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

• Zenson v. Owens Corning Fiberglas Corp. (1993). Under Pennsylvania law, an asbestos plaintiff must show frequency, regularity and proximity of exposure to the specific defendant's product; the presence of asbestos in the workplace or fiber drift alone does not meet that burden.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Bushless v. GAF Corp. (1990). To defeat summary judgment in an asbestos products case, a plaintiff must present evidence that he was at a particular job site, was exposed to asbestos-containing products there, and that the defendant's asbestos product was at that site at about the same time. Lists of co-workers and statements that products were asbestos because they resisted heat are not enough.
• Eckenrod v. GAF Corp. (1988). To defeat summary judgment in an asbestos case, a plaintiff must present evidence that the decedent inhaled fibers shed by the specific defendant's product, which requires more than the presence of asbestos in the workplace; circumstantial proof depends on frequency of use and regularity of work near the product.
• Vigiolto v. Johns-Manville Corp. (1986). Predicting Pennsylvania law, the court held that enterprise liability requires a small number of manufacturers or delegation of safety functions to a trade association, and that market share liability, although likely to be recognized in an appropriate case, is not suited to asbestos cases.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.

Rhode Island

• Day v. 3M Company Inc. (2024). Expert opinion based on the 'each and every exposure' theory is scientifically valid and admissible under Rule 702, and the 'frequency, regularity, and proximity' showing goes to a defendant's ultimate liability rather than to admissibility. An expert may not give an opinion that lacks a factual basis, but may rely on record evidence that supports it.
• Day v. 3M Company Inc. (2024). Rhode Island's frequency, regularity and proximity test governs asbestos causation, and it is applied less strictly in mesothelioma cases. Removing an electrical panel is not a 'subsequent alteration or modification' of the product under G.L. 1956 § 9-1-32.
• Lowe v. 3M Company (2024). In asbestos cases Rhode Island applies a flexible 'frequency, regularity, proximity' test for product identification and exposure, and a decedent's own testimony together with circumstantial evidence such as supplier receipts can create a fact question on whether the defendant supplied the product.
• Stadtler v. Aurora Pump Co. (2022). Under Rhode Island's liberal discovery rules, requested documents need only be relevant to the subject matter of the suit and reasonably calculated to lead to admissible evidence. A defendant cannot defeat a motion to compel by arguing that the plaintiff's existing evidence is too weak to establish its liability.
• Burdick v. NIBCO (In re Asbestos Litigation) (2021). To establish liability in an asbestos action, a plaintiff must identify the responsible defendant and show exposure. Summary judgment is improper where competent evidence on both sides allows more than one reasonable inference about exposure to the defendant's asbestos-containing product.
• Wallace v. Trane Company (2021). Under Maine law, an asbestos plaintiff must show product nexus, meaning exposure to asbestos that originated with the defendant's own product, before medical causation is reached. Evidence of third-party sealants or replacement materials used on a defendant's boilers does not establish that nexus.
• Wallace v. Trane Company (2020). Applying Maine law, a plaintiff must show exposure to asbestos that originated with the defendant's product (product nexus). Evidence that the defendant's catalog sold the same kind of third-party sealant is not enough without proof that the actual sealant used was sold or recommended by the defendant.
• Nichols v. Allis Chalmers Product Liability Trust (2018). Under Rhode Island's ad hoc duty analysis, an employer owes a duty to a member of an employee's household who is exposed to asbestos dust on the employee's work clothes, where the harm was foreseeable. At summary judgment, the frequency, regularity, proximity test is met by evidence of regular exposure and an expert opinion on cumulative exposure.
• Belac v. Evenheat Kiln (In re Asbestos Litigation) (2017). A plaintiff can show product identification and causal connection at summary judgment by evidence of a specific period of exposure and the proximity and frequency of exposure, and the sham affidavit doctrine bars only an affidavit that contradicts the affiant's own prior deposition testimony.
• McCarthy v. Warren Pumps (In re Asbestos Litigation) (2017). A decedent's sworn statement made in good faith, on personal knowledge, before the action began is admissible under R.I. R. Evid. 804(c) and may be considered on summary judgment. Product identification is judged case by case using factors such as dates, proximity and frequency of contact, and is sufficient here to leave exposure and causation for the jury.
• Pisano v. Sears, Roebuck and Co. (In re Asbestos Litigation) (2016). A dying person's affidavits made believing death was impending are admissible at summary judgment under the dying-declaration exception, and can supply product identification. A seller that did not take part in installing the product is not a protected "materialman" under Rhode Island's statute of repose.
• Baumgartner v. American Standard, Inc. (2015). Under Rhode Island's interest-weighing choice-of-law approach, Ohio law governed an Ohio resident's claim over Ohio-centered exposures. Under Ohio law, a bare-metal valve maker is not liable absent proof it supplied or specified asbestos, and boilers and turbines installed as improvements to real property fall under the ten-year statute of repose.
• Santos v. AC McLOON Oil Co. (2015). A nonmovant cannot rely on allegations to defeat a properly supported summary judgment motion, but because summary judgment is a drastic remedy, the court may stay the motion to allow further discovery where plaintiff says competent evidence is forthcoming.
• Hostetter v. Air & Liquid Systems Corporation (2014). Under Rhode Island law, circumstantial product identification must show it is reasonably probable, not merely possible, that the defendant was the source of the product. Evidence that the defendant was one of several brake suppliers for the trucks does not meet that standard, and the resulting chain of inferences cannot support causation.
• Reera v. AO Smith Corp. (2014). A plaintiff opposing summary judgment in a premises liability asbestos case must produce competent, admissible evidence that asbestos was present and that the plaintiff was exposed to it. A witness's later-acquired belief that insulation contained asbestos, and a promise of expert testimony at trial, do not meet that burden.
• Cary v. 3M Company (2013). Factual work product is discoverable on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship; mere inconvenience or expense of re-obtaining original documents is not undue hardship. Opinion work product protection does not extend to photos taken openly in the opposing counsel's presence.
• Sweredoski v. Alfa Laval, Inc. (2013). Crane could present evidence of the settled defendants' fault at trial to obtain a judgment reduction, but bankrupt entities reorganized under 11 U.S.C. § 524(g) were not 'joint tortfeasors' under the contribution act and public policy disfavored apportioning fault to them. Trust claim forms were not discoverable because they were not relevant to causation against the sole remaining defendant.
• Sweredoski v. Alfa Laval, Inc. (2013). In Rhode Island asbestos cases, causation is judged under the "frequency, regularity, proximity" test. "Each and every exposure" evidence may be presented to show the danger of asbestos but is legally insufficient to prove substantial-factor causation without a showing of frequency, regularity and proximity.
• Sweredoski v. Alfa Laval, Inc. (2013). A valve maker can face strict liability, failure-to-warn and implied warranty claims where evidence shows it designed valves with asbestos packing and gaskets, knew they would be replaced with similar products, and sold such replacements. A civil conspiracy claim requires a valid underlying intentional tort, here intentional misrepresentation with reliance, which was not shown.
• Brandt v. AW Chesterton Company (2011). A sworn exposure chart of a dying plaintiff is admissible as a dying declaration, and showing work with or near a defendant's asbestos products is enough to reach a jury on product identification at summary judgment.
• Cone v. Agco Corp. (2011). A company that buys another's assets may be liable as a mere continuation of the seller, a highly fact-dependent question that precluded summary judgment here. Whether a product contained asbestos, and proximate cause, are ordinarily jury questions.
• Benoit v. AW Smith Corporation (2009). In asbestos cases a plaintiff can show product identification at summary judgment by evidence that he worked with or in close proximity to the defendant's products; whether a product contains asbestos is for the jury, and summary judgment may be denied as premature where discovery responses are incomplete.
• Clayton v. American Biltrate (2008). Summary judgment is premature while the moving defendant has not completed its own discovery obligations, such as responding to Master Interrogatories. In asbestos litigation the plaintiff must still identify the defendant's asbestos product and show that it proximately caused the injury.
• Lapointe v. 3M Company (2008). On summary judgment the court may not weigh evidence or decide credibility, so contradictory evidence on whether the plaintiff was exposed to the defendant's asbestos product requires a trial.
• Hicks v. Biltrite (2007). Summary judgment is premature while discovery is ongoing, and a plaintiff's deposition testimony about the product used creates a genuine issue of fact on product identification and causation; the court may not weigh credibility on summary judgment.
• LaPOINTE V 3M Company (2007). Summary judgment on product identification was premature where the defendant had not fully answered court-approved discovery and its employee's unsupported affidavit left a genuine factual issue about whether its products contained asbestos.
• LaPOINTE v. 3M Company (2007). Installing burners is an improvement to real property under the Rhode Island statute of repose, but servicing, repairing and maintaining them is not, so claims based on repair exposure are not repose-barred. Whether the burners contained asbestos and whether a duty to warn existed are jury questions.
• Lapointe v. 3M Company (2007). Summary judgment on product identification is premature where the plaintiffs cannot learn whether the defendant made the boilers the worker serviced until the defendant gives responsive answers to court-approved discovery requests.

South Carolina

• Robertson v. Air & Liquid Systems Corp. (2021). Under the Lohrmann 'frequency, regularity, and proximity' test, applied the same way under South Carolina and North Carolina law, a plaintiff must show exposure to the defendant's product on a regular basis over an extended period. Testimony that could not say how often or how much of the work involved the defendant's product did not meet that standard.
• Robertson v. Air & Liquid Systems Corp. (2020). Under the Lohrmann "frequency, regularity, and proximity" test, a plaintiff must show regular exposure over an extended period to a specific defendant's asbestos-containing product near where the plaintiff worked. Speculative co-worker testimony and documents that do not place the plaintiff near that product are not enough.
• Dandridge v. Crane Co. (2016). Under maritime law, a valve manufacturer is not liable for asbestos in gaskets it did not make or supply. Even if the Quirin exception applies, it must be read narrowly and requires that the manufacturer actually incorporated asbestos-containing parts into its product, making exposure inevitable.
• Sparkman v. AW Chesterton Company (2014). Under South Carolina law, a plaintiff must show exposure to a specific defendant's asbestos product with frequency, regularity and proximity (the Lohrmann test), including for mesothelioma claims, and the mere presence of static asbestos is not exposure.
• Sparkman v. AW Chesterton Company (2014). Under South Carolina law, which applies the frequency, regularity and proximity test from Lohrmann, including in mesothelioma cases, a plaintiff must show regular, proximate exposure to the defendant's asbestos product. Coworker testimony combined with the defendant's own purchase and shipping records can create a jury question on that showing.
• Sparkman v. AW Chesterton Company (2014). Applying South Carolina law, the frequency, regularity and proximity test governs causation in mesothelioma cases. The court predicted the South Carolina Supreme Court would adopt the bare metal defense, so a manufacturer has no duty to warn about parts of its product that it did not make or supply.
• Henderson v. Allied Signal, Inc. (2007). Under the Door Closing Statute, a nonresident plaintiff must show the foreign corporation's asbestos exposure of the victim occurred in South Carolina, and exposure is actionable only if it meets the "frequency, regularity, and proximity" test; mere presence near static asbestos is not exposure.

Tennessee

• Coffman v. Armstrong International, Inc. (2019). Daily removal and reinstallation of insulation at an industrial plant is repair or replacement, not construction of an improvement to real property, so the construction repose statute does not apply. Under Tennessee's Satterfield duty analysis, equipment makers can owe a duty to warn about asbestos parts added to their equipment after sale, and Tennessee does not follow the bare-metal defense.

Texas

• Neely EX rel. Estate OF Goehring v. Union Carbide Corporation (14th District, 2021). Under Flores and Bostic, a plaintiff must offer reliable, defendant-specific evidence of dose, supported by epidemiology showing the exposure more than doubled the risk, to prove asbestos causation. An expert affidavit with unexplained calculations and studies not shown to match the plaintiff's exposure is unreliable and counts as no evidence.
• Georgia-Pacific Corporation v. Bostic (5th District, 2010). A plaintiff in an asbestos case must prove that the defendant's product was a substantial factor and cause-in-fact of the disease, including frequent, regular and proximate exposure and quantitative evidence that the exposure increased the risk of disease. Expert testimony that each and every exposure to asbestos contributes to mesothelioma does not meet that standard.
• Smith v. Kelly-Moore Paint Company, Inc. (2nd District, 2010). A plaintiff claiming mesothelioma from an asbestos-containing product must meet Borg-Warner's substantial factor test, including evidence of an aggregate dose from the defendant's product and a minimum threshold dose above which mesothelioma risk increases; this applies to chrysotile-only products.
• Borg-Warner Corporation v. Flores (2007). A plaintiff claiming asbestosis from a defendant's product must show that the product was a substantial factor in causing the disease. Proof of frequency, regularity and proximity is necessary but not sufficient without defendant-specific evidence of the approximate dose of fibers and that the dose was sufficient to cause the disease.
• Georgia-Pacific Corp. v. Stephens (2007). Under Borg-Warner v. Flores, a plaintiff proves substantial-factor causation in an asbestos case only by showing frequent, regular, proximate exposure to the defendant's product plus reasonable quantitative evidence that the exposure increased his risk of disease. Testimony that any exposure contributes to mesothelioma is not enough.
• Georgia-Pacific Corporation v. Stephens (1st District, 2007). Under Borg-Warner v. Flores, a plaintiff proves substantial-factor causation in an asbestos case only with evidence of frequent, regular, proximate exposure to the defendant's product plus reasonable quantitative evidence that the exposure increased the risk of disease. Expert testimony that any exposure to asbestos contributes to causing mesothelioma is not enough.
• Borg-Warner Corp. v. Flores (13th District, 2004). In an asbestos case, a plaintiff meets the burden on causation with evidence that the defendant supplied any of the asbestos to which he was exposed; the court did not read prior precedent to require separate proof that the product emitted respirable fibers. A manufacturer of asbestos products is held to the knowledge of an expert, which supports a finding of malice.
• In re Roc (4th District, 2004). To survive a no-evidence summary judgment, plaintiffs had to show with reliable evidence that they were exposed to an injurious form of asbestos or silica from the defendants' products and that they were reliably diagnosed. Expert diagnoses that assumed exposure and did not rule out other causes were unreliable and could be excluded.