Court Affirms Summary Judgment in Part Regarding Turbines But Reverses in Part as to Switchgears by Same Manufacturer U.S. Court of Appeals for the Third Circuit, September 13, 2016
The plaintiff brought his action on behalf of his decedent’s estate alleging that Howard Frankenberger developed lung cancer as a result of his work around asbestos containing insulation on turbines at various powerhouses in Illinois and Indiana. The turbines were alleged to have been manufactured by Westinghouse. Howard Frankenberger worked as a pipefitter at State Line Generating Station, Will County Generating Station, and Acme Steel from approximately 1953-1999. As for exposure, he was allegedly exposed to asbestos from turbines and switchgears.
Expert testimony established that the insulation found inside the turbines and required by Westinghouse until 1973 was taken out and during maintenance. Sometimes the insulation was placed back in. Other times, new insulation which may have been made by Westinghouse was used. The process created dust which was breathed by Frankenberger according to co-worker testimony. Additionally, it was alleged that Frankenberger was exposed to asbestos from switchgears also manufactured by Westinghouse. The switchgears contained an asbestos rope until 1977 and asbestos board until 1985. During maintenance, electricians used compressed air to blow off the dust which Frankenberger breathed.
The District Court granted summary judgment in favor of Westinghouse on both the issues of exposure to insulation and switchgears. The court concluded that there was no evidence that Frankenberger was exposed to the original insulation or that the replacement insulation contained asbestos. As for the switchgears, the court found that there was no evidence that the dust was from the switchgears. The plaintiff appealed that decision. The Appellate Court started its analysis with the standard for summary judgment which states that summary judgment is appropriate “if there is no genuine dispute as to any material fact.” The court dispensed of Westinghouse’s statute of repose argument and agreed that the statute may bar claims filed ten years after substantial completion of construction. However, Frankenberger’s exposure occurred during maintenance and not during construction. Accordingly, the statute of repose was inapplicable.
As for the plaintiff’s claims with respect to the turbines, the court pointed out that a “crucial” element was not established, i.e., whether the insulation being replaced was original to the turbine. The plaintiff had not established this fact and therefore summary judgment was affirmed. However, the court noted that although the dust from the switchgears may have been from other sources it also was a reasonable inference that the dust came from the switchgear itself. The court relied upon the expert testimony that switchgears are likely to deteriorate. Accordingly, the court reversed on the issue of switchgear exposure.