Federal Court Grants Summary Judgment to Defendants for Plaintiffs’ Failure to Establish Substantial Factor but Denies It as to Joint Compound and Outside Contractor Defendants United States District Court for the District of Maryland, July 25, 2016

Plaintiffs Charles Arbogast and Barbara Arbogast brought this action against multiple defendants for Mr. Arbogast’s alleged development of mesothelioma as a result of his occupational exposure at Bethlehem Steel Sparrows Point Steel Mill, amongst other sites.

Several defendants moved for summary judgment, including Eaton Corporation (Cutler Hammer), Foster Wheeler, MCIC, Georgia Pacific (GP), Schneider Electric (Square D), Union Carbide (UCC), and Crane Co. The court began its analysis by reciting the standard for summary judgment, which is appropriate when “the movant shows there is no genuine dispute as to any material fact.” Further, the court recited Maryland’s standard for causation, which includes 1) the specific product, attributable to a specific defendant, contained asbestos; 2) the product was used in such a way that it released respirable asbestos fibers into the air breathed by the plaintiff; and 3) the plaintiff encountered the respirable asbestos fibers from a specific product with such frequency and regularity and in such proximity to the product that a factfinder may reasonably infer the specific product was a substantial factor in bringing about 4) the claimed physical injury. Further, the plaintiff has the burden, in a strict liability case, to prove that the product defect existed when the product left the defendant’s control, renders the product unreasonably dangerous, and was foreseeably present when encountered by the consumer.

Eaton: The court granted Eaton’s motion for summary judgment. The court found that nothing was presented by the plaintiff to prove he was exposed to a specific product made by Eaton. Specifically, the plaintiff stated in his deposition that he could not recall whether any lighting panels he worked with at Bethlehem Steel contained asbestos. As a result, the court concluded that the plaintiff did not put forth any evidence that he was exposed to asbestos from a specific Eaton product.

Foster Wheeler: The plaintiff argued that Foster Wheeler’s motion for summary judgment should be denied because its boilers at Bethlehem Steel were covered with asbestos insulation. The plaintiff relied on the recent May decision, which eroded defenses once afforded under the bare metal defense. In that decision the court concluded that a manufacturer will have a duty to warn under strict liability and negligence claims when 1) its product contains asbestos components, 2) asbestos is a critical part of the pump sold by the manufacturer, 3) periodic maintenance involving the handling of asbestos gaskets and packing is required, and 4) the manufacturer knows or should know the risks from exposure to asbestos. However, the court disagreed with the plaintiffs’ contentions and granted Foster Wheeler’s motion because it was troubled by the lack of evidence that Foster Wheeler’s boilers required asbestos. Therefore, the plaintiff did not satisfy his burden under the May decision.

MCIC: MCIC was alleged by the plaintiff to have replaced pipe insulation at the Mount Clare Shop of the B and O Railroad where the plaintiff also worked. The plaintiff first recalled MCIC pipe workers in 1965 while he was replacing light bulbs and working on electrical equipment. Although he was not able to say how often he went into the shop, he stated that he would be there for approximately 20-30 minutes at a time. A co-worker confirmed the frequency of MCIC’s workers at the shop. The court found the evidence sufficient to infer that Kaylo was used by MCIC at the shop. Although the court denied MCIC’s motion, it noted that it had doubts about whether the plaintiff could pass the test of frequency, regularity and proximity.

GP: GP moved for summary judgment as to the plaintiffs’ strict liability claims. GP argued that the 1976 Maryland law governing dangerous products postdated the alleged exposure to its ready mix product. Therefore, GP argued it was not liable. The court rejected this argument and breathed life into an older Maryland tort case called Babylon. The court stated that Babylon encompassed the same principles of protecting harm to a person from chattel sold by a seller under basic negligence principles. As a result, the court denied the motion as to GP.

Schneider Electric: The court granted Schneider Electric’s motion. Like the motion filed by Eaton, the court stated that the plaintiff failed to provide any evidence of exposure to a specific Square D product. Instead, the plaintiffs’ allegations were general in nature.

UCC Bakelite and Calidria: The court also granted UCC’s motion for summary judgment as to the plaintiff’s allegations of exposure to Bakelite and Calidria. Specific to Bakelite, the court was not persuaded by the plaintiffs’ use of documents from the United States Trademark Office and affidavits from UCC. The court stated that expert evidence from UCC illustrated that Bakelite is a “generic” term for a phenolic material. Therefore, nothing showed that the exposure alleged by Arbogast to Bakelite was that of a UCC product. As for Calidria, another fiber product of UCC, the plaintiff argues that UCC was the exclusive supplier of asbestos fiber to GP and Gold Bond (National Gypsum) from 1970-1973. The court was troubled by the fact that the plaintiff offered nothing to support this allegation. Additionally, the plaintiffs cited discovery answers from National Gypsum but did not authenticate the document or establish that UCC was a party to that case involving the discovery answers. Further, GP’s former employee had testified that UCC was not the only supplier of asbestos to GP. The court was not persuaded by the plaintiffs’ argument and granted UCC’s motion for summary judgment.

Crane: The court quickly granted the motion for summary judgment filed by Crane Co. The plaintiff argued that Arbogast was exposed to Crane Co.’s Cranite sheet gasketing material. Cranite was alleged to have been used in Crane valves, fittings, and pipe. The court honed in on Crane Co.’s Answers to Interrogatories, which listed the chrysotile percentage of Cranite but also named the balance of Cranite as consisting of natural rubber binder and inert filler. Although Arbogast recalled seeing Cranite during his employment, the plaintiff did not show that he was exposed to any respirable fibers thereof. Consequently, the motion was granted. Crane Co.’s remaining motions were found as moot.

Read the full decision here.


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