A Wisconsin appellate court has reinstated a mesothelioma lawsuit against a supplier of asbestos-containing brake parts. Walter Tatera, a machine shop worker who ground asbestos-containing brake linings to be incorporated into automobile brake systems, died of mesothelioma—a cancer caused by asbestos exposure—in 2004. The District 1 Court of Appeals held that Mr. Tatera’s widow has the right to sue FMC Corp., the supplier of the linings, for negligence in failing to warn that the parts contained asbestos and were dangerous.
The trial court had entered summary judgment for the brake manufacturer, holding that the Tatera family had not presented any evidence to support a claim against the asbestos brake manufacturer. The appellate court agreed with the trial court that the plaintiffs had not offered any evidence that would support a strict liability claim, but the court held that the family would be permitted to go to trial on the claim that the brake manufacturer was negligent in failing to warn of the asbestos hazard associated with its product.
Beginning in the mid-1960s, Tatera worked at his father’s machine shop, grinding asbestos-containing brake linings down to the proper size and shape. The brake linings were then returned to the manufacturer to be assembled into the brake system. A co-worker reported that grinding the brake linings created dust that went all over the machine shop. The Tatera family alleged that the brake dust contained asbestos fibers, which Mr. Tatera breathed in, causing his mesothelioma.
The Tatera family says that the brake manufacturer knew that grinding the braking linings was dangerous and it had a duty to warn Mr. Tatera. Because the manufacturer didn’t warn, Mr. Tatera was exposed to the fibers and developed mesothelioma. The appellate court agreed that these allegations and the summary judgment evidence offered to support them could be sufficient to support a judgment against the brake manufacturer.
The court determined that a strict liability claim did not apply to the facts of the case, however. Wisconsin law holds a seller strictly liable for the injuries that its product causes to a consumer. In this case, however, Mr. Tatera was hurt, not by a final product, but rather by the work he did on a component part. The court of appeals decided that, under Wisconsin law, strict liability would not apply in a case where the injuries occurred as a result of processing a product before it got to the consumer.
Because the brake manufacturer was not a “seller” in the context of Mr. Tatera’s exposure and Mr. Tatera was not a “consumer” of a “product,” the manufacturer could not be held strictly liable regardless of fault. However, the manufacturer could still be held responsible if the Tatera family proves fault: (1) that the manufacturer knew or should have known that grinding the asbestos linings was dangerous, but (2) the manufacturer failed to warn Mr. Tatera, and (3) the manufacturer’s failure to warn Mr. Tatera caused him to be exposed to asbestos and develop mesothelioma, which caused his death.
source: www.mesotheliomanews.com
