Possibility of Exposure Not Enough to Overcome Summary Judgment Motions of Brake Manufacturers and Supplier Court of Appeals of Kentucky, June 2, 2017
Decedent Bobby Vickery died of mesothelioma and his estate was substituted as a party to this action. The plaintiff estate appealed the granting of summary judgment to defendants Eaton Corporation, ArvinMeritor, Pneumo-Abex, and Brake Supply Company. The appellate court affirmed, with one judge dissenting.
The plaintiff alleged Mr. Vickery was exposed to asbestos from a variety of different sources. He had fifty employers between 1966 and 2003, and alleged asbestos exposure during three of those jobs. For purposes of this appeal, the court summarized his alleged exposure as follows. First, during his work at Coleman Auto Parts, Mr. Vickery picked up new parts from NAPA and delivered them to regional NAPA stores. He also hauled used brake cores to the Rayloc facility. Plaintiff presented evidence that Abex made 99 percent of the brake linings sold to Rayloc. Second, Mr. Vickery worked for Riley Trucking Company where he replaced brakes on Chevrolet, GMC, Mack, and International-Harvester trucks. During this time Eaton and Rockwell International Corporation made original equipment used on Mack, GMC, and International-Harvester trucks; Arvin-Meritor acquired the assets and liabilities of Rockwell. Third, Mr. Vickery alleged asbestos exposure while installing insulation during his work for Fortner LP Gas Co., Inc.
Under Kentucky law, “the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” The word “impossible” is to be used in a practical sense, not an absolute sense. All of the plaintiff’s claims of negligence, strict liability, negligence, and breach of warranty require proof that the product was the legal cause of Mr. Vickery’s injury.
Here, Dr. Arthur Frank testified there was no safe level of exposure to asbestos, and every exposure to asbestos was a substantial factor in causing the plaintiff’s disease. The defendants argued this evidence was insufficient to establish that Mr. Vickery’s individual exposures to asbestos were a substantial factor in causing his mesothelioma, due to a Sixth Circuit ruling holding that the plaintiffs must show a high enough level of exposure to infer that the asbestos was a substantial factor in the injury was more than conjectural. The trial court rejected Dr. Frank’s opinion, finding that Dr. Frank’s standard would render the substantial factor test meaningless.
The appellate court distinguished this case from the Sixth Circuit ruling relied upon by the defendants, because that case was a directed verdict, not a summary judgment. “For purposes of summary judgment, we disagree that a single exposure to a known carcinogen can never be sufficient to establish legal causation.” Further, the plaintiff presented other expert testimony to show that Mr. Vickery’s multiple exposures to asbestos dust were of a sufficient level to substantially contribute to his mesothelioma. However, the court stated that the more significant issue in this case was whether the plaintiff met its burden of showing that Mr. Vickery was exposed to asbestos dust made by each of the defendants.
The evidence showed that Mr. Vickery was exposed to brake linings from both Abex and multiple other unknown manufacturers. It was equally likely that his mesothelioma was caused by exposure to an unknown manufacturer’s product. Thus, the plaintiff could not show that his exposure to Abex’s asbestos was a substantial cause. Regarding Rockwell, there was no evidence concerning the make or manufacturer of the brakes on which Mr. Vickery worked while at Riley Trucking. While Brake Supply sold asbestos-containing parts to Riley Trucking, there was no evidence that Mr. Vickery was exposed to asbestos dust while installing new brakes. At most, the plaintiff only presented evidence showing a possibility that Mr. Vickery was exposed to asbestos through Eaton, Rockwell, and Abex products.
One judge dissented on the basis that summary judgment was prematurely granted without providing the plaintiff a reasonable opportunity to conduct discovery, and because the majority opinion did not fully address the causation standard to be applied in mesothelioma cases.