Products Liability Law Reporter

While Nicholas Barone was working at a General Electric plastics facility in Pittsford, Mass., during the 1960s, the plant purchased hundreds of bags of talc from International Talc Co. and dumped them into hoppers as part of the plastics-making process. The talc came from a pit in upstate New York, known as the Arnold Pit, which allegedly is known to have been contaminated with asbestos.

Barone died of mesothelioma at age 81. He is survived by his wife and three children.

Barone’s wife, individually and on behalf of his estate, sued Vanderbilt Minerals, LLC—which purchased International Talc in 1974 and continued the product line—alleging it was liable as a successor in interest to International Talc Co. for negligence, failure to provide adequate warnings or instructions, and selling a product that was defective and unreasonably dangerous.

The jury awarded $15 million, including $5 million to Barone’s wife. The jury found that the plaintiffs proved by a fair preponderance of evidence that the court should award punitive damages against Vanderbilt Minerals as successor in interest to International Talc Co. Under Connecticut law, a decision on the amount of punitive damages will be made at a later date.

Citation: Barone v. Blue M, No. ASB-FBT-CV22-6116587-S (Conn. Super. Ct. Bridgeport Jud. Dist. May 16, 2024).

Plaintiff counsel: AAJ member Benjamin Braly and Sam Iola, both of Dallas; and Brian Kenny, New Haven, Conn.

Comment: In the asbestos-mesothelioma case Edwards v. Scapa Waycross, Inc., 899 S.E.2d 597 (S.C. 2024), the trial court denied the defendant’s motion for judgment notwithstanding the verdict, which was based on the argument that the plaintiff had failed to introduce legally sufficient causation evidence. An intermediate appellate court affirmed. Affirming the lower appellate court, the state high court also affirmed that the substantial factor causation test applied in South Carolina. Under the test, in determining whether an exposure is actionable, courts consider frequency, regularity, and proximity. Moreover, the court said, to support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of regular exposure to a specific product over an extended period in proximity to the plaintiff. Here, the court found that the plaintiff’s expert explained to the jury that the plaintiff’s exposure to Scapa asbestos-containing dryer felts during his employment was a substantial factor in causing his mesothelioma and that as the amount of asbestos accumulates in the body, the likelihood of developing mesothelioma increases. The basis of the expert’s opinion was not the cumulative dose theory, the court said. The plaintiff was represented by AAJ member Mona Lisa Wallace and William M. Graham, both of Salisbury, N.C.; Kathleen Chewning Barnes, Hampton, S.C.; AAJ member Thomas H. Hart III and Gregory L. Hyland, both of Summerville, S.C.; and AAJ member Frederick J. Jekel, Columbia, S.C.

For another asbestos-mesothelioma case, see Johnson v. Aecom Energy & Constr., Inc., No. 23-cv-61258-DAMIAN (S.D. Fla. May 22, 2024). There, the plaintiff alleged that French Johnson was exposed to asbestos fibers during occupational exposures to asbestos-containing products during his tenure in the U.S. Navy and during his employment with NASA at the Kennedy Space Center, and from non-occupational exposures while he conducted automotive maintenance and repair work. The plaintiff’s complaint claimed that the asbestos-containing products were either mined, processed, supplied, manufactured, or distributed by 50 defendants or their predecessors. Defendant Dow Chemical Co. moved to dismiss, arguing that the plaintiff’s negligent misrepresentation claim was not pleaded with the requisite level of specificity and that the allegations against the defendants were improperly commingled. The district court granted the motion. The court found that the plaintiff improperly lumped together all the allegations against all the defendants and that this did not give Dow Chemical notice of the specific claims against it.

See also Ripple v. CBS Corp., 2024 WL 2066708 (Fla. 2024). There, Richard Counter was diagnosed with mesothelioma and later married Jennifer Ripple. Shortly thereafter, Counter sued various defendants, alleging negligence and strict liability for his injuries. The plaintiff claimed that the defendants exposed him to asbestos from the 1950s through the 1990s. After Counter’s death, Ripple amended the complaint, replacing the common law claims with the estate’s wrongful death claims. The estate sought damages under Fla. Stat. §768.21(2), which allows a surviving spouse to recover for the loss of a decedent’s companionship and protection, as well as for mental pain and suffering. The defendants moved for judgment on the pleadings on the basis that Ripple could not recover damages under §768.21(2) because she was not married to Counter at the time of his alleged asbestos exposure. The trial court granted the motion, and an intermediate appellate court affirmed with regard to Ripple’s claim. Quashing and remanding, the state high court held that a spouse who married a decedent after the onset of the injury that led to his or her death may recover damages as a surviving spouse under §768.21(2). Mathew D. Gutierrez, Miami, represented the plaintiff.