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Eagle-Picher Industries Inc. v. Balbos8/29/1990
at Key Highway, appellees "failed to introduce any evidence that decedent Knuckles ever worked in the vicinity of Porter Hayden insulators," and, thus, Porter Hayden products. In support of this argument, Porter Hayden relies heavily on Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156(4th Cir. 1986). In that case, a man who had worked at the Key Highway Shipyard from 1940 to 1979 developed asbestosis and filed suit against a number of producers of asbestos-containing products. In concluding that the plaintiff failed to prove a reasonable probability of causation between the plaintiff's disease and the defendants' products, the Fourth Circuit stated:
hen one considers the size of a workplace such as Key Highway Shipyard, the mere proof that the plaintiff and a certain asbestos product are at the shipyard at the same time, without more, does not prove exposure to that product.
Id. at 1162 (emphasis added).
As we noted above, appellees in the case before us did introduce sufficient evidence that Porter Hayden's asbestos-containing products were used at the Key Highway Shipyards when Knuckles worked there. Unlike the plaintiff in Lohrmann, however, appellees also presented expert testimony that asbestos fibers break apart when asbestos products are applied to ships or are removed, that the fibers can be carried by air currents for miles, and that studies have shown that individuals living around asbestos factories have contracted mesothelioma.
In Lockwood v. ACandS, Inc., 109 Wash.2d 235, 744 P.2d 605(1987), the Supreme Court of Washington, in a unanimous en banc decision, placed a great deal of weight on expert testimony concerning this "drifting" of asbestos fibers. The plaintiff in that case had been a rigger in
shipyards from 1942 to 1972. He contracted asbestosis and filed suit against a number of producers of asbestos-containing products. One of Lockwood's witnesses testified that insulators working on the conversion of a large ocean liner called the George Washington in 1947 and 1948 used the same asbestos materials as those he saw used at the Todd Shipyards in 1946. According to the witness, insulators at the Todd Shipyards had used asbestos cloth manufactured by a predecessor of one of the defendants in the case, Raymark Industries (Raymark). While the plaintiff himself did not identify Raymark as one of the manufacturers of the asbestos products he had used, he did testify that he had worked on the overhaul of the George Washington and that there was asbestos on that kind of job .
Following its discussion of the testimony of the witness and the plaintiff himself, the court addressed " he second significant portion of the record," the expert testimony that asbestos dust, after it is released, drifts in the air and can be inhaled by bystanders who do not work directly with asbestos. According to the court, "Thus, even if Lockwood did not work directly with Raymark's product on the George Washington, it is reasonable to infer that since that product was used on that ship when Lockwood worked there, Lockwood was exposed to it." 744 P.2d at 612-13. We find Lockwood more persuasive than Lohrmann because the plaintiff in Lockwood presented evidence of asbestos "drift," while the plaintiff in Lohrmann did not. Thus, we conclude that appellees presented sufficient evidence to allow a reasonable inference that Knuckles was exposed to asbestos-containing products sold by Porter Hayden.
4.
Plaintiffs failed to present legally sufficient evidence to establish that they inhaled sufficient respirable asbestos from Eagle-Picher products to render such products a substantial factor in causing them harm.
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