dissenting:
Respectfully, I dissent because, in my judgment, the majority has failed to recognize the reasonable inferences in Lee’s favor as is required in the summary judgment posture of this case. The relevant facts are as follows. Lee testified that he used and was exposed to a product called “Gold Bond Cement” that came in a box marked with the Gold Bond label and white and gold diagonal stripes. National Gypsum conceded that some of its products were packaged in the above-described manner and did contain asbestos. I respectfully suggest that the foregoing evidence raises a reasonable inference that Lee was exposed to asbestos from National Gypsum’s product.
National Gypsum argues that Lee could not have been using the above-described • asbestos-containing product because Lee used the product as a sealant on pipes and for patchwork on sleeves. National Gypsum argues that the evidence shows that the described asbestos-containing product would not have been used in the manner described by Lee, i.e., as a sealant on pipes and for patchwork on sleeves, but rather was designed for a different use, i.e., finishing wallboard joints. The majority adopts this argument of National Gypsum. Respectfully, I disagree. Lee has testified that he used and was exposed to a specifically described product, which National Gypsum acknowledges contained asbestos. Unless Lee’s testimony that he used the product as a sealant on pipes and for patchwork on sleeves is so inherently incredible that it can be disregarded, in the current summary judgment posture, it seems clear to me that we are obliged to leave that credibility choice for the jury. I am not satisfied that Lee’s testimony is inherently incredible solely because the product was designed for a different use, i.e., finishing wallboard joints. Nothing in the record establishes that the product could not be adapted for the use indicated by Lee, or that such adaptation is so foreign to the intended use of the product as to make Lee’s testimony that he did in fact so use the product incredible.1
Accordingly, I dissent.
. I find nothing in the record to suggest that National Gypsum also manufactures a non-asbestos product which is packaged in the precise manner indicated by Lee, i.e., in a box marked with the Gold Bond label and white and gold diagonal stripes, and which is designed for use as a sealant on pipes and for patchwork on sleeves. If there were such evidence, then it might be possible that the only reasonable inference from the evidence in this case would have been that Lee used the nonasbestos product packaged in the specified manner, rather than the asbestos-containing product thus packaged.