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.

Delaware

• Robinson v. Union Carbide Corporation (2019). Under Ohio law, a bulk supplier has no duty to warn end users when it adequately warned a sophisticated intermediary and reasonably relied on it to pass the warning on. A plaintiff must offer evidence supporting a reasonable inference of a greater than fifty-percent chance of exposure to the defendant's product, and the opinion rejects a blanket rule that two or more suppliers to an intermediary defeats product identification.
• Pieno v. Crosby Valve (In re Asbestos Litigation) (2018). Under maritime law, a plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. Vague recollection of a brand name, with no link to a particular ship or product, does not meet that burden, even when the motion is unopposed.
• Kister v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2018). Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing the injury; with no product identification, summary judgment follows even when the motion is unopposed.
• Charlevoix v. Caterpillar, Inc. (2017). Under both maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; mere presence of a product, or minimal exposure, is not enough.
• Evans v. CBS Corp. (2017). Under maritime law (and Colorado law for land-based claims), a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury, and a manufacturer is not liable for asbestos parts it did not make or distribute (the bare metal defense). Even an unopposed summary judgment motion requires the court to find the undisputed facts warrant judgment.
• Evans v. Flowserve US Inc. (2017). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-containing product and that it was a substantial factor in causing the injury. Even when a motion is unopposed, the court must find that the undisputed facts support judgment.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (2017). Under maritime law, a plaintiff must show exposure to the defendant's product and that the product was a substantial factor in causing the injury. A plaintiff who bears the burden of proof at trial and cannot show this loses on summary judgment.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (2017). Applying Rhode Island law, the court used the frequency, regularity, proximity test for asbestos causation. It held that disputed facts about product identification and exposure, including whether the testimony was contradictory, are for the factfinder.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2017). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury; general testimony about replacement parts, without evidence they were made by the defendant, does not meet that burden.
• Charlevoix v. Caterpillar (In re Asbestos Litigation) (2017). Under maritime law and Michigan law, a plaintiff must show exposure to the particular defendant's asbestos-containing product that was a substantial factor in causing the injury. Under the bare metal defense, a manufacturer is not liable for asbestos parts it did not make or supply.
• Evans v. Foster Wheeler Energy Corp. (In re Asbestos Litigation) (2017). Under maritime law a plaintiff must show exposure to the defendant's own product that was a substantial factor in causing the injury, and under the bare metal defense a manufacturer is not liable for asbestos-containing parts it did not make or supply.
• Tallman v. Foster Wheeler Energy Corp. (In re Asbestos Litigation) (2017). Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury, and the bare metal defense bars liability for asbestos materials the defendant did not make or supply. Speculation does not create a genuine factual dispute on these points.
• Shaw v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Connecticut law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury, and even an unopposed summary judgment motion requires the court to find that the undisputed facts warrant judgment.
• Harris v. Deere & Co. (In re Asbestos Litigation) (2017). Under North Carolina law, a plaintiff must show actual exposure to an asbestos-containing product made, sold or distributed by the defendant; without evidence beyond speculation that the replacement parts were Deere's and contained asbestos, summary judgment is proper.
• Denbow v. CBS Corp. (In re Asbestos Litigation) (2017). Under maritime law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Under the bare metal defense, a manufacturer is not liable for asbestos-containing parts it did not make or supply.
• Charlevoix v. John Crane (In re Asbestos Litigation) (2017). Under maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Evidence that does not show regular exposure over an extended period does not meet this test. A failure to respond to a summary judgment motion does not alone justify judgment.
• Reed v. Nosroc Corp. (In re Asbestos Litigation) (2017). To survive summary judgment in a take-home asbestos case, plaintiffs must produce evidence from which a jury could infer, without speculation, that the worker was in specific proximity to the defendant's product while it was being used (and, where friability is properly raised, while it was friable).
• In re Asbestos Litigation Evans v. Alfa Laval, Inc. (2017). Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Without evidence of exposure to a defendant's product, summary judgment is proper even when the motion is unopposed.
• In re Asbestos Litigation Sturgill v. 3M Company, Inc. (2017). Where a defendant was only one of several suppliers of asbestos to joint compound manufacturers, it cannot reasonably be inferred that the plaintiff was exposed to that defendant's asbestos, so product identification fails.
• Hillyer v. Mine Safety Appliances Co. (In re Asbestos Litigation) (2016). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-containing product and that the exposure was a substantial factor in causing the injury. A manufacturer is not liable for asbestos-containing parts it did not make or supply, and speculation cannot create a fact issue on product identification.
• Denbow v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (2016). Where the plaintiff, after adequate discovery, offers no evidence that the decedent was exposed to a defendant's product, summary judgment for that defendant is warranted, even on an unopposed motion, under Rule 56(e)(3).
• In re Asbestos Litigation Charlevoix v. CBS Corporation (2016). Under maritime and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; with no evidence identifying such a product, summary judgment is proper even when unopposed.
• Hillyer v. ABB (In re Asbestos Litigation Hillyer) (2016). Under maritime law, a plaintiff must show exposure to the defendant's own asbestos-containing product that was a substantial factor in causing the injury. Minimal exposure, or a manufacturer's product merely being present, is not enough, and a manufacturer is not liable for asbestos parts it did not make or distribute.
• Malone v. Air & Liquid Systems Corporation (2016). Under Mississippi law a plaintiff must show exposure to the defendant's asbestos-containing product with sufficient frequency, regularity and proximity, even in a mesothelioma case. A manufacturer of bare-metal equipment has no duty to warn about asbestos insulation made and supplied by others, and foreseeability of such use alone does not create that duty.
• Winhauer v. Air & Liquid Systems Corporation (2016). Under Mississippi law, the frequency, regularity and proximity test applies to mesothelioma claims without relaxation, and speculation about which product a plaintiff used or how often is not enough to avoid summary judgment. A manufacturer is not liable for asbestos-containing parts, such as replacement gaskets, that it did not make or sell.
• Winhauer v. Air & Liquid Systems Corporation (2016). Under Mississippi's frequency, regularity and proximity test, a plaintiff must show exposure to a particular defendant's asbestos-containing product with sufficient frequency, regularity and proximity to support causation. Under the bare metal defense, a manufacturer is not liable for asbestos products made by others that were used with its product.
• Malone v. Air & Liquid Systems Corporation (2015). Where a plaintiff has had adequate opportunity for product identification discovery and files notice of non-opposition to summary judgment, Rule 56(e)(3) permits the court to grant summary judgment against the plaintiff.
• Malone v. Air & Liquid Systems Corporation (2015). Where plaintiffs have had adequate fact discovery on product identification and give notice that they do not oppose summary judgment motions, the court may grant those motions and dismiss the moving defendants under Fed. R. Civ. P. 56(e)(3).
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (2014). Under New Jersey law a plaintiff must show frequent and regular exposure in close proximity to friable asbestos from the named defendant's product, and a handful of brake jobs over several years does not support that inference even for mesothelioma. Reargument requires a misapprehended law or fact that would change the outcome.
• Pavlick v. AM General (In re Asbestos Products Liability Litigation) (2014). Speculation that a worker may have worked on a defendant's vehicles does not create a genuine dispute of fact on product identification; being the Army's prime contractor for the truck types does not imply exclusivity.
• Phillips v. Hoffman/New Yorker (In re Asbestos Litigation Phillips) (2013). Under Virginia law as applied by this court (following Merritt), a manufacturer's duty of care can extend to exposure from replacement parts made by a third party. A court has discretion to deny summary judgment when the record is confusing or insufficiently developed.
• Edmisten v. Greyhound Lines, Inc. (2012). Testimony so inconsistent that no reasonable juror could accept it does not raise a genuine issue of material fact. A plaintiff must also show that the particular defendant's asbestos-containing product was used at the job site and that the plaintiff was near it.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (2012). A late-identified expert's testimony may be allowed, with a trial continuance to cure prejudice, where the opposing party consented to the late report and did not timely object. The court called this a rare exception to the rule that late-identified experts are precluded.
• Gordon v. Dana Companies (In re Asbestos Litigation) (2011). Under Kansas's asbestos statute, which the court read as codifying the Lohrmann frequency, regularity and proximity test, a plaintiff must show that exposure to the defendant's product was a substantial factor. The court held that Kansas law does not apply this test less strictly in mesothelioma cases, and that specific dates or counts of exposure are not required.
• Davis v. Crane Co. (In re Asbestos Litigation) (2011). Under maritime law, a plaintiff must show substantial exposure to asbestos from the defendant's own product; a valve maker is not liable for third-party asbestos packing, gaskets or insulation absent evidence it specified or required them.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (2011). Under Louisiana substantive law, a plaintiff must show that a defendant's product was a substantial factor in causing disease, and Delaware courts do not allow a plaintiff to proceed on speculative exposure to a defendant's product; conflicting, speculative product identification testimony does not create a genuine factual dispute.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (2011). Under North Carolina law, a product's mere presence at a worksite does not show exposure, but a worker's testimony that he regularly used a brand's brakes, together with supporting context, can raise a triable issue of frequent, regular exposure over an extended period, without proof of specific instances.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (2011). Under Louisiana law, a plaintiff must show exposure to asbestos from the specific defendant's product; a belief based on general "common knowledge" that shingles contained asbestos, against unrebutted evidence that the particular product was asbestos-free, is speculation that cannot defeat summary judgment.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (2011). Under Georgia law, a plaintiff must show a defendant's asbestos-containing product was a contributing factor to the injury, which requires proof of proximity to its use; he need not recall a specific time, job, or incident if he offers product identification, proximity, and supporting expert testimony. A movant that ignores the controlling jurisdiction's authority cannot show it is entitled to judgment as a matter of law.
• James v. Albany Int'l (In re Asbestos Litigation) (2011). Under Washington law, the Lockwood and Berry approach to inferring exposure from a product's presence at a worksite presupposes that the product contained asbestos; where there is no evidence the product the worker used contained asbestos, an inference of exposure to the defendant's asbestos product is speculative and cannot survive summary judgment.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (2011). Under Delaware's borrowing statute the shorter Delaware limitations period applied to the survival claim. A wrongful death claim accrues no earlier than the decedent's death. In a multi-defendant asbestos case, but-for causation does not apply, and the Utah Supreme Court was not expected to apply it.
• Olson v. Crane Co. (In re Asbestos Litigation) (2011). Applying Idaho law, the court predicted that Idaho would not impose a duty to warn on a manufacturer for hazards arising from asbestos-containing products or replacement parts that it did not manufacture, distribute, or sell, even if its own product incorporated similar components.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (2011). Under North Carolina law a plaintiff must show actual exposure to the defendant's asbestos-containing product; conflicting evidence about the product's dates and packaging, turning on a witness's credibility, is a jury question that precludes summary judgment.
• Turchen v. County Insulation Co. (In re Litigation) (2011). Rule 11 imposes a duty of reasonableness under the circumstances, so a subjective good faith belief does not suffice. Counsel who cites unverified authority or ignores directly adverse authority known to him may be sanctioned.
• Money v. Manville Corp. Asbestos Comp. Fund (1991). To make a prima facie case that a defendant's asbestos product caused an asbestos-related disease, a plaintiff must offer direct expert medical testimony, stated in terms of reasonable medical probability, that the defendant's product was a proximate (but-for) cause of the injury; causation cannot be left to lay inference.

District of Columbia

• Jackson v. Colgate-Palmolive Company (2019). An expert's asbestos testing opinion is unreliable and excluded where the method skipped a required confirmatory step and the results cannot be verified, and a specific causation opinion fails where it rests on an unreliable control group and ignores other reported exposure; gaps in chain of custody for talc samples go to weight where adulteration is reasonably eliminated.
• Alliegro v. ACandS, Inc. (1997). On a directed verdict motion, evidence is viewed in the plaintiff's favor, and proof that the plaintiff and the defendant's asbestos products were in the same place at the same time, with expert testimony that exposure was a substantial factor, is enough for the jury.

Florida

• Smith v. Carlisle Industrial Brake & Friction, Inc. (1st District, 2023). Circumstantial evidence can establish product identification if it makes it reasonably probable, not merely possible, that the defendant was the source of the product. This is the same more-likely-than-not standard that applies to causation under Gooding, and the evidence must be viewed in the light most favorable to the nonmoving party.
• Dugas v. 3M Company (2016). A dust mask not designed or marketed to protect against asbestos is not defectively designed for failing to do so, but a jury may find the manufacturer's warnings about its limits inadequate. A Florida fraud claim is barred when the last act of concealment fell outside the 12-year repose period.
• Oneal v. Alfa Laval, Inc. (2014). A maker of a product that contains no asbestos is not liable for injuries from asbestos that others supplied or used with its product (the bare metal defense), and plaintiffs must show exposure to asbestos the defendant itself made or supplied. Maritime law governed claims of exposure aboard Navy ships.