Kentucky Appellate Court Affirms Trial Court Finding of Plaintiff’s Failure to Establish Causation to Brake Defendants Court of Appeals of Kentucky, July 15, 2016
The plaintiff Hershel Mannahan brought an action against the defendants for his alleged development of mesothelioma as a result of his work as a laborer, driller, oiler, truck driver, mechanic, and welder for Peabody Coal Mannahan worked as a welder for Peabody at the Vogue Mine from March 1974 to February 1977 and at Riverview Mine from May 1977 to June 1978. He also performed welding and mechanic work at Vogue Mine from June 1978 until February 1986, when he retired.
The plaintiff allegedly performed brake repairs and replacements on haul trucks, dozers, road graders, draglines, shovels, and other mining equipment. In that process, the plaintiff claimed to have sanded and grinded asbestos containing brake parts and used compressed air to clean out debris.
The court first noted the standard of review for summary judgment, which is whether “the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” The plaintiff contended that he would be able to submit evidence to the trial court that he was exposed to asbestos products supplied by defendants Palmer, Eaton, and Rockwell.
The court disagreed, stating that Kentucky uses the Substantial Factor Test (SFT) adopted in Deutsche v. Shein. In sum, the SFT requires a plaintiff prove the defendant’s conduct was a substantial factor in bringing about the harm to the plaintiff. Exposure causation, which is “ancillary” to substantial factor is a guide to whether a defendant’s product was the substantial factor to a plaintiff’s disease. In other words, a plaintiff must show that a defendant supplied the product as an initial matter prior to determining SFT.
Palmer was alleged to have manufactured asbestos-containing replacement parts for brakes that went on to heavy equipment made by a company known as Bucyrus Erie. Although the plaintiff testified having worked on Bucyrus Erie excavators and loaders he did not recall the manufacturer of brakes for those pieces of equipment. At best, circumstantial evidence existed as to Palmer. Further, the record illustrated that Palmer was not the only seller of brakes to Peabody during the exposure time periods. The court stated that the plaintiff’s argument that he must have been exposed to Palmer products was an argument of post hoc, ergo propter hoc fallacy, which meant “after this, because of this.” The court used the analogy that the “rooster crows and then comes the sunrise; therefore, the rooster caused the sun to rise.”
As to Eaton, the court found the arguments made as to Palmer products similar to the arguments lodged toward Eaton. Again, the court found no direct evidence that the plaintiff encountered dust from a specific Eaton product. Further, the plaintiff had testified that he replaced band brakes on Bucyrus equipment but the evidence by way of affidavit showed that Eaton supplied disc brakes, not band brakes. As for the plaintiff’s alleged use of Eaton brakes on Mack Trucks, the court found that the evidence on causation was lacking. The plaintiff testified in his deposition that he worked on off road Mack Trucks. Eaton’s corporate representatives had testified that Eaton did not make brakes to fit off road trucks.
Rockwell made products similar to those of Palmer and Eaton although it obtained the friction material from a supplier. The court found that the plaintiff’s argument as to Rockwell was the same post hoc, ergo propter hoc fallacy argument. Although asbestos containing brake material from Rockwell could have made its way to Peabody, nothing proving a specific exposure to Rockwell products was in the record. Further, the plaintiff argued that he was possibly exposed to original Rockwell brakes on trucks. The court rejected this argument since he testified that the trucks were “old, old, old” at Peabody.
One dissent took exception with the trial court and found that the plaintiff had provided an actual…albeit circumstantial fact pattern.