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

• Rollock v. 3M Company (2013). Once a defendant makes a prima facie showing, the plaintiff must show actual exposure to asbestos fibers from that defendant's product; speculative evidence of the manufacturer's identity does not raise a fact issue.
• Tobin v. Aerco Intl. (2013). In asbestos cases the plaintiff must show actual exposure to asbestos fibers from the moving defendant's product, and evidence that the defendant's valves were delivered to a ship, without showing they were in the plaintiff's zone of exposure or contained asbestos, is speculative.
• Vadi v. AO Smith Water Prods. Co. (2013). To defeat summary judgment, plaintiffs need only show facts from which the defendant's liability may be reasonably inferred, with all reasonable inferences drawn in their favor. Testimony identifying the defendant's joint compound as a source of exposure meets that standard.
• Vega v. Georgia-Pacific, LLC (2013). Whether a raw asbestos supplier's warnings to its customer were adequate, and whether the bulk supplier, sophisticated intermediary or knowledgeable user doctrines apply, are fact questions for a jury; conflicting evidence about which supplier's asbestos was in the joint compound also precludes summary judgment.
• Vellucci v. Borg-Warner Corp. (2013). In asbestos cases a plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred. Testimony that may rest partly on hearsay can be considered when it is not the sole basis for the decision, and gaps in the product's service history go to weight, not admissibility.
• Wilson v. 3M Co. (2013). In asbestos cases, once a defendant makes a prima facie showing, the plaintiff must show actual exposure to fibers from the defendant's product. It is enough to show facts from which liability may reasonably be inferred, with inferences resolved in the plaintiff's favor.
• Wilson v. 3M Company (2013). Conflicting testimony about whether the defendant's cable contained asbestos raises a credibility question that a jury must decide, so summary judgment cannot be granted on a motion where the court would have to weigh the testimony.
• Chilarski v. AW Chesterton Co. (2012). Once a defendant makes a prima facie showing, the plaintiff need only show facts from which exposure to asbestos from the defendant's product can reasonably be inferred. Conflicts between the decedent's testimony and the defendant's witness are credibility questions for the jury, and evidence first submitted in reply papers cannot establish a prima facie case.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.
• Lovaglio v. AW Chesterton Co. (2012). Deposition testimony that may be inadmissible at trial against a party can be considered in opposing summary judgment if it is not the sole basis for the ruling, and corroborating evidence can create a triable issue of fact. Whether the defendant could have cross-examined the dying plaintiff in time was itself a material issue.
• McDonald v. AC &S., Inc. (2012). In asbestos cases, a plaintiff opposing summary judgment need only show facts from which exposure to the defendant's product may reasonably be inferred. Internal inconsistencies in a witness's testimony go to weight, not admissibility, and are for the trier of fact.
• Roman v. Air & Liquid Sys. Corp. (2012). Conflicting deposition testimony about whether the plaintiff worked with Taco pumps raises a credibility issue for the jury. Arguments raised for the first time in reply papers cannot establish a movant's prima facie entitlement to summary judgment.
• Romero v. AC & S., Inc. (2012). A plaintiff can reach a jury on product identification by showing facts from which exposure to asbestos from the defendant's product can reasonably be inferred. A valve maker that designed and supplied its products for use with asbestos-containing gaskets, packing and insulation has a duty to warn of asbestos hazards, even if it did not make or specify those components.
• Sadowski v. AO Smith Water Prods. (2012). A plaintiff need only show facts and conditions from which a defendant's liability may reasonably be inferred, and testimony that the defendant's asbestos-containing joint compound was used and created dust in his presence is enough to defeat summary judgment even without a specific site or date.
• Sadowski v. AO Smith Water Products (2012). A defendant seeking summary judgment on product identification must show it could not have made the equipment the plaintiff described. A plaintiff without technical training who names a manufacturer raises a credibility question for the jury.
• Tycz v. Asbeka Industries OF New York, Inc. (2012). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that there is no possibility of stating a claim against the non-diverse defendant. That burden is heavier than the summary judgment standard, and a plaintiff's failure to identify a defendant's product in discovery does not meet it.
• Walker v. Abb, Inc. (2012). Summary judgment on product identification is premature under CPLR 3212(f) where the defendant has not produced relevant discovery, such as sales records and details of a sale of its division, that could bear on whether its products were a source of exposure.
• Finazzo v. AO Smith Water Prods. Co. (2011). A plaintiff must show exposure to asbestos fibers released from the defendant's product and that the exposure was a substantial factor in the injury; testimony that can only speculate about when or where exposure to the defendant's product occurred does not meet that burden.
• Friedman v. AI Friedman, LP (2011). A plaintiff defeats summary judgment on product identification by presenting evidence from which it can reasonably be inferred that she was exposed to asbestos from the defendant's product, such as a description of the product matching the defendant's asbestos-containing product.
• Graham v. AO Smith Water Prods. Co. (2011). Under CPLR 3101(a) and the NYCAL Case Management Order's standard document requests, sales and delivery records that may show whether a defendant supplied asbestos-containing products to a worksite are material and necessary, and a burdensome search does not by itself justify a protective order.
• Penn v. Amchem Products (1st Dept., 2011). Viewed in the light most favorable to the prevailing plaintiffs, evidence that Kerr's name was on the liner boxes, that Kerr supplied such liners to the schools, and that Kerr did not test the liners' safety permitted the jury to find product identification, causation and a failure to warn. Objections to summation and to an allegedly inconsistent verdict that were not raised in time were unpreserved.
• Surre v. Foster Wheeler LLC (2011). Under New York law, a boiler manufacturer has no duty to warn of dangers of a third party's asbestos insulation that it did not make, supply or select, and foreseeability alone does not create such a duty. A duty may arise where the product needs the third-party product to function or the third-party product is specified by contract.
• Carroll v. AO Smith Water Prods. (2010). A defendant moving for summary judgment must show its products could not have contributed to the plaintiff's injury. Inconsistent deposition testimony about which valves were present goes to weight and is for the trier of fact, so an issue of fact on exposure defeats summary judgment.
• Carroll v. AO Smith Water Prods., Co. (2010). A defendant seeking summary judgment must show that its product could not have contributed to the plaintiff's injury, and pointing to weaknesses in the plaintiff's proof is not enough. Testimony that the plaintiff was present while work was done on a defendant's valves is enough to raise a fact issue on exposure.
• Fleming v. Advance Auto Parts, LLC (2010). Identifying a manufacturer's product by circumstantial evidence cannot rest on speculation; the plaintiff must show it is reasonably probable, not merely possible, that the defendant was the source of the offending product.
• Friedman v. AI Friedman, LP (2010). Plaintiffs need not show a precise cause of injury, only facts from which liability may reasonably be inferred, such as being near where the defendant's product was used and being exposed to it. Testimony that conflicts with other evidence on where a product was bought goes to credibility, a question for the trier of fact.
• Hauser v. AW Chesterton Co. (2010). To defeat summary judgment, a plaintiff must show proof that he worked in the vicinity where the defendant's product was used and was exposed to it; evidence that a defendant was on site or ordered asbestos products for a site, without testimony that the plaintiff observed their use, is speculation.
• Kline v. Crane Co. (IN the Matter of New York City Asbestos Litig.) (2010). A plaintiff must show actual exposure to asbestos fibers released from the particular defendant's product; circumstantial evidence can suffice only where there is a time-and-place link to the defendant's product, and speculative inferences from ship-class similarity, approvals, or other workers' testimony do not meet that standard.
• Horn v. Treadwell Corp. (Matter of New York City Asbestos Litig.) (2010). Workers' compensation is the exclusive remedy against an employer for asbestos exposure during employment, but a movant cannot raise new arguments for the first time in reply, and a plaintiff need only show facts from which exposure to the defendant's asbestos product may reasonably be inferred.
• Miranda v. Abex Corp. (2010). A defendant seeking summary judgment on product identification must make a prima facie showing that its product could not have contributed to the plaintiff's injury; a plaintiff's deposition testimony recalling the defendant's brand, with conflicting defendant evidence, raises a triable issue of fact.
• Penn v. Amchem Products (1st Dept., 2010). Viewed in the light most favorable to the plaintiffs, evidence that boxes bore the defendant's name, that it supplied liners to the school, and that visible dust arose with expert testimony on dose was enough for the jury to find product identification, causation and failure to warn.
• Stewart v. AO Smith Water Products (2010). A plaintiff must show actual exposure to fibers from the defendant's own asbestos-containing product; a manufacturer is not liable to warn about other manufacturers' replacement parts used with its product where the connection is too attenuated and speculative.
• Thaut v. AO Smith Water Prods. (2010). Plaintiff's testimony that he was close by when machinists worked on boilers, together with documents showing the defendant's predecessor supplied valves for those boilers, raised a triable issue of fact on exposure to the defendant's products.
• Thaut v. AO Smith Water Prods. (2010). Summary judgment is denied where conflicting evidence raises fact issues about the presence, origin and proximity of the defendant's pumps and related asbestos materials; a plaintiff need only show facts from which the defendant's liability may reasonably be inferred.
• Beltrami v. AO Smith Water Prod. Co. (2009). Summary judgment is denied where the decedent's testimony about the products he used conflicts with the defendant's affidavit and documents, creating fact issues. Common-law indemnification requires proof of no negligence beyond statutory liability, which a fact issue about who supplied the gaskets and packing prevents.
• Convery v. AO Smith Water Products, Inc. (2009). A plaintiff need not show the precise causes of his damages, only facts and conditions from which the defendant's liability may be reasonably inferred; uncertain identification of the insulators' employer goes to weight and does not require dismissal.
• Kofler v. AW Chesteron (2009). A manufacturer seeking summary judgment must show its product could not have contributed to the injury. Conflicting testimony about dates and packaging, and no proof that its asbestos products were no longer sold or used in the marketplace after production stopped, leaves a triable issue of fact.
• Briggs v. General Electric Co. (Nassau, 2007). A summary judgment movant must first make a prima facie showing eliminating material fact issues, and failing that, its motion is denied regardless of the opposing papers. An insulation contractor performing a service is not a manufacturer or seller, so strict liability and warranty claims fail.
• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (1st Dept., 2004). Evidence that would be inadmissible at trial may be considered in opposing summary judgment if it is not the sole basis for the decision. A plaintiff need only show facts from which the defendant's liability may reasonably be inferred, not the precise cause of the injury.
• Root v. Eastern Refractories Co., Inc. (4th Dept., 2004). A defendant that shows it supplied no asbestos-containing product to the job site is met by the plaintiff's showing of a triable issue; the decedent's own testimony that he used asbestos-containing ERCO-Mat blankets at the site is enough to defeat summary judgment.
• Plumb v. AC and S., Inc. (3rd Dept., 2003). A verdict may be set aside where there is no valid line of reasoning and permissible inferences that could lead rational people to the jury's conclusion. Plumb's testimony that GE cable contained asbestos was speculative and legally insufficient to support apportioning fault to GE.
• Hamilton v. Garlock, Inc. (2000). Evidence of exposure to the defendant's products, state-of-the-art notice and reckless concerted conduct supported the verdict. A defendant that offers no proof on allocating fault among joint tortfeasors forfeits any reduction for settling defendants' shares, so a directed verdict on allocation is proper.
• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (1st Dept., 1998). Evidence was sufficient for a jury to link a defendant's asbestos-containing components and products to the worker's injury. A government contractor defense charge was unwarranted without evidence of a conflict between state warning requirements and federal requirements. A defendant that challenges its share of fault must show the equitable shares of the settling defendants.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (1997). A defendant asserting the military contractor defense to a design defect claim must prove every Boyle element, including warnings to the government, and merely raising some elements is not enough. New York does not recognize a child's claim for loss of parental consortium, and filing a proof of claim with the Manville Trust is not a settlement that supports a set-off under General Obligations Law § 15-108.
• Dollas v. WR Grace & Co. (1st Dept., 1996). A court may not take judicial notice of a disputed fact, or reject sworn deposition testimony as not credible, on summary judgment; conflicts between testimony and other evidence go to weight and must be resolved by the trier of fact.
• Reid v. Georgia-Pac. Corp. (1st Dept., 1995). A plaintiff opposing summary judgment need not show the precise cause of his injury, only facts and conditions from which the defendant's liability may reasonably be inferred. Evidence of specific brands in use, interchangeable asbestos products and heavy exposure at the work site raised triable fact questions.
• Zalinka v. Owens-Corning Fiberglass Corp. (3rd Dept., 1995). Where plaintiffs show liability of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability of each settling defendant. Testimony about the plaintiff's inhalation of dust from cutting Kaylo, plus expert opinion on causation, was enough to sustain the verdict.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Kreppein v. Celotex Corp. (1992). Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (1990). A federal court sitting in diversity applied New York law and held that a dismissal with prejudice of a decedent's lifetime personal injury claim for lack of exposure evidence bars his personal representative's later wrongful death claim against the same defendant, because she stands in the decedent's position. Circumstantial exposure evidence and medical testimony were enough to support the jury's verdict.