A late merchant marine’s asbestos lawsuit is back on the docket after the Pennsylvania Superior Court reversed a lower court’s dismissal.
The appellate court concluded that testimony by the deceased plaintiff had plainly put evidence of asbestos exposure in the record. Therefore, the trial court erred by dismissing the claim for lack of evidence of asbestos exposure.
Asbestos Lung Cancer Lawsuit
Plaintiff Earl C. worked on Sunoco ships from 1946 to 1953, following a stint of service in the U.S. Navy. He later developed lung cancer and died before his asbestos lawsuit could be completed.
In testimony he had provided before his death, Earl said that defendants Atlantic Richfield Company and Sunoco Inc. required him to do work that exposed him to asbestos without warning him of the associated danger, even though they allegedly knew about that danger at the time.
The trial court concluded that the evidence failed to establish asbestos exposure “sufficient to cause the disease.” For example, Earl had testified that he had not been able to tell by looking whether some particular dust contained asbestos.
He had also testified that he did not personally handle insulation while working for Sunoco and did not know if the insulation contained asbestos. The trial court determined this sort of testimony was too speculative to be accepted.
However, while the appeals court agreed that testimony could not support a claim by itself, it also said the trial court ignored other evidence in the record that was adequate to support the claim.
Earl had testified that while working on the defendants’ ships he had mixed mortar from a bag labeled “asbestos,” used to repair insulation around steam pipes. He said this process released dust into the air, dust that he subsequently inhaled.
He also testified that some of the materials he had handled were stored in an asbestos locker to keep loose asbestos from blowing around. The same materials when outside the locker would shed asbestos dust into the air with vibration of the ship.
Appeals Court Reverses Dismissal
Even though Earl had said he never worked with products labeled “asbestos” on Sunoco ships, the appeals court found there was other evidence of asbestos exposure there. Earl had testified to working with insulation on turbines made by General Electric. Documents provided from the company showed that asbestos was a component of the insulation used in those turbines.
The appeals court concluded that, viewing this evidence in the light most favorable to Earl, it was sufficient to survive a summary judgment challenge.
The appeals court also determined the trial court had incorrectly applied a less deferential standard for negligence under the Jones Act.
The Jones Act provides that to prove negligence, a plaintiff need only prove the employer’s actions played any part at all, no matter how slight, in causing the injury. The trial court had incorrectly cited a more stringent standard from an earlier court opinion, which itself came from a products liability case that did not apply the Jones Act.
Earl’s asbestos lung cancer lawsuit will continue to be litigated by Timothy C., the executor of Earl’s estate.
The Asbestos Lung Cancer Lawsuit is Case No. 2175-EDA-2014 in the Superior Court of Pennsylvania.
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