Homeowner fails to prove ‘substantial factor’ causation in bystander asbestos-exposure action
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Tuesday, July 18, 2017

Homeowner fails to prove ‘substantial factor’ causation in bystander asbestos-exposure action

By Susan Engstrom

A homeowner who developed peritoneal mesothelioma allegedly as a result of "bystander" asbestos exposure during three home-repair projects failed to meet the "substantial factor" causation standard necessary to support his strict liability and negligence claims against the manufacturer of an asbestos-containing compound used in the repairs and the supplier of the asbestos, the federal court in Maryland ruled. The homeowner’s alleged exposure to the product during the short-term repair projects was limited and, thus, was not a substantial factor in his developing mesothelioma. Moreover, the asbestos supplier did not have a duty to warn the homeowner, as there was no evidence that additional warnings could have had a practical effect on preventing his alleged bystander exposure. Finally, the causation testimony of the homeowner’s experts was inadmissible (Rockman v. Union Carbide Corp., July 17, 2017, Bennett, R.).

The homeowner testified that he was exposed to asbestos only three times in his life, each during separate home-repair projects. He contended that the workers who performed the repairs had used a "Ready Mix" joint compound manufactured by Georgia-Pacific, LLC, and that this product contained Calidria chrysotile asbestos supplied by Union Carbide Corporation. According to the homeowner, the use of the compound generated asbestos-containing dust, to which he was exposed. He and his wife filed suit against Georgia-Pacific and Union Carbide, asserting claims for strict liability, negligence, and loss of consortium. The companies filed motions for summary judgment as well as motions to exclude the testimony of the homeowner’s three experts.

Expert testimony. Two of the experts retained by the homeowner specifically concluded that his alleged exposures to Union Carbide’s Calidria chrysotile asbestos contained in Georgia-Pacific’s Ready Mix "caused" or were a "substantial factor" in his developing peritoneal mesothelioma, a cancer of the lining of the abdomen. According to the court, however, both experts improperly drew conclusions about this case based on prior research studying pleural mesothelioma—which affects the lining of the lungs—and primarily high-level exposures to amphibole asbestos, which is classified in an entirely separate mineralogical family from the less potent chrysotile asbestos. This case also involved low-level bystander exposure; and neither expert was able to quantify the homeowner’s exposure as "significant." Thus, the experts’ specific causation opinions were not the "product of reliable principles and methods" as required by Federal Rule of Evidence 702(c); nor did they satisfy the Daubert factors, including "testability," "peer review," and "general acceptance" within the "relevant scientific community." As such, they were excluded.

Also inadmissible was testimony (by all three of the homeowner’s experts) based on the underlying theory that "each and every" exposure to asbestos "cumulates" and, therefore, should be considered a cause of injury, regardless of the type of mesothelioma, the exposure "dose," or the type of asbestos. Prevailing authority applying Daubert has rejected this theory. According to the court, there simply was insufficient data to support the experts’ theory that any exposure to asbestos, no matter how brief, and regardless of the type of asbestos, should be considered a "substantial factor" in the homeowner’s developing peritoneal mesothelioma roughly 38 years after his last alleged contact with any asbestos-containing product.

Substantial factor causation. Although the homeowner conceded that he could not survive summary judgment without his experts’ causation testimony, the court concluded that even with that testimony, the homeowner still would not be able to prove substantial factor causation. Under Maryland law, in an action claiming both strict liability and negligence, the plaintiff bears the burden of proving that the defendant’s tortious behavior was the proximate cause of his or her injury. To establish proximate causation, the plaintiff must introduce evidence that allows the jury to conclude that it is more likely than not that the defendant’s conduct was a "substantial factor" in bringing about the injury. In this case, to determine whether the homeowner—a "bystander" under Maryland law—demonstrated substantial factor causation, the court had to consider the frequency of the asbestos product’s use, the regularity of the homeowner’s exposure, and the time and distance proximity of the homeowner to the product’s use.

Claims against Georgia-Pacific. With respect to Georgia-Pacific, the homeowner testified that he had never worked directly with the "Ready Mix" joint compound and did not spend much time in the rooms where the repairs were taking place. In addition, each repair lasted, at most, several weeks, and the workers hired by the homeowner did not work with Georgia-Pacific’s joint compound for the entirety of that time. In fact, the homeowner testified that the sanding of the joint compound during one of the projects was only about "five to six hours total."

The U.S. Court of Appeals for the Fourth Circuit has held that to support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. According to the court in this case, as a matter of law, the homeowner’s limited exposures to Georgia-Pacific’s joint compound during the three short-term repair projects were not a "substantial factor" in his developing mesothelioma. He also identified no case involving bystander asbestos exposure that was as limited in frequency, regularity, and time and distance proximity as his alleged exposures were. Thus, the court granted Georgia-Pacific’s motion for summary judgment on the homeowner’s strict liability, negligence, and loss of consortium claims.

Claims against Union Carbide. The home-repair projects also were insufficient to establish substantial factor causation with respect to Union Carbide. Because the homeowner’s limited exposures to the joint compound were not a substantial factor in his development of mesothelioma as a matter of law, it followed that his alleged exposure to Union Carbide’s Calidria chrysotile asbestos, which made up less than 2 percent of the compound, also was not a substantial factor.

To the extent that the homeowner asserted claims under a failure-to-warn theory, the court concluded that Union Carbide did not have a duty to warn as a matter of law. The homeowner was at least four steps removed from the company: (1) Union Carbide allegedly sold its asbestos product to Georgia-Pacific; (2) Georgia-Pacific sold its joint compound to suppliers or retailers; (3) those suppliers sold the product to the workers hired by the homeowner; and (4) the homeowner allegedly was exposed to the product when it was used in his home. Union Carbide issued OSHA-compliant warnings to its customers, including Georgia-Pacific. Moreover, its customers were sophisticated manufacturers of asbestos-containing products and, thus, were held to the knowledge and skill of an expert under Maryland law. There was no evidence that additional warnings by Union Carbide could have had a practical effect on preventing the homeowner’s alleged bystander exposure. Accordingly, Union Carbide was entitled to summary judgment as well.

The case is No. RBD-16-1169.

Attorneys: Armand J. Volta, Jr. (Law Office of Peter G. Angelos PC) for Jeffrey Rockman. Peter Woodward Sheehan (Whiteford Taylor and Preston LLP) and Bruce T. Bishop (Wilcox and Savage PC) for Union Carbide Corp.

Companies: Union Carbide Corp.; Kaiser Gypsum Co., Inc.

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