US 3rd Circuit Reverses Judgment Ignoring Expert Asbestos Opinion

Evidence provided by an expert opinion cannot be ignored, the US Court of Appeals has affirmed in a partial reversal of a US District Court decision, finding the factual dispute best left for the jury to decide.

In re: Asbestos Products Liability Litigation, Linnie Frankenberger v. CBS Corp., No. 15-1988, 3rd Cir., the estate of Howard Frankenberger claimed he was exposed to asbestos during his forty-five years working as a pipefitter where he worked around turbines and switchgears (industrial circuit breakers) containing asbestos. Frankenberger was diagnosed with a lung condition consistent with asbestos-related pleural disease, and subsequently died of lung cancer. An occupational medicine expert witness, Dr. Arthur Frank, determined the cancer was caused, at least in part, by his exposure to asbestos.

Frankenberger worked in the vicinity of turbines and switchgears, and alleged that he inhaled dust containing asbestos when the equipment was being maintained. Until 1973, these Westinghouse turbines had contained asbestos in their thermal insulation, but afterwards the insulation could have been replaced with an asbestos-free material during maintenance, or not.

High voltage switchgears, the type most likely to have been in Frankenberger's workarea, were manufactured with asbestos until at least 1985, and were regularly maintained by electricians who used compress air during maintainance to blow out dust. Frankenberger's HVAC and plumbing expert witness testified that when the dust was blown out, it was most likely to contain asbestos from deteriorated components, along with accumulated dust.

The district court found evidence that the turbines had once contained asbestos, but found no evidence that the insulation to which Frankenberger was the original insulation containing asbestos. The district ourt also found evidence that Frankenberger was exposed to dust from asbestos-containing switchgears, but no evidence that the dust was from the switchgear itself (thus containing asbestos) as opposed to external, benign dust. With no evidence of asbestos exposure, the court granted summary judgment to CBS Corporation and dismissed Frankenberger's claims.

The appellate court agreed with the district court's conclusion on exposure from the turbines, but not on exposure from the switchgears. Frankenberger's HVAC expert witness had specifically testified that asbestos-containing parts in the switchgears were likely to deteriorate and release asbestos dust into the air when being cleaned with air pressure.

While the district court found that no reasonable jury could conclude that the dust contained asbestos, the appellate court found that it would not be unreasonable for a jury to reach that conclusion. It was a factual dispute, best left for the jury, the appellate court ruled.

The appellate court reversed in part, affirmed in part and remanded to the district court.