Products Liability Law Daily Wrap Up, SUPPLY CHAIN LIABILITY ISSUES—ASBESTOS—7th Cir.: Summary judgment in favor of pyrometric cones manufacturer reversed in ceramic artist’s cancer case, (Jun 21, 2023)

By Pankhuri Bhatnagar, B.A. LL.B.

The manufacturer owed a duty to its customers to transport its cones “reasonably safely,” and genuine issues of fact existed as to whether the cones’ asbestos-containing packaging violated this duty.

In an action brought against a pyrometric cones manufacturer by the wife of a ceramic artist who died from mesothelioma, allegedly caused by exposure to the manufacturer’s asbestos-containing “vermiculite” packaging material, the U.S. Court of Appeals for the Seventh Circuit reversed a lower court’s order granting summary judgment to the manufacturer. The appeals court found that although the manufacturer only came to know of the packaging material’s asbestos content upon information given by the vermiculite supplier in 1981, there were genuine issues of fact as to whether the manufacturer had “constructive knowledge” of the contamination prior to 1981 and whether it continued to use the material after acquiring “actual knowledge” of the contamination after 1981 (Johnson v. Edward Orton, Jr. Ceramic Foundation, June 20, 2023, Ripple, K.).

Background. A man working as a ceramics artist and teacher made use of pyrometric cones—devices used to measure the temperature of a kiln during the firing of ceramic products—manufactured by Edward Orton, Jr. Ceramic Foundation (Orton). Orton shipped its cones in boxes filled with the mineral “vermiculite” as a packaging material. From 1963 to 1975 and from 1979 to 1981, Orton purchased the mineral from W.R. Grace & Co. In 1983, it switched to using microfoam for packaging. W.R. Grace’s vermiculite mine near Libby, Montana, contained deposits of asbestos. In 1981, Orton requested and received a Material Safety Data Sheet from W.R. informing the manufacturer of the mineral’s asbestos content.

The ceramics artist claimed that he had to dig through the vermiculite material to find the cones shipped to him and that the mineral would always create some dust in his face. In 2017, the man was diagnosed with malignant mesothelioma, which is almost always caused by exposure to asbestos, and he died of the disease in 2020. The man’s wife filed suit against Orton seeking negligence, wrongful death, and survival damages for negligence, including through failure to warn. A district court granted the manufacturer’s motion for summary judgment, holding that the wife failed to establish that Orton knew, or should have known, that W.R. Grace was supplying vermiculite from Libby or that Libby vermiculite was contaminated with asbestos or that Orton should be held liable as the manufacturer of the vermiculite packaging [see Products Liability Law Daily’s July 1, 2021 analysis]. The wife appealed.

Duty to warn. Because a negligence claim requires “breach of a duty of care owed by the defendant to the plaintiff,” the appeals court considered whether the manufacturer “knew, or should have known of the risk posed by the product,” i.e., that its packaging material was contaminated with asbestos. Paragraphs 20 and 222 of Orton’s statement of facts, filed in support of its motion for summary judgment, stated that prior to 1981, “Orton never knew, nor had reason to suspect, that W.R. Grace’s vermiculite came from the Libby, Montana mine, or that any vermiculite Orton may have used may have been contaminated with asbestos.” Because the wife did not deny these facts in her response, the court admitted these facts and concluded that the data sheet was received no earlier than 1981.

However, in Illinois, “a manufacturer is held to the degree of knowledge and skill of experts” and, therefore, has a duty “to keep abreast of scientific developments touching upon the manufacturer’s product,” Proctor v. Davis, 682 N.E.2d 1203, 1211 (Ill. App. Ct. 1997). Here, it was undisputed that Orton was the manufacturer of the cones at issue. As such, it had a duty to prepare the cones’ packaging so that they “could be transported to the destination where [the cones] were to be used without exposing others to unreasonable danger,” Lewis v. Stran Steel Corp., 311 N.E.2d 128, 132 (Ill. 1974). The manufacturer claimed that even if the packaging was considered to be a part of its “product,” it should be held to the standard of knowledge of the ceramics industry. The court, however, found that Orton should be held to an expert standard of knowledge, which provides that what a manufacturer knew or should have known is determined by the “present state of human knowledge” at the time, McKinney v. Hobart Bros. Co., 127 N.E.3d at 187 (Ill. App. Ct.) (citing Woodill v. Parke Davis & Co., 402 N.E.2d at 198 (Ill. 1980)).

The court observed that the record showed that it was possible for Orton to know of the vermiculite contamination prior to 1981. Articles published before 1963 (when the manufacturer began purchasing the mineral) described the vermiculite mining operation of W.R. Grace’s predecessor at Libby and the presence of asbestos at the site. The data sheet received by Orton in 1981 was prepared in 1977. Moreover, air monitoring in W.R.'s vermiculite processing facility revealed high levels of airborne asbestos fibers in 1971. Accordingly, even though the manufacturer did not have “actual knowledge,” there was a genuine issue of fact as to whether it had “constructive knowledge” of the possible presence of asbestos in the mineral it purchased from W.R. prior to 1981, based on the state of human knowledge between 1963 and 1981.

The court finally analyzed whether the record supported a finding that Orton owed the artist a duty after receiving the data sheet in 1981. The court found that the wife had properly preserved this argument in her opposition to the manufacturer’s summary judgment motion and on appeal, by contending that Orton had “actual knowledge” of the contamination by September 1981 yet placed additional orders for vermiculite until December 1981 and used that inventory thereafter. The data sheet recognized that physical handling of vermiculite could release dust and airborne asbestos fibers, and recommended protective equipment or controls such as isolation, enclosure, and exhaust ventilation to meet the exposure limits. Based on the aforesaid, this court determined that the district court erred in granting summary judgment to Orton on the issue of the existence of Orton’s duty both before and after September 1981. The matter was thus remanded for further proceedings.

The case is No. 22-1822.

Attorneys: David L. Franklin (Massey & Gail LLP) for Deborah Johnson. Benjamin C. Sasse (Tucker Ellis LLP) for Edward Orton Jr. Ceramic Foundation.

Companies: Edward Orton Jr. Ceramic Foundation

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