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

• Weinberg v. Johns-Manville Prods. Corp. (1st Dept., 1979). An officer's affidavit based on a records search can make a prima facie showing that a defendant did not make the product during the relevant period. Where no one offers any evidence against it, no triable issue exists and summary judgment may be granted.

North Carolina

• Pike v. Dempster Industries, Inc. (2024). Under North Carolina law, an asbestos plaintiff must show exposure to the defendant's product with frequency, regularity and proximity (the Lohrmann test), which also applies in mesothelioma cases; general expert evidence that every exposure contributes does not satisfy it. Without compensatory liability, punitive damages fail.
• Foushee v. RT Vanderbilt Holding Company, Inc. (2023). Under North Carolina law, a plaintiff must show substantial-factor causation through the Lohrmann frequency, regularity and proximity test, meaning evidence of exposure to a specific product on a regular basis over an extended period in proximity to where the person worked.
• Bantin v. Air & Liquid Systems Corporation (2022). Under maritime law, a plaintiff must show exposure to the defendant's product on a regular basis, over time and in proximity, so that the product was a substantial factor in causing the injury. Evidence that the defendant's valves were on the ship decades earlier, and that replacement parts were sold to a shipyard after the plaintiff left, is speculative.
• Barkley v. 4520 Corp., Inc. (2022). Under North Carolina law, a plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is responsible. Prior depositions from cases in which the defendant was not present cannot be used against it, and an affidavit lacking personal knowledge or contradicting earlier deposition testimony may be disregarded.
• Walls v. Ford Motor Company (2022). Under North Carolina law, an asbestos plaintiff can show causation with direct or circumstantial evidence of regular exposure to a defendant's product over an extended period, without expert testimony specific to that defendant. Punitive damages require clear and convincing evidence that corporate managers actually understood the specific risk.
• Brock v. Air & Liquid Systems Corporation (2021). Under North Carolina law, a plaintiff with mesothelioma must still show exposure to a specific defendant's asbestos product frequently, regularly and in close proximity to where he worked (the Lohrmann test); presence of a defendant's product or business at the workplace is not enough.
• Connor v. Covil Corporation (2021). Under North Carolina law, a plaintiff must show frequent, regular exposure to the defendant's specific asbestos product in close proximity, and speculation does not meet that test. Where another source caused far greater exposure, evidence of the defendant's contribution that shows only a mere possibility of causation is insufficient.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to a specific defendant's asbestos product (Lohrmann test), and a contractor owes no duty to the spouse of a non-employee for take-home exposure absent a special relationship involving control.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is legally responsible (the Lohrmann test). Contracts and passing hearsay mentions of a contractor did not supply that evidence.
• Settlemyer v. Borg-Warner Morse Tec, LLC (2021). Under North Carolina law, a plaintiff must show exposure to the defendant's own asbestos-containing product with frequency, regularity and proximity (Lohrmann). A truck or trailer assembler is not liable for third parties' replacement parts, and North Carolina has no exception for parts the assembler specified or recommended.
• Vinson v. Armstrong International, Inc. (2021). In a North Carolina asbestos case, including one for mesothelioma, the plaintiff must show actual exposure to the defendant's asbestos-containing product with frequency, regularity and proximity (the Lohrmann test). Presence of the product at a large workplace is not enough.
• Walls v. Ford Motor Company (2021). In an asbestos case under North Carolina law, a plaintiff must show actual exposure to the defendant's product that was a substantial factor in causing the injury, which requires more than casual or minimal contact. Punitive damages require clear and convincing evidence of fraud, malice, or willful or wanton conduct.
• Whitehead v. Air & Liquid Systems Corporation (2020). Under North Carolina law, an asbestos plaintiff must show exposure to a specific defendant's product on a regular basis over an extended period in proximity to where the plaintiff worked (the Lohrmann frequency, regularity and proximity test). The court applied this test to mesothelioma cases and rejected a modified, lower standard.
• Woolard v. Carrier Corporation (2020). Under North Carolina law, an asbestos plaintiff must show actual exposure to the defendant's own asbestos-containing product, on a regular basis over an extended period and near where he worked; the court applied this same test to mesothelioma. A manufacturer was not liable for third-party asbestos parts used with its equipment absent evidence that such use was intended or foreseeable.
• Finch v. Covil Corporation (2019). A verdict for the plaintiff stands where the evidence permitted a jury to find that the defendant supplied asbestos insulation, that the worker was exposed to it, and that no warning was given. Under North Carolina law, a wrongful death verdict is excessive only if the record shows passion, prejudice or disregard of the law, not merely because it is large.
• Smith v. 3M Company (2019). Under North Carolina law, a premises owner is liable only if it controlled the place and the work, and an asbestos plaintiff must show exposure to a specific product with frequency, regularity and proximity; vague testimony that insulation dust was inhaled does not suffice.
• Finch v. BASF Catalysts LLC (2018). Under North Carolina law as applied through the Lohrmann frequency, regularity and proximity test, a plaintiff must show regular exposure to asbestos fibers from the defendant's specific product. The mere presence of encapsulated or static asbestos in a product is not enough to support an inference of causation.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Finch v. BASF Catalysts LLC (2018). A party that fails to timely disclose an expert report and evidence under Rule 26(a) cannot use it under Rule 37(c)(1) unless the failure was substantially justified or harmless. An adverse inference for spoliation requires a duty to preserve, destruction of relevant evidence, and willful destruction.
• Lineberger v. CBS Corporation (2017). Rule 8 does not require a plaintiff to name the exact asbestos product a defendant made or where and when exposure occurred. Alleging the plaintiff's jobs, dates, work locations, a list of asbestos products and the defendant's role in making or distributing them is enough to state a claim.
• Queen v. CBS Corporation (2017). Under Fourth Circuit and North Carolina law, a plaintiff must show exposure to the defendant's specific product regularly over an extended time near where the plaintiff worked; with no evidence of exposure, the product cannot be a substantial factor in causing the disease.
• Harris v. Ajax Boiler, Inc. (2014). Under North Carolina products liability law, a boiler maker is not liable where the plaintiff cannot show the boiler left the factory with asbestos cement or that the asbestos mud he removed was the maker's. Nor is the maker liable for an asbestos cement the worker applied that was not part of the boiler when made, since liability rests with that product's manufacturer.
• Logan v. Air Products and Chemicals, Inc. (2014). Under North Carolina law (Wilder), a plaintiff must first prove actual exposure to the defendant's product, and the Lohrmann frequency, regularity and proximity test cannot be relaxed so as to dispense with that proof, even in a mesothelioma case.
• Logan v. Air Products and Chemicals, Inc. (2014). Under North Carolina law a plaintiff must show actual exposure to the defendant's product, and that rule is not relaxed for mesothelioma. A failure-to-warn claim about third-party replacement parts needs evidence that the manufacturer knew or should have known such parts would be used.
• Logan v. Air Products and Chemicals, Inc. (2014). A plaintiff meets the Lohrmann frequency, regularity and proximity test with evidence of repeated work on or near the defendant's asbestos-containing products over an extended period. North Carolina's products liability statute of repose does not apply to disease claims, under Hyer.
• Starnes v. AO Smith Corporation (2014). To avoid summary judgment, plaintiffs must produce admissible evidence of frequent, regular, and proximate exposure to an asbestos-containing product for which the defendant is legally responsible. A successor corporation can be liable only if it acquired the predecessor's business assets associated with the alleged tort.
• Wilder v. Amatex Corp. (1985). The former ten-year statute of repose in N.C.G.S. § 1-15(b) does not apply to claims arising from disease. A disease claim accrues when the disease is diagnosed, and the three-year limitations period runs from that date. On product exposure, plaintiff must show actual exposure to the defendant's product, not just shipment of products to job sites where he worked.

North Dakota

• Black v. Abex Corp. (1999). Even assuming market share liability were recognized, a plaintiff must present admissible evidence that the defendants' products were fungible and carried equivalent risks of harm. Alternative liability does not apply when the plaintiff has not joined all possible manufacturers.

Ohio

• Milone v. Aii Acquisition Corp., LLC (8th Appellate District, 2022). Under Goldman and Evid.R. 602, a worker's testimony that furnace boards were asbestos, based on general talk among workers and assumption without training or testing, lacks personal knowledge. An expert relying only on that testimony cannot establish exposure to the defendant's asbestos product.
• Maddy v. Honeywell Internatl., Inc. (8th Appellate District, 2020). To survive summary judgment under R.C. 2307.96(B), a plaintiff need only present evidence from which a jury could reasonably infer exposure to the defendant's asbestos product and that its manner, proximity, frequency and duration made it a substantial factor in causing the disease. The plaintiff need not show that every brake at the workplace was the defendant's or contained asbestos.
• Brucker v. CBS Corporation (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. The Sixth Circuit's bright-line bare-metal rule bars liability for asbestos-containing products attached to the defendant's product that the defendant neither made nor sold.
• MacLachlan v. AW Chesterton, Inc. (2019). A later affidavit that contradicts earlier deposition testimony need not be struck as a sham if the contradiction is reasonably explained by memory lapses, confusion or new evidence; the resulting inconsistencies go to weight and credibility for the jury. Punitive damages are a form of damages, not a separate cause of action under Ohio law.
• Alexander v. Honeywell International, Inc. (2017). Under Ohio Rev. Code 2307.96(B), a plaintiff's testimony about the manner, proximity, frequency and length of exposure to a defendant's asbestos can let a jury find that exposure a substantial factor, even if the testimony is imprecise.
• French v. AW Chesterton Company (2017). Deposition testimony of a deceased witness is inadmissible hearsay against a party that had no reasonable opportunity to cross-examine him on the subject, so it cannot satisfy the former-testimony exception. Without that testimony there was no admissible evidence linking the defendant's product to the plaintiff.
• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Heaton v. Ford Motor Co. (8th Appellate District, 2017). A trial court may exclude evidence under Civ.R. 26(E) and 37(C) when a party fails to supplement discovery responses, even if the failure was inadvertent, where the resulting prejudice to the opposing party cannot be cured by a lesser sanction. Without that testimony, product identification evidence against McCord was lacking.
• Shonkwiler v. AW Chesterton Company (2017). After the defendants able to invoke the federal officer statute were dismissed, only state law claims remained, and a federal court ordinarily declines supplemental jurisdiction and remands them to state court when the case is at an early stage.
• Estate OF Blandford v. AO Smith Corp. (8th Appellate District, 2016). Under R.C. 2307.78(B), a bankrupt manufacturer that is subject to personal jurisdiction in Ohio and is not shown to be insolvent does not trigger substituted strict liability for its supplier. A supplier can still face negligent failure to warn liability under R.C. 2307.78(A)(1) if fact issues remain on its knowledge of the hazard, exposure to its product, and substantial factor causation.
• Fisher v. Beazer East, Inc. (8th Appellate District, 2013). A plaintiff in a multidefendant asbestos case must prove exposure to the defendant's product and that it was a substantial factor in causing the injury. Under Ohio's apportionment statutes, a jury may allocate fault to employers who are immune from suit under workers' compensation law, as "empty chair" parties.
• Bier v. Am. Biltrite (8th Appellate District, 2012). A plaintiff cannot defeat summary judgment against a raw asbestos supplier by stacking inferences that it sold asbestos to manufacturers whose products the decedent used. The plaintiff must produce evidence that the supplier's asbestos was in the products he was exposed to.
• Fisher v. Alliance Machine Co. (8th Appellate District, 2011). Under R.C. 2307.96(B), an asbestos plaintiff must prove exposure to each defendant's asbestos and that it was a substantial factor in causing the injury, weighing manner, proximity, frequency and mitigating factors of exposure. On summary judgment, unauthenticated documents not attached to an affidavit cannot be considered under Civ.R. 56.
• Cantrell v. Adience, Inc. (8th Appellate District, 2010). A plaintiff must show some evidence, direct or circumstantial, that the defendant's asbestos product was at the workplace at or near the time of exposure. A past supplier relationship does not support an inference that it continued, and Evid.R. 406 habit evidence cannot prove a continuing business relationship.
• Jackson v. AC Product Liability Trust (2009). A verdict is against the weight of the evidence when there is no testimony showing the plaintiff's actual, substantial asbestos exposure on the defendant's vessel. Expert hypotheticals must rest on facts in the record, and a verdict that shocks the conscience is excessive.
• DiCENZO v. A-Best Prods. Co., Inc. (8th Appellate District, 2007). A plaintiff need not quantify the share of workplace asbestos attributable to a defendant to show its product was a substantial factor, and testimony placing the product directly above the worker can create a fact issue. Temple v. Wean's strict liability rule applies retroactively to suppliers who sold asbestos products before 1977.
• Rahmes v. Adience Inc. (8th Appellate District, 2007). Under Horton and R.C. 2307.96(B), an asbestos plaintiff must prove exposure to the particular defendant's product and that it was a substantial factor in causing the injury; merely working in the vicinity of asbestos-containing products is not enough.
• Vince v. Crane Co. (8th Appellate District, 2007). Under Horton v. Harwick, a plaintiff must show that exposure to a particular defendant's product was a substantial factor in causing the injury. Merely placing a defendant's asbestos product in a plant where relatives worked, without evidence of how the second-hand exposure contributed to the disease, does not meet that burden.
• Wille v. AC Product Liability Trust (2007). Under Lindstrom v. Bartel, a plaintiff must show more than that an asbestos product was present at the workplace; evidence that asbestos was released into the air above background levels lets a jury decide whether exposure was a substantial factor. Seaman status under Chandris is a jury question on these facts.
• Barone v. Gatx Corp. (11th Appellate District, 2006). Under Horton, a plaintiff need not show regular, close-proximity exposure to a product, but must still offer some evidence that the defendant's product was at the workplace during the period of exposure. Speculation about earlier purchases is not enough.
• Lindstrom v. AC Products Liability Trust (2003). Under maritime product liability law, a plaintiff relying on circumstantial evidence must show substantial exposure to a particular defendant's asbestos-containing product for a substantial period. A general opinion that every asbestos exposure was a substantial factor does not meet that test, and a manufacturer is not liable for other makers' products attached to its equipment.