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Philly asbestos judge to let Illinois federal court decide 'bare metal defense' issue

By Heather Isringhausen Gvillo | Mar 4, 2014

PHILADELPHIA (Legal Newsline) - The National Asbestos Products Liability Multidistrict Litigation Court has remanded a deceased carpenter's asbestos lawsuit to an Illinois federal court to determine whether the state recognizes the "bare metal defense."

Judge Eduardo Robreno filed the Jan. 30 order, remanding the case back to the United States District Court of the Southern District of Illinois and addressing defendant Westinghouse Electric Corporation's motion for summary judgment - granting it in part and denying in part.

"Defendant's motion for summary judgment is granted with respect to alleged asbestos exposure arising from insulation used in connection with turbines because plaintiff has failed to identify sufficient evidence to support a finding of causation with respect to that alleged exposure ...[and] denied with respect to alleged asbestos exposure arising from switchgear(with leave to refile in the transferor court) because no Illinois appellate court has yet addressed the availability of the so-called 'bare metal defense' under Illinois law," Robreno wrote.

"Bare metal" products relate to those that contain or were encapsulated in asbestos-containing products made by a third party. The arguments raised from this type of exposure refer to it as the "bare metal defense" in litigation.

The lawsuit was transferred to the MDL in Oct. 2008. Westinghouse is the only remaining viable defendant for trial.

Plaintiff Helen Mann brought the claims on behalf of J.W. Heggie and against defendant Westinghouse Electric Corporation.

Heggie worked as a carpenter from 1971 to 1984. Westinghouse manufactured turbines and switchgear.

Mann claims Heggie was exposed to asbestos from Westinghouse's turbines and switchgear at the Texaco Refinery in Lawrenceville, Ill., in 1968 and the Marathon Refinery in Robinson, Ill., between 1970 and 1978.

Mann further argues Heggie developed bilateral asbestos-related pleural disease and lung cancer as a result of his exposure to asbestos, leading to his death in April 2002.

Westinghouse requested summary judgment, arguing insufficient product identification evidence to establish causation.

"Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law," Robreno wrote. "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.'"

Robreno added that the moving party typically bears the burden of showing the "absence of a genuine issue of material fact," but the court views the facts in the light most favorable to the non-moving party, shifting the burden to the non-moving party, "who must 'set forth specific facts showing that there is a genuine issue for trial.'"

Regarding Westinghouse's summary judgment, Robreno wrote that an Ill. court ruled that defendants cannot obtain summary judgment by pinning corporate testimonies against plaintiff evidence pertaining to product identification. The jury is tasked with the job to assess the credibility of witnesses and conflicting evidence.

In the Supreme Court of Illinois' Nolan decision, it was clear that the "frequency, regularity, and proximity" test is applicable in all cases, "regardless of whether a plaintiff is relying on direct or circumstantial evidence," he wrote.

In its summary judgment request, Westinghouse argued that the plaintiff failed to produce sufficient product identification evidence to support causation allegations and failed to provide the evidence significant enough to be a "substantial factor" in causing Heggie's illness.

Former Westinghouse employee Douglas Ware provided testimony for the defense that its turbines were sold without thermal insulation or metal lagging and any insulation or lagging applied later was supplied and applied by a third party.

The defendant also claims Mann's evidence fails to create a "triable issue of material fact" regarding switchgear because she cannot prove the asbestos dust was created when electricians "blew out" the switchgear with compressed air.

On the other hand, Mann argues that she satisfies her product identification/causation claims.

Witness Vernon Hilderbrand worked with Heggie at the Marathon refinery and testified that Heggie was exposed to breathable dust from block, blanket and spray-on insulation applied to the turbines.

Witness William LaPointe testified that materials used on the turbine systems often contained asbestos, and sound-deadening materials would sometimes deteriorate and create dust.

Witness William Simmons worked with Heggie in close proximity to electricians using air hoses to blow dust out of high voltage switchgear made by the defendant. He testified that Heggie worked "within feet" of "electricians drilling holes in brown insulating board which he believed contained asbestos," before installing it inside of Westinghouse electrical equipment.

Mann also presented several official Westinghouse turbine and switchgear-related documents.

In an analysis of the turbines, Robreno wrote that even if Mann didn't have to satisfy the "frequency, regularity, and proximity" test, her evidence is insufficient. Therefore, Robreno used a more lenient standard regarding direct and circumstantial evidence to establish causation.

He stated that there is no evidence that Heggie was exposed to asbestos from insulation, while Mann proved he was exposed to asbestos from Westinghouse turbines.

"Even assuming that it is a fact that Westinghouse issued specifications that 'required' the use of asbestos-containing insulation, this evidence does not establish that any insulation to which decendant was exposed in connection with Westinghouse turbines actually contained asbestos - and instead, establishes only that this was a possibility," Robreno wrote.

Essentially, Mann only established that it was a possibility that Heggie worked with asbestos-containing insulation connected with Westinghouse turbines.

"Therefore, even when construing the evidence in the light most favorable to plaintiff, no reasonable jury could conclude from the evidence that decedent was exposed to asbestos for which Westinghouse is responsible such that it was a 'substantial factor' in the development of his illness," Robreno stated.

"This is true regardless of whether or not Illinois law recognizes the so-called 'bare metal defense' - an issue this court need not reach in connection with this alleged source of exposure," he added. "Therefore, summary judgment in favor of defendant Westinghouse is warranted with respect to this alleged source of exposure."

Regarding alleged switchgear exposure, Robreno wrote that the court "attempts to analyze the sufficiency of plaintiff's evidence despite the poorly defined sources of alleged exposure."

The plaintiff has provided evidence proving:

-Heggie worked close to electricians using air hoses to blow dust out of high voltage switchgear;

-All switchgear in industrial and large commercial settings more than 440 voltes from 1945 to early 1980s contained asbestos;

-DH and DHP series switchgear contained asbestos;

-Switchgear used to power large motors and large equipment was the DH or DHP series;

-Widespread use of asbestos insulation for switchgear applications in industrial and large commercial facilities; and

-Asbestos was the material of chose in industrial and commercial applications.

However, Robreno ruled Mann failed to prove switchgear blown out near Heggie was more than 440 volts, or was DH or DHP series, or was used to power large equipment.

"Even when construing this evidence in the light most favorable to decedent, it is insufficient because it does not establish that decedent was exposed to respirable dust from switchgear that contained asbestos," he wrote.

Mann also failed to establish that the appearance of switchgear meant it could only be asbestos-containing, he stated. Nothing in the evidence in the record supporting Mann's contention that the type of equipment the switchgear was used to power was the same that contained asbestos. Likewise, no evidence even proves Heggie worked with the same equipment that contains asbestos, the judge decided.

"The closest plaintiff comes to establishing a switchgear-related asbestos exposure for which defendant Westinghouse could be liable is found in plaintiff's evidence from co-worker Simmons that decedent worked 'within feet' of electricians drilling holes in brown insulating board which Simmons believed contained asbestos, and installing it inside of Westinghouse electrical equipment," Robreno wrote.

"Because there is no evidence that defendant manufactured or supplied the insulating board, defendant can only face liability if Illinois does not recognize the so called 'bare metal defense.'"

Robreno denied summary judgment regarding product identification/causation with respect to switchgear, choosing not to predict what an Illinois court would rule in this situation. So he remanded the case for the Illinois federal court to decide the issue.

"Whether Illinois law holds a switchgear manufacturer liable for component parts incorporated into its product which it neither manufactured nor supplied is a matter of policy," he wrote.

In a suggestion of remand filed on Feb. 24, Robreno stated that the case is prepared for trial once on the transferor court's docket.

All matters are to be resolved in the U.S. District Court for the Southern District of Illinois except punitive damages.

"Alternatively, parties have seven days within which to consent to a trial before an Article III or magistrate judge in the Eastern District of Pennsylvania. In such an event, if consent is granted, a trial will be scheduled within 60 days, on a date convenient to the parties in Philadelphia, Pennsylvania, and the suggestion of remand will be vacated," Robreno stated.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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