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‘Probably’ is enough to prove causation

Curley

“While we find these bright-line tests useful in establishing important factors to be considered within our pre-existing causation framework, we decline to adopt a bright-line rule regarding causation for fear of over-simplifying such a complex issue.”

Hon. Patricia S. Curley
Wisconsin Court of Appeals

Causation in asbestos cases must be decided on a narrow case-by-case basis, the Wisconsin Court of Appeals held on March 18.

The court further concluded that where a plaintiff worked at a factory that “probably bought” and used a product containing asbestos, the worker created an issue of fact on causation for a jury to decide.

George Zielinski was employed at the Ladish Company from 1947 to 1951, from 1953 to 1954, and from 1957 to 1963, during which Ladish was an industrial metal works foundry, primarily engaged in manufacturing metal components through casting and forging.

Zielinski began as a mason’s helper, became a mason, and his main duties included the maintenance and repair of foundry furnaces. As part of this work, Zielinski would tear out old refractory and insulating materials from the foundry furnaces and rebuild the furnaces with new materials.

In April 1999, Zielinski was diagnosed with mesothelioma, a cancer resulting from asbestos exposure. He died a month later, but not before filing suit against various asbestos suppliers and manufacturers, including Firebrick Engineers, Inc.

Firebrick moved for summary judgment, and Milwaukee County Circuit Court Judge William J. Haese granted the motion, finding the evidence insufficient to establish that Firebrick sold asbestos-containing products to Ladish, or that Zielinski was exposed to asbestos-containing products supplied by Firebrick.

Zielinski appealed, and the court of appeals reversed in a decision by Judge Patricia S. Curley.

What the court held

Case: Zielinski v. A.P. Green Industries, Inc., et al., No. 02-1888.

Issue: In an asbestos case, is there sufficient evidence to go to a jury where the plaintiff presents evidence that a manufacturer “probably” sold an asbestos-containing product to an insulator’s employer?

Holding: Yes. Such evidence is sufficient to create questions of fact on whether the manufacturer sold the product to the plaintiff’s employer, and whether it was a substantial cause of the plaintiff’s mesothelioma.

Counsel: John E. Herrick, Mt. Pleasant; Ronald G. Tays, Milwaukee, for appellant; Eric Carlson, Milwaukee, for respondent.

Asbestos Products

The court found evidence that Firebrick had, in fact, supplied asbestos-containing products to Ladish through the deposition testimony of two Ladish engineers.

One engineer, who worked at Ladish for 27 years, testified that, before leaving, he took copies of vendor lists from Ladish. The lists included a product called “Weber 48,” purchased from Firebrick. Because of its inclusion on the list, the engineer testified that Ladish “probably bought” the product.

Based on the testimony that Weber 48, an asbestos-containing cement block used for insulation, was probably bought by Ladish, the court concluded that Zielinski presented sufficient evidence to create a jury issue on whether Firebrick sold the product to Ladish.

Causation

The court then held that there was sufficient evidence to go to the jury on the issue of whether the product was a substantial cause of injury.

Examining case law from other jurisdictions, the court found two approaches in use by other courts: (1) making broad pronouncements of law in an attempt to simplify the causation issue; or (2) narrowly deciding each case on the facts presented within the causation framework already in place.

The court adopted the latter approach, stating, “While we find these bright-line tests useful in establishing important factors to be considered within our pre-existing causation framework, we decline to adopt a bright-line rule regarding causation for fear of over-simplifying such a complex issue. In the instant case, we decide the issue of causation based on the totality of the circumstances surrounding the work of masons at Ladish and the products they generally used.”

Links

Wisconsin Court of Appeals

Related Article

Case Analysis

Based on testimony that, as a mason, Zielinski would have built buildings with cement blocks, and laid bricks, the court concluded that a fact-finder could infer that Zielinski used Weber 48 in his work at Ladish.

Because there was sufficient evidence from which a jury could find both that Firebrick supplied asbestos-containing products to Ladish, and that Zielinski was exposed to them, the court reversed the grant of summary judgment.

Click here for Case Analysis.

David Ziemer can be reached by email.

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