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.

California

• Wittman v. Coty, Inc. (2nd Appellate District, 4th Division, 2018). A defendant meets its initial summary judgment burden when the plaintiff's comprehensive discovery responses are factually devoid on product exposure to asbestos, and expert test results on a product sample may be excluded where the chain of custody linking the tested sample to the plaintiff's product is not established.
• Alfaro v. Imerys Talc America Inc. (2nd Appellate District, 4th Division, 2017). Under Evidence Code section 801, a trial court acting as gatekeeper may exclude expert opinion built on samples with serious chain-of-custody gaps, because such samples cannot reasonably be relied on, and an expert may not rest an opinion on assumed facts that lack evidentiary support.
• DeLOOF v. Ace Hardware Corp. (2nd Appellate District, 4th Division, 2017). A defendant can meet its summary judgment burden by showing through factually devoid discovery responses that the plaintiff cannot prove exposure to its asbestos-containing product, and by expert testimony that no respirable fibers were released. The plaintiff must then produce evidence of a triable issue, and causation cannot rest on speculation.
• Johnson v. ArvinMeritor, Inc. (1st Appellate District, 5th Division, 2017). A plaintiff must offer evidence that makes it probable, not just possible, that he was exposed to asbestos from the defendant's product. Evidence that a defendant was one of several suppliers of replacement brake linings does not meet that standard. Under O'Neil, a manufacturer is not strictly liable for a design defect merely because its product was used with, or specified, another maker's asbestos-containing parts.
• Johnson v. Dock (1st Appellate District, 1st Division, 2017). A plaintiff must produce admissible evidence supporting a reasonable inference of exposure to the defendant's asbestos product; speculation or an expert opinion lacking a reasoned basis does not raise a triable issue, and without exposure there is no causation.
• Lyons v. Colgate-Palmolive Co. (1st Appellate District, 3rd Division, 2017). A plaintiff defeats summary judgment on product exposure by showing her use of the defendant's product together with expert evidence that the product contained asbestos; the lack of retained packaging or testing of her own container does not make that evidence speculative.
• Turley v. Familian Corporation (1st Appellate District, 2nd Division, 2017). To show exposure in an asbestos case, a plaintiff need not prove a specific exposure to a specific product on a specific date. It is enough that the defendant's product was at the work site and was prevalent enough to support an inference of exposure. A court may disregard a declaration under the D'Amico rule only when it clearly contradicts earlier sworn testimony.
• DePREE v. BASF Catalysts LLC (1st Appellate District, 5th Division, 2016). A mere possibility of exposure to an asbestos-containing product does not create a triable issue on causation. Where asbestos is only an occasional contaminant of a talc ingredient, plaintiffs must offer evidence that the product they actually used more likely than not contained asbestos.
• Gerlach v. Goodman Lumber Company (1st Appellate District, 1st Division, 2016). An expert may rely on otherwise inadmissible hearsay of a type experts reasonably rely on, so an industrial hygienist's declaration on asbestos content had adequate foundation. With the plaintiff's testimony about buying joint compound from the defendant, it raised a triable issue of exposure.
• Lepore v. Kelsey-Hayes Co. (1st Appellate District, 4th Division, 2016). A plaintiff in an asbestos case must show exposure to the defendant's asbestos-containing product, and may do so with circumstantial evidence. Evidence that the worker was present when work was done on a defendant's products can create a triable issue, but evidence that merely shows a supplier was one of many sources is insufficient.
• Untermann v. D. Zelinsky & Sons, Inc. (1st Appellate District, 4th Division, 2016). A defendant can shift the burden on summary judgment by showing the plaintiff cannot identify asbestos-containing materials tied to the defendant's activities. The plaintiff then needs admissible evidence of exposure, and an expert opinion lacking foundation about the specific products may be excluded without abuse of discretion.
• Walashek v. Air & Liquid Systems Corporation (2016). In California asbestos cases the plaintiff bears the burden of showing threshold exposure to the defendant's asbestos-containing product, and evidence showing only a possibility or speculation of exposure does not create a triable issue.
• Webb v. Special Electric Company, Inc. (2016). A supplier of a hazardous raw material may discharge its duty to warn end users under the sophisticated intermediary doctrine only if it warned the purchaser or sold to a purchaser it knew was or should have been aware of the specific danger, and it actually and reasonably relied on the purchaser to warn downstream users. The supplier bears the burden of proof, and reasonable reliance is ordinarily a jury question.
• Leidig v. Zenith Electronics LLC (2nd Appellate District, 4th Division, 2015). A plaintiff opposing summary judgment must offer admissible evidence that the decedent was exposed to asbestos in the defendant's product. Lay witnesses and an unqualified expert cannot identify a material as asbestos, and speculation that a product might have contained asbestos does not raise a triable issue.
• Marteney v. Union Carbide Corp. (2nd Appellate District, 4th Division, 2015). Under Rutherford, a plaintiff shows causation by evidence that exposure to the defendant's asbestos was a substantial factor contributing to the risk of cancer, and the whole trial record, including defense experts' testimony, can supply that proof. Findings that warnings were adequate do not bar a consumer-expectations design-defect claim against a raw asbestos supplier.
• Murat v. Exxon Mobil Corp. (2nd Appellate District, 4th Division, 2015). Under the Longshore Act, a vessel owner is liable to a ship repair contractor only for breach of the turnover, active control or intervention duties. A plaintiff must produce evidence of the manner and circumstances of asbestos exposure to show such a breach, and a mere possibility of exposure is not enough.
• Quiroz v. BNSF Railway Company (2nd Appellate District, 4th Division, 2015). In asbestos litigation the plaintiff must first show threshold exposure to asbestos. A defendant can shift the burden on summary judgment by showing through factually devoid discovery responses that the plaintiff cannot prove exposure, and an expert opinion with no factual basis that the materials contained asbestos cannot create a triable issue.
• Shiffer v. CBS Corporation (1st Appellate District, 1st Division, 2015). A plaintiff must produce evidence of actual exposure to the defendant's asbestos-containing product, and mere presence at a site is not enough. Expert opinions resting on an incomplete factual record cannot supply that evidence. Belated expert opinions based on evidence available before the summary judgment hearing are not new evidence for reconsideration or a new trial.
• Collin v. Calportland Company (3rd Appellate District, 2014). A plaintiff must show exposure to the specific defendant's asbestos-containing product, and a defendant can shift the burden on summary judgment with comprehensive discovery and factually devoid responses; the sophisticated user defense turns on what the class of users knew or should have known about the particular product's dangers.
• Ganoe v. Metalclad Insulation Corporation (2nd Appellate District, 3rd Division, 2014). A defendant does not shift the summary judgment burden merely by pointing to a witness's failure to recall its name or to factually devoid discovery responses that the plaintiff has since amended with specific facts; circumstantial evidence and expert opinion tying the defendant's work to the decedent's exposure can raise a triable issue on causation.
• Grande v. Borg-Warner Morse Tec, Inc. (2014). Under California law, a plaintiff may show exposure to a defendant's asbestos-containing product through circumstantial evidence that supports a reasonable inference of exposure. Punitive damages go to the trier of fact unless no reasonable jury could find clear and convincing proof of malice, fraud or oppression.
• Izell v. Union Carbide Corp. (2nd Appellate District, 3rd Division, 2014). In an asbestos cancer case, a plaintiff must show exposure to the defendant's asbestos, and then in reasonable medical probability that the exposure was a substantial factor in increasing the risk of disease. A reduction of compensatory damages does not by itself require a new trial on punitive damages; the award is tested under the State Farm due process guideposts.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff can prove legal causation in an asbestos cancer case through expert testimony that respirable exposures contribute to cancer risk, but exposure to one supplier's asbestos cannot rest on speculation where a manufacturer had several suppliers. A large reduction of compensatory damages does not by itself require retrial of punitive damages, and an award of about 4.6 times the defendant's share of compensatory damages, against a net worth of $4.2 billion and highly reprehensible conduct, satisfies due process.
• Izell v. Union Carbide Corporation (2nd Appellate District, 3rd Division, 2014). A plaintiff must show exposure to the defendant's asbestos beyond speculation, and then that the exposure was a substantial factor contributing to his risk of cancer. A large cut in compensatory damages does not by itself require a new trial on punitive damages. The question is whether the resulting ratio and the defendant's reprehensibility satisfy due process.
• Kent v. Warren Pumps, LLC (2nd Appellate District, 3rd Division, 2014). A defendant moving for summary judgment on product identification does not meet its initial burden when the plaintiff's discovery responses and deposition testimony identify the defendant's products and the undisputed fact that some of its gaskets and packing contained asbestos; declarations on sales records and Navy procurement go only to weight.
• Lovelace v. Elementis Chemicals, Inc. (3rd Appellate District, 2014). An appellate court will not reverse unless the appellant shows prejudicial error; where the appellant does not challenge an independent ground supporting the judgment (exclusion of evidence for lack of authentication), the judgment must be affirmed even if other evidentiary arguments had merit.
• Olds v. 3M Company (2014). Summary judgment is warranted where the plaintiff has no evidence of exposure to asbestos from a product made, sold or distributed by the defendant; without it, negligence, strict liability, warranty and punitive damages claims fail.
• Olds v. 3M Company (2014). Evidence that the defendant was one of nine possible gasket suppliers to an engine maker does not raise a genuine issue of fact that the plaintiff was exposed to that defendant's product. Exposure was also too speculative where the plaintiff worked in a supervisory role and rarely worked on the engines himself.
• Whalen v. General Electric Corporation (2014). Under maritime law, a complaint alleging that a defendant designed and manufactured asbestos-containing ships need not identify specific vessels at the pleading stage, and the Mack rule that a Navy ship is not a product was left open for the summary judgment or trial stage.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the aggregate dose causing disease; equivocal product-identification testimony and evidence of corporate knowledge of asbestos hazards create fact disputes that preclude summary judgment, including on punitive damages.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a boiler maker can be liable for asbestos components it supplied or specified, and the sophisticated user defense turns on the plaintiff's own sophistication, not the employer's. A Restatement § 402B misrepresentation claim requires an affirmative misrepresentation, not just concealment.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, an asbestos plaintiff must show exposure to the defendant's product that was a substantial factor in the aggregate dose; conflicting evidence on whether defendant supplied the product creates a jury question. Punitive damages require clear and convincing evidence of malice, oppression or fraud by an officer, director or managing agent, which was lacking here.
• Catiller v. Superior Court of Los Angeles County (2nd Appellate District, 3rd Division, 2013). A plaintiff with trial preference for health reasons is still entitled to the near-mandatory continuance under Code Civ. Proc. § 437c(h) when discovery needed to oppose summary judgment was delayed by the defendant.
• David v. Slakey Brothers, Inc. (2nd Appellate District, 3rd Division, 2013). A trial court abuses its discretion by refusing to consider a signed opposing declaration filed before the summary judgment hearing, where the refusal punishes counsel for conduct in other cases rather than rests on a finding of no good cause. The declaration here raised a triable issue of exposure to the defendant's asbestos-containing products.
• Hernandez v. Amcord, Inc. (2nd Appellate District, 2nd Division, 2013). Under Rutherford, a plaintiff need not have an M.D. recite that the defendant's product caused the disease. Evidence of threshold exposure, an epidemiologist's testimony on cumulative exposure, and a physician's opinion that asbestos caused the mesothelioma can show the product was a substantial factor contributing to the risk of cancer. The Noerr-Pennington doctrine is a rule of substantive liability, not a rule of evidence, so it does not bar evidence of lobbying.
• Lee v. Clark Reliance Corporation (2nd Appellate District, 3rd Division, 2013). A manufacturer is not liable in strict liability or negligence for harm caused by another manufacturer's asbestos-containing replacement parts used with its product, and a plaintiff must show exposure to the defendant's own asbestos-containing product to establish causation.
• Nelson v. Air and Liquid Systems Corp. (2013). Under California law, a plaintiff must present evidence of exposure to asbestos from the specific defendant's product; evidence supporting only conjecture that the decedent was near or used a defendant's asbestos-containing product is insufficient to survive summary judgment.
• Webb v. Special Electric Company, Inc. (2nd Appellate District, 1st Division, 2013). A trial court may enter judgment notwithstanding the verdict only after the statutory waiting period and with the required written notice. A supplier of raw asbestos is not relieved of its duty to warn downstream users, as a matter of law, just because its sophisticated customer already knew the dangers.
• Casey v. Perini Corporation (1st Appellate District, 4th Division, 2012). An expert opinion that assumes asbestos was present, based only on general OSHA presumptions with no factual support for the specific jobsites, lacks foundation and may be excluded. Speculation or the mere possibility of exposure to asbestos attributable to the defendant does not create a triable issue of fact.
• Davis v. Foster Wheeler Energy Corporation (2nd Appellate District, 5th Division, 2012). A boiler manufacturer that did not make or sell asbestos-containing products is not liable for harm from other makers' asbestos insulation (O'Neil v. Crane Co.). Contradictory testimony that did not tie Foster Wheeler workers to the insulation removal raised no triable issue, and an argument about incomplete discovery that was not raised in the trial court cannot be raised on appeal.
• Nolen v. Foster Wheeler Energy Corp. (2nd Appellate District, 2nd Division, 2012). Under O'Neil v. Crane Co., a product manufacturer is not liable in strict liability or negligence for harm from another manufacturer's asbestos products unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use. Here there was no evidence Foster Wheeler made or supplied the asbestos insulation or replacement parts, or specified asbestos use at the relevant sites in 1976-1979.
• O'neil v. Crane Co. (2012). A product manufacturer is not strictly liable or negligent for harm caused by another manufacturer's product or replacement parts used with its product, unless its own product contributed substantially to the harm or it participated substantially in creating a harmful combined use. Foreseeability alone does not create a duty to warn.
• Palomares v. Thomas Dee Engineering Company (1st Appellate District, 2nd Division, 2012). A plaintiff in an asbestos case must show exposure to the defendant's asbestos; without evidence supporting a reasonable inference of such exposure, there is no causation and summary judgment is proper.
• Fontes v. Interstate Brands Corporation (2nd Appellate District, 5th Division, 2011). A defendant can shift the burden on summary judgment by showing through discovery responses and deposition testimony that plaintiffs cannot prove asbestos was present at the work site. An expert declaration lacking foundation for that point is properly excluded, and a new trial motion based on excluded expert opinions fails because the evidence is not material.
• Galicinao v. McMASTER Carr Supply Company (2nd Appellate District, 3rd Division, 2011). A plaintiff opposing summary judgment in an asbestos case may show exposure to a defendant's product through circumstantial evidence supporting a reasonable inference of exposure. Evidentiary objections raised in a separate statement are argument, not disputed fact.
• Webster v. Exxonmobil Oil Corp. (2nd Appellate District, 4th Division, 2011). Trial testimony that contradicts clear admissions in a party's deposition is not substantial evidence, so it cannot defeat a nonsuit; without evidence of exposure there is no causation.
• Hall v. Warren Pumps LLC (2nd Appellate District, 2nd Division, 2010). A manufacturer of pumps and valves is not strictly liable or negligent for failing to warn of asbestos hazards from third-party asbestos insulation, gaskets and packing used with its equipment, where it did not make or supply those products and its own equipment did not cause or create the risk.
• Smith v. Pneumo Abex LLC (2nd Appellate District, 3rd Division, 2010). A trial court cannot, after the verdict, reduce a lump-sum medical-expense award that includes future expenses without speculating about the future portion, so the Hanif-Nishihama reduction could not be applied here. Settlement credits against economic damages are calculated by a three-step method, and the court need not accept the settling parties' allocations to wrongful death claims.
• Stewart v. Union Carbide Corporation (2nd Appellate District, 5th Division, 2010). A raw asbestos supplier that gave no warning cannot rely on a sophisticated purchaser or intermediary to give warnings, and the sophisticated-user rule in Johnson turns on the user's own knowledge, not the purchaser's. A defendant seeking to shift fault to other asbestos suppliers bears the burden of proving their fault and its percentage.
• Teruel-Armstrong v. Borg-Warner Morsetec, Inc. (2nd Appellate District, 3rd Division, 2010). A court may impose an evidence sanction for a third-party deponent's failure to produce subpoenaed documents only if a discovery statute authorizes it or, under inherent authority, the misconduct is egregious. Neither was shown here.