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).

This article is Part Five of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. See Parts OneTwoThree and Four for reference.

A federal court in Connecticut has continued the recent trend of New England courts recognizing a cause of action under state law for patient-employees who are allegedly discriminated against due to their status as qualifying medical marijuana patients.  In Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017), the United States District Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana.  Connecticut enacted a medical marijuana act in 2012—the Palliative Use of Marijuana Act (“PUMA”), which allows the use of medical marijuana by “qualifying patients” with certain debilitating conditions and expressly prohibits discrimination against qualifying patients by schools, landlords and employers.  See Conn. Gen. Stat. § 21-a-408p(b).

Plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder in 2012 and became a qualifying patient under PUMA in 2015.  Thereafter, she was recruited for and offered the position of director of recreational therapy at a nursing facility in Connecticut in 2016, and immediately accepted the offer.

Prior to starting her employment, Ms. Noffsinger was advised that she would need to take a pre-employment drug test.  She informed a representative of the defendant employer that she suffered from PTSD and was prescribed medical marijuana as a qualifying patient pursuant to PUMA, and provided her employer with a urine sample for the drug test.  Plaintiff further advised that she only consumed a capsule of synthetic form of marijuana, Marinol, in the evening prior to bed, and that she would never be under its influence in the workplace.  The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.

Plaintiff filed suit alleging three counts; namely, a violation of PUMA’s anti-discrimination provision; wrongful rescission of a job offer in violation of public policy; and negligent infliction of emotional distress.  The employer removed the matter to Federal court.  The employer’s main defense was that PUMA was preempted by federal statute; to wit, the Controlled Substances Act (“CSA”), the Americans with Disabilities Act (“ADA”), and the Food, Drug, and Cosmetic Act (“FDCA”).

The Court first addressed the employer’s preemption argument and its underpinnings in the Supremacy Clause of the U.S. Constitution.  The Court discussed four potential bases for federal preemption by Congress: (1) express preemption; (2) preemption where Congress has manifested an intent to occupy the bounds of a particular regulatory field (“field preemption”); (3) preemption of state law that stands as an obstacle to the objectives of federal law (“obstacle preemption”); and (4) preemption where compliance with both the federal and state law is impossible (“conflict preemption”).  The employer argued that because PUMA was an obstacle to the objectives of Congress expressed in the CSA, ADA, and FDCA, those three federal statutes preempted PUMA.

The Court opined that obstacle preemption is applicable where the state law in question gives rise to an actual conflict with an overriding congressional objective.  Thus, there is no preemption unless that the conflict is direct and in such a manner that the two acts cannot be reconciled or consistently applied.

The employer argued that the CSA preempts PUMA because by authorizing the medical use, possession, cultivation, sale, dispensing, and distribution of marijuana, PUMA directly ran afoul of the main objective of the CSA—to make it a federal crime to use, possess, or distribute controlled substances (in this circumstance, marijuana).  The employer explained that the CSA classifies marijuana as a Schedule I substance, and allows no exceptions for medical use.  The Court regarded the employer’s argument as too broad and instead focused on PUMA’s anti-discrimination provision, rather than PUMA in its entirety.  The employer had cited several cases arising under the medical marijuana laws of other states that have been discussed in previous installments of this series. See Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 230 P.3d 518 (2010); Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo. 2015); Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012); Stanley v. County of Bernalillo Com’rs, 2015 WL 4997159 (D.N.M. 2015); see also Part 2.  However, none of the cases relied upon interpreted a law with an express anti-discrimination provision, and the Court distinguished them on that basis.  The Court then directed its attention to the Rhode Island Superior Court’s recent decision holding that the CSA did not preempt the specific anti-discrimination provision of Rhode Island’s medical marijuana law.  See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. Ct. 2017); see also Part 3.  The Court concluded that the provision at issue in Connecticut’s PUMA was similar to the statute that had survived a preemption challenge in Callaghan, and that both statutes regulate the employment relationship—an area in which states have broad authority to regulate—while the CSA does not contain a specific prohibition on employers hiring applicants who use controlled substances.

The employer also argued that the ADA preempts PUMA because the ADA occupies the area of protecting those with disabilities from employment discrimination.  The employer noted that the ADA contains a specific provision stating that an employee or applicant who uses drugs illegally is not a “qualified person with a disability” protected by the ADA, when the employer acts on the basis of that person’s illegal drug use  42 U.S.C.A. § 12114(a).  The ADA also specifically authorizes a covered employer to prohibit the illegal use of drugs and the use of alcohol in the workplace by employees.  42 U.S.C.A. § 12114(c)(1).  In addition, the ADA provides that drug testing is not a violation of the ADA, 42 U.S.C. A. § 12114(d), and also provides that an employer may “hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C.A. 12114(c)(4).

The Court held that the ADA did not preempt PUMA’s anti-discrimination provision.  The Court first emphasized that the matter before it did not involve the use of marijuana by Plaintiff in the workplace, and that PUMA explicitly declines to authorize workplace use of medical marijuana.  See Conn. Gen. Stat. §§ 21a-408p(b)(3), 21a-408p(b)(2). The Court disposed of the “qualification” arguments by explaining that the wording of the ADA also states that the qualification standard must be related to an individual’s job performance and their behavior in the workplace.  The Court found that there was no contention that Plaintiff’s use of medical marijuana would adversely affect her performance.  Thus, the Court held that the employer had failed to show any conflict between the ADA and PUMA’s anti-discrimination provision that would support a finding of preemption.  Finally, the Court rejected the employer’s assertion that the FDCA preempted PUMA’s anti-discrimination provision, reasoning that because the FDCA does not regulate employment, PUMA does not conflict or pose an obstacle to the objectives of the FDCA.

The employer also argued that PUMA’s anti-discrimination provision did not create a private cause of action upon which Plaintiff could rely.  Thus, as with the Rhode Island statute at issue in Callaghan, see Part 3, the question was whether an implied right of action exists under PUMA.  The Court reasoned that Plaintiff, as a qualifying patient, certainly falls within the class of those the statute was enacted to benefit, and that there was no indication that the legislature meant to deny to patients such a right.  Allowing a private cause of action would help to effectuate the legislative goal of combatting workplace discrimination for medical marijuana patients.  The Court therefore held that a private cause of action under PUMA for work place discrimination existed and that to state otherwise would render the protection a nullity.

The Court also rejected an Equal Protection argument proffered by the employer, because the legislature could, on a rational basis, favor those who are qualifying patients compared to those that use marijuana illicitly and for non-medical purposes.  The Court did dismiss the claim for wrongful discharge in violation of public policy, as the private cause of action recognized by the court served to vindicate the public policy at issue.  However, the negligent infliction of emotional distress claim was allowed to remain.

Connecticut employers should be reviewing their drug testing policies as they relate to applicants and current employees, as well as informing executives, supervisors, and managers of their obligations under PUMA’s anti-discrimination provision.  Schools and landlords should also exercise caution, as PUMA’s anti-discrimination provision applies to them as well.