Products Liability Law Daily Circumstantial evidence of asbestos exposure overcomes boiler maker’s objections
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Monday, April 6, 2020

Circumstantial evidence of asbestos exposure overcomes boiler maker’s objections

By Pamela C. Maloney, J.D.

On a motion for summary judgment, circumstantial evidence that included both co-worker and expert testimony was sufficient to raise a jury question under the substantial factor causation standard, which was not defined by the frequency, regularity, and proximity test.

Testimony by co-workers and an expert witness was sufficient circumstantial evidence to raise a jury question as to whether exposure to asbestos-containing components used in the manufacture of boilers was a substantial factor in causing an inspector’s death from asbestosis, the Missouri Court of Appeals ruled, reversing a trial court’s grant of summary judgment in favor of the boiler manufacturer. In so ruling, the appellate court again refused to adopt the frequency, regularity, and proximity test for Missouri asbestos cases (Callanan v. A.W. Chesterton, March 31, 2020, Hess, P.).

The deceased had been employed as a field inspector by two separate companies beginning in 1983. Twenty to thirty percent of his assignments involved inspecting boilers, many of which had been manufactured and sold by Cleaver-Brooks, Inc., one of the top boiler makers in the area in which the deceased had worked. His estate filed claims for strict liability, negligence, and willful and wanton misconduct against Cleaver-Brooks, among others, alleging that the boilers manufactured, sold, distributed, or utilized by Cleaver-Brooks contained asbestos and that the deceased’s exposure to that asbestos caused him to develop asbestosis, which ultimately led to his death. Cleaver-Brooks moved for summary judgment, arguing that the estate had failed to present sufficient evidence to raise a genuine issue of material fact from which a jury could infer that exposure to asbestos in any of its products had caused the deceased’s disease or had been a substantial factor in causing his death. Arguing that the trial court had failed to consider the circumstantial evidence in the form of co-worker and expert testimony, the estate appealed.

Product identification.In an asbestos case against a product manufacturer, a plaintiff must show exposure to the asbestos-containing product to establish cause in fact, the appellate court explained, adding that exposure could be shown by circumstantial evidence. In filing its motion for summary judgment, the boiler maker had admitted to the facts set forth by the estate, which included testimony by two co-workers, one of which performed the same job duties as the deceased and the other who worked side-by-side with the deceased. These facts established that the deceased had inspected a large number of the manufacturer’s boilers and had been exposed to dust from those boilers while performing numerous aspects of his job. The boiler maker also had admitted that its boilers included components that, at times, contained asbestos. Based on these facts and admissions, the appellate court concluded that there was sufficient evidence from which a jury could have inferred that during his career, the deceased had been exposed to asbestos-containing boilers made by the manufacturer.

In addition, the estate also provided expert testimony supporting the inference that the deceased had been exposed to asbestos-containing components used in some of the manufacturer’s boilers. The expert’s opinion was based on the fact that the deceased had inspected boilers during the 1970s and 1980s when the manufacturer’s boilers contained gasket seals for the front and rear doors, as well as refractory materials and jacket insulation, all of which contained asbestos. Although the manufacturer denied the expert’s opinion that the deceased was "very likely" exposed to asbestos from its products, it failed to refute that testimony. Thus, summary judgment on the issue of exposure was not warranted.

Substantial factor. The manufacturer also argued that summary judgment was proper because the estate had failed to show that a specific product produced by the boiler maker had been a substantial factor in causing the deceased to develop asbestosis. Under Missouri precedent, conduct is considered a "substantial factor" when it would be sufficient in and of itself to cause the injury, even if the alleged injury would have occurred as a result of independent conduct by other entities. Although Missouri has not expressly defined how to apply the substantial factor test in asbestos cases, nor has it adopted the frequency, regularity, and proximity test for asbestos cases, prior decisions have found that "frequent exposure, lengthier exposure, and being in close proximity to asbestos dust" increased the likelihood that a product was a "substantial factor" in causing an asbestos-related disease.

In this case, the circumstantial evidence overlooked by the trial court established that a number of components used in the manufacturer’s boilers contained asbestos, thus allowing a jury to infer both exposure and causation. The manufacturer’s own admissions and its failure to refute the expert’s conclusion that the boilers inspected by the deceased contained asbestos and that the deceased had been exposed to that asbestos while working in and around the boilers were sufficient to raise a genuine dispute from which a jury could infer that the boiler maker’s products were a substantial factor in causing or contributing to cause the deceased asbestosis and death.

The case is No. ED108140.

Attorneys: Peter A. Kraus (Waters & Kraus, LLP) for Mary Callanan. Meredith Hudgens (Foley & Mansfield PLLP) for Cleaver-Brooks, Inc.

Companies: Cleaver-Brooks, Inc.; A.W. Chesterton Co., Inc.

MainStory: TopStory AsbestosNews CausationNews IndustrialCommercialEquipNews GCNNews MissouriNews

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