On September 13, 2016, the United States Court of Appeals for the Third Circuit partially reinstated a plaintiff’s claims that his decedent developed lung cancer as a result of asbestos exposure that he allegedly experienced from work in the vicinity of switchgear components manufactured by Westinghouse Electric Corporation, a predecessor to CBS Corporation. In re: Asbestos Prods. Liab. Litig. (Frankenberger), — F.3d —-, 2016 WL 4750507 at *1 (3d Cir. 2016).
In Frankenberger, the plaintiff originally filed suit in the United States District Court for the Northern District of Indiana and the matter was subsequently transferred to the United States District Court for the Eastern District of Pennsylvania as a result of consolidation under a multi-district litigation (MDL-875). Id. at *2. Plaintiff alleged, via the decedent’s co-worker and expert testimony, that the decedent was exposed to asbestos as a result of: (1) maintenance performed on Westinghouse turbines that required the removal and installation of insulation that may have contained asbestos until 1973; and (2) maintenance and cleaning of Westinghouse switchgear that incorporated asbestos-containing components until approximately 1985. Id. Critically, plaintiff did not present evidence that the thermal insulation on the turbines to which he alleged the decedent was exposed was the original insulation supplied by Westinghouse or that Westinghouse supplied the insulation that was used to replace the original insulation. Id. In contrast, plaintiff produced evidence that the Westinghouse switchgear contained asbestos and released respirable fibers when cleaned and maintained. Id. Westinghouse moved for summary judgment arguing that plaintiff did not satisfy his burden of demonstrating that Decedent’s lung cancer was caused by exposure to Westinghouse products. Id. District Judge Robreno held that summary judgment was appropriate because there was no evidence that: (a) the decedent was exposed to asbestos-containing thermal insulation for which Westinghouse was responsible; and (b) the decedent was exposed to asbestos-containing dust from the Westinghouse switchgear. Id. at *3. Plaintiff appealed to the Third Circuit. Id.
On appeal, the Third Circuit partially reversed the District Court and held that plaintiff presented evidence sufficient to present a question of material fact as to the decedent’s alleged switchgear exposure, but failed to demonstrate that Westinghouse was liable for the thermal insulation or even that the thermal insulation to which Decedent was allegedly exposed actually contained asbestos. Id. at *4-5. In analyzing plaintiff’s evidence, the Third Circuit applied Indiana’s causation standard, which requires that
A plaintiff . . . must produce evidence sufficient to support an inference that [the decedent] inhaled asbestos dust from the defendant’s product. This inference can be made only if it is shown that the defendant’s product, as it was used during [the decedent’s] tenure at the job site, could possibly have produced a significant amount of asbestos dust and that the asbestos dust might have been inhaled by [the decedent].
Id. at *4 (internal citations omitted) (ellipsis in original).
In analyzing the plaintiff’s claims related to the switchgear, The Third Circuit held that summary judgment was inappropriate because the plaintiff presented evidence that: (1) Westinghouse manufactured the switchgear; (2) asbestos-containing components in the switchgear deteriorated over time, thereby releasing respirable asbestos fibers; (3) the cleaning and maintenance of the switchgear caused these fibers to be released into the atmosphere; and (4) the decedent was present at the worksite when such release occurred. Id. at 5. Consequently, the Court held that a reasonable juror could conclude that Decedent’s lung cancer was caused by exposure to asbestos from the Westinghouse switchgear. Id.
While the Court held that summary judgment was inappropriate on the switchgear claim, it conversely held that the plaintiff had failed to satisfy his burden of establishing exposure to thermal insulation which Westinghouse manufactured, installed, or supplied. Id. at 4. Furthermore, the plaintiff did not establish that the thermal insulation actually contained asbestos when the decedent was proximate to that insulation’s removal and installation. Id. As a result, plaintiff’s claims of exposure from the turbines could not survive summary judgment. Id.
Frankenberger presents an interesting contrast in the Court’s treatment of a product identification defense as opposed to a defense based on causation. With regard to the Westinghouse turbines, the Court applied the “bare metal” or “replacement parts” defense in granting partial summary judgment, holding that plaintiff produced no evidence that any insulation around which decedent may have worked was original to the turbines or was later manufactured or supplied by Westinghouse. Thus CBS could not be held liable for any potential asbestos exposure associated with the turbine insulation.
In contrast, Westinghouse did not have such a product identification defense to plaintiff’s claims concerning its switchgears and was forced to argue causation. Frankenberger, along with the Third Circuit’s recent decision in Haas v. 3M Co., 613 Fed. Appx. 191 (3d Cir. 2015) (reversing district court’s grant of summary judgment based on the plaintiff’s provision of evidence of exposure to asbestos-containing products manufactured by the defendant), seems to demonstrate, however, that the Third Circuit is becoming increasingly reluctant to grant summary judgment on the basis of causation—instead, it is more likely to find that a question regarding causation is a material issue of fact that should be determined by the jury.
The plaintiff was represented by Robert G. McCoy of Cascino Vaughn law offices. CBS was represented by Christopher G. Conley of Evert Weathersby & Houff. The Third Circuit panel consisted of Circuit Judges McKee, Ambro, and Scirica, with Judge Scirica delivering the unanimous opinion.