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From Products Liability Law Daily, April 5, 2017

Expert testimony not needed to show design defect in asbestos-containing brake products

By John W. Scanlan, J.D.

The estate of an automotive mechanic who died of mesothelioma did not need expert testimony to show that a design defect existed in asbestos-containing automotive products, but could not show that he would have heeded a warning if one had been given, a federal district court in Ohio ruled in granting in part and denying in part six motions for summary judgment brought by four manufacturers of asbestos-containing products. The court also found that there was evidence of a feasible alternative design for the brakes but none for the clutches and other non-brake products, and also determined that the estate could not show that products from two of the four manufacturers had a substantial role in causing the mechanic’s fatal illness (Hart v. Honeywell International, April 4, 2017, Nugent, D.).

The mechanic stated during a deposition taken before his death that from 1972 until 2014, he performed thousands of brake changes and also had been exposed to brake dust while working on vehicles that did not require brake replacements. He also stated that he may have changed clutches on 120 to 1,000 vehicles. In 2014, he was diagnosed with malignant mesothelioma and died eight months later at age 54. His estate brought various claims against several defendants, including Honeywell International, Ford Motor Co., Pneumo Abex, LLC, and Genuine Parts Co., asserting that exposure to their asbestos-containing products caused his mesothelioma. The defendants filed six motions for summary judgment, and Ford also moved for sanctions for failure to preserve evidence.

Failure to warn. The estate could not maintain a claim of inadequate warning or instruction against the four companies because there was no evidence that any warning provided by them would have changed the mechanic’s exposure to or interactions with their asbestos-containing products. Although a failure to provide any warning creates a rebuttable presumption of causation in failure to warn claims, this presumption was rebutted by the mechanic’s repeated testimony that he did not read any of the warnings on the parts he used and that he probably would not have changed his behavior based any warnings that would have been provided. The estate provided no evidence that a warning of any type would have caused him to stop using these products or take any additional precautions.

Design defect. Expert testimony was not needed to prove that a design defect existed in the asbestos-containing braking products, the court found in declining to grant summary judgment on this issue. In the present case, undisputed evidence showed that asbestos-free brake products were being manufactured during the relevant time period. The court disagreed with the estate’s assertion that the Ohio Court of Appeals’ 2016 decision in Schwartz v. Honeywell International was binding with respect to the case at bar because the Ohio Supreme Court had not ruled upon this issue. However, after looking to all available data to predict how the state high court would decide, the district court agreed with the ruling of the Schwartz court that the existence of a design defect in friction brakes and the existence of a technically feasible alternative did not require expert testimony because they were not beyond the knowledge of a layperson. The Schwartz decision was the only Ohio case directly on point and had not been overruled by holdings of other Ohio appellate courts finding that different automotive mechanical components involved information not commonly known or understood by laypersons. Because there was no clear indication that the Ohio Supreme court would not uphold Schwarz given the circumstances, the district court was not free to disregard a state appellate decision on point.

Evidence of feasible alternatives. Summary judgment was denied on the design defect claim based upon the existence of a feasible alternative for the brakes but was granted regarding the clutch and non-brake products. The court agreed that the existence of an asbestos-free alternative that was manufactured and sold to the public during the relevant time period constituted evidence, although not necessarily conclusive, that feasible alternative designs for non-asbestos-containing brakes existed. At trial, the parties may dispute whether they actually were practically and technically feasible alternatives for some or all of the brake products used by the mechanic and whether they would have prevented the harm to him without substantially impairing their usefulness or purpose. However, the estate did not provide any evidence of practical and technically feasible alternatives to the clutch and other non-brake products he used during the relevant period.

Substantial factor. Claims against Genuine Parts and Pneumo Abex were dismissed because the estate could not show that exposure to their products were a substantial factor in causing his injuries, but claims against Ford and Honeywell were allowed to proceed. There was enough testimony from which a jury could conclude that exposure to Ford and Honeywell products were a substantial factor in causing his illness.

Genuine Parts remanufactured automotive parts in its Rayloc division, some of which were sold at NAPA stores with under the NAPA blue and yellow logo. However, the mechanic never testified that he used Genuine Parts’ Rayloc brand brakes, and while he did testify that 40 percent of the brakes he had installed were NAPA brand brakes, he only purchased new NAPA branded brakes and that to his knowledge his customers bought only new brakes, whereas Rayloc did not manufacture new brakes but only remanufactured old brakes. Furthermore, Rayloc was not the only manufacturer or remanufacturer to use the NAPA branding, and the great majority of Rayloc brakes were asbestos-free by the 1990s.

Pneumo Abex was the primary supplier of friction products used by Rayloc in remanufacturing brakes at some point, but the mechanic did not identify it as a known supplier of an asbestos product to which he was exposed. As a result, because there was insufficient evidence to support a claim that the mechanic was exposed to Rayloc remanufactured brakes, there also was not enough evidence to support a claim that Abex products had any role in his illness.

Other issues. Several common law claims were dismissed because they were abrogated by the Ohio Product Liability Act; the court observed that the plaintiffs conceded the defendants’ request for summary judgment at oral argument. Claims for manufacture and construction defect and for failure to conform to representations were dismissed as abandoned because none of the parties addressed them. Claims for punitive damages and loss of consortium could be maintained against Ford and Honeywell, but not against Genuine Parts and Pneumo Abex because substantive claims against the latter two defendants could not be maintained.

Finally, the court declined Ford’s request to sanction the estate for failing to preserve the mechanic’s lung tissue for testing. Ford argued that if an examination had revealed that the fibers were amphibole asbestos, it would have undermined the estate’s claims that Ford’s chrysotile asbestos-containing products caused the mechanic’s mesothelioma. While not dismissing the claim or imposing an adverse inference of causation, the court stated that Ford may argue this issue at trial.

The case is No. 1:15 CV 10000.

Attorneys: James L. Ferraro (Kelley & Ferraro, LLP) for Gail Hart. Melanie M. Irwin (Willman & Silvaggio, LLP) for Honeywell International, Inc. f/k/a Allied Corp. John R. Henderson (Wilson Elser Moskowitz Edelman & Dicker LLP), John M. Thomas (Dykema Gossett PLLC) and Kenneth W. Abrams (McGuireWoods LLP) for Ford Motor Co. Thomas R. Wolf (Reminger Co., LPA) for Genuine Parts Co.

Companies: Honeywell International, Inc. f/k/a Allied Corp.; Ford Motor Co.; Genuine Parts Co.

MainStory: TopStory SCLIssuesNews WarningsNews DesignManufacturingNews DamagesNews EvidentiaryNews AsbestosNews OhioNews

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