Carol J. Zellner, on behalf of the estate of Clifford R. Zellner, appealed the U.S. District Court for the Eastern District of Pennsylvania’s order granting summary judgment in favor of CBS Corporation to the U.S. Court of Appeals for the Third Circuit, arguing that the district court erred in finding that she failed to establish a genuine dispute about whether Westinghouse Electric Corporation (predecessor to CBS Corporation) switchgear had deteriorated and exposed her now deceased husband to asbestos-containing dust. The Court of Appeals agreed, and reversed and remanded.
The Court of Appeals recently examined this same issue in Frankenberger v. CBS Corporation, which is found to be precedent controlling its analysis here. Although Frankenberger applied Indiana substantive law, the court said that for its purposes Indiana’s causation law did not meaningfully differ from the Wisconsin law it applied to the instant appeal. Under Wisconsin law, the test for causation is “whether the defendant’s negligence was a substantial factor in contributing to the result.” In Frankenberger, the court partially reversed the district court’s grant of summary judgment in favor of CBS and found that a jury could reasonably infer that MFrankenberger, the employee plaintiff, had been exposed to respirable asbestos dust from CBS switchgear. Like Mr. Zellner, Mr. Frankenberger worked as a pipefitter and alleged that he was exposed to asbestos-containing dust from CBS switchgear. Neither plaintiff worked directly with CBS switchgear, but both worked in close proximity to the same equipment for decades. In support of his claim that CBS switchgear was the source of the asbestos that he was exposed to, Mr. Frankenberger presented expert testimony that “the switchgear’s asbestos-containing parts would likely deteriorate and release asbestos dust during maintenance.” The court relied on that evidence in ruling in Mr. Frankenberger’s favor.
The court explained that the Frankenberger holding was conclusive on its analysis of Mrs. Zellner’s proffer of substantially equivalent evidence. The district court ffound that Mrs. Zellner presented evidence that Mr. Zellner was exposed to respirable dust blown out of CBS switchgear boxes and that CBS switchgear contained asbestos. However, it concluded that she failed to present sufficient evidence that the CBS switchgear at Fort Howard was deteriorated and released asbestos-containing dust. The Third Circuit disagreed, stating that “given our holding in Frankenberger, we hold that Mrs. Zellner’s evidence of deterioration and asbestos exposure was sufficient to survive summary judgment.”
The court rejected CBS’ central argument to the contrary that Mrs. Zellner failed to introduce first-hand testimony or other factual support for the assertion that the switchgear around Mr. Zellner was in a deteriorated condition. The court said that argument ignored the extensive evidence in the form of expert testimony that switchgear deteriorates over time due to normal operation and cleaning and an internal CBS memorandum which explicitly states that cleaning switchgear components could cause asbestos to become airborne. The Third Circuit said it was “precisely this type of evidence that defeated CBS’ motion for summary judgment in Frankenberger. The evidence here is no less compelling.” Therefore, the court concluded that a reasonable jury could find that Mr. Zellner was exposed to asbestos-containing dust from CBS switchgear and that it was a substantial factor in his fatal illness.
The Asbestos Case Tracker first addressed the Frankenberger decision in September 2016.