Product Identification in Asbestos Cases

Decisions in our library in which the court ruled on product identification: 1,060 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.

New York

• Corcione v. Amchem Prods., Inc. (2020). A corporation that buys another's assets is not liable for the seller's torts unless an exception applies (assumption of liability, merger, mere continuation, or fraud). Product exposure testimony that is guesswork about the brand and about asbestos content does not raise a triable issue.
• Fischer v. American Biltrite, Inc. (1st Dept., 2020). A defendant moving for summary judgment in an asbestos case must first show unequivocally that its product could not have contributed to the decedent's injury; pointing to gaps in the plaintiff's proof does not meet that burden.
• Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation) (Erie, 2020). Defendants moving for summary judgment in an asbestos case must offer admissible evidence that their products could not have contributed to the injury; pointing to gaps in plaintiff's proof is not enough. Interrogatory answers sworn under oath but made on information and belief are acceptable, especially where the injured person is deceased.
• Vincent v. Baltimore Aircoil Co. (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's illness; a conclusory affidavit and pointing to gaps in plaintiff's proof do not meet that burden, and conflicting evidence raises credibility issues for trial.
• Luca v. Whittaker, Clark and Daniels (In re New York City Asbestos Litigation) (2020). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof; it must show its product could not have contributed to the illness. Conflicting expert reports on general and specific causation raise fact issues that cannot be resolved on motion papers.
• Eckrich v. ECR Int'l (In re New York City Asbestos Litigation) (2020). In New York City asbestos litigation, a plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred, and summary judgment is denied where plaintiff has presented sufficient evidence, not all of it hearsay, to warrant a trial.
• Peterson v. Vanderbilt Mineral (In re New York City Asbestos Litigation) (2020). A court may grant renewal in the interest of justice to allow expert reports in proper form where the failure to submit them earlier was inadvertent and the other side shows no prejudice. Conflicting expert reports on general and specific causation raise fact issues that bar summary judgment, and a venue change motion served long after the answer is untimely.
• Mauro v. John E. Potente & Sons (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing through admissible evidence that its product did not contribute to the illness, and cannot do so merely by pointing to gaps in the plaintiff's proof or by relying on an attorney's affirmation.
• Mauro v. Kennedy Electrical Supply, Corp. (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the injury, and a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. Deposition testimony taken without notice to a later-added defendant is inadmissible hearsay against it, but other evidence can still raise a fact issue.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness, and it cannot do so with a conclusory affidavit, an unsworn expert report, or by pointing to gaps in the plaintiff's proof.
• Rivera v. Meriden Molded Plastic (In re New York City Asbestos Litigation) (2020). A defendant in an asbestos case cannot win summary judgment by pointing to gaps in the plaintiff's proof; it must first unequivocally show its product could not have contributed to the plaintiff's disease. Evidence and arguments raised for the first time in reply papers are not properly considered.
• Jackson v. Henry Co. (In re New York City Asbestos Litigation) (2020). A plaintiff opposing summary judgment in New York City asbestos litigation need only show facts and conditions from which the defendant's liability may be reasonably inferred; conflicting testimony on product exposure raises credibility issues not resolved on papers.
• Rothlein v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough.
• Salzano v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (2020). A witness's account of a co-worker's contemporaneous statement naming the joint compound brand can qualify as a present sense impression if corroborated, such as by the manufacturer's prior interrogatory answers, which raises a fact issue on product identification.
• Germain v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (2020). A supplier seeking summary judgment on product identification must first show its product could not have contributed to the plaintiff's illness. Plaintiffs need only show facts from which liability can be reasonably inferred, and conflicting testimony about exposure raises credibility issues for a jury.
• Rivera v. General Electric Co. (In re New York City Asbestos Litigation) (2020). Workers' compensation exclusivity bars only injuries arising from employment with the defendant. Where plaintiffs allege exposure to GE's products during earlier employment with other employers, fact issues preclude summary judgment, and the punitive damages claim is left for the trial judge after all the evidence.
• Richards v. American Biltrite (Matter of Eighth Jud. Dis. Asbestos) (Erie, 2020). In asbestos cases a defendant seeking summary judgment must first unequivocally show its product could not have contributed to the plaintiff's disease. Even if it did, competing expert affidavits on general and specific causation raise fact issues for trial.
• Matter of New York Asbestos Litig. (1st Dept., 2020). A defendant seeking summary judgment must first show that the decedent could not have been exposed to its products or their asbestos. Apparent inconsistencies in a witness's testimony raise credibility issues that cannot be resolved on summary judgment.
• Stiglitz v. Homasote Co. (Matter of New York City Asbestos Litigation) (2020). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof, or relying on conclusory expert and corporate affidavits contradicted by its own interrogatory answers, does not meet that burden.
• Nemeth v. Brenntag N. Am. (1st Dept., 2020). Under Parker v Mobil Oil Corp., a toxic tort plaintiff need not precisely quantify exposure, and an estimate based on the plaintiff's own use history plus testing of the product's fiber release can support specific causation. Where the trial court effectively apportioned 0% to settling defendants who were left off the verdict sheet, General Obligations Law § 15-108 offsets are computed by the aggregate method.
• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Phelps v. CBS Corporation (2020). An expert may give specific-causation and exposure opinions in response to hypothetical questions based on facts established elsewhere at trial, and challenges to the factual assumptions go to weight rather than admissibility. Testimony from the worker, a naval expert and an industrial hygienist was enough to create a genuine factual dispute on whether exposure from Crane Co. valves was a substantial factor in causing mesothelioma.
• Sargent v. Paccar, Inc. (Albany, 2020). A defendant seeking summary judgment in an asbestos case must first show its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof is not enough, and the plaintiff's burden arises only after that showing.
• Schrank v. Amchem Prods., Inc. (2020). In a toxic tort asbestos case, plaintiffs' expert opinions must show exposure to sufficient levels of asbestos from the particular defendant's product to cause the disease. Opinions that give no basis for estimating exposure from that defendant's products do not raise a triable issue on specific causation.
• Allen v. Air & Liquid Sys. Corp. (2019). A plaintiff opposing summary judgment in an asbestos case need only show facts from which the defendant's liability may be reasonably inferred, and a failure to identify the exact pump or its location does not defeat the claim. A motion supported only by an attorney's affirmation, without the deposition transcript annexed, also fails to show entitlement to judgment.
• Billok v. Union Carbide Corp. (3rd Dept., 2019). Under CPLR 3117, a deposition taken in another action may not be used against a party who was not present or represented at it, and a witness who never testified in this action cannot be impeached with a different deposition. Admitting the 2007 testimony on the central issue was not harmless error.
• Lattanzio v. Rockwell Automation (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product did not contribute to the plaintiff's illness, and pointing to gaps in plaintiff's proof is not enough. Conflicting expert reports on general and specific causation raise fact issues that cannot be resolved on motion papers.
• Rothlein v. American Int'l Indus. (In re New York City Asbestos Litigation) (2019). A company that buys another's assets is not liable for the seller's torts unless one of four exceptions applies (assumption, merger, mere continuation, fraud). A defendant cannot win summary judgment on causation by pointing to gaps in plaintiff's proof; it must show its product could not have contributed to the illness.
• Germain v. American Int'l Indus. (In re New York City Asbestos Litigation) (2019). Under New York law, a corporation that buys another's assets is not liable for the seller's torts unless it assumed the liability, merged with the seller, was a mere continuation of it, or took part in a fraudulent transaction; none of these exceptions applied here.
• Rosen v. Fisher Scientific Co. (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof and must make a prima facie showing that its product did not contribute to the disease; conflicting expert evidence on general and specific causation under Parker and Cornell raises fact issues that cannot be resolved on papers.
• Proctor v. Burnham (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony raises credibility issues that cannot be resolved on papers.
• Carlstrand v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof, and conflicting expert reports on whether chrysotile in vinyl asbestos floor tile can cause mesothelioma raise credibility and fact issues that cannot be resolved on papers.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof, and conflicting expert opinions on general and specific causation raise credibility issues of fact that cannot be resolved on motion papers.
• Carlstrand v. Domco Prods. of Texas (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment on causation by pointing to gaps in plaintiff's proof; it must first make a prima facie showing that its product did not contribute to the plaintiff's illness. Plaintiffs' late notice that they would pursue punitive damages, contrary to the case management order, supported dismissing that claim.
• Gladyszewski v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the injury; conflicting evidence about whether it supplied talc used in the joint compound raises a triable issue of fact.
• Serrano v. Superior Boiler Works (In re New York City Asbestos Litigation) (2019). A plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred; conflicting testimony by the defendant's corporate representative about its records raises credibility and fact issues that bar summary judgment.
• Surace v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof. Conflicting expert reports on general and specific causation, applying Parker and Cornell, raise fact issues that cannot be resolved on the papers.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its product did not contribute to the disease, and conflicting expert opinions on general and specific causation raise fact issues. A consortium claim fails where the exposure preceded the marriage.
• Hernandez v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product could not have contributed to the illness, and conflicting expert evidence on general and specific causation raises fact issues.
• Tavernite v. Taco (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury, and conflicting testimonial evidence raising credibility issues cannot be resolved on motion papers.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough. New York does not recognize an independent cause of action for civil conspiracy to commit a tort.
• Alleyne v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (2019). A talc supplier cannot win summary judgment by pointing to gaps in the plaintiff's proof. It must first show its talc could not have contributed to the illness, and conflicting expert and testimony evidence on contamination raises fact issues for trial.
• Alleyne v. Chanel (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing, through admissible evidence, that its product could not have contributed to the plaintiff's illness; pointing to gaps in plaintiff's proof, or relying on an attorney's affirmation without expert or corporate-representative proof, is not enough.
• Srica v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert reports on causation raise fact issues for trial.
• Chalco v. Burnham (In re New York City Asbestos Litigation) (2019). A defendant in an asbestos case must show its product could not have contributed to the plaintiff's injury, and plaintiffs must then show actual exposure to asbestos from that product; the mere presence of the defendant's boilers is not enough.
• Goodheart v. Kohler Co. (In re New York City Asbestos Litigation) (2019). On an asbestos summary judgment motion, a plaintiff need only show facts from which the defendant's liability may be reasonably inferred, and conflicting testimony on where exposure occurred raises credibility issues for the trier of fact. An attorney's affirmation may be used to submit admissible evidence such as deposition testimony.
• Mercatante v. PACCAR (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof; it must show its product could not have contributed to the disease, and conflicting evidence on exposure raises fact issues. A consortium claim fails where the injury-causing exposure occurred before the marriage.
• Jackson v. CertainTeed Corp. (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; an unsupported affidavit that conflicts with the plaintiff's testimony raises credibility issues that cannot be resolved on a summary judgment motion.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof, and conflicting expert evidence on general and specific causation raises fact issues for trial. New York does not recognize an independent cause of action for civil conspiracy.
• Linsky v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert affidavits on causation raise credibility issues of fact that cannot be resolved on papers.