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Branon v. General Electric Co.7/29/2005
REVERSING AND REMANDING
BEFORE: BUCKINGHAM AND JOHNSON JUDGES; EMBERTON, SENIOR JUDGE.
Cynthia Cash Branon, executrix of the estate of William Cash, appeals from separate orders of the McCracken Circuit Court awarding summary judgments to General Electric Company (GE) and National Service Industries, Inc., f/k/a North Brothers, Inc. (North Brothers), on Branon's wrongful death claims against them. Because we conclude the court erred in awarding summary judgment to GE and North Brothers, we reverse and remand.
William Cash was a union electrician who lived in Paducah, Kentucky, and worked at numerous job sites in western Kentucky, southern Illinois , and elsewhere between 1945 and 1987. He was diagnosed with asbestos-related lung disease in 1998, and he filed suit against GE and North Brothers for negligently using asbestos-containing insulation on the turbines used in the Tennessee Valley Authority's Paradise Steam Plant in Drakesboro, Kentucky. Cash died of lung cancer on July 15, 2001, and the prosecution of his action against GE, North Brothers, and others was continued thereafter by his daughter, Cynthia Cash Branon, as executrix of his estate.
Before his death, Cash testified in his deposition that he worked at times within ten feet of the steam turbines when they were being installed at Paradise. Bobby Gibson, who worked at the plant from 1961 through 1976, testified that he helped install Kaylo insulation, which is widely known to contain asbestos, on the GE turbines at Paradise. He further testified that the asbestos insulation was cut and applied during the installation of the turbines and that the amount of dust released from the cutting of the insulation was so extensive that the floor had to be regularly swept with a machine. Gibson also stated that he remembered electricians working nearby during the installation process.
Branon also presented a 1964 TVA report that contains a timeline of the plant construction. The report indicates that turbogenerator Unit 1 was insulated from September 19, 1962, through October 1963. The report also indicates that electrical work was performed simultaneously with the insulation of the turbogenerators during that time. This evidence corroborates Gibson's testimony that electricians such as Cash were present when the turbogenerators were being insulated.
Additionally, Branon presented records from the Social Security Administration that indicated Cash worked at the plant at various times, including from January 1962 through March 1963. These reports are evidence that Cash was performing electrical work at the plant during the same time the turbogenerators were being insulated.
Cash's primary treating physician for his lung disease was Dr. William Culbertson, a pulminologist. Dr. Culbertson testified in his deposition that, within a reasonable degree of medical probability, Cash died from cancer caused by exposure to asbestos. He also testified that asbestos exposure is a cumulative occupational injury and that each and every exposure contributes to the development of the disease. Branon also identified Dr. Arthur L. Frank as an expert who would testify at trial. Dr. Frank stated in his report that Cash died from lung disease resulting from his exposure to asbestos.
North Brothers was an insulation contractor that applied asbestos thermal insulation on the GE turbogenerators at the Drakesboro plant in the early 1960s. It does not dispute that Cash worked in the plant at that time.
GE and North Brothers moved the court to award them summary judgment. In an order entered on February 20, 2004, the court awarded GE summary judgment on the ground
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