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Copyright (c) 2008 American Journal of Trial Advocacy
American Journal of Trial Advocacy

ARTICLE: Determining Liability in Asbestos Cases: The Battle to Assign Liability Decades After Exposure

Spring, 2008

American Journal of Trial Advocacy

31 Am. J. Trial Advoc. 571


Charles T. Greene +



Asbestos litigation creates special proof considerations for courts. Specifically, courts are faced with the difficult task of balancing the "needs of the plaintiff, by recognizing the difficulties of proving contact, with the rights of the defendant-to be free from liability predicated upon guess work." 1 Despite these proof problems,

the public policy favoring recovery on the part of an innocent plaintiff does not justify the abrogation of the rights of a potential defendant to have a causative link proven between that defendant's specific tortious acts and the plaintiff's injuries where there is a lack of circumstances which would insure that there was a significant probability that those acts were related to the injury. 2 Several courts have addressed the issue of what a plaintiff must prove in order to prevail in an asbestos exposure personal injury case. The "frequency-regularity-proximity" test, found in Lohrmann v. Pittsburgh Corning Corp., 3 is the most frequently used standard in these jurisdictions.

In the typical asbestos case, an elderly plaintiff sues numerous corporate defendants that she believes may have placed asbestos containing products in her workplace. Generally, the plaintiff must recall each work site, each work station, and each piece of equipment or machinery used during her time on the job. Problems arise because the plaintiff has not worked at these locations for decades, in many cases five to six decades. Once the plaintiff has produced his work history, each named defendant attempts to discover whether their products were ...
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