State appeals court reverses $1.5 million award in asbestos
The estate of a man who died from malignant mesothelioma did not produce enough evidence to
prove he was exposed to the asbestos-containing brake shoes supplied by
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Jan. 24, 2012 – In a recent decision, a Wisconsin appeals court
reversed a $1.5 million damages award against a brake-shoe supplier
whose product contained asbestos, concluding the evidence was
insufficient to prove causation.
John Pender worked as a painter and glass setter for
41 years, from 1952 to 1993. In 2006, he was diagnosed with malignant
mesothelioma and died shortly thereafter.
Pender’s estate sued various product
manufacturers based on negligence and strict products liability,
claiming the brake shoes they supplied to Pender’s employer, Harnischfeger Corp., contained asbestos that
created an asbestos-laden dust during the grinding process.
Pneumo Abex LLC, a brake shoe
supplier, was one of the manufacturers. Abex did not dispute
that its product contained asbestos. But in Estate
of John Pender v. Pneumo Abex LLC, (Jan. 18, 2012), the
District I Wisconsin Court of Appeals agreed with Abex that the estate did not produce sufficient
evidence to prove Pender had actual exposure to Abex’s product.
The record indicated that Abex supplied brake
shoes to Harnishfeger Corp. while Pender worked there, but there was insufficient
evidence that Abex’s brake shoes were supplied to the
particular plant where Pender worked.
Harnishfeger had several plants in Milwaukee,
and nine different companies supplied brake shoes to the company for a
20-year period. The other suppliers that Pender’s
estate sued were dismissed at the summary judgment stage. At trial,
Abex stood as the sole defendant.
A jury found Abex liable on theories of both negligence and
strict liability, awarding damages of nearly $1.5 million. But the
appeals court ruled the case was over at summary judgment.
“We would have to pile inference upon inference in order to
conclude that Pender was exposed to Abex’s brake shoes while working at the
National Avenue plant,” wrote Judge Kitty Brennan.
“The evidence fails to take Pender’s
alleged exposure outside the realm of speculation and conjecture.” The court noted a lack of
evidence that Abex’s brake shoes were ever delivered to
Harnishfeger’s National Avenue plant
specifically, or were ever present or grinded there.
“The evidence presented to the trial court created on a
‘mere possibility’ of causation, which is not enough to
survive summary judgment,” the appeals court concluded.