Asbestos Trust Claims in Court in Asbestos Cases

Decisions in our library in which the court ruled on asbestos bankruptcy trusts: 123 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.

Pennsylvania

• Nelson v. Airco Welders Supply (2013). Following Betz v. Pneumo Abex, expert testimony that each and every asbestos exposure is a substantial contributing factor to mesothelioma is inadmissible. Plaintiff's counsel also may not suggest a specific dollar value for non-economic damages, and the instructions here did not cure that suggestion.
• Taylor v. Alcatel Lucent USA (In re Asbestos Products Liability Litigation) (2011). A party may object to a request for admission that is vague or calls for a medical opinion, and need not answer until the court rules on the objection. Supplemental expert declarations that add no new substantive opinions may be allowed despite timing objections.
• 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.
• Bugosh v. Allen Refractories Co. (2007). A plaintiff in asbestos litigation can show exposure to a defendant's product by direct evidence or by showing the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked for verification of the plaintiff's Manville Trust claim before trial has not preserved a request to reduce the verdict by Trust payments.
• Bugosh v. Allen Refractories Company (2007). A plaintiff proves product exposure through the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked the Manville Trust for verification under the Trust Distribution Process did not preserve a claim to reduce the verdict by Trust payments.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Baker v. ACandS (2000). Under the Uniform Contribution Among Tort-feasors Act, which applies to strict liability actions, a release that expressly provides for a pro tanto set-off controls. Liability is first apportioned equally among all joint tortfeasors, and then each release's set-off method is applied to its settling party's share.
• Baker v. AC&S, Inc. (1999). A pro tanto release given to a settling tortfeasor in a strict liability action must be enforced according to its terms, so long as the consideration paid does not exceed the plaintiff's total claim. Pennsylvania's joint and several liability and the Uniform Contribution Among Tortfeasors Act are not displaced by equal allocation of liability among strictly liable tortfeasors.
• Sealover v. Carey Canada (1992). Where several asbestos defendants combined to cause a single indivisible harm such as mesothelioma death, their liability is joint and several under Pennsylvania law, and the Manville Trust is treated as a settling defendant with a straight pro rata share deducted before delay damages are calculated.

Rhode Island

• Jones v. 84 Lumber Company (2015). Once a court has decided that another state's law governs, it must take judicial notice of that state's statutes and cases. Rules on damages, fault allocation and seller liability are substantive, so Tennessee law applies to them.
• Podedworny v. American Insulated Wire Corp. (2014). A bankruptcy plan may condition a corporate debtor's discharge under 11 U.S.C. § 1141(d); where the plan deferred discharge until the Hercules Policy was exhausted, the automatic stay stayed in place and the statute of limitations stayed tolled.
• Sweredoski v. Alfa Laval, Inc. (2013). Crane could present evidence of the settled defendants' fault at trial to obtain a judgment reduction, but bankrupt entities reorganized under 11 U.S.C. § 524(g) were not 'joint tortfeasors' under the contribution act and public policy disfavored apportioning fault to them. Trust claim forms were not discoverable because they were not relevant to causation against the sole remaining defendant.

South Carolina

• Edwards v. Scapa Waycross, Inc. (2022). Testimony that cumulative asbestos dose raises disease risk is not an 'each and every exposure' theory, and regular handling of asbestos-containing dryer felts supported a jury finding of substantial-factor causation. A nonsettling defendant gets setoff credit but cannot force reallocation of a plaintiff's settlement proceeds, and trust claims are offers to compromise excluded by Rule 408, SCRE.

Tennessee

• Nye v. Bayer Cropscience, Inc. (2011). A non-manufacturing seller may be sued in strict liability under Tenn. Code Ann. 29-28-106(b) when the manufacturers cannot be served because of bankruptcy stays or channeling injunctions. The learned intermediary doctrine does not apply to an employee's claim over asbestos products bought by his employer, and the employee, not the employer, is the consumer who must be warned.

Texas

• 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.
• 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.

Washington

• Carroll v. Akebono Brake Corporation (1st Division, 2022). A court may strike a complaint as a discovery sanction only if the record clearly shows a willful violation, substantial prejudice to the opponent's trial preparation, and explicit consideration of a lesser sanction. Court rules and style orders cannot impose a duty on a nonlitigant to preserve evidence before a lawsuit begins.
• Brewer v. Fibreboard Corp. (1995). Under RCW 4.22.060, a settlement found reasonable can be used to set the offset against a judgment, but where a structured settlement with a bankrupt-company trust is unlikely ever to be paid in full, the offset is the amount actually received. A failure to give notice of the settlement was cured when the court held a reasonableness hearing on the defendants' motion before final judgment.

Wisconsin

• Carroll v. John Crane, Inc. (2017). Expert opinion that low chrysotile exposure carries little mesothelioma risk is admissible under Rule 702, but an opinion that there is no risk at some exposure level is not. An "every exposure" theory does not show that a product was a substantial contributing factor.
• 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.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.
• 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.