Successor Liability in Asbestos Cases

Decisions in our library in which the court ruled on successor liability: 210 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.

Ohio

• Bowens v. Sager Corp. (In re All Cases Against Sager Corp.) (2012). Whether a dissolved foreign corporation can be sued is determined by the law of its state of incorporation, and Full Faith and Credit requires Ohio to honor that law. A receiver therefore cannot be appointed to accept service and marshal unexhausted liability insurance for a corporation that can no longer be sued.
• Connell v. Goodyear Tire & Rubber Co. (8th Appellate District, 2010). A buyer of a company's assets that did not assume liability for claims by former employees is not the successor to that liability. An employer intentional tort claim requires proof that the employer actually knew harm to the employee was substantially certain. A liability-only summary judgment is not a final appealable order.
• State EX rel. Pilkington North America, Inc. v. Indus. Comm. (2008). The last-injurious-exposure principle assigns workers' compensation responsibility for a long-latency occupational disease to the employer that last exposed the worker to the hazard. It is not limited to the context described in Erieview, and the court declined to adopt a first-injurious-exposure rule.
• State EX rel. Pilkington N. AM. v. Indus. Comm. (10th Appellate District, 2007). The last-injurious-exposure rule applies only to decide which employer a claim is allowed against when several employers exposed the worker, and it cannot be used to allocate risk liability between one employer's self-insured and state-fund periods after the claim is already allowed.

Oregon

• Dahlke v. Cascade Acoustics, Inc. (2007). A claim against a dissolved corporation exists only as the statute provides, and the trust fund doctrine gives a remedy only to an existing creditor with an otherwise cognizable claim. A corporation that bought only some of another's assets is not its successor under Oregon law, and the court declined to expand successor liability for product cases.
• Schmoll v. ACandS, Inc. (1988). Under Oregon law, a corporation that acquires another's assets may be liable for the seller's obligations if the transaction was designed to escape liability, and courts look to the substance of a transaction rather than its form.

Other federal courts

• 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.

Pennsylvania

• Constantine v. Lenox Instrument Company (2024). A successor judge violates the coordinate jurisdiction rule by granting, as a motion in limine, what is in substance a second summary judgment motion on the same issue and evidence, absent a substantial change in law, facts or evidence. Procedural posture alone does not make the rule inapplicable.
• Fisher v. American International Industries (2024). A plaintiff must first show that the defendant's product actually contained asbestos before the frequency, regularity and proximity test applies. In a strict liability asbestos case, liability under the Fair Share Act is apportioned per capita among the liable defendants, and a defendant removed from the verdict cannot have its share added to a successor.
• Smith v. AO Smith Corp. (2022). A purchaser of a corporation's assets is not liable for its debts unless an exception applies; the record here did not meet the de facto merger or mere continuation tests, and a prior case's summary judgment ruling on a different factual record is not binding precedent. Hearsay deposition testimony from an earlier case is inadmissible under the former-testimony exception where the party lacked a similar motive to examine the witness.
• Kraus v. Alcatel-Lucent (2019). A Rule 26(a)(1) disclosure may describe documents by category and location rather than produce them, so an informal letter request is not grounds to compel. A motion to compel discovery cannot be used to decide liability or interpret contracts, and Rule 37(b) relief requires a prior order violation.
• Walker v. Viad Corp. (2019). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury, and the bare-metal defense is a foreseeability standard rather than a bright-line rule. A summary judgment movant may not raise a new argument and evidence for the first time in a reply brief.
• Gilbert v. Advance Auto Parts (2018). In an asbestos case a plaintiff must produce evidence that exposure to the specific defendant's product was frequent, regular and proximate; general testimony that a parts store or vehicle make was used at the workplace, without evidence tying the decedent to that product, is too speculative to survive summary judgment.
• Gorton v. Air & Liquid Systems Corp. (2018). A foreign corporation registered in Pennsylvania consents to general personal jurisdiction under 42 Pa. C.S. § 5301 for acts or omissions occurring while it was registered after that statute took effect, and Bane remained good law after Daimler. A federal court applies Iqbal/Twombly pleading standards to a removed case, and conclusory asbestos allegations fail them.
• Herman v. Ametek (In re Asbestos Products Liability Litigation (NO. VI)) (2017). On a remand motion after removal for fraudulent joinder, defendants must show there is no reasonable basis for the successor liability claim; if there is a possibility a state court could find successor liability under the de facto merger or mere continuation factors, remand is required.
• Wagner v. Standard Steel, Lcc (2017). A bankruptcy court order approving a Section 363(f) asset sale free and clear of all interests and claims bars later successor-liability tort claims against the asset purchaser, even for claims that had not yet arisen at the time of sale. The Frenville line of cases on discharge of claims does not apply to an asset purchase sale.
• Ney v. Owens-Illinois (In re Asbestos Products Liability Litigation) (2016). Removal more than one year after commencement is allowed where the plaintiff acted in bad faith to prevent removal; joining a non-diverse defendant with no reasonable basis in fact or law, such as one shielded by a binding successor-liability statute, supports that finding.
• Markovsky v. Crown Cork & Seal Co. (2014). Section 1929.1, which caps a Pennsylvania corporation's successor asbestos liability at the fair market value of the predecessor's assets at merger, is not a prohibited special law, was validly enacted under Article III, Sections 1 and 3, and passes rational-basis equal protection review.
• Smith v. Bmw OF North America LLC (2014). A company is liable as an apparent manufacturer under Restatement (Second) of Torts § 400 only if it put the product out as its own, which turns on how users would see it and on the company's control. Piercing the corporate veil requires domination beyond an ordinary parent-subsidiary relationship, and exposure to a defendant's product must be more than de minimis.
• In re Pittsburgh Corning Corporation (2011). A § 524(g) channeling injunction may protect non-debtor affiliates only for claims derivative of the debtor, and the plan must define its scope clearly. Insurance neutrality language must follow Combustion Engineering without ambiguous qualifications.
• Faddish v. Warren Pumps, LLC (2010). Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.
• McGUFFIE v. Mead Corp. (2010). Under Alabama law, a shareholder or parent corporation is not liable for its subsidiary's acts absent alter-ego control or proof that it assumed a duty of workplace safety, and general safety oversight and correspondence do not show such an assumption.
• Shamir v. Agilent Technologies, Inc. (2010). Under New Jersey law's economic reality approach, an employee's tort claim is barred by workers' compensation exclusivity when, through a merger, the employer is the same corporate entity as the manufacturer of the injury-causing products; the dual capacity doctrine does not apply.
• Burger v. Owens-Illinois, Inc. (2009). A plaintiff opposing summary judgment in an asbestos case must produce evidence that he inhaled asbestos fibers from the particular defendant's product, and the presence of asbestos in the workplace is not enough. A party may supplement the record with an affidavit, but the trial court may disregard it if it is not wholly credible. A plaintiff who lacks standing cannot challenge the constitutionality of the statute limiting Crown Cork's successor liability.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• Johnson v. American Standard (2009). A party challenging a statute must show it was harmed by the specific constitutional concern it raises, and being hurt by the statute as a whole is not enough. The plaintiffs therefore lacked standing to bring dormant Commerce Clause, equal protection and enactment-procedure challenges to the cap on successor asbestos liability in 15 Pa.C.S.A. § 1929.1.
• Vanaman v. Dap, Inc. (2009). Plaintiffs who were not directly affected by the statute lacked standing to challenge the constitutionality of the Crown Cork successor-liability statute. Under the frequency, regularity and proximity test, only minimal exposure to a defendant's product does not create a fact issue on substantial-factor causation.
• 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

• Lowe v. 3M Company (2024). In asbestos cases Rhode Island applies a flexible 'frequency, regularity, proximity' test for product identification and exposure, and a decedent's own testimony together with circumstantial evidence such as supplier receipts can create a fact question on whether the defendant supplied the product.
• Soares v. Avon Products, Inc. (2024). Rule 25(c) substitution exists so that litigation is not defeated by a transfer away from the original defendant; it does not let a defendant extricate itself by insisting another party is more properly sued, and plaintiffs are masters of their complaint.
• Cone v. Agco Corp. (2011). A company that buys another's assets may be liable as a mere continuation of the seller, a highly fact-dependent question that precluded summary judgment here. Whether a product contained asbestos, and proximate cause, are ordinarily jury questions.

Tennessee

• Denton v. Southern Ry. Co. (Eastern Section, 1993). Under FELA, the employee's causation burden is slight and other causes do not reduce recovery against a negligent employer, and a plaintiff with asbestosis may present evidence of reasonable fear of cancer and future cancer-monitoring costs, with federal law governing the measure of damages.

Texas

• Petrie v. Novelis Corporation (2021). Under California law, a plaintiff need not show a quantified, defendant-specific dose that doubles the risk of mesothelioma, so the defendant had not met its summary judgment burden on causation. Claims the plaintiffs did not defend in response to the motion were recommended for dismissal.
• Cooper Industries, LLC v. Precision Castparts Corp. (2016). Under New York law, the contract phrases 'disposed of on' and 'discharged into the environment' are environmental terms of art that cover external releases, not asbestos in internal workplace air, so asbestos workplace-injury liabilities fell to the buyer, not the seller.
• Robinson v. Crown Cork & Seal Co., Inc. (2010). A statute is unconstitutionally retroactive under article I, section 16 of the Texas Constitution depending on three factors: the strength of the public interest the Legislature's findings show, the nature of the prior right impaired, and the extent of the impairment. A compelling public interest is needed to overcome the heavy presumption against retroactive laws.
• Union Carbide Corporation v. Smith (1st District, 2009). A premises owner under Tex. Civ. Prac. & Rem. Code ch. 95 is liable only if it exercised or retained control over the manner of the contractor employee's work; supplying specifications and materials is not enough. The workers' compensation exclusive remedy bars claims against an employer for pre-merger exposure as the predecessor's employee, and the dual-persona doctrine does not avoid it.
• Satterfield v. Crown Cork & Seal Co., Inc. (3rd District, 2008). A common law cause of action that has accrued and is pending is a vested right, and a statute that retroactively eliminates it without a grace period violates the Texas Constitution's ban on retroactive laws (art. I, § 16), and the police power does not override that ban.
• Robinson v. Crown Cork & Seal Co., Inc. (2006). A retroactive statute limiting a successor corporation's asbestos liability is not unconstitutionally retroactive under the Texas Constitution if it is a valid exercise of the Legislature's police power. Such a statute is also not an unconstitutional special law if there is a reasonable basis for its classification.
• 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.
• 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.
• Hargrave v. Fibreboard Corp. (1983). A foreign parent is not subject to long-arm jurisdiction, or alter ego liability, for its subsidiary's acts merely because it owns all the stock and sets general policy while corporate separateness is observed. A party that does not raise fact issues on its pleaded theories in opposing summary judgment abandons them.

Utah

• Felix v. Novelis Corp. (2019). Placing a product in the stream of commerce, even with the maker's name and promotional text on the box, does not establish specific jurisdiction without an additional act purposefully targeting the forum state.

Virginia

• Parker v. Hunting Point Apartments, LLC (2015). A complaint must plead facts, not labels and conclusions, that make liability plausible. A tenant's asbestos injury claim fails where it does not say when, where, how or to what extent he was exposed, or what the defendants did, and does not allege a diagnosis of an asbestos-related injury.

Washington

• Leren v. Kaiser Gypsum Company, Inc. (1st Division, 2019). The product line doctrine of successor liability can apply to a distributor of raw asbestos, not only to manufacturers, where the successor acquired the distributor's assets and goodwill and held itself out as its continuation. The dissolved-corporation limitations statute (RCW 23B.14.340) does not bar such a successor liability claim.
• Clayton v. Air & Liquid Systems Corporation (2018). Under Washington law (RCW 23B.14.340), a claim against a dissolved corporation is barred if suit is filed more than three years after dissolution, and equitable remedies, tolling for known claimants, or receivership did not allow a claim against the dissolved corporation itself.
• Rublee v. Carrier Corporation (1st Division, 2017). Under Restatement (Second) of Torts § 400, assumed to be adopted in Washington, a defendant is liable as an apparent manufacturer only if the evidence satisfies a reliance or enterprise test. Under the objective reliance test, a reasonable purchaser in the position of the actual (industrial) purchaser is the relevant viewpoint.
• Rublee v. Carrier Corp. (1st Division, 2016). Under Restatement (Second) of Torts § 400, apparent manufacturer liability was assessed from the viewpoint of a reasonable purchaser in the position of the actual purchaser, and the evidence failed under the objective reliance, actual reliance and enterprise liability tests.
• McCROSSIN v. Imo Industries, Inc. (2015). Summary judgment fails where plaintiff offers testimony and expert opinion creating a genuine dispute whether the defendant's asbestos materials were on the ship and were a substantial factor in causing mesothelioma, under either state or maritime law. A defendant's superseding-cause and derivative sovereign immunity defenses also fail at this stage where factual disputes remain.
• Sprague v. Pfizer, Inc. (2015). Applying Washington law as it predicted, Restatement (Second) of Torts § 400 applies only to defendants in the chain of distribution who "put out" the product; a parent-subsidiary relationship and shared logos alone do not make the parent an apparent manufacturer.
• Lefevre v. CBS Corporation (2013). Under Washington's product line exception, a purchaser of a product line does not take on the seller's product liabilities when the seller continues to exist as a going concern. Mundet's pre-1964 liabilities therefore stayed with Mundet and passed to Crown Cork through the 1966 merger.