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Predicting the Tides

By Pamela R. Kaplan

It is a fact pattern common to asbestos-related lawsuits: A plaintiff recalls generally working around different products that may or may not have contained asbestos, but cannot pinpoint specific time periods or locations where those products were present and could have exposed the plaintiff to asbestos. Typically, the alleged exposure occurred three or more decades ago, with no potential corroborating documents or witnesses surviving to the present date. This scenario places defendants in the untenable position of defending a claim without access to any information on the products, or the alleged exposure, that will either confirm or deny that the identified products were both present in the plaintiff's workplace and actually contained asbestos.

Recognizing this issue, some courts have attempted to delineate standards requiring that plaintiffs make at least a threshold showing of their exposure to products manufactured or supplied by the defendant in order to avoid summary judgment. However, the standards may differ from one jurisdiction to another, bringing questions of venue and choice of law back to the forefront of these lawsuits.

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