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.

Ohio

• Horton v. Harwick Chem. Corp. (1995). Summary judgment in an asbestos case is governed by the ordinary standard, and Ohio does not adopt the Lohrmann frequency-regularity-proximity test for proving that a product was a substantial factor. Alternative liability does not apply where the defendants' products did not create a substantially similar risk of harm.
• Bush v. Abex Corp. (1989). Under the summary judgment standard, circumstantial evidence from which a reasonable jury could infer the decedent was exposed to a defendant's asbestos is enough to create a genuine issue of material fact on exposure.
• Goldman v. Johns-Manville Sales Corp. (1987). Alternative liability requires the plaintiff to prove that all defendants acted tortiously, including that their asbestos products reached the plaintiff's workplace. Market-share liability, developed for the DES drug, was not accepted for asbestos because asbestos products are not fungible.

Oklahoma

• Case v. Fibreboard Corp. (1987). Oklahoma does not recognize market share liability or other collective liability theories (alternative liability, concert of action, enterprise liability) in asbestos injury litigation when the plaintiff cannot identify the specific manufacturers whose products caused the injury; creating a compensation scheme is for the legislature.

Oregon

• Hoff v. Certainteed Corp. (2021). A plaintiff need not prove exposure to the defendant's asbestos-containing product at a particular job site. It is enough that the evidence supports a reasonable inference that, more likely than not, he was exposed to it at one or more sites. A judgment does not violate ORCP 67 C where it is below the amount in the complaint's prayer, and the defendant never sought to clarify an inconsistent figure in the body of the complaint.
• Laux v. Akebono Brake Corp. (2021). To survive summary judgment in an asbestos case, a plaintiff must produce evidence that the defendant's own product contained asbestos. A generalized notion that asbestos was present in the industry, or a vague statement from a corporate witness, does not support a non-speculative inference.
• McKenzie v. AW Chesterson Co. (2016). Under Oregon's strict liability statute (ORS 30.920) and the Restatement (Second) of Torts § 402A comments it incorporates, the product at issue is the pump as sold to the Navy with its asbestos-containing parts, so the bare-metal or no-duty defense does not bar a failure-to-warn claim as a matter of law. Plaintiff's evidence also sufficed on causation and foreseeability for negligence.
• Greer v. Ace Hardware Corporation (2013). In an asbestos case, once a defendant moves for summary judgment, the plaintiff must produce evidence identifying a specific asbestos-containing product the defendant made or supplied and to which the plaintiff was exposed; general assertions that "some" products contained asbestos, or guesswork, are not enough.
• Griffin v. Allis-Chalmers Corporation Product Liability Trust (2010). A plaintiff opposing summary judgment in an asbestos case need only show the defendant's asbestos was present in the workplace and could have been inhaled, including through others' handling of it. Oregon's raw material supplier doctrine does not shield a supplier from claims of exposure to raw asbestos fibers themselves.
• Weihl v. Asbestos Corporation, Ltd. (2006). A trial court managing many asbestos cases may require plaintiffs to file product identification reports as a pleading obligation. It may bar a plaintiff who does not file them from offering product identification evidence against summary judgment, and this is consistent with the Oregon Rules of Civil Procedure.
• West v. Allied Signal, Inc. (2005). An affidavit need not expressly state personal knowledge if, read as a whole, a reasonable person would understand it to rest on the affiant's personal knowledge. A jury may reasonably infer from circumstantial evidence that a defendant was the likely source of the asbestos product.
• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.

Other federal courts

• Boyd v. Warren Pumps, LLC (2016). A pump maker can be liable only for asbestos-containing products it manufactured or supplied. Circumstantial evidence that spare asbestos packing and gaskets were supplied with original pumps and disturbed during servicing while the plaintiff was aboard was enough to reach a jury, while evidence tying the makers to the replacement parts was not.
• McINDOE v. Huntington Ingalls Incorporated (2016). Custom-built naval warships not distributed commercially are not "products" for strict products liability under maritime law, and a negligence claim requires proof of substantial exposure to the defendant's asbestos for a substantial period, which an "every exposure" expert opinion cannot replace.
• Pace v. Air & Liquid Systems Corporation (2016). Under South Carolina law, a plaintiff must show exposure to a specific product with frequency, regularity and proximity to where she actually worked, and circumstantial evidence that is speculative or shows only that a product was present at the workplace does not meet that test.
• Stevens v. CBS Corp. (In re Asbestos Products Liability Litigation (NO. V)) (2014). An essential element of a maritime products liability claim is that the products to which the plaintiff was exposed actually contained asbestos, and speculative, internally inconsistent deposition testimony cannot create a genuine factual dispute on that point.
• Williams v. Georgia-Pacific (In re Asbestos Products Liability Litigation (NO. VI)) (2014). Under South Carolina's frequency, regularity, and proximity test, a plaintiff must show exposure to a specific asbestos-containing product, and speculation about whether the product Williams used contained asbestos cannot defeat summary judgment.
• Martin v. Cincinnati Gas and Electric Company (2009). Under Kentucky law, a negligence claim needs evidence that the defendant's product was a substantial factor in causing the harm, and a duty depends on whether the risk was foreseeable from what the defendant knew or should have known at the time. The record did not show that the danger of household exposure to asbestos on work clothes was known or knowable to the defendants in the 1950s and early 1960s, so they owed no duty.
• Lindstrom v. AC Product Liability Trust (2005). Under maritime products liability law, a plaintiff must show for each defendant that he was exposed to that defendant's product and that it was a substantial factor in causing the injury. A generic expert opinion that every asbestos exposure contributed does not meet this requirement. A manufacturer is not responsible for asbestos in other companies' packing or gaskets attached to its equipment.
• Chism v. WR Grace & Co. (1998). Under Missouri law, an asbestos plaintiff needs expert evidence that each defendant's product directly contributed to the death as a substantial factor, and must show frequency, regularity and proximity of exposure to that product. Showing exposure to a product that is not shown to contain asbestos does not meet this requirement.
• Braun v. Lorillard Inc. (1996). A district court may exclude an expert who departs from the accepted methods of his field without knowing those methods or justifying the departure, since Daubert requires scientific rigor and does not make customary methods irrelevant. The court also upheld the district judge's discretion over pretrial witness disclosure, hearsay and expert qualification, and found an improperly limited redirect harmless.
• Peerman v. Georgia-Pacific Corp. (1994). Even under a 'job site' test of causation, a plaintiff must produce evidence that the defendant's product, as used, could have produced a significant amount of asbestos dust that the plaintiff might have inhaled; presence of the product at the work site is not enough.
• Jackson v. Anchor Packing Co. (1993). Under Arkansas law, an asbestos plaintiff must show that exposure to a particular defendant's product was more likely than not a substantial factor in causing the injury, measured by the frequency, regularity and proximity test. Arkansas has not adopted alternative or market share liability, and "fiber drift" evidence can widen the area of probable exposure but cannot by itself establish causation.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• Rotondo v. Keene Corp. (1992). Under Pennsylvania's Eckenrod standard, circumstantial evidence placing a defendant's pipecovering in the same boiler room where the plaintiff worked, near the pipecoverers and used about half the time, was enough for a jury to infer exposure and causation. The jury could also infer that dust from sawed asbestos covering contained asbestos.
• Tragarz v. Keene Corp. (1992). Under Illinois law, direct testimony of working with or near a defendant's asbestos product can support a finding of probable exposure without naming specific job sites. The frequency, regularity and proximity test is less rigid in mesothelioma cases, and release of asbestos dust inside a workplace can count as a 'discharge into the environment' that keeps joint and several liability.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• O'brien v. National Gypsum Co. (1991). Circumstantial evidence can suffice to prove exposure to a particular defendant's asbestos product. A very rare disease with asbestos as its only known cause, plus testimony that products were used interchangeably at the only exposure site, supports a jury finding of liability.
• Slaughter v. Southern Talc Co. (1991). Under Texas law a plaintiff must show that he more probably than not breathed asbestos fibers from the defendant's product, which can be shown circumstantially by frequent, regular work near where the product was likely installed. Wrongful death substitution by spouses already in the suit relates back to the original complaint and is not barred by limitations.
• Fagiola v. National Gypsum Co. AC & S., Inc. (1990). A summary of voluminous documents under Fed.R.Evid. 1006 is reviewed for abuse of discretion; objections that it did not fairly represent the documents or was confusing go to weight rather than admissibility, and an unpreserved hearsay objection did not warrant reversal.
• Hoffman v. Allied Corp. (1990). Under the summary judgment standard, affidavits that asbestos products were in use 300 to 400 feet away, that dust drifted into the shop, and that asbestos was the substantial cause of the disease allowed a reasonable jury to find exposure to the defendant's products and proximate cause.
• Johnson v. Celotex Corp. (1990). A trial court may consolidate asbestos cases with common worksites and issues if it uses cautionary instructions and separate verdict forms, and circumstantial co-worker testimony can support a jury finding that defendants' products were a substantial factor. The court left open whether successive punitive awards violate due process because the record on prior payments was insufficient.
• White v. Celotex Corp. (1990). A plaintiff must produce evidence of exposure to a particular defendant's asbestos product, and market share liability, adopted for fungible DES, is inappropriate in asbestos litigation and unlikely to be adopted by Arizona.
• Bauer v. Raymark Industries, Inc. (1988). A denial of a new trial motion based on the verdict being against the weight of the evidence is not reviewable on appeal, and a judgment n.o.v. is proper only where there is a complete absence of supporting evidence or overwhelming evidence for the movant. Because plaintiff bore the burden of proof, the jury could reasonably find she did not show exposure to the defendants' products rather than those of nondefendants.
• Menne v. Celotex Corp. (1988). Under Nebraska law as predicted by the court, proof of exposure in confined spaces to visible asbestos dust from a defendant's products, under circumstances creating a reasonable possibility of substantial harm, shifts the burden to that defendant to disprove causation, with joint rather than joint and several liability. A state-of-the-art instruction may not impose a stricter warning duty than the Nebraska statute.
• Whatley v. Armstrong World Industries, Inc. (1988). Under Texas comparative causation (Duncan), a non-settling defendant must prove the liability of settling defendants to reduce the plaintiff's recovery by their shares. Where that proof fails for some settling defendants, no reduction is allowed for them, and the non-settling defendant stays jointly and severally liable for that portion.
• Herber v. Johns-Manville Corp. (1986). Under New Jersey law, as predicted by the court, a plaintiff with asbestos-caused pleural thickening cannot recover for increased risk of a possible future cancer alone. He can recover the cost of future cancer monitoring and emotional distress from fear of cancer, without proof of a physical manifestation of that fear. Excluding that evidence under Rule 403 was an abuse of discretion.
• Roehling v. Nat. Gypsum Co. Gold Bond Bldg. (1986). Circumstantial evidence that the plaintiff worked in the same area, at the same time, as witnesses who identified the defendants' asbestos products is enough to create a jury question on exposure. Direct testimony that the plaintiff identified the products or was known to the witnesses is not required.
• Blackston v. Shook & Fletcher Insulation Co. (1985). Under Georgia law, an asbestos plaintiff must show he was exposed to the particular defendant's asbestos-containing product by working with it or in close proximity to it. A federal court sitting in diversity will not create a rebuttable presumption of exposure from the mere fact that the defendant's product was used at the job site while the plaintiff worked there.
• Gifford v. National Gypsum Co. (1985). A trial court's findings after a bench trial, including resolution of conflicting testimony on product use and identification, are reviewed for clear error under Rule 52(a) and stand unless the appellate court has a definite and firm conviction of mistake.
• Lee v. Celotex Corp. (1985). To pursue a claim against a particular asbestos defendant, a plaintiff must produce enough evidence to support a finding of direct exposure to that defendant's asbestos-containing products; speculation or conjecture is not enough.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Rocco v. Johns-Manville Corp. (1985). Under the Pennsylvania Joint Tortfeasors Act, settlement payments by defendants not determined to be joint tortfeasors do not reduce a verdict, while a pro rata release of a joint tortfeasor who later files for bankruptcy still reduces the verdict. Pennsylvania delay damages may be assessed against a non-settling defendant only on its proportionate share of the verdict.
• Halphen v. Johns-Manville Sales Corp. (1984). Under Louisiana strict products liability law, a manufacturer is presumed to know the defects in its product, so the state-of-the-art defense fails; foreseeability applies only to the injury, not to the defect.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.
• Thompson v. Johns-Manville Sales Corp. (1983). Louisiana law as predicted by the court does not dispense with proof that a defendant's product caused the injury; enterprise and market share liability are radical departures that Louisiana courts, not a federal court sitting in diversity, must adopt. Alternative liability and indivisible-injury theories do not apply to defendants with no proven connection to the injury.
• Migues v. Fibreboard Corp. (1981). Borel v. Fibreboard held only that the jury on that record could find asbestos products without adequate warnings unreasonably dangerous. It does not establish by stare decisis that all asbestos products are unreasonably dangerous as a matter of law.

Pennsylvania

• Fisher v. American International Industries (2024). A plaintiff must first show that the defendant's product actually contained asbestos before the frequency, regularity and proximity test applies. In a strict liability asbestos case, liability under the Fair Share Act is apportioned per capita among the liable defendants, and a defendant removed from the verdict cannot have its share added to a successor.
• Finello v. Foster Wheeler LLC (2023). Under Pennsylvania's frequency, regularity and proximity test, evidence of exposure to Kentile tiles that contained Union Carbide's asbestos fiber, plus expert opinions that the exposure was a substantial factor in causing the disease, raised a fact question on causation for a jury.