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.

Washington

• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law, a plaintiff must show a reasonable connection between the injury, the product, and the manufacturer; without admissible evidence of causation, summary judgment for the defendant is proper.
• Varney v. Air & Liquid Systems Corporation (2019). Under Washington products liability law (Lockwood), a plaintiff must offer admissible evidence connecting the injury, the defendant's product and the defendant; without the excluded affidavit and expert opinion, causation could not be found.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). A court may not order a new trial on damages unless it has a firm conviction the jury erred, and may not grant judgment as a matter of law where substantial evidence, including admissible expert testimony on causation and exposure, supports the verdict.
• Barabin v. Scapa Dryer Fabrics, Inc. (2018). Under Washington law, a plaintiff may use circumstantial evidence, such as sales records showing which machines received a defendant's asbestos-containing products and the plaintiff's work on those machines, to let a jury infer exposure and causation without direct identification of the product.
• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Mikelsen v. Air & Liquid Systems Corporation (2018). Maritime law did not apply because the worker's exposure was mainly in a land-based shipyard machine shop, so Washington law governed. A jury could find causation even without proof the worker handled the defendant's product, and the government contractor defense was not shown as a matter of law.
• Varney v. Air & Liquid Systems Corporation (2018). Under Fed. R. Civ. P. 56(d), a court may deny a summary judgment motion without prejudice as premature when the nonmovant needs more time for discovery and ample time remains under the scheduling order.
• Rublee v. Carrier Corporation (1st Division, 2017). Under Restatement (Second) of Torts § 400, assumed to be adopted in Washington, a defendant is liable as an apparent manufacturer only if the evidence satisfies a reliance or enterprise test. Under the objective reliance test, a reasonable purchaser in the position of the actual (industrial) purchaser is the relevant viewpoint.
• Woo v. General Electric Company (1st Division, 2017). A manufacturer generally has no duty to warn of asbestos in other makers' products used with its equipment, but a fact issue on duty exists where the evidence shows the equipment required asbestos-containing insulation, gaskets and packing to function as designed and the plaintiff was exposed to original gaskets and packing the manufacturer supplied.
• Rublee v. Carrier Corp. (1st Division, 2016). Under Restatement (Second) of Torts § 400, apparent manufacturer liability was assessed from the viewpoint of a reasonable purchaser in the position of the actual purchaser, and the evidence failed under the objective reliance, actual reliance and enterprise liability tests.
• Curtis v. Abb Incorporated (2015). A plaintiff must show exposure to the defendant's product and that the product was a substantial factor in causing the injury. Arguably inconsistent deposition testimony is not conclusive against the nonmovant at summary judgment, and discrepancies raise credibility issues for the factfinder.
• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• McCROSSIN v. Imo Industries, Inc. (2015). Under maritime law, a plaintiff can raise a genuine issue of material fact about asbestos exposure with either direct or circumstantial evidence, and expert testimony on exposure can suffice when other record evidence supports it. Here the expert also claimed personal knowledge.
• McCROSSIN v. Imo Industries, Inc. (2015). Summary judgment fails where plaintiff offers testimony and expert opinion creating a genuine dispute whether the defendant's asbestos materials were on the ship and were a substantial factor in causing mesothelioma, under either state or maritime law. A defendant's superseding-cause and derivative sovereign immunity defenses also fail at this stage where factual disputes remain.
• McMann v. Air & Liquid Systems Corporation (2015). Maritime law governs a claim by a predominantly sea-based Navy worker exposed aboard a ship in dry dock, and under the Lindstrom standard the plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury; mere presence of the product at the workplace is not enough.
• Farrow v. Alfa Laval, Inc. (1st Division, 2014). Under ER 804(b)(1), a prior party who had an opportunity and similar motive to develop testimony by cross-examination is a 'predecessor in interest' to the current party, following the federal courts' interpretation. Deposition testimony meeting that test is not excluded as hearsay.
• Kennedy v. Saberhagen Holdings, Inc. (2nd Division, 2014). Asbestos plaintiffs in Washington may prove exposure to a defendant's product through circumstantial evidence, such as witnesses who say the defendant's products were present at the workplace. A summary judgment motion can be decided only on the grounds stated with particularity in the motion.
• McMann v. Air & Liquid Systems Corporation (2014). Asbestos exposure is treated as an indivisible injury, so a worker exposed both as the premises owner's employee and as a contractor's worker is barred by the Industrial Insurance Act from suing that owner. Under Washington law, exposure to a defendant's product may be shown by direct or circumstantial evidence.
• McMann v. Air & Liquid Systems Corporation (2014). A court need not credit a plaintiff's self-serving testimony that is uncorroborated and contradicted by objective records, so such testimony does not create a genuine issue of fact on exposure at the defendant's site.
• Nelson v. Air & Liquid Systems Corporation (2014). Under maritime law, an asbestos plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. A manufacturer is not liable for replacement parts it did not place in the stream of commerce.
• Lipson v. ON Marine Services Company, LLC (2013). Under Rule 702 and Daubert, challenges such as dissimilar test conditions, inability to quantify dose or identify a threshold, non-peer-reviewed sources, and lack of direct product evidence go to the weight of expert testimony, not its admissibility, and are for cross-examination.
• Montaney v. JM Manufacturing Company, Inc. (1st Division, 2013). Under Washington's lenient standard for asbestos product identification, a plaintiff may rely on circumstantial evidence, and evidence that a defendant's asbestos pipe was sold through the plaintiff's sole supplier during his period of use is enough to make a prima facie case and defeat summary judgment.
• Macias v. Saberhagen Holdings, Inc. (2012). The general rule that a manufacturer must be in the chain of distribution of the asbestos-containing product (Simonetta, Braaten) does not bar a failure-to-warn claim against respirator makers, because their own products, used and cleaned as intended, inherently involve asbestos exposure. The WPLA applies when substantially all exposure occurred on or after July 26, 1981.
• Stevens v. CBS Corporation (2012). Circumstantial evidence can let a jury reasonably infer that a worker was exposed to a defendant's original or replacement asbestos-containing parts. Where the facts are disputed, summary judgment is not available on causation, the government contractor defense or assumption of risk. Under maritime law, Washington substantive law applies because it does not conflict with maritime law.
• Morgan v. Aurora Pump Co. (1st Division, 2011). A plaintiff may prove exposure to a defendant's asbestos product by circumstantial evidence, including witnesses who saw him or others near him work on that defendant's equipment. Under the Lockwood factors, such evidence can create a fact question on exposure and substantial-factor causation. The government-contractor defense is a fact-intensive affirmative defense for the jury.
• Wangen v. AW Chesterton Company (1st Division, 2011). A pump manufacturer is not liable for asbestos in replacement gaskets, packing or insulation it did not manufacture or supply, and the plaintiff must show exposure to asbestos products made or supplied by that defendant. Evidence that the manufacturer specified asbestos parts did not defeat summary judgment where no authority supported liability on that basis.
• Yankee v. APV North America, Inc. (1st Division, 2011). An equipment manufacturer has no duty to warn of asbestos in replacement parts it did not make, sell or supply, and the documents offered here did not amount to specifications requiring asbestos-containing parts, so the court did not need to decide whether a specification exception exists.
• Cashman v. Pacific Scientific Company (1st Division, 2010). A party who does not object in the trial court to evidence considered on summary judgment cannot challenge its admissibility on appeal. A manufacturer has no duty to warn about asbestos insulation made by others and added later, and trial courts have broad discretion to choose a spoliation sanction short of dismissal.
• Cashman v. Pacific Scientific Company (1st Division, 2009). A manufacturer owes no common law duty to warn of hazards of replacement asbestos insulation it did not make or supply, and a worker without a proper foundation cannot give opinion that materials contained asbestos; speculative circumstantial evidence of exposure to the defendant's asbestos product does not defeat summary judgment.
• Braaten v. Saberhagen Holdings (2008). Under Washington common law strict liability and negligence, a manufacturer has no duty to warn of asbestos hazards in other manufacturers' products (insulation or replacement packing and gaskets) that it did not make or supply and was not in the chain of distribution of. The plaintiff also failed to show exposure to the original packing and gaskets supplied with the defendants' products.
• Butler v. Amtico International Inc. (1st Division, 2008). An asbestos plaintiff need only show that the defendant's asbestos-releasing product was in his work environment during the period of cumulative exposure that caused the disease; separate expert testimony that the defendant's product alone was a substantial factor is not required. Reasonable inferences on product exposure are drawn in the nonmovant's favor.
• Kimball v. Asbestos Corporation Ltd. (1st Division, 2008). Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.
• Taylor v. Union Carbide Corporation (2nd Division, 2008). A plaintiff may use circumstantial evidence to show exposure to a defendant's asbestos, and need only show the defendant's asbestos was among that in his work environment and was a substantial factor in causing his disease. Evidence that a joint compound maker used the defendant's asbestos fiber is enough to raise a fact question for trial.
• Bashore v. Fraser's Boiler Service, Inc. (1st Division, 2006). Asbestos plaintiffs can establish exposure to a defendant's products through circumstantial evidence, and evidence called to the trial court's attention, including supplemental submissions responding to an issue first raised in reply, is properly before the appellate court.
• Butler v. Amtico International Inc. (1st Division, 2006). A plaintiff may use circumstantial evidence of exposure, but it must support a reasonable inference that the defendant's product was at the work site; a similar manufacturer name without further evidence leaves a jury to speculate.
• Moore v. American Honda Motor Co., Inc. (1st Division, 2006). A plaintiff may use direct or circumstantial evidence to identify the maker of asbestos products at a worksite, but a jury may not be left to speculate. A general expert opinion that parts from companies "like" the defendant likely contained asbestos, with no specific link to the defendant's products, does not defeat summary judgment.
• Brown v. Crown Cork & Seal Company (1st Division, 2005). A plaintiff may identify the maker of an asbestos product through direct or circumstantial evidence, but an inference resting only on speculation or conjecture that the defendant's product was present cannot defeat summary judgment.
• Berry v. Crown Cork & Seal Co., Inc. (1st Division, 2000). The Marshall rule, which bars a later affidavit that clearly contradicts earlier testimony, did not apply to a fact witness's statements that were arguably inconsistent but not clearly contradictory. Circumstantial evidence under the Lockwood factors was enough to raise a fact issue on exposure to the defendant's products.
• Niven v. EJ Bartells Co. (1st Division, 1999). A release of one successor to a tortfeasor's liabilities that reserves the right to sue unnamed parties does not discharge a separate successor. Under the traditional discovery rule, a defendant claiming a lung cancer claim is time-barred must show with competent medical evidence that the cancer could have been diagnosed more than three years before suit.
• IN the Matter of Estate OF Foster (1st Division, 1989). Willful violation of a discovery order justifies excluding evidence only if it substantially prejudices the opponent's preparation for trial. RCW 7.72.050(2) gives an absolute defense for compliance with a specific mandatory government contract specification, and that defense is not lost merely because the government consulted the manufacturer about the specification.
• Lockwood v. AC & S, Inc. (1987). A plaintiff may prove exposure to a defendant's asbestos product through witnesses who identify the products present at the workplace, rather than by his own identification. A manufacturer also has a continuing duty after exposure ends to use reasonable care to warn of known dangers if a warning could prevent or lessen harm.

Wisconsin

• Chapp v. Colgate-Palmolive Company (1st District, 2019). A plaintiff cannot reach a jury on causation when the evidence shows only a possibility that the defendant's product contained asbestos and the probabilities are at best evenly balanced. Physicians who are not qualified to test talc for asbestos cannot serve as a conduit for others' opinions that a talc brand was contaminated.
• Carroll v. Abb, Inc. (2017). Under Wisconsin law as applied here, a manufacturer is not liable for asbestos products it did not make or distribute unless it specified asbestos replacement parts, and a plaintiff must offer evidence from which a jury could infer without speculation that the defendant's asbestos products were a substantial factor in the injury.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Evidence that an insulation contractor worked at the sites where the plaintiff was near dusty asbestos insulation work can let a jury infer exposure caused by that contractor. Wisconsin's construction statute of repose protects permanent improvements to real property, not repair or maintenance work, so it did not bar the claim on this record.
• Suoja v. Owens-Illinois, Inc. (2016). Under Wisconsin law, a plaintiff must prove exposure to the defendant's product and that the exposure was a substantial factor in causing the disease. An expert opinion that any exposure, however slight, contributes to cumulative exposure, without addressing dose or comparing it to other exposures, did not carry that burden.
• Alexander v. Auer Steel & Heating Co. (1st District, 2015). A plaintiff in a products liability action must offer direct evidence of exposure to the defendant's asbestos product or evidence supporting a reasonable inference of exposure; a mere possibility or guess about the supplier or manufacturer is speculation and insufficient.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Herr v. Linde LLC (2015). A plaintiff must produce evidence that he inhaled asbestos from the defendant's own product, and unlabeled gloves cannot be tied to a defendant whose gloves were labeled. A Pierringer release of a settling distributor also releases a strict liability claim against a non-settling defendant in the same chain of distribution.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.