In Grant v. Foster Wheeler et. al., the court affirmed a lower court’s grant of summary judgment for numerous defendants accused of liability to plaintiff for decedent’s alleged exposure to asbestos at a shipyard. Decedent died of asbestos-related lung disease in 2011, and his wife, as representative of his estate, filed a lawsuit against defendants–makers of asbestos-laden products–for negligence, failure to warn, distribution of unreasonably dangerous goods, and loss of consortium.
Asbestos litigation has become prevalent across the country, as those who were exposed to the substance decades ago have only recently emerged with diagnoses of the resulting, latent diseases. However, it’s been years since the Maine high court has issued any kind of clarification on the question of causation in these notoriously complex cases, all of which stem from circumstances that occurred decades ago. That can make proving causation a problematic issue. That was also true in Grant, but at least now asbestos injury lawyers have some clearer direction about the evidence needed to prevail in future cases.
According to court records, decedent worked at an iron shipyard through the mid-to-late 60s and then again from 1978 to 1994. Throughout his first stint at the company, asbestos was commonly used as insulation and in other materials in the renovation and construction of ships.
A year after his death in 2011, his wife filed a lawsuit, naming a a handful of defendants, all of whom were granted summary judgment by the trial court.
Although asbestos litigation is something virtually every jurisdiction has had to wrestle with, they differ with regard to required, key elements. Here, the trial court–and later the Maine Supreme Judicial Court–applied the test set forth in the 2012 case of Mahar v. Sullivan & Merritt, Inc. In this case, a lower court had ruled that in order to demonstrate causation in product liability lawsuits, plaintiffs had to show not just that products containing asbestos were used on the job site, but also that the worker had inhaled asbestos dust from defendant’s product.
The court is then tasked with examining the evidence against each defendant separately to determine whether there is specific evidence a plaintiff breathed in toxic dust from the defendant’s products–and not from some other third party source.
In this case, plaintiff had been able to show that an insulation company sold pipe covering to decedent’s employer on three occasions back in 1969, which occurred during the deceased’s first work period. In a workers’ compensation deposition, decedent had testified he did almost all the painting during this timeframe, but he didn’t recall working near pipe covers and he didn’t have any memory of cleaning up asbestos debris, either during or after those sales. One witness said he didn’t remember decedent, while another said it was possible decedent had been in the area of asbestos clean-up, but he couldn’t specifically recall him there. A third witness did recall decedent in the asbestos clean-up area, but it was before the timeframe when plaintiff could show the asbestos products had been sold to decedent’s employer.
Thus, with regard to the “product nexus” argument–i.e., that plaintiff was exposed to defendants’ asbestos-filled products–the state high court ruled there wasn’t enough evidence.
Further, the court held that the sophisticated user doctrine was applicable. That is, when the end user (in this case, decedent’s employer) knows or reasonably should know of a product’s danger, a manufacturer may be relieved of product liability for failure to warn. The court held that employer was in a position to issue all product warnings directly to workers.
If you are the victim of a Bangor work injury, contact Peter Thompson & Associates at 1-800-490-5218 for a confidential consultation to discuss your rights.
Grant v. Foster Wheeler et. al., June 7, 2016, Maine Supreme Judicial Court
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