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.

Pennsylvania

• Howard v. AW Chesterton Co. (2013). In dose-responsive diseases, the any-exposure theory (each and every exposure is a substantial cause) cannot establish substantial-factor causation, and bare de minimis exposure is insufficient; experts must make an individualized assessment of exposure history, and summary judgment is available in such cases.
• Betz v. Pneumo Abex LLC (2012). A Frye hearing is warranted when a trial judge has articulable grounds to believe an expert did not apply accepted scientific methodology in a conventional way, and the 'any-exposure' opinion that every fiber is a substantial contributing factor conflicts with dose-response science and the substantial-factor standard, so excluding it was not an abuse of discretion.
• Fisher v. Sexauer (2012). To survive summary judgment, a plaintiff must show frequent, regular exposure in proximity to the defendant's asbestos product. The relaxed exposure standard for mesothelioma does not extend to other diagnoses such as small-cell carcinoma.
• Thurmon v. Scapa Waycross (In re Asbestos Products Liability Litigation) (2012). A Rule 30(b)(6) deposition notice served one day before the deposition, after discovery closed, and seeking all asbestos products a defendant sold over sixty years without evidence tying a defendant's product to the decedent, is improper. A motion to compel that overlaps a Rule 56(d) request is better resolved in the summary judgment context.
• Petrina v. Allied Glove Corp. (2012). Answers to interrogatories are part of the summary judgment record under the Pennsylvania rules, and a corporation's sworn answers are its own statements, not hearsay from the individual who signed them. They could also be used as a prior inconsistent statement of the corporation under Pa.R.E. 803.1(1).
• Senger v. AH Bennett Company (2012). Under North Dakota law a plaintiff must raise a genuine issue of fact that exposure to the defendant's product proximately caused the injury. General coworker testimony about refinery work, which does not tie a particular decedent to the defendant's product, leaves causation to speculation.
• Various Plaintiffs v. Various Defendants (2012). Applying North Dakota law, a plaintiff must raise a genuine issue of material fact that exposure to the defendant's product proximately caused the injury. General testimony about the refinery and its work practices, without evidence tying a decedent to the defendant's product, leaves any inference of causation to speculation.
• Howard v. AW Chesterton Co. (2011). The frequency, regularity and proximity test is not rigid and must be adapted to the case, including diseases like mesothelioma that can follow minor exposures. At summary judgment a court must view the evidence favorably to the non-moving party and may not treat testimony about no visible dust as an admission of no inhaled fibers or settle credibility disputes against the plaintiff.
• Linster v. Allied Signal, Inc. (2011). A plaintiff must present evidence that he inhaled asbestos fibers shed by the specific defendant's product, judged by the flexible frequency, regularity and proximity test. Co-worker and plaintiff testimony about asbestos gaskets and packing was enough to create a genuine issue of fact, and the presence of other brands goes to apportionment, not sufficiency of proof.
• Cowley v. Acands, Inc. (2010). Deposition testimony from an earlier case is inadmissible against a defendant who was absent from it when that testimony goes to product identification, because the earlier defendants lacked a similar motive to cross-examine. Under Maryland's frequency, regularity and proximity test, the plaintiff must then show some admissible evidence placing him near the defendant's asbestos work.
• Curry v. American Standard (2010). Under New York law, a plaintiff must show exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Testimony that pumps were torn apart in a full ship overhaul, together with expert evidence of asbestos-containing Buffalo pumps in the same room, raised a genuine issue of fact on exposure.
• Curry v. American Standard (2010). Under New York law, a plaintiff must show exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Testimony that the worker probably took apart original valves on a young ship, together with a major overhaul, was enough to create a genuine fact issue.
• Faddish v. CBS Corporation (2010). Under Florida law, a plaintiff need only raise a genuine factual issue that the defendant's product was a substantial factor in causing the asbestos injury. Whether a sophisticated intermediary such as the Navy discharged a manufacturer's duty to warn is a jury question that weighs several factors.
• Faddish v. General Electric Co. (2010). The government contractor defense applies to failure-to-warn claims. A contractor need not show the government expressly prohibited warnings; it must show the government exercised discretion over warnings, the contractor complied, and the government knew as much or more about the hazards.
• Faddish v. Warren Pumps, LLC (2010). Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.
• Gitto v. AW Chesterton Co., Inc. (2010). Under New York law a plaintiff must show exposure to the defendant's product and that the exposure was a substantial factor in causing the injury. Testimony about destructive work on ships, together with an uncontroverted expert report that Crane valves were aboard those ships and Crane's own admission that some valves had asbestos-containing gaskets, packing or disks, raised a genuine fact issue.
• Larson v. Bondex Int'l (In re Asbestos Products Liability Litigation) (2010). Under Utah law a plaintiff need only submit evidence sufficient to raise a genuine issue of material fact, not prove her case, to defeat summary judgment. Conflicts in her recollection and in the defendants' corporate witnesses' testimony are for the jury to weigh.
• Travis v. United Gilsonite Laboratories (In re Asbestos Products Liability Litigation) (2010). Under Pennsylvania law a plaintiff must first show exposure to the particular defendant's asbestos product, and then show frequency, regularity and proximity of exposure; testimony identifying a different manufacturer does not raise a genuine issue as to the defendant's product.
• Travis v. Globe Mfg. Co. (In re Asbestos Products Liability Litigation) (2010). Under New York law, a plaintiff must produce evidence that he was exposed to the specific defendant's asbestos-containing product and that the exposure was a substantial factor in causing his injury; speculation that he wore a fire suit made with asbestos material is not enough.
• Moore v. Ericsson, Inc. (2010). A plaintiff shows asbestos product exposure through evidence of regular, frequent and proximate exposure (the Gregg test), which is applied less rigidly for mesothelioma. In strict liability cases, liability is shared equally among joint tortfeasors, and a nonsettling defendant is also liable for any shortfall between a settling defendant's share and its pro tanto settlement.
• Peter & Elpis Constantinides v. Alfa Laval, Inc. (2010). Under Florida law a plaintiff must show that asbestos exposure from the defendant's product was a substantial contributing factor; a bare-metal defense not squarely argued before the magistrate panel is waived. Circumstantial and expert evidence of the defendant's valves aboard ship and work on their packing and gaskets can create a genuine issue on product identification.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law a plaintiff must show that the defendant's product was a substantial factor in causing the injury. Whether a sophisticated intermediary such as the Navy discharged a supplier's duty to warn of asbestos is a jury question that weighs several factors.
• Peter & Elpis Constantinides v. CBS Corporation (2010). Under Florida law, a plaintiff must show a defendant's product was a substantial factor in the injury, and a sophisticated intermediary's knowledge does not automatically end a supplier's duty to warn, which is a jury question weighing several factors.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Evidence that Leslie valves were among only two valve types in the boiler room, were specified for asbestos gaskets, packing and insulation, and were likely worked on near the plaintiff raised a genuine fact issue on causation. The unsettled Florida law on the bare-metal defense was left to the transferor court.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Expert and co-worker testimony that Leslie valves were in the boiler room, used asbestos gaskets, packing and insulation, and were worked on near the plaintiff raised a genuine fact issue on causation. Whether a Florida component maker is liable for asbestos added by others was left for the transferor court.
• Breedlove v. CSX Transp. Corp. (2009). Under Georgia law, an insurance salesman who regularly came onto a railroad's shops with management's permission to sell insurance to its employees was not shown to be a licensee as a matter of law, because of the mutuality of interest. The strict Blackston product-identification standard for asbestos products cases does not apply to a premises liability claim.
• Burger v. Owens-Illinois, Inc. (2009). A plaintiff opposing summary judgment in an asbestos case must produce evidence that he inhaled asbestos fibers from the particular defendant's product, and the presence of asbestos in the workplace is not enough. A party may supplement the record with an affidavit, but the trial court may disregard it if it is not wholly credible. A plaintiff who lacks standing cannot challenge the constitutionality of the statute limiting Crown Cork's successor liability.
• Estate of Hicks v. Dana Companies, LLC (2009). Under Gregg's flexible frequency, regularity and proximity test, forty years of direct exposure to a defendant's asbestos gaskets and packing, with expert testimony that cumulative low-dose exposure contributed to mesothelioma, was enough for the jury, and conflicting expert opinion on dose did not support JNOV. OSHA and EPA exposure standards are inadmissible in a Pennsylvania strict liability case to show lack of defect, or lack of causation, because they inject negligence concepts.
• Gregg v. VJ Auto Parts Co. (2009). At summary judgment, courts apply the frequency, regularity and proximity factors in an evaluative way (the Tragarz approach) to decide whether a jury could infer that the defendant's product caused the harm. Generalized expert opinions do not create a jury question where exposure to the defendant's product is minimal.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, exposure to a distributor's asbestos product may be shown by circumstantial evidence, but the evidence must make it probable rather than merely possible. A general distribution area and franchise, without evidence of deliveries to the plant, does not suffice when another distributor is shown to have delivered the product.
• Vanaman v. Dap, Inc. (2009). Plaintiffs who were not directly affected by the statute lacked standing to challenge the constitutionality of the Crown Cork successor-liability statute. Under the frequency, regularity and proximity test, only minimal exposure to a defendant's product does not create a fact issue on substantial-factor causation.
• Kummer v. Allied Signal, Inc. (2008). Under general maritime law, using the Pennsylvania-based "regularity, frequency and proximity" test, direct evidence that the decedent worked on a defendant's asbestos-insulated turbine is enough to create a fact question on causation, and a design defect theory can survive summary judgment where the product was specified to use asbestos insulation.
• Weible v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test, a plaintiff must show more than the presence of asbestos in the workplace. Evidence that the plaintiff was regularly near the defendant's identified product when it was used is enough to let a jury infer causation, and the court need not disregard product identification testimony merely because it responded to leading questions.
• Wright v. Allied Signal, Inc. (2008). Under the frequency, regularity and proximity test of Eckenrod, as applied in Gregg, a plaintiff defeats summary judgment if the evidence would let a jury reasonably infer he inhaled fibers shed by the defendant's product. Co-worker testimony can supply that evidence even if the plaintiff cannot identify the product or its maker.
• Bugosh v. Allen Refractories Co. (2007). A plaintiff in asbestos litigation can show exposure to a defendant's product by direct evidence or by showing the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked for verification of the plaintiff's Manville Trust claim before trial has not preserved a request to reduce the verdict by Trust payments.
• Bugosh v. Allen Refractories Company (2007). A plaintiff proves product exposure through the frequency of the product's use and the regularity of the plaintiff's work near it, and conflicts in that evidence are for the jury. A defendant who never asked the Manville Trust for verification under the Trust Distribution Process did not preserve a claim to reduce the verdict by Trust payments.
• Donoughe v. Lincoln Elec. Co. (2007). A plaintiff may prove inhalation of asbestos from a defendant's product through lay and circumstantial evidence, and the jury may reject defense experts' testimony that the product released no respirable fibers. Absent a stated intention otherwise, a release of one joint tortfeasor, including the Manville Trust, is applied pro tanto against the remaining tortfeasors.
• Gregg v. VJ Auto Parts Company (Eastern District, 2007). At summary judgment, courts may assess the frequency, regularity and proximity of the claimed exposure, applied flexibly, whether the exposure evidence is direct or circumstantial. Generalized expert opinions that any exposure is a substantial factor do not create a jury question where exposure to the defendant's product is minimal.
• Chicano v. General Electric Company (2004). Under Pennsylvania law, a component manufacturer's duty to warn turns on factors including foreseeability and whether the part was designed for a particular finished product, so a turbine maker that knew its turbines would be insulated with asbestos may owe a duty to warn; the government contractor defense fails at summary judgment where a fact issue exists on conformity to specifications.
• Gilbert v. Monsey Products Co. (2004). When a plaintiff gives direct testimony that he worked with a defendant's asbestos-containing products and inhaled fibers from them, the Eckenrod frequency, regularity and proximity test for circumstantial evidence does not apply, and the sufficiency of exposure is a jury question.
• Gilbert v. Monsey Products Company (2004). When a plaintiff gives direct testimony that he worked with the defendant's products and inhaled fibers from them, the Eckenrod frequency, regularity and proximity test for circumstantial evidence does not apply, and the question of sufficient regularity and frequency is for the jury.
• Harahan v. AC & S, Inc. (2003). A plaintiff opposing summary judgment must show she inhaled asbestos fibers from the defendant's specific product and worked in its vicinity; co-worker testimony that the product created dust when dried and was regularly breathed is enough to create a genuine issue of fact.
• Andaloro v. Armstrong World Industries, Inc. (2002). Where the Manville Trust has not settled a plaintiff's claim before a verdict against other joint tortfeasors, the setoff is calculated under the Trust Distribution Process (ten percent of the scheduled disease value) and applied pro tanto, not as a full pro rata share. Asbestos causation requires proof that the plaintiff inhaled some fibers from the defendant's product, not quantified fiber levels.
• Gutteridge v. AP Green Services, Inc. (2002). A plaintiff can defeat a manufacturer's summary judgment motion with co-worker testimony that he worked close to where the defendant's asbestos products were used, and credibility cannot be decided at that stage. A landowner that has superior knowledge of a hazard owes a duty to warn an independent contractor's employees, even if it is out of possession.
• Wilson v. AP Green Industries, Inc. (2002). In an asbestos case, including mesothelioma, a plaintiff must show she worked regularly in physical proximity to the defendant's product so that a reasonable inference arises that she inhaled its fibers; vague testimony and answers to improper leading questions do not meet this standard.
• Lonasco v. A-Best Products Co. (2000). A plaintiff diagnosed with asbestosis and pleural disease who also has asbestos-related shortness of breath has a symptomatic, compensable condition. A prima facie case against a manufacturer requires evidence that the plaintiff inhaled fibers from its product while working in the vicinity of its use, and a defendant that offers no evidence of the plaintiff's knowledge does not rebut the presumption that he would have heeded a warning.
• Baker v. AC&S, Inc. (1999). A pro tanto release given to a settling tortfeasor in a strict liability action must be enforced according to its terms, so long as the consideration paid does not exceed the plaintiff's total claim. Pennsylvania's joint and several liability and the Uniform Contribution Among Tortfeasors Act are not displaced by equal allocation of liability among strictly liable tortfeasors.
• Coward v. Owens-Corning Fiberglas Corp. (1999). Where a warning is required to make a product non-defective and none was given, the plaintiff may use a rebuttable presumption that he would have followed an adequate warning, and the defendant must produce evidence that a warning would not have been heeded. Product-identification sufficiency (regularity, frequency, proximity) is separate from the jury's causation question, which asks whether exposure was a substantial contributing factor.
• Greenleaf v. Garlock, Inc. (1999). Under Pennsylvania law, a state jury's damages verdict in a reverse-bifurcated trial can be final enough to bar relitigation of damages in a later federal action, even though it was not immediately appealable. Eckenrod's "frequency, regularity and proximity" language is not a required jury instruction in asbestos cases.