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.

Texas

• Ross v. Union Carbide Corporation (14th District, 2009). A survivors' exemplary-damages claim under Texas Constitution art. XVI, § 26 or Labor Code § 408.001(b) is derivative of the Wrongful Death Act, so a worker's pre-death release of the tortfeasor bars it. An invalid workers' compensation waiver in a broad release can be severed without voiding the rest.
• Exxon Mobil Corporation v. Altimore (14th District, 2008). Exemplary damages require clear and convincing evidence that, viewed objectively from the defendant's standpoint at the time and without hindsight, its conduct posed an extreme degree of risk. General knowledge of asbestos risk to employees was not evidence of knowledge of an extreme risk to employees' family members.
• Alcoa, Inc. v. Behringer (5th District, 2007). A negligence duty depends chiefly on foreseeability judged by what the defendant knew or should have known at the time. In the 1950s, the danger of non-occupational (take-home) asbestos exposure was neither known nor reasonably foreseeable to an employer that used asbestos, so no duty existed.
• Alcoa, Inc. v. Behringer (5th District, 2007). An employer owes no legal duty for take-home asbestos exposure unless the risk was foreseeable at the time; in the 1950s the danger of non-occupational exposure on workers' clothes was not known or reasonably foreseeable to Alcoa.
• Borg-Warner Corporation v. Flores (2007). A plaintiff claiming asbestosis from a defendant's product must show that the product was a substantial factor in causing the disease. Proof of frequency, regularity and proximity is necessary but not sufficient without defendant-specific evidence of the approximate dose of fibers and that the dose was sufficient to cause the disease.
• Exxon Mobil Corporation v. Altimore (14th District, 2007). A defendant owes a duty only if the risk of injury to the plaintiff or those similarly situated was foreseeable. The court held take-home asbestos exposure of an employee's wife was not foreseeable to Exxon until the 1972 OSHA regulations, and case reports were not scientifically reliable proof of foreseeability.
• Exxon Mobil Corporation v. Altimore (14th District, 2006). Under Texas foreseeability principles, an employer owes no duty to an employee's spouse for take-home asbestos exposure before the risk was foreseeable; unreliable case reports did not make the risk foreseeable, and the risk became foreseeable to Exxon only in 1972, when OSHA regulations put it on notice.
• Gilcrease v. Garlock, Inc. (8th District, 2006). A venue determination made before a nonsuit fixes venue for a refiled suit on the same claims against the same party. Family members asserting derivative claims are a single claimant for Chapter 33 settlement credits, Settlement credits under Chapter 33 apply only to actual damages, not to exemplary damages, and the jury's actual damages award still supports the exemplary award even if the credits offset it.
• Jacobs v. Tapscott (2006). Under Texas law a client cannot split a legal malpractice claim into separate negligence, contract and similar claims, though breach of fiduciary duty can stand where the conduct is a deliberate lie or self-dealing. Fee forfeiture for breach of fiduciary duty does not require proof of actual damage.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• Brown & Root, Inc. v. Shelton (12th District, 2003). The Texas contractor's statute of repose does not protect a contractor from exposure that occurred before the asbestos materials were annexed to the realty. Under Chapter 33, an injured person and the family member seeking damages for that injury are one claimant, so the non-settling defendant gets a full credit for all settlements.
• Brown & Root, Inc. v. Moore (6th District, 2002). A corporation can be liable for exemplary damages for malice if it commits, authorizes or ratifies malicious acts, or acts through a vice principal. Circumstantial evidence of knowledge of a serious risk and a failure to warn or protect workers can legally support a malice finding.
• In re National Gypsum Co. (2000). A channeling-order exhaustion requirement is judged by an equitable futility standard. Claimants need not exhaust a trust process that can pay only a few percent of tort-system values, so an unfunded trust cannot resolve their claims and the channeling order ends.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Pittsburgh Corning Corp. v. Walters (13th District, 1999). A nonresident plaintiff or survivor may sue in Texas for a wrongful death or personal injury occurring elsewhere under the Texas statute. A party seeking another state's law must file a timely motion that supplies that law. Land-based asbestos exposure during Navy submarine construction is not governed by maritime law.
• Temple-Inland Forest Products Corp. v. Carter (1999). A person exposed to asbestos who has no present asbestos-related disease cannot recover mental anguish damages for fear of possibly developing such a disease in the future, even if the fear is reasonable and the exposure is assumed to be a physical injury.
• Owens-Corning Fiberglas Corp. v. Malone (1998). A defendant may offer evidence of the profitability of its misconduct and of punitive damages or punitive settlement amounts actually paid for the same conduct to mitigate punitive damages; a trial court may exclude evidence of unpaid awards, pending claims and insurance as confusing or misleading. Aggregate punitive awards violate due process only if grossly excessive in light of punishment and deterrence goals, judged on reprehensibility, profit, financial position and criminal sanctions.
• Carter v. Temple-Inland Forest Products (9th District, 1997). A plaintiff exposed to asbestos may recover mental anguish damages for fear of cancer even if the evidence shows he does not have and probably will not develop cancer, so long as the fear is reasonable; reasonableness is ordinarily a fact question for the jury.
• Owens-Corning Fiberglas Corp. v. Wasiak (3rd District, 1996). Under Alabama law and due process, repetitive punitive awards in asbestos mass-tort litigation are not invalid merely because the defendant was punished before; the defendant must show the aggregate exceeds punishment commensurate with its entire misconduct, which Owens-Corning did not show.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.

Virginia

• Quisenberry v. Huntington Ingalls Incorporated (2018). Under general negligence principles, an employer whose conduct allegedly let asbestos fibers be regularly carried from the workplace to an employee's home owes a duty of ordinary care to household members within that recognizable risk of harm. Whether the employer actually caused the harm is a question of proof, not duty.
• Exxon Mobil Corporation v. Minton (2013). Under the LHWCA's 1972 amendments, a shipowner's duty to intervene turns partly on whether it could rely on the shipyard, so evidence of the shipyard's knowledge and safety programs is relevant. Section 905(b) makes the negligence action against the vessel exclusive, which bars punitive damages.
• Owens-Corning Fiberglas Corp. v. Watson (1992). A manufacturer has a duty to warn only if it knows or has reason to know its product is dangerous. Circumstantial evidence can prove exposure to a particular manufacturer's product. Evidence of conscious concealment of a known hazard can support punitive damages. The attorney-client privilege does not cover a memorandum that reveals a fraud on a court.

Washington

• Casey v. Alcoa Corporation (2020). Under the WIIA's deliberate-intention exception as applied in Birklid and Walston, an employer is not liable outside workers' compensation unless it had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. Awareness of asbestos risks, or of other workers' asbestos-related conditions, does not show that.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington's Lockwood factors, a plaintiff can show product-specific causation by evidence of proximity, duration, handling, fiber release and other sources, and a jury may find that exposure to Bendix brakes was a causative factor in mesothelioma despite other possible exposures.

West Virginia

• State Ex Rel. Allman v. MacQueen (2001). The court held that a trial management plan for mass asbestos litigation under Trial Court Rule 26.01 must include methods for fairly and expeditiously disposing of the cases, and that the Court's supervisory power over the court system allows it to require supplementation of the plan. It also held that constitutional objections to mass trials were premature.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Kappel v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act does not bar claims based on community or environmental asbestos exposure, and a complaint that alleges the specific diagnosis and date of death need not be dismissed for lack of specificity. The nuisance claims were time-barred, as the court had held in the related Kilty and Spatz cases.
• Kilty v. Weyerhaeuser Company (2018). Under Wis. Stat. § 895.047(3)(b), federal agency certification of a product creates a rebuttable presumption that it is not defective, and plaintiffs can rebut it with evidence that the product did not meet its certified specifications. The same evidence also supports a negligence claim.
• Kilty v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act exclusivity provision does not bar claims based on community (non-workplace) asbestos exposure distinct from the employment exposure, and at the pleading stage plaintiffs need only allege that this exposure on its own substantially contributed to the injury. Nuisance claims based on emissions that ended in 1979 are barred by the statute of limitations.
• Carroll v. Abb, Inc. (2017). Under Wisconsin law as applied here, a manufacturer is not liable for asbestos products it did not make or distribute unless it specified asbestos replacement parts, and a plaintiff must offer evidence from which a jury could infer without speculation that the defendant's asbestos products were a substantial factor in the injury.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wis. Stat. § 893.89, a company that specified and erected a boiler is protected from suit brought more than ten years after installation unless it manufactured or produced the allegedly defective material. The statute of repose does not violate the Wisconsin Constitution's right-to-remedy provision.
• Boyer v. Weyerhaeuser Company (2016). Plaintiffs claiming non-occupational asbestos exposure need not show it was the main cause, but they need reliable expert evidence of significant non-occupational exposure to show it was a substantial factor. For mesothelioma, living within 1.25 miles of the plant for at least a year could support that opinion.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Boyer v. Weyerhaeuser Company (2014). Wisconsin's Workers' Compensation Act is the exclusive remedy against an employer for asbestos injury arising from employment, including exposure carried home on clothing. A mere patent licensor owes no negligence duty and is not a seller for strict liability based only on licensing a technology.
• Miller v. American Art Clay Co. Inc. (2014). Under Wisconsin law a plaintiff must show a defendant's product was a substantial factor in causing the injury. Where the evidence fits asbestos-free products as well as the asbestos-containing one, causation is only speculation and summary judgment is proper.