Judgment in Favor of Insulation Manufacturer due to Plaintiff’s Failure to Establish Insulation Caused Pipe Insulator’s Mesothelioma U.S. District Court for the Western District of Wisconsin, September 30, 2016
The plaintiff alleged her decedent, Oswald Suoja died from mesothelioma as a result of his exposure to asbestos from Kaylo pipe insulation after working as a pipe insulator at Badger Ordance Works in Wisconsin. The case was transferred to the Eastern District of Pennsylvania for pretrial proceedings.
The plaintiff specifically alleged that Mr. Suoja had been exposed to a pipe covering product made by Owens-Illinois called “Kaylo” while working as a career asbestos insulation worker. It was also alleged in his bankruptcy trust submissions and discovery responses that the plaintiff was exposed to other products and job sites other than Badger Ordnance. The plaintiff’s two fact witnesses claimed that they saw him remove and install Kaylo on pipes during the 1950s. One witness went as far as to say that “he was sure” the old insulation was Kaylo and described it as white and chalky. He further stated that he had installed Kaylo earlier in the 1950s and concluded the old insulation coming off was Kaylo because it was deteriorated and hanging.
Owens-Illinois put forth expert testimony concerning the differences between Kaylo, which was a calcium silicate product “calsil” versus other magnesia based insulation like Johns Manville. Both products were made and used at the same time. Further, the products resembled each other in appearance. However, calsil was less susceptible to damage from water than magnesia insulation.
As for causation evidence, the plaintiff relied upon Dr. Arthur Frank who opined that each exposure contributed to the plaintiff’s cumulative exposure. His cumulative exposure was thus the cause of the mesothelioma. Further, Dr. Frank stated that mesothelioma is a dose response disease, i.e., the greater the dose the higher likelihood of getting the disease. Dr. Frank also conceded on cross-examination that each exposure is part of causation since each exposure constitutes part of the cumulative exposure.
The court found the testimony of both fact witnesses unpersuasive. First, the plaintiff’s employment records did not match the dates when witness Zimmer stated he worked with the plaintiff at Badger Ordnance. The court was also troubled by photographic evidence that illustrated that the steam lines at Badger were insulated with Johns Manville 85 Magnesia between 1942 and 1945. It concluded that it was most likely not Kaylo being removed, since Kaylo was not used in large quantity until 1948. As for the second fact witness, the court noted that he had not seen Kaylo boxes or labels. Additionally, the witness had testified that Kaylo was magnesia, which was in fact not correct.
Further, the court found that the plaintiff had not established that exposure to Kaylo was a substantial factor in the development of the plaintiff’s mesothelioma. The court noted that certain portions of Dr. Frank’s testimony were not admissible from a prior pretrial order. Additionally, the court stated that even if it were admissible little weight would be given. Specifically, the court was troubled that Dr. Frank had not offered even a threshold minimum dose of safe exposure yet his opinion on causation was sounded in cumulative exposure rather than each and every exposure. Moreover, the court pointed out that “it is disingenuous for plaintiff to have obtained recovery from numerous bankruptcy trusts and asbestos manufacturers based upon sworn admissions of asbestos exposure and then to brush aside those admissions as irrelevant to causation.”