Punitive Damages in Asbestos Cases

Decisions in our library in which the court ruled on punitive or exemplary damages: 291 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.

North Carolina

• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Vanhoy v. American International Industries (2018). Under Rule 12(b)(6), allegations of when, where and how the plaintiff was exposed, and of the defendant's knowledge and concealment of asbestos hazards, plausibly state gross negligence and willful or wanton conduct. A conspiracy claim fails where no facts show an agreement among the defendants.
• Smith v. American Honda Motor Co., Inc. (2016). Under North Carolina law, compliance with federal labeling standards does not conclusively show a warning was adequate, and proximate cause is ordinarily for the jury. Design defect under N.C. Gen. Stat. § 99B-6 does not require expert testimony on a feasible alternative design, and punitive damages require clear and convincing evidence of willful and wanton conduct by corporate officers, directors or managers.

North Dakota

• Puppe By Puppe v. AC and S., Inc. (1990). After Hopkins v. McBane, North Dakota law allows punitive damages in wrongful death actions, and neither multiple punitive awards nor the interests of future plaintiffs create a due process bar to punitive damages in asbestos-type toxic tort litigation.

Ohio

• Parker Hannifin Corp. v. Standard Motor Products, Inc. (2023). Under the plain language of the 1986 sale agreement, asbestos personal injury claims first asserted in writing after the fifteenth anniversary of closing are Assumed Liabilities, which includes punitive damages awarded in such a claim. Ohio public policy does not bar sophisticated commercial parties from agreeing to indemnify punitive damages arising from the indemnitee's past conduct.
• MacLachlan v. AW Chesterton, Inc. (2019). A later affidavit that contradicts earlier deposition testimony need not be struck as a sham if the contradiction is reasonably explained by memory lapses, confusion or new evidence; the resulting inconsistencies go to weight and credibility for the jury. Punitive damages are a form of damages, not a separate cause of action under Ohio law.
• Parker Hannifin Corp. v. Standard Motor Products, Inc. (2019). A 1986 asset-purchase agreement's broad assumption-of-liabilities and indemnity clauses unambiguously cover punitive damages in qualifying asbestos claims, and are not void as against Ohio public policy because they allocate responsibility for past conduct only. The duty to indemnify is not ripe until the underlying appeal ends.
• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Schwartz v. Honeywell Internatl., Inc. (8th Appellate District, 2016). Expert testimony on cumulative asbestos exposure and brake dust causing mesothelioma was admissible without quantified dose, and evidence of manner, proximity and frequency of exposure met Ohio's substantial factor test (R.C. 2307.96). Evidence that a feasible non-asbestos alternative existed supported the design defect claim, and enough evidence of flagrant disregard existed that punitive damages should not have been taken from the jury.
• City of Dayton v. AR Environmental, Inc. (2012). Under Ohio law, punitive damages for breach of contract are available where the breach is accompanied by an independent tort such as fraud committed with malice, including conscious disregard of public safety. Asbestos is a hazardous substance under CERCLA, and burying it is a release.
• Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. (1995). Under Ohio law, a continuous-injury trigger applies to asbestos claims under these excess policies, and the insured may recover in full from any one triggered insurer. The court also declined to adopt a separate known loss doctrine and held that Ohio law bars insuring punitive damages.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, duty of care depends on foreseeability and policy considerations; where the husband's exposure was intermittent and non-occupational, take-home harm to his wife was not foreseeable as a matter of law and no duty was owed.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, a manufacturer owes no duty to warn a worker's wife who was exposed only by laundering his work clothes, because she is not a foreseeable user. The negligence duty of care also failed because take-home harm from the boilers was not foreseeable on this record.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.

Oregon

• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.

Other federal courts

• Cimino v. Raymark Industries, Inc. (1998). Under Texas law, causation and damages in asbestos injury suits must be determined for each individual plaintiff, not for groups, and a class or consolidation procedure cannot change that or remove the Seventh Amendment jury right. A raw-material supplier selling non-defective asbestos to a sophisticated manufacturer has no duty to warn the manufacturer's end users.
• Consorti v. Armstrong World Industries, Inc. (1995). In a diversity case, state law governs whether a compensatory damages award is excessive, so New York's 'deviates materially from reasonable compensation' standard applied. Consolidation of asbestos cases is within a trial court's discretion unless it causes confusion or prejudice that prevents the jury from deciding on the evidence.
• Dunn v. Hovic (1993). Under Virgin Islands law and the Due Process Clause, successive punitive damages awards in asbestos cases are not barred as such. A defendant must show with evidence what it has actually paid and what it can pay, and a court weighs multiple claims when setting the amount.
• Miller v. American President Lines, Ltd. (1993). Punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. Indemnity and contribution among maritime tortfeasors, including product makers, are decided by comparative fault rather than the active-passive negligence rule.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Johnson v. Celotex Corp. (1990). A trial court may consolidate asbestos cases with common worksites and issues if it uses cautionary instructions and separate verdict forms, and circumstantial co-worker testimony can support a jury finding that defendants' products were a substantial factor. The court left open whether successive punitive awards violate due process because the record on prior payments was insufficient.
• King v. Armstrong World Industries, Inc. (1990). A party is bound by its attorney's concession in closing argument that the plaintiff was exposed to its products. In asbestos cases, evidence of what the industry knew is relevant to what was scientifically discoverable, even if it shows only a nonparty's knowledge. Under Texas law the defendant bears the burden of allocating causation, and the evidence supported the jury's apportionment and punitive award.
• In re Asbestos Litigation (1987). Common law decisions of a state's highest court are subject to equal protection review under the rational basis test, and New Jersey's denial of the state-of-the-art defense to asbestos manufacturers has a rational basis in risk-spreading, victim compensation and simplified trials.
• Dykes v. Raymark Industries, Inc. (1986). Tennessee's Contribution Among Tort-Feasors Act excludes only intentional tortfeasors, so a punitive award for willful and wanton conduct may be set off by settlements paid by co-defendants. Post-exposure documents may be admitted on punitive damages if relevant to pre-injury conduct.
• Jackson v. Johns-Manville Sales Corp. (1986). Predicting Mississippi law, the court held that punitive damages are available in strict liability and mass tort cases. It also held that a plaintiff who has asbestosis may recover for the reasonable probability of future cancer and for present, reasonable fear of getting cancer.
• Jenkins v. Raymark Industries, Inc. (1986). A district court does not abuse its discretion by certifying a Rule 23(b)(3) class on common issues such as the state-of-the-art defense in asbestos cases. Texas law and the Constitution do not bar deciding punitive damages in a class trial separately from actual damages.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Hansen v. Johns-Manville Products Corp. (1984). Applying Texas law, the court held that Texas courts would not bar punitive damages in a mass asbestos products case, that punitive damages in a private suit do not raise double jeopardy, and that no government specification defense was recognized or applicable. Awards found excessive must be reduced to the maximum the jury could properly have awarded.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.

Pennsylvania

• Pine v. John Crane, Inc. (2023). Under maritime law, a plaintiff needs evidence of exposure to the defendant's product high enough to make substantial-factor causation more than conjectural, and coworker testimony that only the defendant's gaskets were used can meet that. Survival, non-pecuniary and punitive damages are not available under general maritime law against a non-employer manufacturer in a seaman's death claim.
• Warrington v. 3M Company (2023). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. A bare-metal failure-to-warn claim also requires proof under DeVries that the manufacturer directed or required incorporation of the asbestos part and knew or had reason to know it was dangerous.
• Gay v. AO Smith Corporation (2022). Under Pennsylvania law, a landowner owes no duty to an independent contractor's employee for a danger the contractor knows of, and the retained-control and peculiar-risk exceptions did not apply because the owner did not control the contractor's methods and asbestos exposure was an ordinary risk of construction work.
• Rogers v. AO Smith Corp. (2022). Under maritime law a plaintiff must show exposure to each defendant's asbestos-containing product that was a substantial factor in causing the injury. Under DeVries, the bare metal defense defeats a claim over asbestos insulation added to a turbine unless the turbine required that asbestos insulation.
• Hassell v. Budd Company (2019). The Locomotive Inspection Act preempts state strict liability and negligence claims about asbestos in locomotive equipment, including pipes originating in the locomotive and brake-system insulation on passenger cars, but not pipes self-contained to a railcar. The Safety Appliance Act preempts only the specific equipment it lists, and pipe insulation is not listed.
• In re Collins (2000). The word "claim" in 28 U.S.C. § 1407(a) is broad enough to cover a request for punitive damages. The Panel may therefore remand compensatory claims while retaining punitive damages claims, and mandamus is available only for a clear and indisputable right or a judicial usurpation of power.
• Sealover v. Carey Canada (1992). Under Pennsylvania law, punitive damages require proof that the defendant actually knew, before the plaintiff's exposure, that its finished products endangered construction workers and bystanders. Knowledge of disease among miners and plant workers, and the Saranac Lake animal studies, did not show that knowledge.
• Moran v. G. & WH Corson, Inc. (1991). Under Charles v. Giant Eagle Markets, where releases reduce the verdict only by the settling tortfeasor's pro rata share, non-settling defendants must pay their shares even if the settlements exceed the verdict, and this applies to strict liability cases not governed by the Comparative Negligence Act. Punitive damages require evidence that the defendant knew or had reason to know of the hazard, and vague awareness of newspaper reports was not enough.
• Gill v. Pacor, Inc. (1982). A supplier's duty to warn the ultimate user of an asbestos product cannot be avoided by pointing to the employer's failure to provide a safe workplace. An employer's conduct is not a superseding cause unless it was so extraordinary that it could not reasonably have been foreseen.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.

Rhode Island

• Stevens v. Air & Liquid Systems Corporation (2017). Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.

South Carolina

• Glenn v. 3M Co. (2023). Expert testimony on cumulative dose is admissible as background medical science, and causation against a defendant is shown by exposure to its product regularly, over an extended period, near where the plaintiff worked. A nonsettling defendant is entitled to a setoff for good-faith settlements for the same injury, so the trial court must review the settlement documents and cannot simply deny a setoff on a claim the plaintiff also released.
• Keene v. Cna Holdings, LLC (2021). Whether work is part of an owner's trade, business or occupation under S.C. Code § 42-1-400 turns first on the owner's legitimate business decision about the scope of its business, not on whether the work was merely important or necessary. An owner that outsources work for legitimate reasons, and not to avoid insurance costs, does not make the contractor's worker its statutory employee.
• Keene v. Cna Holdings, LLC (2019). A maintenance contractor's employee is not a statutory employee of the plant owner under S.C. Code § 42-1-400 merely because the maintenance was important or essential to the owner's operations; the work must actually be part of the owner's own trade, business or occupation.

Tennessee

• Johnson County, Tenn. v. US Gypsum Co. (1984). The asbestos exception in Tennessee's ten-year products liability ceiling, T.C.A. § 29-28-103(b), covers any action resulting from exposure to asbestos, including a school's property damage and economic loss claims, and a county school system gets no sovereign exemption from limitations periods for such claims.

Texas

• Bell Helicopter Textron, Inc. v. Dickson (5th District, 2019). Gross negligence must be shown by clear and convincing evidence that the employer's act involved an extreme degree of risk viewed prospectively and that the employer was actually, subjectively aware of that risk to the plaintiff. General knowledge of asbestos hazards, and later studies, did not show Bell's awareness of an extreme risk to this worker.
• Jefferson County v. Farris (2018). Notice under the Tort Claims Act runs from the last incident essential to the claim, which in a latent asbestos disease case is the diagnosis or symptom manifestation. The Local Government Code presentment requirement is not a jurisdictional statutory prerequisite under Gov't Code section 311.034.
• Goodyear Tire & Rubber Company v. Rogers (5th District, 2017). Gross negligence can rest on an employer's awareness that low-level asbestos exposure can cause mesothelioma, without knowledge of the particular dose. Under the Texas exemplary damages cap, pecuniary loss findings count as economic damages only to the extent evidence shows actual monetary loss.
• Darden v. Union Carbide Corporation (14th District, 2010). Following Ross v. Union Carbide (which overruled Perez v. Todd Shipyards), the court rejected the arguments that a pre-death release could not cover a later gross negligence claim, that it was limited to product liability claims, or that it was void as covering work-related injuries.
• Georgia-Pacific Corporation v. Bostic (5th District, 2010). A plaintiff in an asbestos case must prove that the defendant's product was a substantial factor and cause-in-fact of the disease, including frequent, regular and proximate exposure and quantitative evidence that the exposure increased the risk of disease. Expert testimony that each and every exposure to asbestos contributes to mesothelioma does not meet that standard.