Asbestos MDL remands case to SDIL to decide 'bare metal defense'

PHILADELPHIA - The National Asbestos Products Liability Multidistrict Litigation Court has remanded a 20-year-old asbestos lawsuit to federal court in East St. Louis to determine whether the state recognizes the "bare metal defense."

U.S. District Judge Eduardo Robreno entered the order Jan. 30, addressing defendant Westinghouse Electric Corporation’s motion for summary judgment – granting in part and denying in part.

“Defendant’s motion for summary judgment is granted with respect to alleged asbestos exposure arising from insulation used in connection with turbines because plaintiff has failed to identify sufficient evidence to support a finding of causation with respect to that alleged exposure …[and] denied with respect to alleged asbestos exposure arising from switchgear (with leave to refile in the transferor court) because no Illinois appellate court has yet addressed the availability of the so-called ‘bare metal defense’ under Illinois law,” Robreno wrote.

Bare metal products relate to those that contain or were encapsulated in asbestos-containing products made by a third party. The arguments raised from this type of exposure refer to it as the “bare metal defense” in litigation.

The lawsuit was originally filed in the Southern District of Illinois in 1994 and transferred to the MDL in October 2008.

Plaintiff Helen Mann brought the claims on behalf of J.W. Heggie, deceased, who had worked as a carpenter from 1971 to 1984. Mann claims Heggie was exposed to asbestos from Westinghouse’s turbines and switchgear at the Texaco Refinery in Lawrenceville in 1968 and the Marathon Refinery in Robinson between 1970 and 1978.

Mann is represented by Michael P. Cascino of Cascino Vaughan Law Offices in Chicago

Mann claims Heggie developed bilateral asbestos-related pleural disease and lung cancer as a result of his exposure to asbestos, leading to his death in April 2002.

Westinghouse – the only remaining defendant in the case – requested summary judgment, saying there was insufficient product identification evidence to establish causation.

Former Westinghouse employee Douglas Ware testified for the defense that its turbines were sold without thermal insulation or metal lagging and any insulation or lagging applied later was supplied and applied by a third party.

The defendant also argued that Mann’s evidence fails to create a “triable issue of material fact” regarding switchgear because she could not prove the asbestos dust was created when electricians "blew out" the switchgear with compressed air.

In an analysis of the turbines, Robreno wrote that even if Mann didn’t have to satisfy the "frequency, regularity, and proximity" test, her evidence is insufficient. Therefore, Robreno wrote that he used a more lenient standard regarding direct and circumstantial evidence to establish causation.

“Even assuming that it is a fact that Westinghouse issued specifications that ‘required’ the use of asbestos-containing insulation, this evidence does not establish that any insulation to which decedent was exposed in connection with Westinghouse turbines actually contained asbestos – and instead, establishes only that this was a possibility,” Robreno wrote.

Essentially, Mann only established that it was a possibility that Heggie worked with asbestos-containing insulation connected with Westinghouse turbines, he wrote.

“Therefore, even when construing the evidence in the light most favorable to plaintiff, no reasonable jury could conclude from the evidence that decedent was exposed to asbestos for which Westinghouse is responsible such that it was a ‘substantial factor’ in the development of his illness,” Robreno stated.

“This is true regardless of whether or not Illinois law recognizes the so-called ‘bare metal defense’ – an issue this court need not reach in connection with this alleged source of exposure,” he added. “Therefore, summary judgment in favor of defendant Westinghouse is warranted with respect to this alleged source of exposure.”

Regarding alleged switchgear exposure, Robreno wrote that the court “attempts to analyze the sufficiency of plaintiff’s evidence despite the poorly defined sources of alleged exposure.”

The plaintiff has provided evidence showing:

-Heggie worked close to electricians using air hoses to blow dust out of high voltage switchgear;

-All switchgear in industrial and large commercial settings more than 440 volts from 1945 to early 1980s contained asbestos;

-DH and DHP series switchgear contained asbestos;

-Switchgear used to power large motors and large equipment was the DH or DHP series;

-Widespread use of asbestos insulation for switchgear applications in industrial and large commercial facilities; and

-Asbestos was the material of choice in industrial and commercial applications.

However, Robreno ruled Mann failed to prove switchgear blown out near Heggie was more than 440 volts, or was DH or DHP series, or was used to power large equipment.

“Even when construing this evidence in the light most favorable to decedent, it is insufficient because it does not establish that decedent was exposed to respirable dust from switchgear that contained asbestos,” he wrote.

Mann also failed to establish that the appearance of switchgear meant it could only be asbestos-containing, he stated. Nothing in the evidence in the record supporting Mann’s contention that the type of equipment the switchgear was used to power was the same that contained asbestos. Likewise, no evidence even proves Heggie worked with the same equipment that contains asbestos, Robreno wrote.

“The closest plaintiff comes to establishing a switchgear-related asbestos exposure for which defendant Westinghouse could be liable is found in plaintiff’s evidence from co-worker Simmons that decedent worked ‘within feet’ of electricians drilling holes in brown insulating board which Simmons believed contained asbestos, and installing it inside of Westinghouse electrical equipment,” Robreno wrote.

“Because there is no evidence that defendant manufactured or supplied the insulating board, defendant can only face liability if Illinois does not recognize the so called ‘bare metal defense.’”

Robreno denied summary judgment regarding product identification/causation with respect to switchgear, choosing not to predict what an Illinois court would rule in this situation. So he remanded the case to the Southern District of Illinois to decide.

“Whether Illinois law holds a switchgear manufacturer liable for component parts incorporated into its product which it neither manufactured nor supplied is a matter of policy,” he wrote.