## Facts

- Markus Hugh Black worked as a U.S. Air Force auto mechanic from 1971 to 1986 and died of lung cancer in 1991.
- Rochelle M. Black, individually, as surviving spouse, and on behalf of Markus Black’s estate, sued numerous manufacturers of asbestos-containing products, alleging occupational exposure caused his death.
- The alleged exposures involved asbestos-containing friction products used in automotive work, including brake-related components, over an extended period.
- Black conceded she could not identify which specific manufacturers’ products Markus used or to which he was exposed.
- Black sought to impose liability using market share liability and alternative liability theories to avoid product identification proof.
- Evidence showed substantial variation among asbestos friction products, including wide differences in asbestos content (approximately 7% to 75%), fiber types, formulations, and resulting risk levels.
- The district court granted partial summary judgment dismissing the market share and alternative liability theories; remaining claims were later resolved through settlements or dismissals, leading to a final concluding order and appeal.

## Issues

1. Whether market share liability is available for asbestos-related injury claims involving friction products when the plaintiff cannot identify a specific manufacturer and the products vary in composition and risk.
2. Whether alternative liability applies when the plaintiff cannot identify the causative manufacturer and has not joined all possible tortfeasors.

## Decision

- The Supreme Court of North Dakota affirmed summary judgment dismissing claims based on market share liability and alternative liability.
- Market share liability was unavailable because the asbestos friction products were not fungible and did not present equivalent risks across manufacturers.
- Alternative liability was unavailable because the plaintiff did not join all possible tortfeasors and could not show each named defendant could have caused the injury within a limited group.

## Legal Principles

- Summary judgment is appropriate when the nonmovant fails to produce competent admissible evidence creating a genuine issue of material fact on an essential element for which the nonmovant bears the burden of proof.
- Market share liability requires products to be identical, fungible, or to carry equivalent degrees of risk; heterogeneous asbestos friction products do not satisfy this requirement.
- Alternative liability shifts the burden of causation only when all possible tortfeasors are before the court and each is shown to have acted tortiously toward the plaintiff; absent complete joinder, burden shifting is improper.

## Conclusion

The court held that asbestos friction products’ variability defeats the fungibility and equivalent-risk predicates for market share liability, and that alternative liability’s burden shifting cannot apply without joinder of all possible responsible manufacturers; therefore, claims resting on those non-identification doctrines were properly dismissed on summary judgment.


Black v. Abex Corp., 603 N.W.2d 182 (N.D. 1999)