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From Products Liability Law Daily, May 18, 2017

Worker’s widow can pursue claims against asbestos supplier

By Susan Engstrom

The widow of an employee who developed mesothelioma as a result of workplace exposure to asbestos could pursue product liability claims against Union Carbide Corp., which had supplied asbestos to the chemical plant in which the decedent had worked, a New Jersey appellate court ruled in an unpublished decision reversing the trial court’s grant of summary judgment to the company. The widow presented evidence that Union Carbide had provided over 40,000 pounds of asbestos to the facility over a 12-year period during which her husband had handled asbestos. Thus, a reasonable jury could infer that the worker had sustained injury from exposure to Union Carbide’s asbestos (Fowler v. Akzo Nobel Chemicals, Inc., May 17, 2017, per curiam).

From 1954 to 1994, the employee worked at a chemical plant that manufactured asbestos-containing adhesive products. From 1970 to 1982, Union Carbide supplied Calidria asbestos to the plant. The company delivered at least 1,550 pounds of a specific type of asbestos to th e facility from 1970 to 1971, and delivered 36,823 pounds of another type from 1971 to 1982.

Testimony. During discovery, former coworkers of the decedent explained that various companies, including Union Carbide, had supplied asbestos to the facility’s receiving department, and the facility then stored the asbestos in a warehouse. The decedent had retrieved powdered material, including asbestos, by scooping it out and placing it in bags before taking the material to work locations. He had worked in the mill room connected to the asbestos warehouse.

One of the coworkers testified that he saw two types of asbestos in the facility and that some of the bags had the name "John Mansville" on them. He could not remember the other asbestos providers but did recall that Union Carbide provided materials to the facility. He also had observed the decedent using asbestos in the mill room and noted that he had worn a mask because of the visible dust. Another coworker testified that he had worked with the decedent in the powder room, but this was outside the time that Union Carbide provided asbestos to the facility. He said he "assume[d]" the plant used asbestos while he worked there. The trial court granted Union Carbide’s motion for summary judgment, finding insufficient evidence that the decedent had been exposed to that company’s asbestos while working at the facility.

Medical causation. Under New Jersey law, a plaintiff in an asbestos failure-to-warn action must prove two types of causation: product-defect causation and medical causation. To prove medical causation, the type at issue in this case, a plaintiff must show that the exposure to the defendant’s asbestos products was a "substantial factor" in causing the injured party’s disease. In making that determination, courts look to the frequency, regularity, and proximity of the exposure.

In this case, the evidence showed that the decedent regularly worked directly with the injury-producing element of asbestos—i.e., the contaminated friable dust—during a 12-year period. Thus, the testimony established that his contact with asbestos was frequent, regular, and proximate. The court explained that the causation of injury by a defendant’s product can be proven through use of circumstantial evidence, as courts have recognized that proof of direct contact is almost always lacking in these situations.

Although Union Carbide presented evidence that other companies had provided asbestos during the relevant period and that no witness could unequivocally link its asbestos to the decedent, the widow presented evidence that Union Carbide provided over 40,000 pounds of asbestos to the facility over a 12-year period while the decedent had worked handling asbestos. According to the court, therefore, a reasonable jury could infer that the worker had been injured from exposure to Union Carbide’s asbestos.

The case is No. A-2300-15T4.

Attorneys: Robert E. Lytle (Szaferman, Lakind, Blumstein & Blader, PC) for Thomasina Fowler. Richard D. Picini (Caruso Smith Edell Picini, P.C.) for AkzoNobel Chemicals, Inc., Corn Products International Inc. and Union Carbide Corp.

Companies: AkzoNobel Chemicals, Inc.; Corn Products International Inc.; Union Carbide Corp.

MainStory: TopStory SCLIssuesNews AsbestosNews NewJerseyNews

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