January 27, 2012
Wisconsin appeals court reverses $1.5 million asbestos award
The estate of a man who died from malignant mesothelioma did not produce enough evidence to prove he was exposed to the asbestos-containing brake shoes supplied by the defendant.
By Joe Forward, Legal Writer, State Bar of Wisconsin
Jan. 24, 2012 â€” In a recent decision, a Wisconsin appeals court reversed a $1.5 million damages award against a brake-shoe supplier whose product contained asbestos, concluding the evidence was insufficient to prove causation.
John Pender worked as a painter and glass setter for 41 years, from 1952 to 1993. In 2006, he was diagnosed with malignant mesothelioma and died shortly thereafter.
Pender's estate sued various product manufacturers based on negligence and strict products liability, claiming the brake shoes they supplied to Pender's employer, Harnischfeger Corp., contained asbestos that created an asbestos-laden dust during the grinding process.
Pneumo Abex LLC, a brake shoe supplier, was one of the manufacturers. Abex did not dispute that its product contained asbestos. But in Estate of John Pender v. Pneumo Abex LLC, (Jan. 18, 2012), the District I Wisconsin Court of Appeals agreed with Abex that the estate did not produce sufficient evidence to prove Pender had actual exposure to Abex's product.
The record indicated that Abex supplied brake shoes to Harnishfeger Corp. while Pender worked there, but there was insufficient evidence that Abex's brake shoes were supplied to the particular plant where Pender worked.
Harnishfeger had several plants in Milwaukee, and nine different companies supplied brake shoes to the company for a 20-year period. The other suppliers that Pender's estate sued were dismissed at the summary judgment stage. At trial, Abex stood as the sole defendant.
A jury found Abex liable on theories of both negligence and strict liability, awarding damages of nearly $1.5 million. But the appeals court ruled the case was over at summary judgment.
"We would have to pile inference upon inference in order to conclude that Pender was exposed to Abex's brake shoes while working at the National Avenue plant," wrote Judge Kitty Brennan.
"The evidence fails to take Pender's alleged exposure outside the realm of speculation and conjecture." The court noted a lack of evidence that Abex's brake shoes were ever delivered to Harnishfeger's National Avenue plant specifically, or were ever present or grinded there.
"The evidence presented to the trial court created on a 'mere possibility' of causation, which is not enough to survive summary judgment," the appeals court concluded.
The original article can be found here