Friable Thoughts

Wednesday, April 09, 2008

Identifying an Asbestos-Containing Product for Summary Judgment

Since most instances of asbestos exposure occurred many years ago, it's almost impossible to test the actual material a plaintiff was exposed to in order to determine if it had asbestos. Thus, it falls to the plaintiff's own testimony and those of co-workers. So, to what extent can a lay witness testify that a product he saw actually had asbestos?

KOERPER v. BRAND INSULATIONS, INC.,
out of the Pennsylvania Court of Common Pleas limits how much a witness in the construction trade can do just that. Here, a plumber testified he believed the pipe insulation he encountered contained asbestos because of the age, appearance and application. However, since he wasn't trained to spot asbestos-containing insulation, that wasn't good enough to raise a triable issue to survive a summary judgment.

Suffice to say, if the plaintiff testified about plumbing products, it probably would have been admissible and survived summary judgment. I suspect it would be simple to retain an expert to review such testimony and render an opinion sufficient to survive a speculation objection at least for summary judgment.

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