Federal Appeals Court Throws Out Asbestos Cases

The Chicago-based U.S. Court of Appeals for the Seventh Circuit dismissed six mesothelioma cases, a decision which attorney Paul J. Napoli says underscores the difficulties inherent in winning ambient exposure cases.

The underlying dispute goes back to 1952, when Owens-Illinois Inc. registered a patent for a lightweight fire door; the door contained cement laced with asbestos. Subsequently, Wisconsin-based Weyerhaeuser Co. acquired the patent and produced the doors until 1978. Six former employees sued both Weyerhaeuser and Owens-Illinois. To bypass the state workers’ compensation exclusive remedy provision, the men claimed that their mesothelioma was not work related, and instead occurred because of ambient asbestos exposure in the community at large. The allegations against Owens-Illinois included defective design and failure to warn. A district judge dismissed all claims, ruling that a patent licensee is not responsible for defective product injuries and that there was insufficient evidence to support the ambient exposure claim.

In a rather blistering opinion, the Seventh Circuit affirmed the dismissals. The justices agreed with the district court’s patent ruling, and labeled the ambient exposure claims “frivolous” and “unavailing.” The opinion also criticized a plaintiffs’ lawyer for “deliberate[ly]” trying to circumvent court rules requiring that written briefs be, well, brief.

Mesothelioma and Intellectual Property

Paul J. Napoli remarked that these six were not the first asbestos plaintiffs to bring claims against a designer, and they will not be the last ones either. However, he said, these cases are not easy to win.

The general rule is that manufacturers are strictly liable if a product they produce has a design or manufacturing defect that injures a consumer. A design defect is something like using a dangerous ingredient, like asbestos, and a manufacturing defect is a basically a production or shipping error that damages an otherwise safe product.

“Manufacture” is the key word, because in most cases, according to Paul J. Napoli, a designer who does not produce the product is not liable for damages. But this general rule is only a presumption.

Legally, he explained, there is basically no case law that is directly on point. There is a lot of law about products liability and trademarks; for example, Goodyear was recently held liable for defective tire damages because it helped manufacture the tires and did more than simply create the trademark. Patents and trademarks are similar, but they are not exactly the same.

This analysis raises a fact issue as well, because many patent licensees are also manufacturers. In fact, Owens-Illinois is a manufacturer, but of glass products and not fireproof doors.

Due to these issues, the plaintiffs may appeal this case to the Supreme Court, but the Justices only hear a fraction of the cases they are asked to review.

Mesothelioma and Ambient Exposure

Direct exposure cases are usually straightforward, Paul J. Napoli explained. If the victim worked at a location when the manufacturer used asbestos, it is rather easy to establish that the workplace exposure caused the mesothelioma. In civil court, the plaintiff must prove facts by a preponderance of the evidence (more likely than not).

Ambient exposure cases are harder to link to a specific manufacturer, because asbestos fibers are a lot like talcum powder particles. Once they are released into the air, it’s very difficult to say with any degree of certainty where they will land.

These cases are especially difficult when an employee claims ambient exposure, because a jury is much more likely to believe that the exposure occurred at work instead of somewhere else.

Nevertheless, Paul J, Napoli said he was a bit surprised that the appeals court dismissed these claims without even a trial, because even if the evidence is not overwhelming, it may still be sufficient in civil court. The attorney’s alleged misconduct may have something to do with the ruling.

Judges are not supposed to take things like this into account, but they are people just like everybody else. Most appeals courts have detailed rules about briefs, even covering minutiae like footnote formats and typeface size. Furthermore, most appeals court judges have no tolerance for lawyers who break the rules. In fact, Paul J. Napoli says that in many appeals cases, he assigns an attorney to do nothing but check the local rules and ensure that everything is done according to the judge’s preference.

When it comes to presenting a compelling and technically correct mesothelioma appeal, you can count on Paul J. Napoli and the other experienced New York personal injury attorneys at Napoli Shklonik, PLLC. Call today for a free consultation.