer, sued for acts under color of office, with a colorable federal defense. A plausible government contractor defense is enough, and its validity need not be resolved to decide removal.
• Holloway v. Sprinkmann Sons Corporation (4th District, 2014). A party who asks for a sanction other than a mistrial when opposing counsel misbehaves forfeits that misconduct as a ground for a new trial. A general defense verdict is not against the manifest weight of the evidence where the proof that the plaintiff's exposure was enough to cause her asbestosis was speculative.
• Shipley v. Hoke (4th District, 2014). Termination of supplementary proceedings under Illinois Supreme Court Rule 277(f) does not remove subject-matter jurisdiction, but it is an affirmative defense that bars later relief under section 2-1402(f)(1). A citation's restraining provision binds only the party the citation is directed to, so a third party must be served with its own citation.
• Totten v. Crane Co. (2014). A defendant sued over asbestos in products made for the Navy may remove under 28 U.S.C. § 1442(a)(1) if it is a person, acted at a federal officer's direction, has a causal link to the claims, and raises a plausible government contractor defense; it need not prove that defense at the removal stage. Attaching the wrong complaint to the notice of removal is a minor irregularity that does not defeat jurisdiction.
• Gillenwater v. Honeywell Intern., Inc. (4th District, 2013). A civil conspiracy proved only by circumstantial evidence needs clear and convincing proof, and parallel conduct that has a reasonable nonconspiratorial explanation is not enough. A manufacturer owes no duty to a worker's future spouse for an asbestos exposure that occurred before the marriage, so her consortium claim fails.
• John Crane, Inc. v. Admiral Insurance Company (1st District, 2nd Division, 2013). Under Zurich, coverage for asbestos personal injury claims is triggered by proof of exposure, sickness, or disease, and all triggered policies are jointly and severally liable for all sums up to their limits. Under horizontal exhaustion, the insured must exhaust the original primary limits before excess or umbrella insurers must pay, and an agreement amending those limits after the fact cannot lessen that requirement.
• Buckles v. Hopkins Goldenberg, PC (5th District, 2012). A summary judgment for one lawyer on a count about his post-discharge conduct has no res judicata effect on a separate count against his former firm for pre-discharge conduct, and proximate cause in a legal malpractice case is generally a fact question that cannot be decided as a matter of law where reasonable persons could differ.
• Menssen v. Pneumo Abex Corporation (4th District, 2012). Parallel conduct plus evidence such as buyer-seller dealings, trade-group membership, shared directors and joint funding of a study was not clear and convincing proof of a conspiratorial agreement, so defendants were entitled to judgment n.o.v. on the civil conspiracy claim.
• Simpkins v. CSX Transp., Inc. (2012). Whether a defendant owed a duty depends on whether it contributed to a risk of harm to the plaintiff and on four factors (foreseeability, likelihood, burden, consequences), without a separate 'direct relationship' requirement. A complaint that only conclusorily alleges the defendant knew or should have known of the danger is insufficient in a fact-pleading jurisdiction.
• In re Estate OF Holmes v. Pneumo Abex, LLC (4th District, 2011). No duty was owed to a household member for take-home asbestos exposure where the danger was not reasonably foreseeable at the time of the husband's work (1962-1963), so the civil conspiracy claim based on a duty to disclose could not stand.