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From Products Liability Law Daily, November 7, 2017

$805K jury verdict against adhesive maker set aside in asbestos exposure case

By Susan Engstrom

An $804,777 jury verdict against the manufacturer of an asbestos-containing adhesive product has been set aside by the Connecticut Supreme Court in an action alleging that a worker’s death from mesothelioma was caused by his exposure to the product during his employment with an aircraft manufacturing company. The executrix of his estate failed to produce expert testimony establishing that respirable asbestos fibers were released from the adhesive during the sanding process. This testimony was required because the subject matter was technical in nature and beyond the realm of a lay juror’s ordinary knowledge. Thus, there was insufficient evidence to show that the product was unreasonably dangerous or that it was a legal cause of the decedent’s mesothelioma. Because lack of proof on those issues was fatal to the plaintiff’s negligence and strict liability claims under the Connecticut Product Lability Act (CPLA), the trial court improperly denied the adhesive maker’s motion for a directed verdict as well as its motion to set aside the verdict and for judgment notwithstanding the verdict (Bagley v. Adel Wiggins Group, November 7, 2017, Palmer, R.).

In 1979 and 1980, the worker was a manufacturing engineer in Sikorsky Aircraft Corporation’s composite blade manufacturing and development department (blade shop) where helicopter blades were made. During that time, Wyeth Holding Corporation manufactured and sold to Sikorsky an adhesive product known as FM-37, which was used in the blade shop to bind together interior components of helicopter blades. It was made of epoxy material and contained 8.6 percent asbestos. In regular usage, the adhesive, after application, was heated until it foamed and expanded. When it expanded onto areas of the blades where it was not supposed to be, it was removed with chisels or by sanding.

In 2011, the worker was diagnosed with mesothelioma, a cancer caused by the inhalation of asbestos fibers. He ultimately died from the disease, and the executrix of his estate brought a wrongful death suit against Wyeth, alleging negligence and strict liability claims under the CPLA. According to her complaint, the decedent had been exposed to asbestos while working at Sikorsky, and the exposure had contributed to his contraction of mesothelioma.

Trial court proceedings. At trial, a former co-worker of the decedent testified that FM-37 was subject to sanding and that the sanding process created visible dust to which the decedent would have been exposed. Other witnesses testified about the history of the asbestos industry and about asbestos-related diseases, and one expert opined that a proximate cause of the worker’s death was his exposure to Wyeth’s product at Sikorsky. After the plaintiff rested her case, Wyeth moved for a directed verdict, but the trial court denied the motion, concluding that the plaintiff presented sufficient evidence to support her theories of liability. The jury subsequently returned a verdict in the plaintiff’s favor on both of her claims, awarding damages in the amount of $804,777. The trial court denied Wyeth’s motion to set aside the verdict and for judgment notwithstanding the verdict. Wyeth appealed.

Expert evidence. The state supreme court concluded that the plaintiff’s case lacked essential expert testimony to prove a vital fact: that respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from FM-37 during sanding in the blade shop. Proof of that fact was necessary to establish that: (1) FM-37 was dangerous, and (2) the product’s dangerous condition caused the decedent to develop mesothelioma. Although the plaintiff proved, through expert testimony, that breathing respirable asbestos fibers above ambient levels can cause mesothelioma, that FM-37 contained 8.6 percent asbestos and was sanded, producing dust, and that the worker was exposed to that dust both directly and secondarily, she nevertheless failed to establish that the dust from the FM-37 necessarily contained respirable asbestos fibers. None of her experts had done any testing or examination of FM-37 or a similar product, and there was no indication that they possessed any specialized knowledge as to how modified epoxy adhesives containing asbestos behave when they are used as they were under the conditions in the blade shop.

In the court’s view, the question of whether respirable asbestos fibers are released by sanding a modified epoxy adhesive product with 8.6 percent asbestos, after it has been heated and cured, is a technical one, the answer to which is not within the common knowledge of lay jurors. Thus, competent expert testimony was needed to assist them in answering it. Because the plaintiff did not provide such testimony, the trial court should have granted Wyeth’s motion for a directed verdict or its motion to set aside the verdict and for judgment notwithstanding the verdict.

Finally, the court determined that its holding in this case was compelled by the law as it existed in Connecticut when the case was tried, and not by newly articulated principles in two cases the court had decided while the current appeal was pending. Those decisions addressed the question of when expert testimony is necessary in a products liability action, and the plaintiff here asserted that if a reversal of the judgment was a result of the state high court’s reliance on newly articulated standards, she was entitled to a new trial so that she could have the opportunity to prove her case under those standards. According to the court, however, proof that FM-37 emitted respirable asbestos fibers was essential for the plaintiff to prevail on either of her theories of recovery under well-established law that existed at the time of trial. Therefore, she was not entitled to a new trial.

The case is No. SC 19835.

Attorneys: Kenneth J. Bartschi (Horton, Dowd, Bartschi & Levesque, PC) for Wayne Bagley. Katharine S. Perry (Adler Pollock & Sheehan PC) for Adel Wiggins Group and Wyeth Holdings Corp.

Companies: Adel Wiggins Group; Wyeth Holdings Corp.

MainStory: TopStory ExpertEvidenceNews DesignManufacturingNews CausationNews AsbestosNews ConnecticutNews

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