Products Liability Law Reporter

A trial court denied a defendant’s summary judgment motion in a case alleging liability for a worker’s asbestos-related lung cancer death.

The spouse of worker Gail Chandler, who died of asbestos-related lung cancer, filed suit against various defendants, alleging claims for negligence and products liability, among others. One of the defendants, Parts Warehouse, Inc., which allegedly was part of the supply chain of parts that led to Chandler’s asbestos exposure, filed a motion for summary judgment. The defendant argued that the plaintiff could not demonstrate that it had caused Chandler to be exposed to asbestos because the only specific evidence of any part that was sold to Chandler from Parts Warehouse and its alternate entity, Lamus-Lundlee Co., was a single non-asbestos-containing clutch. Therefore, the defendant argued, the plaintiff had failed to establish product identification, which is an essential element of an asbestos cause of action.

Denying the motion, the trial court considered the declaration of Parts Warehouse President Bob Glyer when it ceased operations in 2000. Glyer asserted that a Borg Warner clutch identified in the litigation as having been obtained by Chandler through Lamus-Lundlee would have been a non-asbestos-containing clutch supplied through Parts Warehouse. The court found that the plaintiff had raised a triable issue of material fact regarding the accuracy of Glyer’s assertions. For example, the court said, Glyer did not confirm that Lamus-Lundlee did not purchase Borg Warner clutches in the 1980s from other sources, and he admitted that he could not contradict evidence that Borg Warner had supplied asbestos-containing clutches between 1928 and 1986. Given that Chandler is alleged to have been exposed to asbestos-containing parts from Parts Warehouse and Lamus-Lundlee as early as 1980, the court said, there is a triable issue of fact that before 1986, Parts Warehouse may have supplied asbestos-containing Borg Warner clutches to Lamus-Lundlee.

The court also found that even if Glyer’s testimony was sufficient to show that Parts Warehouse and Lamus-Lundlee had not supplied asbestos-containing clutches to Chandler, Parts Warehouse concedes that it allegedly supplied Chandler with asbestos-containing parts other than clutches. For example, the court cited deposition testimony asserting that Chandler had used multiple brands of asbestos-containing brakes and gaskets, some of which were obtained from Lamus-Lundlee. Thus, the court held that this supported a finding that Chandler was more likely than not exposed to asbestos-containing parts sold by Lamus-Lundlee.

Citation: Chandler v. Pneumo Abex LLC, No. 34-2019-00265009-CU-AS-GDS (Cal. Super. Ct. Sacramento Cnty. Oct. 11, 2022).

Plaintiff counsel: AAJ members Alan R. Brayton and David R. Donadio, and Nancy T. Williams, all of Novato, Calif.

Comment: See also Edwards v. Scapa Waycross, Inc., 878 S.E.2d 696 (S.C. Ct. App. Oct. 26, 2022). There, Stephen Redfern Stewart was an employee of Bowater Southern Paper Corp. from 1963 to 2002. While working on a paper machine, he was exposed to asbestos-containing dryer felts supplied by Scapa Waycross. Ten years after his 2002 retirement, Stewart was diagnosed as having malignant pleural mesothelioma. He brought a products liability suit against various entities involved in producing or selling asbestos-containing products, including Scapa Waycross, Inc. The case proceeded to trial against Scapa following settlements with other defendants. A jury awarded damages for the estate of Stewart, who died during the litigation. Affirming, the appellate court rejected the defense argument that the trial court had erred in failing to grant its motion for judgment n.o.v. because one of the plaintiff’s experts—occupational medicine physician Arthur Frank—employed the “each and every exposure” causation theory. Frank, the court said, had used the cumulative dose or cumulative exposure theory in reaching his opinion on whether Scapa dryer felts were a substantial factor in causing Stewart’s mesothelioma. Moreover, the court said, Frank used Stewart’s cumulative dose to describe the medical reasoning on how humans develop mesothelioma from asbestos exposure, finding that the trial court thus did not err in allowing the testimony at trial or in failing to grant Scapa judgment n.o.v. The evidence presented at trial was sufficient for the jury to find that Scapa’s asbestos-containing dryer felts were a substantial factor in Stewart’s development of and death from mesothelioma, the court concluded. The plaintiff was represented by AAJ members Mona L. Wallace and William M. Graham, both of Salisbury, N.C.; Kathleen Chewning Barnes, Hampton, S.C.; Gregory L. Hyland and AAJ member Thomas H. Hart III, both of Summerville, S.C.; and AAJ member Frederick J. Jekel, Columbia, S.C.