Product Identification: Two Recent Decisions Important to Consider
One of the most important issues in any product liability action is product identification. In many instances, it is not a major hurdle – the plaintiff has a receipt, a doctor’s prescription or has the product in his or her possession.
Where product identification becomes a larger issue however, is in cases where the injured party came into contact with the product at their place of work, often decades ago, and potentially over many years. This scenario of product identification is the hallmark of recent asbestos litigation.
Whether a plaintiff can sufficiently identify a product they used that caused their exposure to asbestos can make or break a case. Many asbestos lawsuits take the “shotgun” approach of suing countless manufacturers whose products the plaintiff may have used or come in contact with. Such approach also greatly increases the likelihood that the plaintiff will be able to identify some product and survive dispositive motions on the issue.
Recently, in Cowley v. Acands, Inc., MDL 875, 2010 WL 5376338 (E.D. Pa. Dec. 23, 2010) Robreno, Dist. J., the MDL Court addressed a situation where the plaintiff sought to use previous deposition testimony on the issue of product identification.
The MDL Court, applying Maryland law, held that the previous deposition testimony of the Plaintiff was inadmissible as to product identification as the deposition was given in a different lawsuit where the Plaintiff was a witness. In the previous lawsuit there was a different defendant and while the Court noted the interests of PPG and Pittsburgh-Corning were aligned as to general factual issues they were not aligned as to issues of product identification. Therefore, the testimony was inadmissible hearsay. Without the testimony, Plaintiff was unable to present sufficient evidence and the summary judgment motion was granted.
An often repeated scenario in personal injury asbestos litigation involves the admissibility of deposition testimony taken in an earlier action against a defendant who was not a party to the earlier litigation. This is understandable given the long latency period of various diseases caused by exposure to asbestos fibers. Under the circumstances, the plaintiff may be deceased and the testimony of a co-worker in an earlier action may constitute the sole product identification evidence. The answer to the question admittedly is not clear cut and ultimately, the admissibility of such deposition testimony depends largely upon whether, at the time the deposition was taken, the interests of the defendant in the earlier litigation could be considered aligned with the interests of the defendant in the present case against whom the deposition is being offered.
By contrast, only two weeks prior, the MDL Court, applying Utah law, denied motions for summary judgment by Georgia-Pacific and Union Carbide that sought judgment on grounds of product identification.
“In the present dispositive motions, two defendants challenge Plaintiff's product identification. Both argue that Plaintiff cannot show that she was exposed to a defective asbestos-containing product attributable to them.” In re Asbestos Products Liab. Litig. (No. IV) Dianna K. Larson, et al. v. Bondex International, et al., MDL 875, 2010 WL 5093223 (E.D. Pa. Dec. 10, 2010) Angell, Magistrate J.
In Larson, the Plaintiff used drywall joint compound or “mud” during the construction of two homes in the mid to late 1970s. The plaintiff identified Georgia-Pacific joint compound as the cause of her injury. She testified that she specifically remembered using five gallon plastic buckets of Georgia-Pacific brand joint compound because she moved from the South to the West and associated “Georgia” with the South and “Pacific” with the West.
She further testified that the buckets in which the compound came were plastic with metal handles. However, Georgia-Pacific presented affidavit evidence that at the time plaintiff claimed to use the joint compound Georgia-Pacific did not offer an asbestos containing product in plastic buckets and therefore could not have caused her injuries. Plaintiff argued that there were inconsistencies with the affidavits relied on by Georgia-Pacific - and while the conclusions regarding Georgia-Pacific’s manufacture of joint compound in plastic buckets appeared consistent, the Court held
There is evidence of record which suggests that plastic containers were used by Georgia-Pacific during the relevant time. It is up to the jury to decide whether Ms. Larson was mistaken about the material which the five gallon bucket was made of, and what weight, if any, this has on her testimony, as well as to weight to assign the testimony of various corporate representatives in light of internal inconsistencies in their statements.
Union Carbide joined in the arguments of Georgia-Pacific and further argued that there was evidence that Georgia-Pacific used additional asbestos suppliers in manufacturing its joint compound, and therefore, “Plaintiffs cannot establish that it is more likely than not that Ms. Larson was exposed to Union Carbide asbestos rather than some other suppliers' asbestos.” This argument too was rejected by the Court that held that there was sufficient question of fact that Georgia-Pacific used Union Carbide asbestos in its joint compound.
The take away from these recent decisions is that assessment of the strengths and weaknesses in issues of product identification are critical to each case. While that seems rudimentary, these decisions show that a well prepared defendant or plaintiff can triumph by focusing on specific issues to close the door or keep open issues of fact for a jury.