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

• Scainetti v. BW/IP (Matter of New York City Asbestos Litig.) (2015). A defendant seeking summary judgment on product identification must first make a prima facie showing that its product could not have contributed to the plaintiff's injury. A plaintiff can raise a triable issue through another witness's testimony identifying the defendant's product at the work site.
• Lefrak v. American Biltrite (Matter of New York City Asbestos Litig.) (2015). A defendant moving for summary judgment in an asbestos case must first establish prima facie that its product could not have contributed to the plaintiff's injury; absent that, the motion is denied, and witness credibility and conflicting testimony are for the jury.
• Pendolino v. Air & Liquid Sys. Corp. (2015). In asbestos cases a plaintiff must show actual exposure to asbestos from the defendant's product, which may be done with circumstantial evidence, but the link between the plaintiff and the product cannot rest on conjecture.
• Storey v. AO Smith Water Products Co. (2015). A summary judgment movant must first make a prima facie showing with admissible proof; a conclusory affidavit does not do so, and the plaintiff's own deposition testimony identifying the defendant's asbestos product is enough to raise a triable issue of fact.
• Adler v. 3M Co. (2014). In an asbestos case, a plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred, not conjecture; Navy records placing the defendant's equipment aboard the ship, with no evidence of replacement, raised a triable issue on exposure.
• Armanious v. 3M Co. (2014). A plaintiff must show actual exposure to asbestos fibers released from the defendant's product, but may rely on facts from which liability can reasonably be inferred, not speculation. Inconsistent identification of a product by the plaintiff is a credibility question for trial.
• Bailen v. Air & Liquid Sys. Corp. (2014). A plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred; testimony identifying the defendant's product and describing breathing asbestos dust from it raises a triable issue of fact.
• Baruch v. Baxter Healthcare Corp. (2014). A defendant seeking summary judgment must make a prima facie showing that its product could not have contributed to the plaintiff's injury; an argument that the plaintiff's product-identification testimony is not credible goes to its weight at trial, not to summary judgment.
• Burawa v. Acker Drill Co. (2014). A reasonable inference that the plaintiff was exposed to Hercules engines made in the period for which the defendant is responsible, together with the defendant's failure to rebut the corporate history, creates a triable issue of fact that defeats summary judgment.
• Citron v. AO Smith Water Prods. (2014). To defeat summary judgment, plaintiffs need only present evidence, which may be circumstantial, that supports a reasonable inference that the decedent was exposed to asbestos fibers released from the defendant's product.
• Crews v. Air & Liquid Systems Corporation (2014). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing the injury. A plaintiff who cannot tell which of two similarly named companies supplied the product offers only speculation, and the defendant has no duty to warn about third-party products used with its valves.
• Dorfman v. Air & Liquid Sys. Corp. (2014). Where a plaintiff worked daily on a site's construction and was exposed to debris from various trades, and documents show the defendant's asbestos-containing equipment was installed there at that time, a jury may infer exposure to the defendant's product even without specific product identification.
• Friedman v. AO Smith Wter Prod. Co. (2014). A defendant's vague and conclusory assertions that its product was asbestos-free, contradicted by its own catalogs describing an "Asbestos Fiber Filler," raise a fact question that precludes summary judgment. A plaintiff's inability to recall specific job sites or dates goes to the weight of his testimony, which the court cannot weigh on summary judgment.
• Hammer v. Algoma Hardwoods, Inc. (2014). A plaintiff opposing summary judgment in an asbestos case need only show facts from which the defendant's liability may be reasonably inferred. A defendant that offers no medical or expert evidence has not shown that a brief exposure was too minimal to be a substantial contributing cause.
• Herman v. Abex Corp. (2014). A plaintiff opposing summary judgment in an asbestos case need only show facts and conditions from which exposure to the defendant's product may reasonably be inferred, with evidence viewed in the plaintiff's favor.
• Juni v. AO Smith Water Prods. Co. (2014). On summary judgment in an asbestos case, a plaintiff need only show facts from which exposure to the defendant's product may reasonably be inferred, and a defendant's unsupported affidavit that some of its products lacked asbestos does not establish the absence of a triable issue.
• Kestenbaum v. Durez Corp. (2014). Summary judgment is not available where the evidence leaves a triable question of fact; testimony that some of the defendant's phenolic resins contained asbestos was enough to dispute its claim that its resins were asbestos-free.
• Lamberty v. AO Smith Water Prods. Co. (2014). A plaintiff opposing summary judgment in an asbestos case need only show facts from which exposure to the defendant's product may reasonably be inferred. A co-worker's precise testimony that the defendant's boilers were present creates a triable fact issue despite contrary registry and boiler records.
• Langhorne v. Aerofin Corp. (2014). A personal jurisdiction defense not raised in the first responsive pleading or a pre-answer motion is waived. Prior sworn testimony from related federal litigation is admissible if the party had the same motive and opportunity to cross-examine, and circumstantial evidence can support an inference of exposure to a defendant's product.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (1st Dept., 2014). A defendant seeking summary judgment must unequivocally establish that its product could not have contributed to the plaintiff's injury; a plaintiff's belief that the product was asbestos-free does not defeat the claim where the defendant did make asbestos-containing joint compound at the relevant time.
• Scainetti v. The Fairbanks Co. (Matter of New York City Asbestos Litig.) (2014). Where co-worker testimony shows a defendant's valves were in use at the same sites and times as the plaintiff's asbestos exposure, a reasonable inference arises that the defendant's product was a source of exposure, which precludes summary judgment.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (1st Dept., 2014). A defendant seeking summary judgment must first show prima facie that its product could not have contributed to the plaintiff's asbestos injury, and a conclusory affidavit without specific factual basis does not meet that burden. Arguments raised for the first time on appeal will not be considered.
• Noble v. AO Smith Water Prods. Co. (2014). A defendant moving for summary judgment must make a prima facie showing, and an affidavit that relies on documents not in the record is conclusory and fails that burden. Its unsupported opinions raise credibility issues for a jury.
• Norton v. AO Smith Water Prods. Co. (2014). In asbestos litigation, once the defendant makes a prima facie showing, the plaintiff must show facts from which the defendant's liability may be reasonably inferred. Exposure from insulation applied to boilers could not be attributed to a contractor that built the boilers but was not responsible for the insulation work.
• Proctor v. Alcoa, Inc. (2014). Conflicts or inconsistencies in a plaintiff's testimony about a defendant's products, and a defendant's contrary affidavit, raise credibility issues for the jury and do not defeat the inference of exposure on summary judgment.
• Proctor v. Alcoa, Inc. (2014). On summary judgment the evidence is viewed in the light most favorable to the non-movant; evidence that a defendant's predecessors supplied the taping and floor tile work at the site raises triable issues on successor responsibility for the plaintiff's exposure.
• Proctor v. Alcoa, Inc. (2014). A plaintiff's deposition testimony that he used the defendant's asbestos-containing product and was exposed to its dust raises a fact issue defeating summary judgment. A defendant cannot establish its entitlement to judgment through an expert affidavit first submitted in reply.
• Zimmerman v. AO Smith Water Prods. (2014). A defendant seeking summary judgment must show the absence of any material issue of fact; Rheem's limited and undated catalogs and affidavit did not conclusively show its water heaters could not have contained asbestos that exposed the plaintiff.
• Barawa v. Acker Drill Co. (2013). Plaintiff's testimony of exposure over twenty-plus years to new and old clutches and head gaskets, with documents showing Ford sold asbestos-containing components from suppliers, lets a jury reasonably infer exposure to original Ford parts. An unsupported affidavit first submitted in reply cannot meet the defendant's burden.
• Baruch v. Baxter Healthcare Corp. (2013). A defendant's affidavit that conflicts with the plaintiff's deposition testimony about a product label raises a question of weight and credibility that cannot be decided on summary judgment, so a triable issue of fact on product identification remains.
• Berensmann v. 3M Co. (2013). A plaintiff's belief that a joint compound product did not contain asbestos does not defeat the claim where other evidence indicates the defendant's products contained asbestos during the exposure period; a moving defendant must eliminate any triable issue of fact on exposure.
• Cisler v. AO Smith Water Products Co. (2013). A plaintiff opposing summary judgment must show actual exposure to asbestos from the defendant's product, and product identification by circumstantial evidence cannot be speculative or conjectural.
• Feinstein v. Armstrong Intl., Inc. (2013). Plaintiffs can defeat summary judgment in an asbestos case by showing facts from which the defendant's liability may reasonably be inferred, and a witness's inability to recall product details goes to the weight of the testimony, not its sufficiency.
• Fischer v. Aerco Intl., Inc. (2013). A plaintiff must show actual exposure to asbestos fibers released from the defendant's product; the mere presence of the defendant's product at a worksite, without more, is not enough to infer exposure.
• Frieder v. Long Is. RR (2013). A landowner that controls the premises and its employees can owe a duty of care to a diner worker on its property exposed to asbestos dust carried on its employees' work clothes, and circumstantial evidence of exposure can raise a question of fact defeating summary judgment.
• Friedman v. AO Smith Corp. (2013). A plaintiff must show actual exposure to asbestos from the defendant's product, and a later affidavit that contradicts earlier deposition testimony without explanation creates only a feigned issue of fact insufficient to defeat summary judgment.
• Garbutt v. AO Smith Water Prods. Co. (2013). In an asbestos case, where a worker's identification of a defendant's product conflicts with the defendant's evidence and the worker's technical knowledge is questionable, the dispute is one of credibility that a jury must decide, so summary judgment is improper.
• Griffin v. AP Servs., Inc. (2013). Once a defendant makes a prima facie showing, a plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred; combined testimonial and documentary evidence linking the plaintiff to the defendant's asbestos-containing products can defeat summary judgment.
• Hammer v. Algoma (2013). Summary judgment must be denied where a plaintiff's testimony about exposure to a defendant's asbestos-containing products conflicts with the defendant's unsupported affidavit that the products were asbestos-free, because the weight of that evidence is for the jury.
• Juni v. AO Smith Water Prods. Co. (2013). On summary judgment in an asbestos case, a plaintiff need only show facts from which liability may reasonably be inferred, and questions about the weight of his product-identification testimony go to the trier of fact.
• Kelly v. Airco Welders Supply (2013). In an asbestos case a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. A movant seeking summary judgment must itself prove, with admissible evidence, that its valves' original packing was asbestos-free.
• Liberman v. AO Smith Water Prods. Co. (2013). In asbestos cases, once a defendant makes a prima facie showing, the plaintiff must show actual exposure to asbestos fibers from that defendant's product; a memo about one Square D plant did not support an inference that UCC's material reached the products Mr. Liberman worked with in New York.
• Lindsay v. Air & Liquid Sys. Corp. (2013). In asbestos cases, a plaintiff opposing summary judgment need only show facts and conditions from which the defendant's liability may be reasonably inferred, resolving all reasonable inferences in plaintiff's favor. Testimony of regular work with a defendant's products over a career, without a specific year or location, can suffice.
• Lindsay v. Air & Liquid Sys. Corp. (2013). To defeat summary judgment in asbestos litigation, a plaintiff need only show facts from which the defendant's liability may be reasonably inferred. Deposition testimony that he disturbed insulation on the defendant's boiler raises a fact issue, and credibility is for the trier of fact.
• Logan v. AP Moller-Maersk, Inc. (2013). In New York asbestos cases, a defendant seeking summary judgment must first unequivocally show its product could not have contributed to the plaintiff's injury; failing that, the motion is denied regardless of the opposition, and the court need not reach choice of law.
• Logan v. AP Moller-Maersk, Inc. (2013). In asbestos cases a plaintiff may defeat summary judgment by showing facts from which exposure to the defendant's product can reasonably be inferred. Flawed or unrepresentative test samples, conflicting evidence on whether the supplier's asbestos was in the joint compound, and open questions about the adequacy of warnings leave triable issues of fact.
• Lowe v. Aerco Intl., Inc. (2013). A plaintiff need only show facts and conditions from which a defendant's liability may be reasonably inferred, so a co-worker's testimony that Crane valves were among those worked on raised a fact issue. A valve maker that designed and supplied its valves for use with asbestos-containing insulation, gaskets and packing has a duty to warn of asbestos hazards.
• Macek v. CBS Corporation (2013). Conflicting testimony about whether the joint compound contained the defendant's Calidria asbestos, and factual questions about the adequacy of its warnings to its direct customer, prevented summary judgment. The bulk supplier, sophisticated intermediary and knowledgeable user doctrines did not relieve the supplier of liability as a matter of law on this record.
• McCloskey v. AO Smith Water Prods. Co. (2013). A plaintiff's testimony that he worked with a defendant's gaskets and believed them to contain asbestos raises a fact question on exposure, and the weight of that testimony is for the trier of fact. A defendant's speculative estimate that most of its gaskets were asbestos-free does not establish entitlement to summary judgment.
• McDonald v. CBS Corp. (2013). A manufacturer seeking summary judgment cannot rely on a conclusory, unsupported affidavit that asbestos-containing replacement pads were not required for its presses, particularly where catalogs show it advertised and supplied asbestos pads, and summary judgment is not granted where a triable issue of fact exists.