Products Liability Law Daily Evidence of asbestos exposure too speculative to support claims
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Wednesday, June 8, 2016

Evidence of asbestos exposure too speculative to support claims

By Susan Lasser, J.D.

Because the wife of a deceased shipyard worker and his estate failed to offer evidence that was more than speculation and that would permit a factfinder to find that the worker had inhaled asbestos from certain manufacturers’ products, judgment as a matter of law on the wife and the estate’s claims against the manufacturers was upheld by the Maine Supreme Judicial Court (Grant v. Foster Wheeler, LLC, June 7, 2016, Alexander, D.).

The worker was employed by the Bath Iron Works shipyard from August 19, 1964, to June 9, 1970, and again from August 24, 1978, to February 1, 1994. During his first employment period, asbestos was a common component of insulation and other materials used at the shipyard, including use in the construction and renovation of ships. The worker held a number of positions in the course of his employment, including as a ship cleaner from February 1966 to January 1967, and then from January 1969 to June 1970. Cleaning included sweeping up debris—sometimes including asbestos—from construction and maintenance activities. Before his death, the worker testified in a deposition that he believed that he was exposed to asbestos as a cleaner between 1966 and 1967, during which time he recalled sweeping up asbestos resulting from pipe covering work. He was unsure if he was exposed to asbestos at other times. In April 2011, the worker died of lung cancer caused by exposure to asbestos. The wife and the decedent’s estate (collectively, the estate) filed suit alleging negligence, violation of 14 M.R.S. §221, relating to defective or unreasonably dangerous goods, and loss of consortium.

Defendant manufacturers. The amended complaint named fifteen defendants, including New England Insulation Company (NEI); Foster Wheeler, LLC; Warren Pumps, LLC; and Imo Industries, Inc. NEI sold Bath Iron Works insulation manufactured by Owens-Corning Fiberglas Corporation called "Kaylo pipe covering," which contained asbestos fibers and was used to insulate ships’ pipes. Foster Wheeler manufactured boilers and air ejectors, and Warren Pumps manufactured pumps. Imo was the successor to DeLaval, which manufactured pumps and turbines. The four companies separately sought summary judgment on the estate’s claims. In dispute was whether the estate had established a prima facie case that the worker ever breathed asbestos from the defendants’ products. The trial court granted summary judgment in favor of the manufacturers, and the estate appealed.

Trial court’s causation test. Instead of applying the "frequency, regularity, and proximity test" in assessing causation in the case, the trial court applied a less burdensome test. In order to demonstrate product nexus, the trial court required that the estate show that the manufacturer’s asbestos-containing product was at the site where the worker worked or was present, and that the worker was in proximity to that product at the time it was being used. Not only did the estate have to prove that the asbestos products were used at the worksite, but that the worker inhaled the asbestos from the manufacturers’ products.

Application of test. The Maine high court concluded that the estate failed to offer evidence to satisfy the trial court’s less burdensome standard. As such, the court stated that it did not need to decide whether Maine should adopt the "frequency, regularity, and proximity test," which was the standard adopted by the U.S. Court of Appeals for the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).

New England Insulation. The evidence provided by the estate showing that the worker’s injury was caused by Kaylo pipe with asbestos insulation supplied by NEI was too speculative to support a prima facie showing that the worker encountered asbestos fibers from NEI-supplied Kaylo in 1969 or 1970, the state high court determined. None of the witnesses could place the worker in proximity to Kaylo during the 1969-1970 cleaning period from their own, personal knowledge of his work. Evidence was presented that there were 600 people in the department that the decedent worked in. Also, the worker testified that he almost exclusively painted during 1969-1970 and that when he did clean, it was different than his prior time in that department when he remembered sweeping up asbestos. Also, one witness acknowledged that most workers generally either painted or cleaned. The evidence was too speculative to allow a factfinder to find that the decedent swept up asbestos from NEI-supplied Kaylo. Even though proximate causation could be proved by circumstantial evidence, the evidence had to support inferences rather than mere speculation, and the evidence regarding causation by NEI-supplied Kaylo did not rise above speculation.

Foster Wheeler, Warren Pumps, and Imo Industries. It was undisputed that products manufactured by Foster Wheeler, Warren Pumps, and Imo Industries—including pumps, boilers, turbines—were present on naval ships constructed or converted at Bath Iron Works during the period when the decedent worked at the shipyard. However, the only evidence offered showing the worker’s potential contact with asbestos originating with the manufacturers’ products was a witness’s statement that when ships were constructed or older naval ships were converted "some of the asbestos swept up [would] also come from gaskets and packing in the pumps and valves." That witness had opined that the worker likely would have cleaned up this asbestos as a function of his job in the cleaning department. The witness testified at deposition that he could not be any more specific about a particular manufacturer’s product releasing asbestos debris from its gaskets or packing, and also conceded that "the [manufacturers’ original] gaskets and packing may have been changed out in a number of cases."

According to the court, the evidence offered by the estate to demonstrate product nexus as to Foster Wheeler, Warren Pumps, and Imo Industries did not specifically identify any of those manufacturers’ products as a potential source of the asbestos to which the worker was exposed. Thus, as with the evidence relating to the Kaylo products, the evidence tying the worker’s condition to the three other manufacturers’ products failed to rise above speculation and was not sufficient to create a prima facie case for causation or liability. Further, the court found that that similarly, any claim of a duty to warn on the part of any of the manufacturers also would fail.

Summary judgment for the manufacturers was, therefore, affirmed.

The case is No. BCD-15-404.

Attorneys: Kevin M. Noonan (McTeague Higbee Case Cohen) for Patricia Grant. Kip Adams (Lewis Brisbois Bisgaard & Smith, LLP) for New England Insulation Co. Steven F. Wright (Wright & Associates, P.A.) for Foster Wheeler, LLC, Warren Pumps, LLC, and Imo Industries.

Companies: New England Insulation Co.; Foster Wheeler, LLC; Warren Pumps, LLC; Imo Industries, Inc.

MainStory: TopStory WarningsNews SCLIssuesNews AsbestosNews MaineNews

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