A six-figure jury verdict against the manufacturer of an adhesive product called FM-37 was recently set aside by the Connecticut Supreme Court. The plaintiff sought to recover damages under the Connecticut’s Product Liability Act (CPLA) for the wrongful death of the decedent, claiming negligence and strict liability. The plaintiff contended that the decedent was exposed during his employment to an asbestos-containing product (FM-37) manufactured by the defendant and that the exposure contributed to his contraction of deadly mesothelioma. This type of theory is also relevant to cases brought by Massachusetts wrongful death plaintiffs.
Malignant mesothelioma is a rare cancer that usually forms on the protective lining of the lungs and abdomen. The disease has no definitive cure, but advancements in conventional treatments along with emerging therapies are helping patients improve their survival rate. Incidence rates still hover around 3,000 new cases each year in the U.S., according to a 2017 report from the Centers for Disease Control and Prevention. However, scientific research and increased awareness are leading to earlier diagnoses and improved treatments. Exposure to asbestos remains the leading cause of mesothelioma. Asbestos, a mineral fiber, can release toxic chemicals in the air if improperly handled.
Asbestos litigation has been going on for decades, ever since the substance was linked to mesothelioma. Individuals affected by this disease have sued companies that made products containing asbestos. Last month, for example, a Massachusetts developer agreed to pay $100,000 to settle a lawsuit over accusations that workers improperly removed and disposed of asbestos. According to the lawsuit, unlicensed workers were allowed to remove materials containing asbestos without taking proper safety precautions. The lawsuit also alleged the company threw away unsealed asbestos near apartment buildings.
Also last month, the Montana Supreme Court announced that hundreds of asbestos cases could proceed through a special “Asbestos Claims Court.” The claims can include personal injuries or wrongful deaths arising out of an asbestos-related disease alleged to come from vermiculite mining, processing, or the transfer, storage, installation, or removal of a product containing vermiculite. The formation of the court was approved by the Montana legislature in 2001.
In the current Connecticut case, the plaintiff alleged that the defendant violated the CPLA insofar as the FM-37 was inherently and unreasonably dangerous, and the defendant should have known that its product was dangerous, yet it failed to exercise reasonable care by not testing the product or by taking the product off the market.
At trial, one of the decedent’s former coworkers testified that the defendant’s product when sanded created visible dust. The plaintiff’s expert witnesses testified about asbestos-related diseases, the history of the asbestos industry, and how exposure to asbestos can cause mesothelioma. One expert, A, opined that a proximate cause of the decedent’s mesothelioma was his exposure to FM-37.
The trial court denied the defendant’s motion for a directed verdict, concluding that the plaintiff had presented sufficient evidence to support her theories of liability. Thereafter, the jury returned a verdict for the plaintiff on her negligence and strict liability claims, and the trial court denied the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict. From the judgment rendered in favor of the plaintiff, the defendant appealed.
The Connecticut Supreme Court held that the plaintiff failed to prove through expert testimony that respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from the defendant’s product when it was used in the manner that it was at S Co. during the decedent’s tenure there, and, accordingly, she failed to prove her case.
With respect to the plaintiff’s strict liability claim, the appeals court reasoned that pursuant to Connecticut law, the plaintiff was required to prove that the product at issue was defective in a manner that was unreasonably dangerous to the user and that the product’s defect caused the injury at issue. The plaintiff was required to show that FM-37 was dangerous because it released asbestos and that FM-37’s release of asbestos caused the decedent to contract deadly cancer. Since the plaintiff failed to do so, her strict liability claim lacked merit.
With respect to the plaintiff’s negligence claim, the plaintiff had to prove that the defendant’s failure to test FM-37 or to remove it from the market was unreasonable and proximately caused the decedent’s death. The plaintiff couldn’t prove this without showing that the defendant could have learned that sanding FM-37 released asbestos. Without showing this, the defendant’s lack of testing was irrelevant.
The court concluded that evidence that FM-37 emitted asbestos was necessary for the plaintiff to recover damages on either theory of liability. Such proof required expert testimony because the content was beyond the ordinary knowledge of a lay juror. Since the plaintiff did not produce an expert, she failed to prove her case.
If you or a loved one was harmed by another party’s negligence, you may need the assistance of a wrongful death lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.
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Massachusetts Appeals Courts Holds Police Not Immunized for Canine Attack, Neumann Law Group, July 31, 2017.