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From Products Liability Law Daily, March 30, 2018

Absent expert testimony and proof of substantial exposure, Crane products could not be linked to mesothelioma

By Pamela C. Maloney, J.D.

A former machinist mate and commissioned officer in the U.S. Navy who developed mesothelioma failed to present sufficient evidence that his illness was the result of substantial exposure to asbestos-containing products manufactured by Crane Co., the South Carolina federal court determined, excluding as unreliable the "every exposure" causation testimony proffered by the former seaman’s expert in a products liability lawsuit against the company. There was no evidence that Crane’s products had been a substantial factor in causing the seaman’s injury, the court concluded, granting the industrial product manufacturer’s motion for summary judgment (Chesher v. 3M Co., March 29, 2018, Norton, D.).

The mesothelioma patient had spent a significant portion of his naval career conducting or overseeing maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks (large tanks which remove dissolved oxygen from the water before it is sent to the boiler). After his diagnosis, he filed product liability claims against numerous companies, alleging that his exposure to asbestos used in those products had caused him to develop his illness. Crane was one of the companies that supplied valves for use on board the ships where the former seaman had worked or had supervised valve maintenance and, although Crane did not manufacturer asbestos-containing sheet packing or gaskets, those products were installed in Crane’s valves at the time they were supplied to the Navy. Crane also was identified as the successor-in-interest to the company that had manufactured the de-aerating feed tanks installed on two of the ships on which the former seaman had served.

Crane filed a Daubert motion to preclude the specific causation testimony presented by the ailing man’s only expert and moved for summary judgment. The court excluded the expert’s testimony, and the seaman moved for reconsideration of that ruling. Crane then renewed its summary judgment motion.

Maritime jurisdiction. As an initial matter, the case was governed by maritime law and federal admiralty jurisdiction was proper over the issues in this case because both the location and "connection with maritime activity" conditions were met. All of the former seaman’s work with Crane’s valves and de-aerating feed tanks had occurred while he served aboard ships in navigable water, thus satisfying the location test. Citing prior case law, the court explained that claims involving Navy workers who had been primarily sea-based during the alleged asbestos exposure satisfied the first prong of the connection test—i.e., whether the incident involved had the potential to disrupt maritime commerce.

Turning to the second prong of the test—i.e., whether the tortfeasor’s activity had a substantial relationship to traditional maritime activity—the court found that the valves and de-aerating feed tanks at issue had all been produced for Navy vessels and, as such, had a substantial relationship to maritime activity. Accordingly, substantive maritime law as supplemented by state tort law was applicable to the extent that the latter did not conflict with the former, the court ruled.

Specific causation expert. In order to prevail on his product liability claim against Crane, the former seaman was required to prove that he had been exposed to the manufacturer’s asbestos-containing products and that those products were a substantial factor in causing his mesothelioma. The specific causation expert testifying on the seaman’s behalf based his conclusion that the plaintiff had been exposed to Crane’s products on the so-called "every exposure" theory, which concludes that every occupational exposure to asbestos-containing products significantly contributes to the total cumulative dose and, therefore, every exposure, no matter how small, should be considered causative. The expert admitted that under this theory, it was not necessary to know the actual level of exposure to a particular manufacturer’s product in order to render an opinion on specific causation.

The court noted that this theory of causation has been rejected by the U.S. Court of Appeals for the Sixth Circuit and that the appeals court’s decision has been affirmed in subsequent rulings applying maritime law as an insufficient basis from which to demonstrate that a product has been a substantial favor in causing mesothelioma. Thus, in the instant case, the expert’s opinion was not relevant, and any probative value it might have provided was outweighed by its tendency to confuse or mislead the jury, the court held.

Causation. In the absence of expert testimony regarding specific causation, the ailing man could offer circumstantial evidence of exposure tosatisfy thesubstantial factor test for causation. In order to do this, he was required to show a high enough level of exposure to Crane’s asbestos-containing products over a substantial period of time. Although the former seaman alleged that he had been exposed to asbestos particles from exposure to Crane’s products, he failed to present any evidence regarding the actual amount of asbestos dust to which he had been exposed or regarding the duration of his exposure.

His allegations of periodic exposure over the 20 years he served aboard Navy vessels during which he conducted or oversaw maintenance work on equipment that contained asbestos along with allegations that this work released asbestos into the air he breathed was not sufficient evidence of substantial exposure to provide an inference that Crane’s products were a substantial factor in causing his mesothelioma, the court advised. Thus, the former seaman failed to establish a prima facie case under maritime law for a product liability mesothelioma action against Crane, the court concluded, granting the manufacturer’s motion for summary judgment.

The case is No. 3:15-cv-02123-DCN.

Attorneys: Charles S. Siegel (Waters and Kraus LLP) for James Willson Chesher and Cheryl Ann Chesher. David A. Fusco (K&L Gates LLP) for Crane Co.

Companies: Crane Co.

MainStory: TopStory CausationNews JurisdictionNews ExpertEvidenceNews AsbestosNews SouthCarolinaNews

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