Products Liability Law Daily Wrap Up, TOP STORY—ASBESTOS—E.D.Pa.: Jury to decide whether forklift brake manufacturers caused depot worker’s mesothelioma, (Apr 29, 2022)

By Brian Craig, J.D.

An epidemiologist’s report described to a reasonable degree of medical certainty that the worker’s exposure to asbestos-containing forklift brake parts substantially caused his mesothelioma.

In a products liability case brought against forklift brake manufacturers by the estate of a former Army depot worker who died from mesothelioma, the federal district court in Philadelphia has concluded that a jury will decide causation and liability. The court concluded that an expert report from an epidemiologist describing the frequency and regularity of the worker’s exposure to asbestos created a material factual issue as to causation, thus precluding summary judgment. The man’s estate also produced sufficient evidence to show the necessary proximity, regularity, and frequency to an asbestos-containing product attributable to the manufacturers based on the worker’s handling of brake parts to require a trial (Smeal v. Clark Equipment Co., April 28, 2022, Goldberg, M.).

A man worked for approximately 32 years at the New Cumberland Army Depot in Fairview, Pennsylvania, as a laborer and as a tool and parts attendant. The worker’s duties entailed issuing parts and tools to mechanics and engineers. During the relevant time period, forklifts were used extensively at the Army depot. After the worker was diagnosed with malignant mesothelioma, he filed suit against the forklift manufacturers in New York and gave a deposition. The man died in 2021, and the case in New York against the forklift manufacturers was dismissed for lack of jurisdiction. The man’s estate then filed suit against the forklift manufacturers in Pennsylvania state court alleging that the worker developed mesothelioma due to his exposure to asbestos contained within brake products manufactured by the forklift manufacturers. The case was removed to federal court and consolidated as part of a multi-district litigation with other asbestos cases. The forklift manufacturers moved for summary judgment.

Frequent, regular, and proximate exposure. The court first concluded that the worker’s estate produced sufficient evidence to demonstrate the requisite proximity, regularity, and frequency to an asbestos-containing product attributable to the manufacturers. In asbestos litigation, at the summary judgment stage, the court decides whether, based on the evidence concerning frequency, regularity, and proximity of claimed exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury. The plaintiff must show not only that he was exposed to asbestos-containing products with sufficient proximity, regularity, and frequency to cause his injuries, but also that the asbestos products to which the plaintiff claims exposure were manufactured, distributed, or sold by the defendant.

Here, the former depot worker testified that he personally swept up the dust both created by the mechanics and from his opening of the packages. The worker would also have to unbox brake shoes and brake linings for the manufacturers’ forklifts and would often see dust on the boxes. The worker specifically recalled handling drum brakes and said that mechanics would ask him to supply parts for the forklifts. The worker described his proximity to the mechanics’ work on these brake parts and his own handling of the brake parts. The court found this evidence sufficient to create a genuine issue of material fact regarding the worker’s frequent, regular, and proximate exposure to asbestos-containing parts from the manufacturers.

Causation. The court also concluded that an epidemiologist’s report was sufficient to raise a genuine issue of material fact to prove causation in this case. To create a jury question in an asbestos case, a plaintiff must adduce evidence that exposure to the defendant’s asbestos-containing product was sufficiently frequent, regular, and proximate to support a jury’s finding that the defendant’s product was substantially causative of the disease.

In support of causation, the worker’s estate produced an expert report from an epidemiologist describing the frequency and regularity with which the worker was exposed to asbestos from the forklifts manufactured by the defendants. Based on the worker’s description of his exposure to asbestos-laden dust from the manufacturers’ forklifts over the course of 12 to 13 years, the expert opined, to a reasonable degree of medical certainty, that the worker’s regular and frequent exposure to asbestos from the forklifts and aftermarket components was a substantial causative factor in the development of the man’s mesothelioma. The court found that the expert report produced sufficient evidence to create genuine issues of material fact as to both exposure and causation. A jury could reasonably infer that the man regularly worked within the requisite distance of the “breathing zone” of asbestos activities and was thus subject to a harmful exposure. Therefore, the court denied the motion for summary judgment and concluded that a jury trial was needed.

The case is No. 19-5853.

Attorneys: James C. Long, Jr. (Belluck & Fox LLP) for Patricia Elizabeth Smeal. Timothy D. Rau (Marshall Dennehy Warner Coleman & Goggin PC) for Clark Equipment Co. c/o CT Corp. Systems. Brian P. Corcoran (Reilly Janiczek McDevitt) for NACCO Material Handling Group.

Companies: Clark Equipment Co. c/o CT Corp. Systems; NACCO Material Handling Group

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