PHILADELPHIA (Legal Newsline) – The asbestos multidistrict litigation court has ruled on several summary judgment motions in a case in which the plaintiff argued that asbestos from original component parts would have still been present in equipment aboard Navy vessels during his service.
Judge Eduardo Robreno delivered the Oct. 23 opinion in the United States District Court for the Eastern District of Pennsylvania.
Plaintiff Kenneth McAfee was allegedly exposed to asbestos while serving in the U.S. Navy from 1969 to 1991 and while working in the Philadelphia Naval Shipyard from 1991 to 1993. He claims he developed lung cancer as a result of his exposure.
The case was removed to the asbestos MDL from the Court of Common Pleas of Philadelphia in November 2013.
Robreno concluded that maritime law is applicable to the case because the alleged exposures occurred while the claimant was performing “sea-based” work.
He explained that in order to establish causation under maritime law, a plaintiff must show that he was exposed to the defendant’s product and that the product was a substantial factor is causing his injury.
“A mere ‘minimal exposure’ to a defendant’s product is insufficient to establish causation,” he wrote.
McAfee contends that he identified sufficient product identification and causation evidence to survive summary judgment for each defendant.
Ingersoll-Rand & Co.
Robreno granted summary judgment for defendant Ingersoll-Rand & Co., concluding that the plaintiff failed to identify sufficient evidence of product identification and causation.
McAfee testified that he was exposed to respirable dust from asbestos-containing gaskets, packing and insulation used in connection with Ingersoll-Rand compressors aboard various ships.
The defendant admitted that its compressors were designed and intended to contain asbestos and that asbestos was required on high temperature gaskets on its equipment.
In support of his argument, McAfee pointed to expert Arthur Faherty’s affidavit. He testified that “generally, if a company supplied asbestos with its equipment, some of that asbestos was always present unless the record shows that the asbestos installed by the defendant was entirely removed” and “the removal of the entire initial asbestos never occurred.”
Robreno concluded that while there is evidence that McAfee was exposed to asbestos-containing gaskets, packing and insulation in connection with Ingersoll-Rand compressors, there is no evidence that the defendant supplied the asbestos-containing component parts.
“Although plaintiffs point to expert evidence to support their contention that some of the original asbestos material supplied by Ingersoll was still present on the ship at the time of McAfee’s alleged exposure, this evidence is not only impermissibly speculative, but fails to establish that McAfee was exposed to any such asbestos still present on the ship (as opposed to other asbestos supplied by other companies),” Robreno wrote.
“As such,” he added, “no reasonable jury could conclude from the evidence that McAfee was exposed to asbestos from a product manufactured or supplied by defendant Ingersoll such that it was a substantial factor in the development of his illness, because any such finding would be based on conjecture.”
General Electric Company and CBS Corporation-Westinghouse
Defendants CBS Corporation-Westinghouse's and General Electric Company’s requests for summary judgment were granted in part and denied in part.
They both claimed that they had no duty to warn about products or component parts they did not manufacture or supply and, therefore, cannot be held liable.
In his deposition, McAfee testified that he was exposed to respirable dust from asbestos-containing wire and wrapping.
Specifically, he alleges he was exposed to asbestos-containing Westinghouse wires and wrapping on Westinghouse equipment. He also alleges he was exposed to asbestos-containing wiring on GE gyros and wrapping on GE equipment.
In support of his arguments, McAfee again pointed to Faherty’s affidavit, stating that some of the asbestos would always be present.
Robreno held that because evidence supported the plaintiff’s alleged exposures to asbestos-containing wiring manufactured or supplied by CBS and GE, a reasonable jury could conclude that McAfee’s exposure to the wiring was a substantial factor in the development of his illness.
However, Robreno concluded that the plaintiff failed to provide evidence that the defendants manufactured or supplied the wrapping.
Therefore, Robreno denied summary judgment with respect to alleged exposure to asbestos-containing wiring but granted summary judgment with respect to alleged asbestos exposure to the wrapping around the wiring.
John Crane, Inc.
Robreno also denied summary judgment for defendant John Crane, Inc., leaving it to the jury to conclude whether or not the evidence supports McAfee’s allegation that the exposure was a substantial cause of his injury.
McAfee testified that he was exposed to respirable dust from asbestos-containing John Crane packing while performing repair and maintenance work on various pieces of equipment on ships.
Robreno denied summary judgment for defendant Guard-Line, Inc., holding that the plaintiff identified sufficient evidence to support a finding of causation with respect to gloves manufactured by the defendant.
McAfee testified that he was exposed to respirable dust from asbestos-containing “Guard” gloves while performing repair and maintenance work on ships.
Guard-Line denies manufacturing a product with a “Guard” logo and argues that it cannot be liable for the “Guard” brand, which is different than “Guard-Line.”
The court disagreed, concluding that a reasonable jury could potentially make the connection and determine that the exposure was a substantial factor in causing the injury.
“Whether plaintiff’s testimony identifying the gloves as ‘Guard’ was a reference to gloves manufactured by defendant ‘Guard-Line’ is a question of material fact for the jury to decide,” Robreno wrote.
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