Products Liability Law Reporter

A federal district court held that summary judgment for the defense was warranted where the plaintiffs failed to present evidence that would permit a reasonable jury to conclude that the defendant’s products were a substantial cause of his mesothelioma.

Marshall Pike was a parts manager, purchasing agent, and repair technician on farming equipment. During his career, he repaired and maintained pumps manufactured and distributed by Defco, Inc. Pike was diagnosed as having mesothelioma in September 2021, and he died almost two years later. A wrongful death suit by the co-executors of his estate alleged that the Defco, Inc., pumps used asbestos gaskets, exposing Pike to asbestos as he replaced the gaskets inside the pumps. Defco, Inc., moved for summary judgment, arguing that Pike’s interactions with Defco pumps were limited and that the evidence did not meet the relevant test for frequency, regularity, and proximity.

Granting the motion, the district court noted that the parts list for the Defco pumps Pike had in his possession identified asbestos as the material for the gasket components. Nevertheless, the court said, the evidence established that Pike had worked on just six Defco pumps over the course of his career, and the record lacked evidence he was exposed to the asbestos-containing products on a regular basis or for any extended period. Citing case law, the court added that the plaintiff must offer evidence from which a reasonable jury could conclude that the defendant’s products were a substantial cause of his disease and that there was exposure to a specific product on a regular basis for an extended time period.

Applying these principles, the court concluded that the plaintiffs had not offered evidence showing that Pike had worked on Defco pumps with sufficient frequency and regularity. Thus, the court held, a jury could not reasonably conclude asbestos exposure from Defco pumps was a substantial factor in causing Pike’s mesothelioma.

The court also rejected the plaintiffs’ claim for punitive damages. Such damages may be awarded in North Carolina where a defendant is liable for compensatory damages and engaged in fraud, malice, or willful or wanton conduct, the court said. The defendant here is not liable for compensatory damages and cannot therefore be liable for punitive damages, the court concluded.

Citation: Pike v. Dempster Indus., Inc., 2024 WL 1210621 (M.D.N.C. Mar. 21, 2024).

Comment: In Burford v. Howmet Aerospace, Inc., 2024 WL 790285 (Tex. App. Feb. 27, 2024), Carolyn Burford repeatedly laundered the work clothes of her husband, Frank, who worked with or around asbestos-containing materials on a regular basis while employed by Alcoa, Inc., at its aluminum smelter in Rockdale, Texas. For more than two decades, Burford would try to take the dust off her husband’s work clothes before putting them in the washing machine. She later was diagnosed with and treated for asbestosis, and she subsequently died of her disease. Her estate sued Alcoa, alleging negligence, strict liability, and negligence per se. The plaintiff contended that Frank’s exposure to asbestos-containing products at work led to the contamination of his clothes and body and that this, in turn, exposed Burford to large quantities of asbestos fibers when she washed his work clothes. The trial court granted Alcoa’s no-evidence summary judgment motion, finding no evidence of substantial factor causation. Affirming in part and reversing in part, the appellate court concluded that a reasonable juror could find that Alcoa was the source of all the asbestos to which Burford was exposed. The court reasoned that whatever dose or amount of asbestos Burford had been exposed to, it must have been sufficient to cause her asbestosis, and that it is not necessary to show that the asbestos from Alcoa more than doubled her asbestosis risk. Citing case law, the court added that the summary judgment evidence contained reliable expert testimony that Burford’s exposure to asbestos was the only possible cause of her disease. AAJ member Richard A. Dodd, Cameron, Texas; AAJ member Kirk Pittard and William Thompson II, both of Dallas; and AAJ member Valerie Farwell, Austin, Texas, represented the plaintiff.

See also Barone v. Blue M, 2024 WL 1068937 (Conn. Super. Ct. Mar. 5, 2024). There, defendant Vanderbilt Minerals moved for summary judgment in a lawsuit brought by Kathryn Barone, the executor of the estate of Nicholas Barone, and Nicholas’s spouse. The court denied the motion, reasoning, in part, that the defendant had not met its evidentiary burden of demonstrating that it did not manufacture, distribute, or sell any asbestos-containing product that could have harmed Nicholas. The plaintiff was represented by AAJ member Mark Buha and Samuel Iola, both of Dallas.