Plaintiff Janice Herr alleged that Richard Herr died of mesothelioma due to his use of Airco-distributed, asbestos-containing gloves/mittens. Herr was a sculptor and art instructor who used insulated mittens to handle heated molds. He also used raw asbestos to make molds for his sculptures. Airco never manufactured insulated gloves or mittens, but distributed welding gloves and mittens with its logo. This case was remanded for further proceedings by the MDL 875 Court, after the MDL denied the summary judgment filed by Airco, the sole remaining defendant. After remand to the District Court of Wisconsin, the court granted the summary judgment motion.
Herr’s mittens were white and unlabeled; Airco’s corporate witness testified that Airco did not sell white asbestos mittens, and did not sell five-fingered gloves. Although one catalogue listed white, five-fingered Airco asbestos gloves, there is no evidence connecting Herr to these gloves, as a co-worker testified they used “giant mittens” ordered from M&F. The court stated: “Even if the Court concluded — very generously — that there was an issue of fact pertaining to the distinction between mittens and gloves, it bears repeating that Airco’s gloves were labeled, but the gloves that Herr used were unlabeled. This evidence is undisputed and confirmed in the record presented to the Court. Therefore, the plaintiff cannot meet her burden of proof as to causation, and Airco is entitled to summary judgment.”
The court also found that Airco was entitled to summary judgment on the strict liability claim because the claim was released when the plaintiffs settled with M&F via a Perringer release, which extinguishes all responsibility for placing the defective product in the stream of commerce.