It is an obvious tenet of an asbestos action that in order to establish asbestos exposure from a product, there must have been a product that contained asbestos. From the perspective of a defense attorney, the failure of a plaintiff to specifically identify an asbestos-containing product seems like straightforward grounds for moving for summary judgment. However, recent Rhode Island case law suggests that a defendant may have a difficult time winning on these grounds.

In Suprey v. Alfa Laval, Inc., et al., the Rhode Island Superior Court, Gibney, J., denied a motion for summary judgment even though the plaintiff did not specifically identify any asbestos-containing product. In Suprey, the decedent, Paul F. McCarthy, served in the U.S. Navy aboard the U.S.S. Glennon from June, 1951 until June 1955. Mr. McCarthy filed an action alleging that he developed mesothelioma from exposure to asbestos-containing products while stationed aboard the Glennon.  The decedent was only able to identify products that he claimed contained asbestos on the Glennon, but could not identify which defendant manufactured the product. In their motion for summary judgment, the defendants argued that "there was insufficient evidence to even suggest that the Defendants placed any asbestos-containing products on the Glennon.”

In denying the motion for summary judgment, the Court relied on Welch v. Keen Corp., 575 N.E. 2d 766 (Mass.App.Ct. 1991) which identifies ways that a plaintiff may "sufficiently allege contact with a defendant’s asbestos-containing product.” Among other reasons, the Court denied the motion for summary judgment because the plaintiff had "offered historical documents to show a range of years during which the Defendants supplied equipment to the Glennon and Mr. McCarthy’s sworn statement described his contact and proximity to those products and areas of the ship that allegedly contained asbestos.”

Suprey affirms the principle that a plaintiff bringing suit in Rhode Island need not specifically identify an asbestos-containing product to survive a motion for summary judgment. However, the outcome in Suprey is deceptively advantageous for plaintiffs.  First, the Court in Suprey recognized that it must decide whether the plaintiff has sufficiently identified an asbestos-containing product on a "case-by-case” basis.  Second, the plaintiff in Suprey was able to produce certain information that in other cases would likely be difficult to obtain. The plaintiff was able to identify a precise range of years in which he was allegedly exposed to asbestos-containing products.  Given the length of time between alleged exposure and the filing of a lawsuit, it is unusual that the decedent could provide such a precise range. In addition, the plaintiff was able to produce historical documents suggesting that certain asbestos-containing products were present on the Glennon. Such historical documents, in most cases, would likely have been either destroyed or lost by the time suit commenced.

In sum, Suprey subtly suggests that a plaintiff may have his work cut out for him in contesting a motion for summary judgment on the grounds that he has failed to sufficiently identify an asbestos-containing product.