Products Liability Law Daily Court grants summary judgment in asbestos exposure case on causation grounds
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Thursday, January 21, 2021

Court grants summary judgment in asbestos exposure case on causation grounds

By Joshua Frumkin, Esq.

Failure to present sufficient evidence to support a reasonable inference of substantial causation between manufacturer’s asbestos-containing products and death of claimant’s father defeats claims.

In an action stemming from the death of a boiler tender and electrician from malignant mesothelioma, the federal district court in South Carolina granted a manufacturer of asbestos-containing products summary judgment on all claims against it brought by the daughter of the decedent. The court found that the daughter failed to provide evidence of a sufficient causal link between the decedent’s alleged exposure to the manufacturer’s asbestos-containing products and his illness. Specifically, the testimony presented did not allege that the decedent had been exposed to the maker’s products with sufficient frequency and regularity for liability to accrue (Robertson v. Air & Liquid Systems Corp., January 19, 2021, Lydon, S.).

A man worked as a boiler tender for the U.S. Navy from 1961 to 1965 and then as an electrician in various industries for the next 13 years. He succumbed to malignant mesothelioma on July 17, 2018. In her lawsuit, his daughter (the claimant), on behalf of herself and as executrix of her father’s estate, alleged that her deceased father died due to his exposure to asbestos-containing products during the course of his career. The daughter sued Eaton Corporation (Eaton) as a manufacturer of some of the products to which her father was allegedly exposed during his time as an electrician. In particular, she alleged that her father cleaned, inspected, and replaced parts of contactors and motor starters manufactured by multiple entities, including Cutler-Hammer. Eaton has liability for Cutler-Hammer products. Cutler-Hammer products used Citation brand motors from 1967 to 1997; and sworn discovery responses by Eaton in an earlier case established that Citation brand motor starters used parts containing asbestos. Although her father died before his deposition could be taken, the claimant produced testimony from her father's brother-in-law who testified that they had worked together on "thousands" of motor starters during his career. However, he could not recall a specific time that the decedent had repaired a Cutler-Hammer product, could not say how often the decedent had done so, and could not quantify what percentage of the decedent’s work involved Cutler-Hammer products. Eaton moved for summary judgment on the grounds that the daughter did not prove a causal link between Eaton and the deceased's injuries.

Uncontested claims. The court granted Eaton's motion regarding the daughter’s claims for fraudulent misrepresentation and breach of implied warranty. The claimant responded to Eaton's motion that she did not oppose summary judgment on those claims, resulting in the court granting the company’s motion on those claims.

Choice of law. The court did not reach a determination on which state's law governed this action. As an initial matter, because the claims at issue related to the decedent’s alleged exposure to asbestos while on land, state law, not maritime law, applied. However, maritime law could be applicable to the daughter’s claims relating to her father's time with the Navy. The court then considered which state’s law should govern. The case was brought in South Carolina, and that state’s choice of law rules directed that the substantive law of the state where the injury occurred should apply. However, the claimant alleged that her father was potentially exposed to asbestos at multiple locations across both North and South Carolina. The court determined that the specific state was irrelevant because the law in both states was the same regarding whether exposure to asbestos was actionable. Both states use the same "frequency, regularity, and proximity" test. As such, the court held that this test would be the standard applied.

Actionable exposure. The court found no genuine issue of material fact on the frequency and regularity of the decedent’s exposure and granted summary judgment to Eaton on all claims. To establish "actionable exposure," the claimant needed to provide evidence of her father's exposure to a specific product on a regular basis over a sustained time period in proximity to his workplace. This would create a reasonable inference of substantial causation from circumstantial evidence and sustain her claim. The court found that she did raise genuine issues of material fact regarding her father's exposure to a specific product containing asbestos in close proximity to where he actually worked. She alleged that her father worked on Citation brand motor starters, presented evidence that those products contained asbestos, and testified that he cleaned them with an abrasive cloth that created asbestos dust residue. This satisfied the "proximity" element of the test.

However, the court found that the claimant failed to satisfy the "frequency" and "regularity" elements of the test. The U.S. Court of Appeals for the Fourth Circuit has established that exposure to a product containing asbestos "[on] ten to fifteen occasions of between one and eight hours duration" was not sufficient to satisfy the "regularity" element. Instead, the Fourth Circuit has indicated that exposure on a daily basis over the course of decades is what satisfies the test element. The court determined that the testimony presented did not establish that the decedent had worked on motor starters on a daily basis. Further, the decedent had worked on motor starters manufactured by multiple other companies, further reducing the regularity of his exposure to Cutler-Hammer motor starters. The deceased’s brother-in-law also did not testify to any specific incident involving Cutler-Hammer motor starters, nor could he testify to the frequency or regularity of the deceased’s work on those motor starters. Therefore, the court held that there was insufficient evidence to satisfy the tripartite actionable exposure test. As such, the court ruled that the daughter did not raise a genuine issue of material fact concerning whether her father had been exposed to asbestos from Eaton-linked motor starters over an extended period of time.

The case is No. 3:18-cv-01842-SAL.

Attorneys: Benjamin Dale Braly (Dean Omar Branham Shirely LLP) for Mary Ann Robertson. David Gaillard Traylor, Jr. (Nelson Mullins Riley & Scarborough LLP) for Air & Liquid Systems Corp. Chris O. Massenburg (Manning Gross and Massenburg LLP) for Eaton Corp.

Companies: Air & Liquid Systems Corp.; Eaton Corp.

MainStory: TopStory CausationNews AsbestosNews SouthCarolinaNews GCNNews

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