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.

Texas

• In re Sears, Roebuck and Co. (2003). Discovery orders compelling a defendant to produce information about products the plaintiff never identified as sources of his exposure are overbroad and an abuse of discretion, and mandamus is available because the burden far exceeds the likely benefit. A trial court also may not modify an order that an appellate court has stayed.
• Vaughn v. Ford Motor Co. (11th District, 2002). Under Illinois law, a plaintiff must show frequent, regular and proximate exposure to each particular defendant's asbestos product (the Thacker test); without such evidence, directed verdicts for each brake manufacturer are proper, and an erroneous expert exclusion is harmless if the experts' testimony would not bear on that gap.
• North American Refractory Co. v. Easter (13th District, 1999). Third-party eyewitness testimony that a worker was present when a defendant's asbestos products were used is enough evidence of exposure and causation, and the court did not adopt the Lohrmann frequency-regularity-proximity test. Asbestos claims may be consolidated under the Ethyl factors, and the punitive award met the BMW v. Gore due process guideposts.
• Click v. Owens-Corning Fiberglass Corp. (1995). In an asbestos case, a plaintiff can survive a directed verdict with circumstantial evidence that the worker frequently and regularly worked in proximity to the defendant's products so that he likely inhaled its fibers. Direct proof that the worker handled the defendant's product is not required.
• Keene Corp. v. Gardner (5th District, 1992). A plaintiff's evidence of frequent, regular work near a defendant's asbestos product can support a finding of exposure, and a Texas court may not order mediation over a party's request for the statutory ten-day period to object.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.
• Gaulding v. Celotex Corp. (1989). A plaintiff must prove the defendant supplied the product that caused the injury. On these facts (unidentified asbestos board bought at a salvage yard), alternative liability, concert of action, enterprise liability and market share liability did not apply, and neither joint and several liability nor res ipsa loquitur relieved that burden.

Utah

• Riegler v. Carlisle Companies, Incorporated (2023). Under Rule 702, a medical expert's specific causation opinion is inadmissible when it rests on an unsupported assumption that exposures to each defendant's products were equal and the expert does not show how he applied his methods. Without expert causation testimony, which Utah law generally requires in such cases, the defendant is entitled to summary judgment.
• Hipwell v. Air & Liquid Systems Corp. (2022). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-associated product that was a substantial factor in causing the injury, and a boiler maker may owe a duty to warn under DeVries if it directed that asbestos be incorporated. The court treated the substantiality of exposure, the duty to warn, the government contractor defense and warning causation as disputed fact questions, with Utah's heeding presumption applying to the causation question.
• Sylvester v. Blue Bird Corporation (2022). A plaintiff in an asbestos case must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Generic evidence that a defendant sold some asbestos products, without evidence the decedent likely encountered them, is too speculative to defeat summary judgment. Evidence not disclosed under Rule 26 may be excluded under Rule 37(c)(1).
• Riggs v. Asbestos Corp. Ltd. (2013). A tort claim for asbestos disease accrues when the disease is diagnosed, not at exposure, so the law in force at diagnosis governs. A raw-material supplier can obtain JNOV under the bulk supplier rule only if the evidence shows as a matter of law that it met its duty to warn.

Virginia

• Gehant v. Foster Wheeler Energy Corporation (2022). Under Air & Liquid Systems v. DeVries, a manufacturer's duty to warn depends on whether its product required incorporation of an asbestos-containing part, not merely heat insulation generally. Disputed facts on each DeVries prong, on the Boyle/Sawyer government contractor test, and on substantial-factor causation preclude summary judgment.
• Wilson v. AC&S, Inc. (2015). Whether under maritime law (exposure to the product as a substantial factor) or Virginia law (exposure more likely than not sufficient to cause the illness), a plaintiff needs evidence that the defendant's product released enough asbestos fibers to cause the disease. A belief that a part looked like asbestos, plus visible dust, did not supply that evidence.
• John Crane, Inc. v. Hardick (2012). Nonpecuniary damages are not recoverable in a wrongful death action for a seaman, whether under DOHSA, the Jones Act, or general maritime law, and a Navy sailor who contributed to the function of vessels and had a substantial connection to them is a seaman. Arguments not briefed under Rule 5:27 are waived.
• Owens-Corning Fiberglas Corp. v. Watson (1992). A manufacturer has a duty to warn only if it knows or has reason to know its product is dangerous. Circumstantial evidence can prove exposure to a particular manufacturer's product. Evidence of conscious concealment of a known hazard can support punitive damages. The attorney-client privilege does not cover a memorandum that reveals a fraud on a court.

Washington

• Deem v. Air & Liquid Systems Corporation (2023). Under maritime law a plaintiff must show actual exposure to the defendant's asbestos and that it was a substantial contributing factor, which requires substantial exposure for a substantial period when direct evidence is absent. The presence of a defendant's product at a shipyard is not enough.
• Holdsworth v. Scapa Waycross, Inc. (1st Division, 2023). A plaintiff in an asbestos case may prove exposure to a defendant's product through circumstantial evidence, and expert testimony that all asbestos exposure cumulatively contributes to the disease, together with that exposure, supports a reasonable inference that the product was a substantial factor. A judge's curative instruction to disregard one statement in closing argument did not require reversal, because any error was cured by the written instructions.
• Welch v. Crane Co. (2023). Under maritime law, a plaintiff must show actual exposure to asbestos-containing materials from the defendant's product and that the exposure was a substantial contributing factor in causing the injury. The mere presence of a defendant's products on the ship is not enough. A manufacturer's duty to warn is assessed under the DeVries three-part test.
• Budd v. Kaiser Gypsum Company, Inc. (1st Division, 2022). Washington courts apply a more lenient standard of proof to product identification in asbestos cases, given the long latency period. In a failure-to-warn case, evidence that the plaintiff would have heeded a warning can establish cause in fact.
• Cockrum v. CH Murphy/clark-Ullman, Inc. (2022). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that the plaintiff cannot state a claim against the non-diverse defendant on any theory; arguments about the strength of the plaintiff's evidence do not meet that standard.
• Hickson v. Air & Liquid Systems Corporation (1st Division, 2022). To survive summary judgment, an asbestos plaintiff must show a genuine issue of fact on exposure to asbestos and on causation under the Lockwood factors; potential exposure and an expert's conditional hypothetical opinion, without evidence of actual exposure, require speculation and are not enough.
• Behrmann v. Abb, Inc. (2021). Under maritime law, a plaintiff must show with evidence of the amount or duration of exposure that a defendant's asbestos product was a substantial factor in causing the disease; general evidence of possible exposure is not enough. A failure to warn claim fails when causation cannot be shown.
• Behrmann v. Abb, Inc. (2021). Maritime law applies to asbestos exposure on ships in drydock when the locality and connection tests are met, and under it a plaintiff must show substantial exposure to the defendant's asbestos for a substantial period. A court may defer summary judgment under Rule 56(d) when the nonmovant identifies specific facts it expects discovery to produce.
• Strong v. Honeywell International, Inc. (2021). Under Washington law a witness is presumed competent, and a dementia diagnosis shortly before a deposition does not by itself make a witness incompetent or require a competency hearing. Late discovery of records the movant could have sought earlier, and which the opposing party does not control, may be barred by protective order.
• Varney v. Goodyear Tire & Rubber Company (2021). A declaration offered as a dying declaration was properly excluded where the evidence did not show the declarant had personal knowledge of its contents; the district court's factual findings were reviewed for clear error and its evidentiary ruling for abuse of discretion.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show exposure to asbestos attributable to the defendant was a substantial contributing factor, including evidence of the amount and duration of exposure. Showing that a defendant's products were present and the worker was occasionally exposed is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show evidence of the amount and duration of exposure to asbestos from the defendant's products sufficient to make a substantial-factor inference more than conjectural; placing a defendant's products in the workplace is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show exposure to a defendant's asbestos products was a substantial contributing factor, with evidence of the amount and duration of exposure. A manufacturer owes a duty to warn about third-party replacement parts only if its product requires the part to function as intended.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show that exposure to a particular defendant's asbestos product was a substantial contributing factor, including evidence of the amount and duration of exposure; placing a defendant's products in the workplace and showing occasional exposure to asbestos dust is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under Washington law, plaintiffs must present evidence from which a jury could reasonably infer exposure to asbestos from the specific defendant's products; without evidence that the defendant's products were in the decedent's work spaces, causation would rest on speculation.
• Deem v. Air & Liquid Systems Corporation (2020). Under maritime law, a plaintiff must show actual exposure to asbestos-containing materials installed by the defendant and that the exposure was a substantial contributing factor; evidence that machinists sometimes worked on products that could have contained asbestos, supported only by speculative expert opinion, does not meet that standard.
• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. The court deferred applying this standard pending further briefing.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law (Lockwood), a plaintiff must show a reasonable connection between the injury and the particular defendant's product, and general evidence of asbestos on ships does not suffice. A defendant that files its answer after discovery closes, causing prejudice, waives an affirmative limitations defense.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington's Lockwood factors, a plaintiff can show product-specific causation by evidence of proximity, duration, handling, fiber release and other sources, and a jury may find that exposure to Bendix brakes was a causative factor in mesothelioma despite other possible exposures.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must identify the manufacturer of the product that caused the injury, and the Lockwood factors guide whether the evidence is enough for a jury on causation. Evidence of extensive dusty brake work with Rayloc brakes attributed to Pneumo Abex was enough to reach a jury.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law, an asbestos plaintiff must show a reasonable connection between the injury, the product, and the manufacturer, assessed using the Lockwood factors. General evidence of shipboard asbestos exposure, without evidence tying the decedent to this defendant's product, is not enough for a jury.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). A plaintiff's inability to prove exposure or causation against one defendant does not eliminate other defendants' affirmative defenses of alternative asbestos exposure, and the plaintiff did not show there was no genuine dispute of material fact on them.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law (Lockwood), a plaintiff must show a reasonable connection between the injury, the product and the particular defendant's product. A plaintiff cannot rely on an exposure theory dropped from the operative complaint to defeat summary judgment.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law, a plaintiff must show a reasonable connection between the injury, the product and the manufacturer, and the Lockwood factors must support a finding that exposure to the defendant's product caused the injury. General evidence of shipboard asbestos and of asbestos causing the disease is not enough.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must show a reasonable connection between the injury, the product and the particular defendant's product, and general evidence of brake exposure that does not tie asbestos-containing brakes to the defendant is insufficient to reach a jury.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must identify the particular manufacturer of the asbestos product that caused the injury, and the Lockwood factors require evidence from which a jury could find that the defendant's product caused the harm.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law and the Lockwood factors, a plaintiff must show a reasonable connection between the injury, the product, and the defendant that made or sold it. Evidence that the decedent shopped at the store, without proof he bought an asbestos-containing product there, was insufficient.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law (Lockwood), a plaintiff must establish a reasonable connection between the injury, the product and the manufacturer, and must identify the particular manufacturer of the product that caused the injury; without admissible evidence identifying the defendant's product, summary judgment is proper.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law and the Lockwood factors, a plaintiff must offer admissible evidence reasonably connecting the injury, the defendant's product and the defendant; without such evidence, causation, an element of all the claims, fails.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington law and the Lockwood factors, a plaintiff may identify a manufacturer through a co-worker's testimony about products present at the workplace, and a minimally sufficient showing of exposure and causation creates a genuine issue of fact. Summary judgment evidence need not be in a form admissible at trial.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must show a reasonable connection between the injury, the product and its manufacturer. Once the court had excluded the decedent's affidavit and the causation expert's opinion, no admissible evidence remained to show that connection.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington product liability law, a plaintiff must show a reasonable connection between the injury, the product and the manufacturer. With Mr. Varney's affidavit and the causation expert's opinion excluded, and no opposition filed, plaintiffs could not show that Parker-Hannifin's products were a substantial factor in causing his disease.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law (and maritime law), a plaintiff must offer admissible evidence connecting the injury to the defendant's product. Without the excluded affidavit and expert opinion, the plaintiffs could not show that Warren's products caused the disease.