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.

Maryland

• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Georgia-Pacific Corp. v. Pransky (2002). The Balbos frequency, proximity and regularity test for substantial-factor causation applies to any bystander, whether the exposure is occupational or non-occupational. A cause of action for an asbestos-related disease arises before July 1, 1986 if the last exposure was undisputedly before that date, so the non-economic damages cap does not apply.
• Owens Corning v. Walatka (1999). The plaintiff bears the burden of proving that a cause of action arose before the effective date of Maryland's noneconomic damages cap, and the cap does not violate the separation of powers clause. Under the proximity, frequency and regularity test, circumstantial evidence of a bystander's presence near a named product's use can support a finding of substantial causation.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Ford Motor v. Wood (1998). A bystander plaintiff must show frequent, regular exposure to the defendant's own asbestos products, and a vehicle maker has no duty to warn about replacement brake parts it did not make, sell or place in commerce. Evidence of exposure to other asbestos products is admissible as an alternative cause only if the proffered exposures could have caused the disease.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• ACandS Inc. v. Asner (1996). Threshold limit value evidence is relevant state of the art evidence in negligence and strict liability failure-to-warn claims, and evidence of exposure to non-parties' asbestos products is not per se irrelevant. Punitive damages require clear and convincing proof that the defendant, when the product left its control, actually knew of the danger to bystanders and consciously disregarded it.
• ACandS, Inc. v. Godwin (1995). A bystander shows substantial-factor causation for a defendant's asbestos product through the frequency, regularity and proximity of exposure, and punitive damages in a products case require clear and convincing proof of actual knowledge of the defect and a deliberate, bad-faith disregard of consumer safety. Negligence, even gross negligence, is not enough.
• Eagle-Picher Industries, Inc. v. Balbos (1992). A nonmanufacturing supplier-installer of asbestos is held to a 'should have known' standard in a negligent failure-to-warn claim. A bystander plaintiff must show frequent exposure near regularly used products of the particular defendant to prove substantial-factor causation, and 'fiber drift' alone is not enough. A sophisticated-user instruction requires evidence that the supplier reasonably relied on the intermediary, and punitive damages require actual malice shown by clear and convincing evidence.
• Eagle-Picher Industries, Inc. v. Balbos (1990). A jury's negligence verdict was upheld despite arguably inconsistent findings, and a defendant's failure to warn was a cause-in-fact of harm to bystander shipyard workers, with expert evidence of asbestos fibers drifting supporting the inference that bystanders were exposed. Suppliers could not rely on the employer as a sophisticated purchaser. Punitive damages require direct evidence of substantial knowledge that the product itself was dangerous and gross indifference to that danger.

Massachusetts

• Cook v. Foster Wheeler Energy Corporation (2023). Asbestos exposure claims arising from repair and maintenance aboard a Navy ship on navigable waters fall within admiralty jurisdiction, so substantive maritime law applies, with state law only supplementing where maritime law is silent. General maritime law does not bar loss of consortium, punitive or survival damages against a manufacturer in such a case.
• Cook v. Foster Wheeler Energy Corporation (2023). Summary judgment is not appropriate where significant facts are genuinely in dispute, such as whether gaskets contained asbestos, what the Navy permitted regarding warnings, and whether DCo supplied asbestos gaskets.
• McIsaac v. Air & Liquid Systems Corporation (2023). Under maritime law, a plaintiff must show exposure to the defendant's product at a high enough level that it was a substantial factor in causing the injury; the mere presence of the product at the workplace is insufficient. Rule 56(d) allows time to find facts, not to gather additional expert opinions.
• Sebright v. General Electric Co. (2021). Under maritime law, a manufacturer's duty to warn under the DeVries test can reach asbestos insulation added to its bare-metal product if the product required insulation to function, and the court treats the sophisticated purchaser defense as unavailable where a risk and burden balancing weighs for the Navy sailor. A plaintiff must also show that a defendant's specific product contained asbestos, and loss of consortium and parental society claims are not available under general maritime law in this circuit.
• Barraford v. T&N Limited (2013). Under Massachusetts law, an asbestos plaintiff must show product identification, exposure through working with or in close proximity to the product, and that exposure was a substantial contributing factor; a prior deposition from a state case is admissible as former testimony where the earlier defendants had a similar motive and opportunity to examine the witness.
• Graphic Arts Mutual Insurance Co. v. DN Lukens, Inc. (2013). Under Boston Gas, progressive-injury claims such as asbestos disease are allocated pro rata by time on the risk, with the insured bearing uninsured periods, using a continuous trigger; an insurer's reservation of rights does not oblige it to cede the defense or bar allocation of uninsured periods to the insured.
• Whiting v. CBS Corporation (2013). To prove causation in an asbestos case, the plaintiff must show that the defendant's product contained asbestos and that the victim was exposed to the asbestos in that product. Without such evidence, the defendants were entitled to summary judgment.
• Morin v. AutoZone Northeast, Inc. (2010). A plaintiff in an asbestos case must show product identification, exposure, and that the exposure was a substantial contributing factor. Evidence of the defendant's product at the work site and of the plaintiff's close proximity to it is enough to reach a jury, but exposure that is only insignificant or de minimis is not.
• O'connor v. Raymark Industries, Inc. (1987). Where several causes combine to produce an indivisible injury, the plaintiff need not prove but-for causation or separate out the effect of the defendant's product; a 'substantial contributing cause' instruction that distinguishes a substantial factor from a negligible one is correct.

Michigan

• Allen v. Owens-Corning Fiberglas Corp. (1997). Evidence of a plaintiff's exposure to other manufacturers' asbestos products is relevant to whether the defendant's product was a substantial factor in causing the injury, but its exclusion is harmless where the plaintiff's evidence independently showed substantial exposure to the defendant's product. A manufacturer who knew of asbestos harms must warn even if it did not know of the specific disease that resulted.
• Anjeski v. Keene Bldg. & Development Co. (1989). Under Michigan's Restatement (Second) § 431 proximate cause test, a plaintiff must show the defendant's product was used at the specific site in the workplace where the worker worked; showing that the product was merely aboard the ship or present at the workplace is not enough.
• Marshall v. Celotex Corp. (1988). Under Michigan law as the court applied it, a plaintiff may not proceed on a concert of action theory where she cannot show that any defendant supplied the asbestos-containing products to which the decedent may have been exposed, absent joinder of a significant majority of the potentially responsible parties.
• Marshall v. Celotex Corp. (1987). The court's view was that under concert of action liability the burden of proof never shifts, so a plaintiff must identify the defendant who supplied the injury-causing asbestos to show proximate cause. It treated the requirement as an open question of Michigan law and certified it.
• Marshall v. Celotex Corp. (1987). A plaintiff who cannot identify the specific product that caused the injury may still pursue a concert-of-action theory, and the court will not reject it at summary judgment. She must prove cause in fact through concerted activity and also proximate cause.
• Marshall v. Celotex Corp. (1987). Under Michigan law as predicted by the federal court, plaintiff could not shift the product-identification burden to defendants through alternative liability (not all possible defendants were joined), market share liability (inappropriate for non-fungible asbestos products and no proof of substantial market share) or enterprise liability (no joint control of risk alleged). Concert of action still requires proof of causation.

Mississippi

• Dickens v. A-1 Auto Parts & Repair Inc. (2021). Under Mississippi's asbestos causation test (exposure to a particular product, regularly, over an extended time, and in proximity), minimal exposure to a defendant's products and expert opinions that do not tie the disease to that defendant's products cannot create a genuine issue of fact. Without a valid compensatory claim, punitive damages claims also fail.
• Dickens v. A-1 Auto Parts & Repair Inc. (2021). Under Mississippi's frequency, regularity and proximity test with product identification, a plaintiff's twenty to twenty-five countable contacts with a defendant's products and isolated later instances do not raise a genuine issue on causation; without a viable underlying claim, punitive damages fail too.
• Bedford v. American Honda Motor Co., Inc. (2020). Under the Mississippi Products Liability Act, asbestos plaintiffs must prove product identification, exposure to the defendant's product, and proximate cause through expert testimony; without evidence quantifying exposure to the defendant's product, summary judgment is proper.
• Bedford v. American Honda Motor Company (2020). An argument raised for the first time in a motion for reconsideration in the district court is generally deemed waived and will not be considered on appeal.
• Dickens v. A-1 Auto Parts & Repair (2019). Under Mississippi's Lohrmann test, a plaintiff must show more than casual or minimal contact with a defendant's asbestos-containing product. Using the product about eight times in four years did not meet that standard.
• Dickens v. A-1 Auto Parts & Repair, Inc. (2019). Enterprise, market-share, concert-of-action and alternative liability theories are not recognized in Mississippi, and fraud-based and aiding-and-abetting conspiracy claims must be pleaded with particularity and facts showing the defendant's knowledge and substantial assistance.
• Dickens v. A-1 Auto Parts & Repair, Inc. (2018). Mississippi does not recognize enterprise, market-share, concert-of-action or alternative liability to excuse product identification in asbestos cases, and fraud-based claims must be pleaded with particularity under Rule 9(b). An aiding-and-abetting conspiracy claim requires allegations that the defendant knew of the conspiratorial conduct and substantially assisted it.
• Gorman-Rupp Company v. Hall (2005). Mississippi adopts the "frequency, regularity, and proximity" test for proving exposure to a particular defendant's asbestos product in asbestos cases. A plaintiff who offers no evidence of exposure to an asbestos-containing product attributable to the defendant cannot defeat summary judgment, and unauthenticated documents may not be considered under Rule 56(c) and M.R.E. 901.

Missouri

• Guthe v. Johnson & Johnson (2024). A petition must at least describe the type of product the decedent was exposed to and allege that the defendant made or distributed it; Missouri law recognizes no standalone products-liability tort of willful and wanton misconduct, though the allegations may be read as a punitive damages request.
• Callanan v. Chesterton (Eastern District, 5th Division, 2020). In an asbestos case against a product manufacturer, exposure to the defendant's asbestos-containing product can be shown by circumstantial evidence. Where the record supports an inference of exposure and of substantial-factor causation, summary judgment is improper.
• Douglas v. Imerys Talc America, Inc. (2019). Complete diversity existed regardless of fraudulent joinder, so remand was denied. A sister company is generally not liable for another company's acts absent a pleaded alter ego or agency theory, and general allegations of commonality do not plead alter ego under Delaware law.
• MacCormack v. Air & Liquid Systems Corporation (2017). Under Massachusetts law, an unopposed summary judgment in an earlier suit on exposure and causation is a final judgment with preclusive effect, even though the plaintiff's disease later developed into mesothelioma.
• Poage v. Crane Co. (Eastern District, 2nd Division, 2017). A plaintiff can show a valve maker's product was a substantial factor in causing mesothelioma through a co-worker's testimony about shared work on the valves, and the maker owes a duty to warn and to design safely where its valves required or specified asbestos gaskets and packing. Missouri's statutory cap on punitive damages does not apply to this wrongful death action, and a defendant's setoff under § 537.060 is limited to settlements actually reached, not possible future asbestos trust recoveries.
• Urbach v. the Okonite Company (Eastern District, 2017). Under Wisconsin substantive law, co-worker testimony and expert bystander-exposure evidence can support a jury finding that a defendant's asbestos product was a substantial factor in causing mesothelioma. Wisconsin's wrongful-death cap applies after fault is apportioned, and the Wisconsin statute requiring assignment of asbestos trust claims before collecting a judgment is procedural, so Missouri law governs it.
• Bergstrom v. Welco Manufacturing Company (Eastern District, 1st Division, 2015). On summary judgment, the non-movant gets all reasonable inferences; where the movant needs an inference to prevail and the evidence supports an equally probable contrary one, a genuine dispute exists, so summary judgment fails.
• Foreman v. AO Smith Corp. (Eastern District, 4th Division, 2015). Under Maryland's frequency, proximity and regularity test, exposure to a defendant's asbestos products may be shown circumstantially, and the plaintiff's testimony plus expert testimony was enough for a jury. A settlement release makes a settling party a joint tortfeasor for statutory reduction only if it so provides, and an inconsistent verdict claim not raised before the jury is discharged is waived.
• Wagner v. Bondex International, Inc. (Western District, 2012). Missouri requires but-for causation (the substantial factor test applies only in two-fires cases), and a plaintiff must identify the defendant's asbestos-containing product as the source of exposure. Section 537.060 reduces a judgment only by settlements actually made, not by trust payments the plaintiff never sought.
• Carey v. JP Bushnell Packing Supply Company (2011). Joinder of a non-diverse defendant is not fraudulent if state law might impose liability on it under the facts alleged, and a defendant who only creates a factual dispute does not meet its heavy burden, with doubts resolved in favor of remand.
• Hagen v. Celotex Corp. (1991). A plaintiff must show through expert testimony that each defendant's product was a substantial factor in causing the harm. Evidence showing only asbestos exposure in general, or that a defendant's product may have contributed, does not make a submissible case against that defendant.

Nevada

• Potter v. Crane Co. (2022). In an asbestos claim a plaintiff must show that the particular defendant sufficiently exposed him to asbestos; without a product traceable to the defendant, negligence, strict liability and conspiracy claims fail, and a holding company is not liable for its subsidiary absent a successor-liability exception.

New Jersey

• Fowler v. Akzo Nobel Chemicals, Inc. (2021). A manufacturer cannot delegate its duty to warn to an employer but may discharge it, if reasonable under the circumstances, by giving adequate warnings to the employer; the jury must be told this. In multi-defendant asbestos cases, medical causation instructions must include the frequency, regularity and proximity test, not just a general proximate cause charge.
• Condon v. Advance Thermal Hydronics, Inc. (2018). Under the frequency, regularity and proximity test, a plaintiff must present evidence from which a jury could find it more likely than not that he was exposed to the defendant's product; speculation that a boiler maker's packaged boilers contained the defendant's wet cement is not enough.
• Rowe v. Bell & Gossett Company (2018). A non-settling defendant cannot use settled defendants' interrogatory answers and deposition testimony to prove their fault when the statements are offered against the plaintiff rather than against the statement-makers, and unavailability of a witness requires due diligence, including enforcing a notice in lieu of subpoena that survives dismissal.
• Whelan v. Armstrong International Inc. (2018). A manufacturer has a strict-liability duty to warn when its product as marketed contained asbestos components integral to its function and it reasonably knew routine maintenance would require replacing them with other asbestos components. The duty extends to the danger from those replacement parts even if the manufacturer did not make or supply them.
• Fowler v. Akzo Nobel Chemicals, Inc. (2017). In an asbestos case, a plaintiff can show exposure to a particular defendant's asbestos through circumstantial evidence under the frequency, regularity and proximity test. Regular direct handling of asbestos, together with large documented deliveries by the defendant to the workplace, is enough to reach a jury.