Sixth Circuit rules for defendant in asbestos suit

John O'Brien Oct. 3, 2011, 1:43pm


CINCINNATI (Legal Newsline) - A federal appeals court has rejected the theory that each and every exposure to asbestos a person experiences significantly contributes to his or her chances of getting mesothelioma.

The 2-1 decision released Wednesday by the U.S. Court of Appeals for the Sixth Circuit, overturning a Kentucky jury's $516,094 award against Garlock Sealing Technologies. Robert Moeller worked with asbestos-containing gaskets made by Garlock from 1962-70 and died in 2008 of mesothelioma.

His wife Olwen sued Garlock and several other companies not involved in the appeal.

"While Robert's exposure to Garlock gaskets may have contributed to his mesothelioma, the record simply does not support an inference that it was a substantial cause of his mesothelioma," Chief Judge Alice Batchelder wrote.

"Given that the plaintiff failed to quantify Robert's exposure to asbestos from Garlock gaskets and that the plaintiff concedes that Robert sustained massive exposure to asbestos from non-Garlock sources, there is simply insufficient evidence to infer that Garlock gaskets probably, as opposed to possibly, were a substantial cause of Robert's mesothelioma."

Garlock argued that Moeller's mesothelioma could have been caused by exposure to asbestos insulation. It presented evidence that Moeller sustained substantial exposure to asbestos insulation from 1962-75.

Dr. Arthur Frank provided expert testimony for the plaintiffs that any exposure, including from Garlock gaskets, would have contributed. Kentucky law requires a plaintiff to prove that a defendant's conduct was a substantial factor in the harm.

"Dr. Frank testified only that all types of asbestos can cause mesothelioma and that any asbestos exposure counts as a 'contributing factor,'" Batchelder wrote. "That testimony does not establish that exposure to Garlock gaskets in and of itself was a substantial factor in causing Robert's mesothelioma."

Batchelder wrote that the plaintiff could not quantify the amount of asbestos exposure caused by Garlock's gaskets and that the plaintiff conceded that Moeller sustained massive exposure from non-Garlock sources.

"On the basis of this record, saying that exposure to Garlock gaskets was a substantial cause of Robert's mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean's volume," Batchelder wrote.

Judge Ralph Guy voted with Batchelder and filed a concurring opinion in which he addressed the issue of jury instructions.

Judge Karen Nelson Moore dissented, arguing that the plaintiff presented enough evidence to prove Garlock's gaskets were a "substantial factor" in Moeller's illness.

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