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From Products Liability Law Daily, July 8, 2015

GE can’t dodge former aircraft mechanic’s asbestos exposure claims

By Pamela C. Maloney, J.D.

Evidence of an aircraft mechanic’s exposure to asbestos-containing components used in a military aircraft engine was sufficient to overcome the engine manufacturer’s motion for summary judgment, the U.S. Court of Appeals for the Third Circuit ruled in a non-precedential decision that overturned the district court’s ruling. The appellate court did affirm the district court’s admission of the mechanic’s deposition testimony over the engine maker’s hearsay objections (Haas v. 3M Co., July 7, 2015, Jordan, K.).

Background. Carl Brasmer served in the U.S. Air Force from 1969 to 1973 as an aircraft mechanic at various bases in the United States, Vietnam, and Thailand, during which he worked on the T-38 Talon and the F-4E Phantom. The F-4E was manufactured by Boeing using a J79 jet engine designed by General Electric in accordance with specifications provided by the Air Force and the U.S. Navy that mandated the use of asbestos-containing materials in certain parts of aircraft, including the engine. Brasmer performed pre- and post-flight inspections which required, among other things, inspecting and repairing brakes, seals and gaskets, and engine shielding.

After his diagnosis with malignant pleural mesothelioma, he and his wife brought products liability claims against Boeing, GE, 3M, and Goodyear Tire & Rubber, alleging that his exposure to asbestos-containing products manufactured or supplied by those companies caused his mesothelioma. Brasmer was deposed over three days but died before the deposition was completed; the executrix of his estate and his heirs then added a wrongful death action to the suit. The district court had granted Boeing’s motion for summary judgment based on the government contractor defense. It also granted GE’s motion summary judgment, finding that there was insufficient evidence to show that the mechanic actually had been exposed to any asbestos-containing products that had been manufactured or supplied by GE [see Products Liability Law Daily’s July 24, 2014 analysis]. The estate appealed the decision in favor of GE.

Proof of exposure. In overturning the lower court’s finding that there was insufficient evidence to show that the mechanic had been exposed to GE products containing asbestos, the Third Circuit instructed that in asbestos cases, the amount of exposure necessary to demonstrate liability is somewhat lower because mesothelioma is associated with the smallest exposure to asbestos and can develop from the cumulative effects of minimal and infrequent exposure. On the basis of this standard, the Sixth Circuit found that there was sufficient evidence for a reasonable factfinder to conclude that the mechanic had been exposed to asbestos from GE’s J79 engine and that the exposure caused his mesothelioma. Specifically, the mechanic had testified that as part of his routine responsibilities, he worked on the J79 engine, which required him to come into contact with many seals and gaskets. In addition, GE’s own corporate representative admitted that the J79 engine’s 147 seals and gaskets contained asbestos and that the asbestos “frayed” over time. Finally, the estate’s aviation expert explained that because of the extreme temperatures, noise, and vibration experienced within the engine compartment, the normal and intended operation of the aircraft caused the asbestos-components to deteriorate, crumble, flake, and contaminate the entire engine compartment.

This evidence, taken as a whole, was sufficient to defeat GE’s motion for summary judgment and the argument that the seals and gaskets could have been replaced with non-GE parts and that the mechanic lacked personal knowledge of whether a particular substance he encountered was actually asbestos did not change that result, the court concluded.

Hearsay rule exception. GE argued that the mechanic’s deposition should not have been admitted because GE did not have an opportunity to cross-examine him. An exception to the hearsay rule provides that former testimony can be admitted when, among other factors, “the testimony is being offered against a party who had, or in a civil case, whose predecessor in interest had, an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” In this case, the co-defendants had agreed to allow Boeing’s attorney to be the lead questioner during the mechanic’s deposition and GE’s attorney had participated in the deposition and was given the opportunity to object or interfere if it was deemed necessary. In addition, Boeing’s attorney successfully elicited information involving the GE-manufactured J79 engines and that information had provided the basis for GE’s summary judgment motion. Boeing also avoid liability by admitting that its parts contained asbestos and raising the government contractor defense, not by showing some hostility to GE’s interests and not by endeavoring to show that GE manufactured the asbestos-containing parts that cause the mechanic’s mesothelioma. Based on this evidence, the Sixth Circuit concluded that the district court did not abuse its discretion in ruling that GE’s interests were sufficiently similar to Boeing’s interest to permit the admission of the mechanic’s testimony under the former testimony to the hearsay exception.

The case is No. 14-3342.

Attorneys: Michael E. McMahon (Cohen, Placitella & Roth) for Susan Haas. Carolyn L. McCormack (Lavin, O'Neil, Ricci, Cedrone & DiSipio) for 3M Co. Jason A. Cincilla (Manion Gaynor & Manning) for Boeing Co. Christopher J. Keale (Sedgwick) for CBS Corp., and GE Co. Dawn Dezii (Slimm & Goldberg) for Goodrich Corp. Ethan D. Stein (Gibbons PC) for Honeywell International Inc. Adam A. DeSipio (Saul H. Krenzel & Associates) for Northrop Grumman Corp.

Companies: 3M Co.; Boeing Co.; CBS Corp.; Goodrich Corp.; GE Co.; Honeywell International Inc.; Northrop Grumman Corp.

MainStory: TopStory DesignManufacturingNews EvidentiaryNews AsbestosNews DelawareNews NewJerseyNews PennsylvaniaNews VirginIslandsNews

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