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Bagley v. Adel Wiggins Group

Supreme Court of Connecticut

November 7, 2017

WAYNE BAGLEY ET AL.
v.
ADEL WIGGINS GROUP ET AL.

          Argued Date: April 5, 2017

         Syllabus

         The plaintiff, the executrix of the estate of the decedent, sought to recover damages, pursuant to Connecticut's Product Liability Act (§ 52-572m et seq.) for, inter alia, the wrongful death of the decedent under theories of negligence and strict liability. The plaintiff alleged that the decedent was exposed during his employment with S Co. to an asbestos containing product manufactured by the defendant and that exposure contributed to his contraction of mesothelioma, a cancer that is caused by the inhalation of asbestos fibers. She further alleged that the defendant's actions in selling its product constituted violations of the act in that its product was unreasonably dangerous and that the defendant knew or should have known that its product was inherently dangerous and yet failed to use reasonable care by not testing the product to ascertain its danger or removing the product from the marketplace. At trial, one of the decedent's former coworkers testified that the defendant's product was subject to sanding and that the sanding process created visible dust to which the decedent would have been exposed. The plaintiff's expert witnesses testified about the history of the asbestos industry, asbestos related diseases, and how certain exposure to asbestos can cause mesothelioma. One expert, A, opined that a proximate cause of the decedent's mesothelioma was his exposure to the defendant's product at S Co. After the plaintiff rested her case, 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. 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: the defendant did not concede that its product, when sanded, emitted respirable asbestos fibers that the decedent could have inhaled, that was not a matter within the common knowledge of lay jurors, none of the plaintiff's witnesses had done any testing or examination of the defendant's product or a similar product to establish that such fibers are emitted when such a product is sanded, A did not possess any specialized knowledge about how adhesive products containing asbestos, such as the defendant's product, behave when they are utilized as the defendant's product was under the conditions at S Co., and, in light of these gaps in the evidentiary record, the trial court improperly denied the defendant's motion for a directed verdict and its motion to set aside the verdict and for judgment notwithstanding the verdict; moreover, the requirement of an expert witness to prove whether the defendant's product emitted respirable asbestos fibers when sanded, subject matter that was technical in nature and beyond the field of the ordinary knowledge of a lay juror, was required under well established law that existed at the time of trial and predated this court's recent product liability jurisprudence, Bifolck v. Philip Morris, Inc. (324 Conn. 402), and Izzarelli v. R.J. Reynolds Tobacco Co. (321 Conn. 172), and, therefore, the plaintiff was not entitled to a new trial.

         Procedural History

         Action to recover damages for personal injuries sustained as a result of an allegedly defective product designed, manufactured or sold by the defendants, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the action was withdrawn as to the named defendant et al.; thereafter, the court, Bellis, J., granted the motion for summary judgment filed by Raytheon Company et al.; subsequently, Marianne Bagley, executrix of the estate of Wayne Bagley, was substituted as the named plaintiff; thereafter, the case was tried to the jury before Radcliffe, J.; subsequently, the court, Radcliffe, J., denied the motion of the defendant Wyeth Holdings Corporation for a directed verdict; verdict for the plaintiffs; thereafter, the court, Radcliffe, J., denied the motion of the defendant Wyeth Holdings Corporation to set aside the verdict and for judgment notwithstanding the verdict, and rendered judgment in accordance with the verdict, from which the defendant Wyeth Holdings Corporation appealed. Reversed; judgment directed.

          Katharine S. Perry, with whom were James A. Hall and, on the brief, Mark O. Denehy and Michael T. McCormack, for the appellant (defendant Wyeth Holdings Corporation).

          Kenneth J. Bartschi, with whom were Robert M. Shields, Jr., and, on the brief, Christopher Meisenko-then, for the appellee (plaintiffs).

          Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          PALMER, J.

         The issue presented by this appeal is whether, in an action brought pursuant to Connecticut's Product Liability Act (act), General Statutes § 52-572m et seq., under strict liability and negligence theories, expert testimony was necessary to prove that a defective, asbestos containing product caused a worker who came in contact with that product to contract a fatal lung disease. The defendant[1] Wyeth Holdings Corporation appeals[2] from the judgment of the trial court rendered following a jury verdict in favor of the plaintiff Marianne Bagley.[3] The jury awarded the plaintiff damages for the wrongful death of her husband, Wayne Bagley (decedent), and for loss of consortium after concluding that the decedent's death was caused by the defendant's negligence and by its sale of an unreasonably dangerous product to the decedent's former employer, Sikorsky Aircraft Corporation (Sikorsky).[4]The defendant claims that the trial court improperly denied its motion for a directed verdict and its motion to set aside the verdict and for judgment notwithstanding the verdict because the plaintiff failed to prove both that the product at issue was unreasonably dangerous and that it was a legal cause of the decedent's fatal lung disease. We agree and, accordingly, reverse the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to our disposition of this appeal. The decedent was employed at Sikorsky from 1979 until shortly before his death in 2012. For approximately ten months in 1979 and 1980, he worked as a manufacturing engineer in the composite blade manufacturing and development department (blade shop), where various helicopter blades were manufactured. The decedent's office was located on a mezzanine overlooking the area where the blade production took place. According to a coworker, however, the decedent often entered the production areas to assist in resolving the various issues that arose during the manufacturing process.

         During the time that the decedent worked in the blade shop, the defendant manufactured and sold to Sikorsky an adhesive product known as FM-37.[5] FM-37 was used in the blade shop to bind together interior components of helicopter blades. It was made of modified epoxy material, supplied in sheet form with strippable release paper, and contained 8.6 percent asbestos. In regular usage, FM-37, after application, was heated until it foamed and expanded. When it expanded onto areas of the blades where it was not supposed to be, it was removed with chisels or by sanding. Product information sheets that the defendant supplied for FM-37 did not indicate that it contained asbestos and further stated that the product could be sanded after curing.

         The decedent was diagnosed with mesothelioma on or about August 10, 2011. Mesothelioma is a cancer occurring in the outer cells of the pleura, a membrane surrounding the lung. It is a ‘‘signature'' or ‘‘sentinel'' disease for asbestos exposure, meaning that such exposure is the only known cause. Mesothelioma is caused by the inhalation of asbestos fibers and typically takes decades to develop. There is a dose-response relationship between asbestos exposure and mesothelioma; in other words, the more exposure a person has, the greater is the likelihood that he or she will contract the disease.

         In the course of the litigation of this case, the decedent acknowledged that he had been exposed to asbestos secondarily due to his father's employment at a shipyard from 1958 through 1961, and directly during three separate home renovation projects in the 1960s and 1970s. Additionally, a workers' compensation benefits application entered into evidence reveals that the decedent filed a claim for benefits indicating that he had been exposed to asbestos during his employment with the Torrington Company, prior to his employment at Sikorsky.

         In the operative complaint, the plaintiff alleged that the decedent was exposed to asbestos containing products while working at Sikorsky and that the exposure had contributed to his contraction of mesothelioma. She alleged further that the defendant's actions in selling such asbestos containing products constituted violations of the act in that (1) the products were unreasonably dangerous, that is, dangerous to an extent beyond that which the ordinary worker in the position of the decedent would have contemplated (strict liability claim), [6] and (2) the defendant knew or should have known that the products were inherently dangerous, yet failed to use reasonable care by, inter alia, not testing or conducting research on the products to ascertain their dangers, or removing the products from the marketplace (negligence claim).[7]

         The plaintiff presented the testimony of several witnesses at trial. Barry Castleman testified as an expert in public health and the history of the asbestos industry and asbestos related disease. Castleman explained that the dangers of asbestos to industrial workers began to be known as early as the late nineteenth century and that companies, including the defendant, were cognizant of the dangers of inhaling asbestos dust as early as the 1940s. In response to a hypothetical posed by the plaintiff's counsel, Castleman opined that a company producing an adhesive product at approximately the time that the defendant produced FM-37 would have been aware that relatively low exposures to asbestos, which might occur from sanding, could cause mesothelioma, and that the company, having that knowledge, could have done air sampling under foreseeable conditions of use to determine what level of exposure would be created. On cross-examination, Castleman acknowledged that he did not examine FM-37 and did not know what percentage of it was asbestos, what its other ingredients were or whether it contained any bonding agent. Castleman further acknowledged that he was unaware of any other case in which someone had developed mesothelioma as a result of exposure to a similar product.

         Carl Ulsamer, a senior materials engineer at Sikorsky, testified as to the asbestos containing materials that were used in the blade shop at Sikorsky in 1979 and 1980. He identified FM-37, as well as two other adhesive products manufactured by another company. On cross-examination, Ulsamer named several other asbestos containing products that had been in use elsewhere at Sikorsky and agreed that, over the years, the company had used many asbestos containing components in manufacturing its helicopters.

         Michael Petrucci, a coworker of the decedent who held a similar position in the blade shop in 1979 and 1980, testified that the two had adjacent desks in a mezzanine area overlooking the shop but would spend some of their time on the shop floor troubleshooting problems. Petrucci described the layout of the blade shop, which had various rooms, including one where various blades were cured and sanded during production. According to Petrucci, he and the decedent would have worked all over the blade shop on a daily basis, including in the sanding room, and workers in the sanding room also would move about the shop. Petrucci recalled the asbestos containing adhesives that Ulsamer had identified, and he confirmed that both FM-37 and an asbestos containing adhesive supplied by another manufacturer were subject to sanding. He testified that the sanding process created visible dust to which he and the decedent would have been exposed. The sanding room was equipped with a ventilation system that collected some of the dust. During Petrucci's time at Sikorsky, no one informed him that there was asbestos in the dust from FM-37.

         Arnold Brody, a pathologist, testified in detail as to the process by which asbestos causes mesothelioma. Brody's presentation, however, was premised on the assumption that a person has been exposed to respirable asbestos fibers; he did not review any materials specific to the decedent's case. In short, he explained that mesothelioma can result when a person inhales tiny asbestos fibers that then make their way past the various defense mechanisms of the body and lodge deeply in the lungs. Brody spoke of animal experiments that he had conducted using dust from raw asbestos but confirmed, on cross-examination, that he had not experimented with asbestos containing products.

         Finally, Jerrold L. Abraham, a pathologist and expert in pulmonary pathology, occupational and environmental medicine, and asbestos related disease, reviewed the decedent's medical records, a pathology slide and other evidence in the case.[8] He opined that the decedent had mesothelioma and that a proximate cause of that disease, among others, was the decedent's exposure to asbestos from FM-37 in the blade shop. Prior to rendering his opinion, Abraham explained to the jury the dose-response relationship between asbestos and mesothelioma, and how low levels of exposure to asbestos, above the ambient levels that may exist in the general environment, can contribute to causing that disease. He further explained the concept of fugitive exposure, whereby individuals may be exposed to asbestos ...


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