Lack of Product Specific Expert Testimony About Respirable Asbestos Fibers Reverses Mesothelioma Verdict Supreme Court of Connecticut, November 2, 2017
CONNECTICUT — Plaintiff Marianne Bradley, as executrix of her husband Wayne Bagley’s estate, sought to recover damages pursuant to Connecticut’s Product Liability Act for the wrongful death of the decedent under theories of negligence and strict liability. Plaintiff alleged that the decedent was exposed to asbestos-containing dust from FM-37, a product manufactured by the defendant, while working at Sikorsky Aircraft Corporation and this exposure caused decedent’s mesothelioma. The plaintiff further alleged that the defendant’s actions in selling its product constituted violations of the Act in that its product was unreasonably dangerous and that the defendant knew or should have known that its product was inherently dangerous and yet failed to use reasonable care by not testing the product to ascertain its danger or removing the product from the marketplace.
For approximately ten months in 1979 and 1980, the decedent worked as a manufacturing engineer in the blade shop at Sikorsky, where various helicopter blades were manufactured. The decedent’s office was located on a mezzanine overlooking the blade shop; a coworker testified that decedent often entered the production areas to assist in resolving various issues. During that time frame, the defendant manufactured FM-37 and sold this product to Sikorsky. FM-37 was used in the blade shop to bind together interior components of helicopter blades. The product was a modified epoxy material, supplied in sheet form with strippable release paper, and contained 8.6 percent asbestos. In regular usage, FM-37, after application, was heated until it foamed and expanded. When it expanded onto areas of the blades where it was not supposed to be, it was removed by chiseling or sanding. The product information sheets supplied by defendant for FM-37 did not indicate it contained asbestos and further stated that it could be sanded after curing. The decedent’s coworker testified that the decedent was present when FM-37 was sanded which would have exposed him to visible dust and that the sanding room was equipped with a ventilation system that collected some of the dust.
The plaintiffs’ proffered three experts at trial: Dr. Barry Castleman, Dr. Arnold Brody, and Dr. Jerrold Abraham. Dr. Castleman, an expert in public health and the history of the asbestos industry, opined that a company producing an adhesive product in 1979 would have been aware that relatively low exposures to asbestos, which might occur from sanding, could cause mesothelioma and that company could have done air sampling under foreseeable conditions of use to determine what level of exposure would be created. Dr. Castleman did not examine FM-37 and did not know what percentage of it was asbestos. Dr. Brody, a pathologist, testified as to the process by which asbestos causes mesothelioma. Dr. Brody did not examine any case-specific materials; his presentation was premised on the assumption that a person has been exposed to respirable asbestos fibers. Dr. Abraham, a pathologist and expert on pulmonary pathology, reviewed decedent’s medical records and a pathology slide. Dr. Abraham opined that the decedent had mesothelioma and that a proximate cause of that disease, amongst others, was the decedent’s exposure to asbestos from FM-37 in the blade shop. Dr. Abraham did not inspect FM-37 or speak with anyone at Sikorsky about the ventilation in the sanding room in 1979 or 1980 when rendering his opinion.
After the plaintiff rested her case, the trial court denied the defendant’s motion for a directed verdict, concluding that the plaintiff presented sufficient evidence to support her theories of liability. Specifically, the defendant argued that the plaintiff had failed to present any evidence of either a design defect of FM-37 or that asbestos dust from FM-37 had caused the decedent’s injuries and death. The defendant further argued that expert testimony was required to prove both the dangerousness of FM-37 and that the dust contained asbestos fibers that were released from FM-37 at a level sufficient to cause mesothelioma. The defendant filed a motion to set aside the verdict and for judgment notwithstanding the verdict after the jury returned an award in favor of the plaintiff, both of which were denied.
The defendant appealed the case to the Connecticut Supreme Court, reiterating the same arguments it made to the trial court. The court held that the plaintiff’s case “lacked essential expert testimony to prove a vital fact in support of her negligence and strict liability claims, namely, that respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from FM-37 when it was used in the manner that it was in the Sikorsky blade shop during decedent’s tenure there.” The plaintiff proved that breathing respirable asbestos fibers above ambient levels can cause mesothelioma, that FM-37 contained 8.6 percent asbestos, that FM-37 was sanded and produced dust, and that decedent was both directly and secondarily exposed to that dust, but crucially did not establish that the dust from FM-37 necessarily contained respirable asbestos fibers. The court further stated that the question of whether respirable asbestos fibers were released when sanding a modified epoxy adhesive product after it has been heated and cured, is a technical question that can only be answered by lay jurors after competent expert testimony.
The plaintiff argued that if the defendant’s motions were granted, a new trial was warranted based on Connecticut jurisprudence that existed at the time of trial, but had favorably evolved towards defendant’s benefit throughout the appeals process. The court held that the requirement of an expert to prove whether the defendant’s product emitted respirable asbestos fibers when sanded, subject matter that was technical in nature and beyond the field of ordinary knowledge of a lay juror, was required under well-established law at the time of the trial.
The court reversed the judgment and remanded the case with the direction to grant the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict.