Granting of Summary Judgment to Radio Manufacturers Overturned Based on Circumstantial Evidence Court of Appeals of Kentucky, September 11, 2015
In this case, the decedent, Kenneth Anderson, was allegedly exposed to asbestos while working as a radio and television repairman in the 1960s and 1970s. Prior to trial, radio manufacturers Zenith and Motorola moved for — and were granted — summary judgment, arguing that the plaintiff could not “provide evidence regarding what radios Anderson actually repaired, whether those radios contained asbestos, and if so, who manufactured or distributed those asbestos-containing parts.”
On appeal, the plaintiff argued that the trial court erred, since the decedent had testified to working with both defendants’ radios (which had fiber heat shields); the defendants admitted that they manufactured radios containing asbestos heat shields; witnesses on both sides agreed that heat shields usually are not replaced throughout the life of the radio; the plaintiff’s industrial hygienist opined that the cleaning out of the radios with asbestos-containing heat shields resulted in significant exposure; and the plaintiff’s internist reported that the repeated exposure to asbestos in the ranges provided by the industrial hygienist caused the plaintiff’s mesothelioma.
The court agreed with the plaintiff and overturned the granting of summary judgment to both defendants. As the court held: “The Andersons have come forward with at least probative circumstantial evidence that, viewed in a light most favorable to them, creates genuine issues of material fact. Viewing the evidence in a light most favorable to them supports a permissible inference that Kenneth repaired Zenith and Motorola radios with original asbestos heat shields, that asbestos was released from the radios when Kenneth cleaned them, and that the asbestos dust Kenneth inhaled each time he repaired an asbestos-containing radio was a substantial factor in causing his mesothelioma. Zenith’s and Motorola’s arguments to the contrary go more to the weight and credibility to be afforded to the Andersons’ evidence, and therefore, should be evaluated by a jury not by a judge as part of summary judgment.”