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.

Illinois

• Rodarmel v. Pneumo Abex, LLC (4th District, 2011). In 1953-1956 an employer owed no duty to warn of asbestos carried home on work clothing because such injury was not reasonably foreseeable, and parallel conduct plus trade-group membership, shared directors, and suppression of non-significant animal data did not clearly and convincingly prove a conspiratorial agreement.
• Zickuhr v. Ericsson, Inc. (1st District, 6th Division, 2011). In an asbestos case a plaintiff shows causation by the frequency, regularity and proximity of exposure to the defendant's asbestos product, without proof of the exact quantity of fibers; the jury's credibility choices on product identification stand where evidence supports them.
• Nolan v. Weil-McLain (2009). Thacker v. UNR Industries created no presumption of causation once a plaintiff meets the frequency, regularity and proximity test, and a defendant may offer other-exposure evidence to support a sole proximate cause defense. Excluding that evidence was reversible error.
• Berry v. American Standard, Inc. (5th District, 2008). Under Illinois Supreme Court Rule 212(a)(5), a deceased party who gave a discovery deposition remains a party through the personal representative of his estate, so the deposition cannot be used as evidence at trial. The dying-declaration hearsay exception did not apply.
• Dukes v. Pneumo Abex Corporations (4th District, 2008). A prior nolo contendere conviction for price-fixing is not evidence of a separate conspiracy to suppress asbestos health information, and a purchasing director's personal letter was not an admission by the company absent authority or ratification. Civil conspiracy requires an agreement and a tortious act in furtherance of it.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.
• Nolan v. Weil-McLain (4th District, 2006). Once a plaintiff meets the frequency, regularity and proximity test, the defendant is presumed a proximate cause and evidence of the decedent's other asbestos exposures is irrelevant; the defendant may rebut only by showing no exposure to its product, insufficient exposure, or too little asbestos in its product.
• Caruso v. M & O Insulation Co. (4th District, 2003). A directed verdict is improper where there is some evidence, including circumstantial evidence and reasonable inferences, that the defendant sold asbestos-containing products to the plant, and where witness credibility is decisive.
• Pritchett v. Asbestos Claims Mgt. Corp. (5th District, 2002). An oral settlement made through an agent for a single sum is enforceable, and where it is silent on the point, the promisors are jointly and severally liable under Illinois law. Accepting a check that paid less than the full amount was not an accord and satisfaction without an honest dispute with the plaintiff over the amount due or an understanding that the check was full payment.
• Boldini v. Owens Corning (4th District, 2001). The Illinois construction statute of repose, section 13-214(b), applies to the activity of installing asbestos-containing materials but not to the related sales and distribution of those materials, even when the sales are incident to installation; this rule applies only to asbestos claims.
• Burgess v. Abex Corp. EX rel. Pneumo Abex (4th District, 2000). Parallel conduct among asbestos manufacturers is not enough by itself to prove the agreement element of civil conspiracy; there must be other evidence of an agreement to suppress or misrepresent asbestos hazards. Such evidence existed against Abex but not against Pittsburgh Corning.
• Burgess v. Abex Corp. (4th District, 1999). A defendant who understands the general objectives of a conspiracy to conceal asbestos hazards, accepts them, and agrees explicitly or implicitly to further them is liable as a coconspirator. Plaintiffs must prove the conspiracy by clear and convincing evidence, reviewed under the manifest weight standard, and the jury's finding here had sufficient support.
• McClure v. Owens Corning Fiberglas Corp. (1999). Parallel conduct by manufacturers of the same or similar products may be circumstantial evidence of a civil conspiracy but cannot by itself be clear and convincing proof of the agreement element. The remaining contacts among the companies were as consistent with innocence as with guilt.
• Spain v. Owens Corning Fiberglass Corp. (4th District, 1999). Once a plaintiff shows frequency, regularity and proximity of exposure to the defendant's asbestos product, the defendant is presumed a proximate cause and may not introduce evidence of other asbestos exposures unless it files contribution actions against those other manufacturers. Under amended Rule 213, the treating physician exception to opinion disclosure no longer exists.
• Westinghouse Airbrake Co. v. Indus. Com'n (3rd District, Industrial Commission Division, 1999). The Workers' Compensation Act, as amended in 1984, covers asbestos-caused injury and resulting death, but a claimant whose last exposure predated those amendments has no claim under it, and disease claims belong under the Occupational Diseases Act, whose section 1(f) limit does not apply to Workers' Compensation Act claims. A survivor's death-benefit claim is governed by the law in effect on the date of death.
• McClure v. Owens Corning Fiberglas Corp. (4th District, 1998). Evidence of parallel conduct, if persuasive enough, can alone support a jury finding of civil conspiracy among asbestos manufacturers (the antitrust rule on parallel conduct does not apply). Once a conspiracy is shown by clear and convincing evidence, proximate cause need only be shown by a preponderance.
• Van Winkle v. Owens-Corning Fiberglas Corp. (4th District, 1997). When a jury asks an explicit question showing confusion on a substantive legal issue, the court must answer it with specificity and accuracy. A late-joining civil conspirator is liable for prior acts of coconspirators only if it knew of and approved those acts when it joined.
• Barry v. Owens-Corning Fiberglas Corp. (1st District, 1st Division, 1996). A jury damages award in a wrongful death and survival case will not be disturbed unless it results from passion or prejudice or falls outside the limits of reasonable compensation, and awards are not measured by comparison with other asbestos verdicts. A verdict form giving separate wrongful death amounts to each survivor was error under the Wrongful Death Act but was not prejudicial.
• Nelson v. Keene Corp. (1st District, 1st Division, 1996). A civil action is commenced only by filing a complaint with the proper clerk and having summons issued and served. The limited jurisdiction of a Rule 217 testimony-preservation proceeding does not carry over to a new action, and delivering complaints to a deputy clerk in the judge's courtroom is not a valid filing.
• Hefner v. Owens-Corning Fiberglas Corp. (5th District, 1995). A trial court's denial of an intrastate forum non conveniens transfer is reviewed for abuse of discretion, and the defendant must show the factors weigh so strongly for transfer that the plaintiff's choice of forum should be disturbed; doubts from an inadequate record are resolved against the defendant.
• Adcock v. Brakegate, Ltd. (1994). A defendant who answers after its motion to dismiss is denied waives pleading defects, and a verdict cures them (aider by verdict), unless no recognized cause of action is stated. Civil conspiracy is a recognized cause of action and requires an agreement plus a tortious act in furtherance, which may be intentional or negligent and may be committed by any conspirator.
• Costa v. Dresser Industries, Inc. (3rd District, 1994). Expert testimony from a witness disclosed months before trial was properly admitted under Illinois Rule 220 even though the plaintiff never served Rule 220 interrogatories, and consulting experts are discoverable only on a showing of exceptional circumstances. An instruction that mere presence of a product at a work site is insufficient to show exposure was erroneous but harmless where the jury found no mesothelioma.
• Hartman v. Pittsburgh Corning Corp. (5th District, 1994). Circumstantial evidence of regular exposure to the defendant's asbestos product over several months, together with medical evidence, can support an inference that the product probably caused mesothelioma. Trial courts keep discretion over sanctions for late expert disclosure under Rule 220, and a settlement may be allocated to a spouse who signed the releases, so that part is not set off against the verdict.
• Keystone Steel and Wire Co. v. Costa (3rd District, 1994). A denial of summary judgment is merged into the trial and not reviewable where the defendant's own refusal to produce a witness led to a sanction judgment on liability. Section 2-1101 permits conditioning denial of a motion to quash on advance payment of expenses but does not authorize reimbursing expenses after production.
• Adcock v. Brakegate, Ltd. (4th District, 1993). A civil conspiracy claim is actionable if properly pleaded and need not rest on an independent tortious act; the allegations here also sufficed as a fraudulent misrepresentation conspiracy. A trial court may enter a default judgment on liability when a party willfully refuses to produce relevant witnesses under Rule 237(b).
• Kurrack v. American Dist. Telegraph Co. (1st District, 5th Division, 1993). A strict liability claim based on an inherent defect in an asbestos-containing product requires proof that the product left the defendant's control in an unreasonably dangerous condition, such as releasing friable asbestos; the presence of asbestos alone does not establish a defect. A failure-to-warn claim requires proof the defendant knew or should have known of the danger.
• State Farm Mut. Auto. Ins. Co. v. WR Grace & Co. (1993). The Illinois construction statute of repose protects a product manufacturer only if it substantially participated in construction activities or custom-made and installed its product for the project, and only for claims arising from those construction activities, not manufacturing-related negligence such as failure to warn.
• Betts v. Manville Personal Injury Trust (4th District, 1992). A new trial was required because of plaintiffs' counsel's prejudicial tactics, an undisclosed expert, speculative cancer-risk evidence, evidence from another plant not shown to be similar, and over-broad collateral estoppel against Grefco. A prior finding fixing when a plaintiff learned of her injury can bar a later suit on limitations grounds, and a plaintiff who gets no allocation of an earlier settlement bears the burden on the setoff.
• Thacker v. Unr Industries, Inc. (1992). In asbestos cases a plaintiff must show frequency, regularity and proximity of exposure to the defendant's asbestos. Fiber drift evidence can meet the proximity element, and it need not come from expert testimony.
• In re Asbestos Cases (1st District, 5th Division, 1991). An order creating a deferred docket registry for asbestos claims is a ministerial or administrative order regulating procedural details of litigation, not an injunction appealable under Supreme Court Rule 307(a), so an interlocutory appeal does not lie.
• Thacker v. Unr Industries, Inc. (4th District, 1991). Evidence that asbestos dust from all sources drifted through the plant, combined with testimony that slight contact with asbestos could cause cancer, created a jury question on whether Manville asbestos was a proximate cause. Claims of error not raised in the post-trial motion in a jury case are waived under Rule 366(b)(2)(iii).
• Wehmeier v. Unr Industries, Inc. (4th District, 1991). In asbestos cases Illinois courts apply the Lohrmann frequency, regularity and proximity test for causation. Expert fiber-drift evidence can establish the proximity prong but cannot alone support an inference of causation.
• Naden v. Celotex Corp. (1st District, 1989). A plaintiff must show more than a mere possibility of exposure to a defendant's product; circumstantial evidence must support an inference of probability, not speculation. A trial court does not abuse its discretion by refusing to delay a summary judgment ruling for late discovery requests.
• VaSalle v. Celotex Corp. (1st District, 1987). Under the discovery rule, asbestos-related lung cancer is a legal injury separate and distinct from earlier-diagnosed asbestosis, so its limitations period begins when the plaintiff knows or should know of the cancer and its wrongful cause, not at the asbestosis diagnosis.
• Zurich Insurance Co. v. Raymark Industries, Inc. (1987). Under the policy language, an insurer must cover an asbestos claim if the claimant suffered bodily injury (at or shortly after exposure), sickness, or disease (when reasonably diagnosable) during the policy period. The duty to defend ends when policy limits are exhausted by payment of judgments or settlements.
• Zupan v. Industrial Com. (5th District, 1986). Under the pre-1975 Occupational Diseases Act, an ordinary disease of life is compensable as an occupational disease where the employee was exposed to the hazard at work in a greater degree and in a different manner than the public generally.
• Zurich Ins. Co. v. Raymark Industries, Inc. (1st District, 1986). Under comprehensive general-liability policies, coverage for asbestos claims is triggered both by exposure (bodily injury) and by manifestation (disease), but not by the intervening period; each triggered insurer owes full indemnity and defense to the insured, and the duty to defend ends when policy limits are exhausted by payment of judgments or settlements.
• Costello v. Unarco Industries, Inc. (4th District, 1984). Under the Illinois product liability statute of repose, which applies to causes of action accruing on or after January 1, 1979, an asbestos strict liability claim accrues on discovery of the injury, and the statute is constitutional. A negligence complaint in an asbestos case must plead the specific disease and each defendant's place in the chain of production.
• Froud v. Celotex Corporation (1st District, 1982). Under the Illinois Supreme Court's National Bank decision, the Survival Act neither authorizes nor prohibits punitive damages, so common law claims for punitive damages survive the death of the injured person.
• Nolan v. Johns-Manville Asbestos (1981). A cause of action accrues when the plaintiff knows or reasonably should know both that an injury occurred and that it was wrongfully caused by another; when that knowledge was acquired is a question of fact unless the facts are undisputed.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1st District, 1979). In a case involving a disease that develops slowly over many years, the limitations period begins when the plaintiff knew or reasonably should have known he was injured by the defendant's wrongful conduct or defective product. When the evidence conflicts about that date, it is a fact question that cannot be resolved on summary judgment.

Indiana

• Myers v. Bremen Casting, Inc. (2016). Working with asbestos is not intrinsically dangerous as a matter of law, but a premises owner may be liable under the due precaution exception, and as a premises owner, unless the worker was injured by the very condition he was hired to address, which the owners failed to show. Because the owners did not designate evidence negating the claims, summary judgment was improper.
• Asbestos Corporation Limited v. Akaiwa (2007). A plaintiff must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant's product. Review of summary judgment is limited to the materials designated to the trial court, so evidence first offered on appeal is not considered.
• Psi Energy, Inc. v. Roberts (2005). A principal is not liable to an independent contractor's employee for the contractor's acts under the five exceptions to nonliability, absent negligent selection, and a landowner ordinarily owes no liability to a contractor's employees for a condition the contractor was hired to address when the landowner has no superior knowledge. A general verdict stands if the evidence supports any theory of liability that the jury was instructed on.
• Psi Energy, Inc. v. Roberts (2004). A landowner may be liable under Restatement (Second) of Torts §§ 343 and 343A to an independent contractor's employee when the evidence lets a jury find the danger was not known or obvious to him and the landowner should have anticipated the harm, including where it saw workers going unprotected. A general verdict stands if the evidence supports any one theory of liability.
• AlliedSignal, Inc. v. Herring (2003). The asbestos-specific repose provision (Section 2) applies only to entities that mined raw commercial asbestos, so claims against sellers of asbestos-containing products fall under the general ten-year product liability repose period, subject to a limited exception where a reasonably experienced physician could have diagnosed the disease within the ten years but the plaintiff had no reason to know until afterward.
• Harris v. AC & S., Inc. (2002). The asbestos exception to the product liability statute of repose, which gives two years from knowledge of an asbestos-related disease, does not require a defendant to have both mined and sold commercial asbestos. A claim filed within two years of diagnosis is therefore timely.
• Allied Signal, Inc. v. Herring (2001). The asbestos exception to Indiana's ten-year products liability statute of repose applies to persons who mined and persons who sold commercial asbestos, not only to those who did both. Whether defendants sold "commercial asbestos" was waived because it was not raised in the trial court.
• Lambert v. Babcock & Wilcox Co. (1999). A claim for asbestos exposure aboard a naval vessel on navigable water falls within admiralty jurisdiction and is governed by maritime law. The Indiana statute of repose is inconsistent with the federal maritime limitations statute and so does not apply.
• Novicki v. Rapid-American Corp. (1999). Section 5.5 of the Indiana Product Liability Act, with its two-year discovery rule for asbestos claims, applies only to defendants that both mined and sold commercial asbestos; all other defendants are governed by the limitation and repose periods of Section 5. A defendant that concedes it did not both mine and sell asbestos cannot invoke Section 5.5 merely for argument's sake.