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.

Louisiana

• Smith v. Union Carbide Corp. (2014). A defendant may reduce a damage award by the fault of a settling joint tortfeasor only if it proves that tortfeasor negligently caused the plaintiff's damages, which requires evidence of significant exposure to its product that was a substantial factor in causing the injury.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A turbine manufacturer is not liable for asbestos-containing insulation made and attached by third parties, and plaintiffs' conclusory statements about Westinghouse's involvement in installing it did not create a fact issue.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A turbine manufacturer is not liable for asbestos-containing insulation that third parties made and applied to its bare metal turbines after delivery, absent evidence that it made, sold, supplied or distributed the insulation or that its employees attached it.
• Landry v. Avondale Industries, Inc. (4th Circuit, 2013). A plaintiff must show significant exposure to the particular defendant's asbestos product such that it was a substantial factor in causing the disease, and this burden is not relaxed in a multi-defendant case. Where the evidence leaves genuine factual questions about the amount of exposure and its causal contribution, summary judgment for the plaintiff is improper.
• Smith v. Union Carbide Corp. (2013). A defendant waives removal only by proceeding to an adjudication on the merits in state court, and a non-diverse defendant is improperly joined when there is no reasonable possibility the plaintiff can recover against it. Evidence that the plaintiff may have worked at sites where the defendant supplied products at some point is too tenuous.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be granted only on issues raised in the motion. A motion that challenges only exposure to the defendant's asbestos does not put medical causation at issue, and circumstantial evidence that a manufacturer bought the supplier's asbestos can create a fact question on exposure. A raw-asbestos supplier also owes the general duty of reasonable care.
• Robertson v. Doug Ashy Building Materials, Inc. (1st Circuit, 2011). A summary judgment may be rendered only on issues set forth in the motion under consideration, and a trial court must conduct a Daubert analysis tied to the case's facts before excluding an expert as unreliable. An asbestos plaintiff need show only significant exposure to the defendant's product that was a substantial factor in causing the disease, not the dose from each defendant or epidemiological proof.
• Rome v. Asbestos Defendants (4th Circuit, 2011). Once defendants showed the exposure was attributable to Arnot Marine Corporation, to which plaintiffs conceded Dover was not a successor, plaintiffs had to offer specific evidence of a genuine factual dispute, and mere possibility or speculation did not suffice.
• Pichon v. Asbestos Defendants (4th Circuit, 2010). A company that bought only part of a seller's assets, and expressly refused to assume its liabilities, is not liable as a successor under the 'mere continuation' exception, which requires purchase of all the assets. Plaintiffs must also offer factual support that the defendant's own products exposed the worker to asbestos.
• McAskill v. American Marine Holding Co. (4th Circuit, 2009). In a latent mesothelioma case, a plaintiff need show only that the defendant's asbestos-containing product was a substantial factor in causing the disease, which can be met by showing he actively worked with asbestos-containing materials; circumstantial evidence that the defendant supplied such insulation to the employer creates a genuine fact issue that precludes summary judgment.
• Benard v. Eagle, Inc. (4th Circuit, 2008). A prior appellate writ judgment granting summary judgment and dismissing the plaintiff's 'claims' against the defendants became final when the plaintiff did not seek rehearing or Supreme Court review, so res judicata barred relitigating all claims against them. No exceptional circumstances justified relief under La. R.S. 13:4232.
• Danos v. Avondale Industries, Inc. (4th Circuit, 2008). Conflicting testimony about whether the defendant's boilers were on the vessels where the worker was exposed creates a genuine issue of material fact that precludes summary judgment on product exposure.
• Danos v. Avondale Industries, Inc. (4th Circuit, 2008). A plaintiff in an asbestos case must show exposure to asbestos from the defendant's products. Once the defendant points out an absence of factual support, the plaintiff must produce evidence that he can meet that burden at trial, or summary judgment is proper.
• Thibodeaux v. Asbestos Corp. Ltd. (4th Circuit, 2008). A plaintiff in a Louisiana asbestos case must prove exposure to the defendant's asbestos product and that the exposure was a substantial factor in causing the disease. Evidence that asbestos was present, or that the defendant supplied products at a site at some time, is not enough.
• Grant v. American Sugar Refining, Inc. (4th Circuit, 2007). On summary judgment a court cannot make credibility determinations or weigh evidence, and expert affidavits are tested only under the Daubert-Foret standards without evaluating their persuasiveness. Circumstantial evidence of the defendant's insulation work at the premises can create a genuine issue on exposure.
• Booth v. Acands (4th Circuit, 2003). A defendant moving for summary judgment may point to an absence of factual support for an element, and plaintiffs must then show they can prove it was more probable than not that the decedent was exposed to the defendant's product; a purchase form linking the defendant to a subcontractor's order was not enough to show exposure.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (4th Circuit, 2002). Under federal maritime law, a manufacturer is strictly liable if its asbestos product, unreasonably dangerous and sold without warnings, was a substantial contributing cause of the harm. A non-settling defendant is solidarily liable for the whole of the damages, less the fault share of the settling employer.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A product is unreasonably dangerous per se if its danger-in-fact outweighs its utility, regardless of the manufacturer's knowledge. Working near contractors who cut the product is enough evidence of exposure to support liability.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Egan v. Kaiser Aluminum & Chemical Corp. (4th Circuit, 1996). A short exposure to a defendant's asbestos product can be a substantial contributing factor in mesothelioma, and circumstantial evidence can support an inference that the product came from that defendant. Louisiana law, which bars punitive damages here, governed a Louisiana resident's asbestos injury in Louisiana.
• Quick v. Murphy Oil Co. (4th Circuit, 1994). Where multiple causes are present, a defendant's asbestos-containing product is a cause in fact only if exposure to it was a substantial contributing factor, and not every asbestos exposure meets that standard; a trivial exposure does not.

Maine

• Soucy v. Briggs & Stratton Corporation (2014). At the motion-to-dismiss stage, an asbestos plaintiff need not identify the particular products of each defendant, and need not allege what alternative warning should have been given, so long as the complaint gives fair notice and plausibly alleges how exposure occurred.

Maryland

• Irwin Industrial Tool Company v. Pifer (2022). Items bought online and offered as exemplars are authenticated under Maryland Rule 5-901 if a reasonable juror could find by a preponderance of the evidence, from circumstantial evidence, that they are what the proponent claims, and no chain of custody back to manufacture is required. An appellate court ordinarily reviews a summary judgment only on the grounds the trial court explicitly relied on.
• Coates v. Ford Motor Company (2020). A trial court has wide discretion to deny summary judgment and let a case go to trial, and a jury's weighing of conflicting expert evidence on exposure will not be disturbed. Res judicata and collateral estoppel do not apply where an appellate reversal and remand left no final judgment on the issues.
• Hailey v. Air and Liquid Systems Corporation (2020). A plaintiff must show, for each defendant separately, regular and frequent (or substantial) exposure to that defendant's own product where the plaintiff actually worked; the mere presence of a defendant's product somewhere in the workplace is not enough. The court found the result the same under Maryland and maritime law.
• Ament v. John Crane-Houdalille, Inc. (2019). Under Maryland Rule 5-702, an expert's opinion needs a sufficient factual basis, and a trial court does not abuse its discretion in striking causation testimony when the expert cannot tie the fact witnesses' testimony to the defendant's product. The appellant must pinpoint specific errors on appeal.
• Fullen v. 3M Company (2019). A party relying on foreign law must give reasonable notice under Fed. R. Civ. P. 44.1; notice given at the close of discovery, after earlier reliance on forum law, is unreasonable and waives foreign law. A late witness designation is not excluded where the surprise can be cured and no prejudice is shown.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2019). A plaintiff may prove through circumstantial evidence and reasonable inferences that a defendant installed the asbestos-containing products at the specific site of exposure. A party that introduces evidence about a former co-defendant may open the door to telling the jury that the co-defendant was dismissed.
• Lloyd E. Mitchell, Inc. v. Rossello (2018). Denial of summary judgment is reviewed only for abuse of discretion, and circumstantial evidence can suffice to identify a defendant as the contractor whose asbestos-containing product exposed a bystander. A trial court may exclude a witness as a sanction when a party violates the scheduling order and fails to educate its corporate designee under Md. Rule 2-412(d).
• Mack Trucks, Inc. v. Coates (2018). A jury instruction on a liability theory the evidence did not generate is reversible error when it prejudices the party, and pattern instructions must be tailored to the theories actually in the case. A party must object to allegedly inconsistent civil verdicts before the jury is discharged, and a party's out-of-court denial of liability is inadmissible hearsay even under the completeness doctrine.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2018). A jury may infer from circumstantial evidence that a contractor installed asbestos-containing insulation at a site where the plaintiff was exposed, if the contractor did a large share of the insulation work there. Evidentiary rulings and jury instructions are reviewed for abuse of discretion.
• Wallace & Gale Asbestos Settlement Trust v. Busch (2018). A jury may use circumstantial evidence to infer that a defendant installed the asbestos-containing product to which a bystander plaintiff was exposed, and fiber drift theory is rejected in Maryland, so an instruction on it is not required when the evidence does not raise it.
• Davenport v. Mcic, Inc. (2017). A bystander plaintiff in an asbestos case must show actual exposure to the defendant's product that was regular, frequent and close by. General evidence that a contractor worked at a large shipyard, without evidence placing the plaintiff near its work at a specific time and place, would require speculation and does not create a jury question.
• Rhodes v. Mcic, Inc. (2017). A complaint that relies on conclusions and a formulaic recitation of negligence and strict liability, lumps all defendants together, and pleads no facts on frequency, regularity and proximity of exposure fails Rule 8(a) plausibility; fraud must also be pleaded with particularity under Rule 9(b).
• Rockman v. Union Carbide Corp. (2017). Where a plaintiff offers no opposition and no supporting evidence, Maryland law bars these claims: warranty claims accrue on tender of delivery, market share liability is not recognized, and punitive damages require clear and convincing proof of actual malice.
• Arbogast v. AW Chesterton Co. (2016). Under Maryland law a plaintiff must show exposure to respirable fibers from a specific defendant's asbestos-containing product with frequency, regularity and proximity. A manufacturer is liable for third-party asbestos used with its product only in the narrow circumstances described in May. A strict liability claim for a product sold before Phipps (1976) may proceed because the claim accrues at diagnosis.
• Arbogast v. AW Chesterton Co. (2016). A plaintiff must produce evidence that the specific product encountered actually contained asbestos. An expert opinion resting on an unsupported assumption that it did lacks sufficient facts or data under Rule 702(b).
• Arbogast v. AW Chesterton Co. (2016). A plaintiff must offer evidence from which a jury can reasonably infer that a defendant's product actually contained asbestos before Maryland's frequency, regularity, proximity test applies; an expert opinion resting on a worker's unsupported belief that a product contained asbestos lacks sufficient facts or data under Rule 702.
• Stein v. Pfizer Inc. (2016). Under the objective reliance test, the actual reliance test, and the enterprise liability test alike, a parent company is not an "apparent manufacturer" of a subsidiary's industrial product where the sophisticated purchaser knew it bought from the subsidiary and the parent did not substantially participate in the design, manufacture or distribution.
• Haney v. 3M Company (2015). Under Maryland's frequency, regularity and proximity test for bystander asbestos exposure, a worker who passed through areas where panels were installed eight to ten times for three to five minutes each time did not show substantial-factor causation. Claims a plaintiff does not defend in response to a summary judgment motion are treated as abandoned.
• Haney v. 3M Company (2015). On summary judgment a court may consider only evidence admissible at trial; deposition testimony naming "Cranite" that was elicited by an impermissibly leading question was inadmissible, leaving no admissible proof that the plaintiff was exposed to a Crane Co. product.
• Sherin v. John Crane-Houdaille, Inc. (2014). Under Maryland law, a supplier owes no duty to warn unless a better warning could feasibly and effectively have prevented the harm, and the plaintiff must offer evidence that improved warnings to intermediaries would have prevented the take-home exposure. Testimony about the manufacturer name on a product container is circumstantial evidence of the manufacturer, not hearsay.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Scapa Dryer Fabrics, Inc. v. Saville (2011). Evidence of regular work within arm's length of the defendant's asbestos-containing felts can satisfy the frequency, regularity and proximity test for substantial-factor causation, and a bankruptcy trust is a joint tortfeasor for offset purposes only as its settlement agreement provides.
• Crane v. Linkus (2010). Expert testimony that a defendant's unencapsulated asbestos product released respirable fibers above ambient levels is not required; lay testimony of visible dust from regular handling, plus expert testimony on dose-response and no safe threshold, can let a jury infer substantial-factor causation. A defendant is not credited for payments from bankrupt entities absent proof of tortfeasor status or trust terms providing a reduction.
• Scapa Dryer Fabrics, Inc. v. Saville (2010). A defendant seeking to reduce a verdict for payments from bankruptcy trusts under Maryland's contribution act must prove the trusts are joint tort-feasors. JNOV in a jury trial requires a motion for judgment at the close of all evidence. A manufacturer's duty to warn can continue after the plaintiff's exposure, so later-dated evidence of its knowledge can be relevant.
• Scapa Dryer Fabrics, Inc. v. Saville (2009). Circumstantial evidence of regular, close-range exposure to a defendant's asbestos product meets Maryland's frequency-regularity-proximity test for substantial-factor causation. A party seeking a verdict reduction for payments by claimed joint tort-feasors, such as bankruptcy trusts, must prove their joint tort-feasor status. A duty to warn can continue after exposure ends, so later-dated evidence of the defendant's knowledge can be relevant.
• Owens-Illinois, Inc. v. Hunter (2005). A witness's testimony is not stripped of probative value because of conflicts or inconsistencies on peripheral points. In asbestos cases a loss of consortium claim arises with the underlying injury and is not capped if the last exposure was before July 1, 1986. A trial judge may consider the ratio between survival-action and consortium damages when deciding remittitur, and the cap applies to a wrongful death claim that arose at death after the cap took effect.