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Connecticut Requires Expert Testimony for Proving Exposure Levels

Posted in Asbestos Litigation, Connecticut Courts, Litigation Trends, Products Liability, Uncategorized

For the first time since 1989[1], Connecticut’s Supreme Court addressed the plaintiff’s burden of proof in the asbestos context, in Wayne Bagley v. Adel Wiggins Group et al, SC 19835 (11/7/17).  In a win for defendants facing such claims, the court found that plaintiffs bringing claims pursuant to the Connecticut Product Liability Act (under both strict liability and negligence theories) require expert testimony to prove exposure at levels sufficient to cause their asbestos-related disease, and not merely general testimony that an asbestos-containing product generated an indefinite amount of dust in the plaintiff’s vicinity.

 

The decedent, Wayne Bagley (“Bagley”) worked at Sikorsky Aircraft Corporation (“Sikorsky”), and alleged exposure to an adhesive product used to bind interior components of helicopter blades. The material, an epoxy, came in the form of a sheet with strippable release paper, it contained 8.6 percent asbestos, and was manufactured by Wyeth Holdings’ predecessor. Employees removed any excess epoxy with chisels or by sanding. The Bagley estate called a former co-worker to testify that Bagley’s work area overlooked the blade shop, that Bagley’s daily responsibilities required him to enter the sanding room frequently, and that the sanding process created visible dust to which Bagley and he would have been exposed to.

 

At trial, the plaintiff presented causation expert testimony from Dr. Arnold Brody and Dr. Jerrold Abraham. Dr. Brody testified in detail regarding the process by which asbestos causes mesothelioma. However, he acknowledged on cross-examination that his testimony was based upon the assumption that a person has already been exposed to respirable asbestos fibers.

 

Dr. Abraham, a pulmonary pathologist testified that a proximate cause of the decedent’s mesothelioma was the exposure to asbestos fibers from the epoxy while the decedent passed through the sanding room of the blade shop. While discussing causation, Abraham was given a hypothetical scenario that reflected Bagley’s alleged exposure during his ten-month tenure as the manufacturing engineer. In response, Abraham testified that the scenario was a clear description of an exposure to asbestos fibers emitted from working with epoxy, and that the mere presence of dust indicated inadequate control of the product. On cross-examination, Abraham acknowledged that he never inspected the epoxy, that he did not speak with anyone at Sikorsky about the ventilation in the sanding room, and that he did not know of any studies concerning fiber release of the product when manipulated.

 

Once the plaintiff rested, Wyeth moved for a directed verdict, arguing that the estate failed to present any evidence of either a design defect or that asbestos dust from the epoxy caused the decedent’s death. Moreover, the defendant argued that expert testimony is required to prove the dangerousness of the epoxy, as it was a complex product for which an ordinary consumer could not form a safety expectation. The trial court denied the motion for directed verdict reasoning that the plaintiff presented sufficient evidence from which the jury could conclude that the epoxy was unreasonably dangerous and that the defendants were negligent in failing to test the fiber release from the epoxy. The jury returned a verdict for the plaintiff in the amount of $804,777. Wyeth Holdings then filed a motion to set aside the verdict and for judgment notwithstanding the verdict, both of which were denied at trial.

 

On appeal, Wyeth Holdings argued that the trial court improperly denied its motion to set aside the verdict and judgement notwithstanding the verdict given the lack of expert testimony on actual fiber release and exposure levels experienced by the decedent.  The plaintiff responded that the epoxy was not a complex product because ordinary jurors can understand that sanding a product creates dust and that inhaling asbestos fibers is in fact inherently dangerous. Thus, the plaintiff contended, the ordinary consumer expectation test, which does not require expert testimony, applies. The plaintiff further contended that the evidence showed there is no safe level of exposure to asbestos, and that there was ample circumstantial evidence to show that Bagley was exposed to dust from the sanding of the epoxy.

 

The Connecticut Supreme Court, however, found that the plaintiff failed to prove that respirable asbestos fibers were emitted from the epoxy during the sanding, and without such proof, there was insufficient evidence to show that the epoxy was either dangerous or the legal cause of the decedent’s mesothelioma. Specifically, the court stated:

 

“… we conclude that the plaintiff’s case lacked essential expert testi­mony to prove a vital fact in support of her negligence and strict liability claims, namely, that respirable asbes­tos fibers in a quantity sufficient to cause mesothelioma were released from {the epoxy} when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s tenure there. Proof of this fact was nec­essary to prove both that (1) {the epoxy} was dangerous, and (2) the epoxy’s dangerous condition caused the decedent to develop mesothelioma.”

 

The court also rejected the estate’s argument that in the event the court were to reverse based upon the recent decisions in the Bifolck[2] and Izzarelli[3]cases, she is entitled to a new trial under any newly articulated standards from those cases. The court rejected this argument, stating that the reversal was a result of plaintiff’s failure to present evidence sufficient to prove that respirable asbestos caused injury, rather than a result of newly developed case law. Further, the court stated that because Bagley filed suit before the plaintiffs in the Bifolck and Izzarelli cases, the decisions in those cases will not retroactively have an impact on Bagley’s case.

 

In sum, Connecticut plaintiffs bringing asbestos claims under the Connecticut Product Liability Act must now prove that the products at issue emitted respirable asbestos fibers in an amount sufficient to cause disease. Moreover, this evidence must come from expert testimony, as fiber release and the causation of asbestos-related disease are matters beyond the ordinary knowledge of lay jurors.

 

[1] See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509 (1989).

[2] In Bifolck, the Connecticut Supreme Court held that consumer expectations, as set forth in comment (i) to section of Restatement (Second) of Torts, do not apply to a product liability claim premised on negligence when determining whether a product is unreasonably dangerous. Bifolck v. Philip Morris, Inc., 324 Conn. 402, 152 A.3d 1183 (2016).

[3] In Izzarelli, the Connecticut Supreme Court held that the “modified consumer expectation test” is the primary standard with regard to the “good tobacco” exception to strict liability claims in Connecticut, and that the ordinary test applies only where a product “failed to meet the consumer’s minimum safety expectations, such as res ipsa cases” saying that a jury “could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations.” Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 136 A.3d 1232 (2016).