In Re Asbestos Products Liability Litigation (No. VI)
671 F. App'x 844
| 3rd Cir. | 2016Background
- Plaintiff Carol J. Zellner, on behalf of the estate of Clifford R. Zellner, appealed the district court’s grant of summary judgment for CBS Corporation in an asbestos-exposure wrongful-death action.
- Mr. Zellner worked for decades as a pipefitter near CBS (Westinghouse) electrical switchgear at the Fort Howard paper mill; he did not work directly on the switchgear.
- Plaintiff’s experts testified that switchgear contains asbestos-containing components that deteriorate from heat, electrical flow, and cycling (stop/start), producing dust that accumulates inside and on switchgear.
- An internal CBS memorandum warned that cleaning switchgear components could aerosolize asbestos and recommended protective equipment.
- The district court found evidence that switchgear contained asbestos and that dust had been blown from switchgear, but concluded plaintiff failed to show the switchgear at Fort Howard had deteriorated and released asbestos dust.
- The Third Circuit reversed and remanded, holding plaintiff’s expert evidence—viewed in light most favorable to her—was sufficient to create a triable issue that CBS switchgear deteriorated and was a substantial factor in Mr. Zellner’s fatal illness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff raised a genuine dispute that CBS switchgear at Fort Howard deteriorated and released asbestos-containing dust | Expert testimony showed switchgear routinely deteriorates from heat, electrical flow, and cycling, producing asbestos dust; CBS internal memo confirmed cleaning can aerosolize asbestos | No firsthand testimony or direct factual evidence that the Fort Howard switchgear was deteriorated at relevant times | Reversed: expert and documentary evidence sufficient to allow a reasonable jury to find deterioration and release of asbestos dust |
| Whether the evidence could support causation under Wisconsin law (substantial factor standard) | Medical experts linked asbestos exposure to decedent’s disease and switchgear was a plausible source of respirable asbestos dust | Argues causation is speculative without direct evidence the Fort Howard switchgear produced asbestos dust | Reversed: under Wisconsin substantial-factor test and controlling precedent, the evidence is more than mere possibility and presents a triable issue |
Key Cases Cited
- Santini v. Fuentes, 795 F.3d 410 (3d Cir. 2015) (summary judgment standard and appellate review explained)
- Daniels v. School Dist. of Philadelphia, 776 F.3d 181 (3d Cir. 2015) (summary judgment principles)
- Zielinski v. A.P. Green Indus., Inc., 661 N.W.2d 491 (Wis. Ct. App. 2003) (Wisconsin substantial-factor causation test)
- Merco Distrib. Corp. v. Commercial Police Alarm Co., 267 N.W.2d 652 (Wis. 1978) (discussion of causation burdens under Wisconsin law)
- Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431 (3d Cir. 2003) (appellate jurisdiction principles on claims dismissed without prejudice)
- Tiernan v. Devoe, 923 F.2d 1024 (3d Cir. 1991) (affirming jurisdiction where plaintiffs renounced further pursuit of dismissed claims)