In Re Asbestos Products Liability Litigation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 15-1988
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IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION
(NO. VI)

Steven Frankenberger, Special Administrator
for the Estate of Howard L. Frankenberger*,

Appellant

*(Amended pursuant to the Clerk’s order
entered March 21, 2016)
_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 2-09-cv-61717
D.C. Civil Action No. 2-01-md-00875
District Judge: Honorable Eduardo C. Robreno
______________

Argued: January 14, 2016

Before: MCKEE, Chief Judge, AMBRO, and SCIRICA,
Circuit Judges
 (Filed: September 13, 2016)

Robert G. McCoy, Esq. [ARGUED]
Cascino Vaughn Law Offices
220 South Ashland Avenue
Chicago, IL 60607

Counsel for Appellant

Christopher G. Conley, Esq. [ARGUED]
Evert Weathersby & Houff
200 Cleveland Road
Suite 6
Bogart, GA 30622

Counsel for Appellee

_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge

Steven Frankenberger, on behalf of the estate of
Howard Frankenberger, appeals an order of the District Court
dismissing his civil suit against CBS Corporation. He asserts
state law causes of action arising from Howard
Frankenberger’s exposure to asbestos during his forty-five
years working as a pipefitter at various facilities in Illinois
and Indiana, which he alleges was caused by asbestos-
containing turbines and switchgears at those facilities.

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Following discovery, CBS Corporation moved for summary
judgment, and the District Court granted the motion. While
we agree with the District Court that Frankenberger’s turbine-
related claim fails to demonstrate CBS Corporation was a
cause of his asbestos exposure, we disagree with its
conclusion that the switchgear-related claim is similarly
deficient. Accordingly, we will affirm in part and reverse in
part the District Court’s order, and remand for further
proceedings consistent with this opinion.

I.

From approximately 1953 until 1999, Frankenberger
worked as a pipefitter at various facilities in Illinois and
Indiana. Three of those facilities are relevant to this appeal:
State Line Generating Station in Hammond, IN (“State
Line”); Will County Generating Station in Romeoville, IL
(“Romeoville”); and Acme Steel in Riverdale, IL (“Acme”).
Towards the end of his career in January 1996, Frankenberger
was diagnosed with a lung condition consistent with asbestos-
related pleural disease. He was later diagnosed with lung
cancer in 2004, and passed away from the disease in 2005. A
medical expert determined Frankenberger’s lung cancer was
caused, at least in part, by his exposure to asbestos.

Frankenberger alleges his asbestos exposure occurred
as a result of his work in the State Line, Romeoville, and
Acme facilities. Specifically, he alleges two asbestos-
containing pieces of equipment at these facilities resulted in
his exposure: turbines and switchgears. Both pieces of
equipment were manufactured and maintained by
Westinghouse Electric Corporation, a predecessor to CBS
Corporation.

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 Westinghouse turbines are large pieces of equipment
that contain many parts. The part at issue in this case is the
thermal insulation inside the turbines. When first delivered to
the facilities, Westinghouse turbines contained their original
thermal insulation, which was, like the rest of the turbine,
manufactured by Westinghouse. Until 1973, this original
thermal insulation may have contained asbestos. After 1973,
however, Westinghouse required asbestos-free insulation.

While the insulation was normally housed within the
turbine, it was removed whenever the turbines underwent
maintenance or repair. Following the maintenance, the
original thermal insulation was sometimes placed back into
the turbine, but other times was replaced with new thermal
insulation, which may or may not have been manufactured by
Westinghouse. While an expert testified on behalf of
Frankenberger that the original thermal insulation in turbines
was saved whenever possible, there is no evidence in the
record regarding how frequently the insulation in
Westinghouse turbines required replacing. Nor is there
evidence regarding the specific turbines in the facilities where
Frankenberger worked: it is unknown how long the original
insulation remained in the turbines at those facilities, and if it
was replaced, it is unknown whether the replacement
insulation was manufactured by Westinghouse or another
company.

A coworker of Frankenberger’s, Ernest Sperber,
testified in a deposition that he worked with Frankenberger
for a total of two to three years during the 1960s, 1970s, and
1980s. Sperber testified Westinghouse turbines were present
at the State Line, Romeoville, and Acme facilities. He further
testified that on two or three occasions while he was working

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with Frankenberger, the turbines underwent maintenance
supervised by Westinghouse employees, during which the
insulation inside the turbines was removed. According to
Sperber, the removal of the insulation created dust which he
and Frankenberger breathed in. While neither Sperber nor
Frankenberger worked directly with the turbines,
Frankenberger claims by breathing in dust created by the
turbine maintenance, he was exposed to asbestos.

In addition to the turbines, Frankenberger alleges
Westinghouse switchgears caused him to be exposed to
asbestos. The Westinghouse switchgears present in the
facilities where Frankenberger worked were similar to
household circuit breakers. They were made up of many
component parts, some of which contained asbestos.
Specifically, an asbestos rope was used in the switchgears
until 1977, and an asbestos cement board was used until at
least 1985, and possibly longer. These parts made up a very
small portion—approximately one percent—of the overall
weight of the equipment. While not every Westinghouse
switchgear incorporated these asbestos-containing
components, the higher voltage versions of switchgears did
until 1977. Such higher voltage versions were likely present
at industrial facilities like the ones in which Frankenberger
worked.

The asbestos-containing parts in the switchgears, much
like the insulation in the turbines, were typically enclosed.
But when electricians performed maintenance on the
switchgears, they used compressed air to remove dust from
inside them, spraying it into the air. Sam Wineman, an
engineering expert, testified on behalf of Frankenberger that
when dust was blown out from a switchgear with asbestos-

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containing parts, it was likely to contain asbestos.
Wineman’s expert report concluded that “[i]t is most likely
that the dust which had accumulated inside the switchgear
boxes or on the gear before inspection and cleaning of the
switchgear contained asbestos from deteriorated
components.” But it is also possible for non-asbestos
containing dust to accumulate inside the switchgear. A
cleaning manual for the switchgear suggests it should be
regularly cleaned due, in part, to “dust deposited from the air
which can readily be blown out of the chute with a dry
compressed air stream.”

Sperber testified he recalled electricians using
compressed air to blow dust from inside the switchgears,
which he and Frankenberger breathed in. Although Sperber
conceded he did not work directly with the switchgears, he
testified he and Frankenberger worked in the vicinity of the
switchgears. Frankenberger alleges by breathing in the dust
that resulted from the maintenance on Westinghouse
switchgears, he was exposed to asbestos.

II.

Frankenberger filed his lawsuit in the Northern District
of Indiana, and it was transferred in January 2009 to the
Eastern District of Pennsylvania as part of a multidistrict
litigation (MDL-875). Following the transfer, the parties
conducted discovery, and on August 18, 2014, CBS
Corporation filed a motion for summary judgment. The
District Court granted the motion on February 11, 2015.

The District Court held that Frankenberger did not
present sufficient evidence of causation to survive summary

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judgment. With respect to the turbines, the Court found
evidence the turbine and original insulation at the facilities
where Frankenberger worked were supplied by Westinghouse
and contained asbestos. However, the Court found “no
evidence that the insulation to which [Frankenberger] was
exposed was this original insulation – or that it was
replacement insulation that contained asbestos.”

With respect to the switchgears, the Court found
evidence Frankenberger was exposed to dust from asbestos-
containing Westinghouse switchgears. However, the Court
found “no evidence that the dust was from the switchgear
itself (for example, because the switchgear was deteriorating)
as opposed to being external dust on the switchgear (i.e., not
asbestos-containing dust).” As a result, the Court granted
summary judgment to CBS Corporation and dismissed
Frankenberger’s claims. This appeal followed.

III.

The District Court had jurisdiction under the
multidistrict litigation statute, 28 U.S.C. § 1407, which
authorizes the transfer of cases that present common issues of
fact to a single district court. Jurisdiction was originally
based on diversity of citizenship under 28 U.S.C. § 1332. We
have appellate jurisdiction under 28 U.S.C. § 1291.

Our review of the District Court's grant of summary
judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853,
859 (3d Cir. 2014). A moving party is entitled to summary
judgment only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute about a

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material fact is “genuine” only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). While all reasonable inferences must be drawn in
favor of the nonmoving party, “an inference based upon a
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.” Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (quotation marks
omitted).

IV.

A.

At the outset, we will address the two distinct statute
of repose defenses raised by CBS Corporation in its briefing.
The first was that Indiana’s product-liability repose statute,
Ind. Code § 34-20-3-1, barred Frankenberger’s claims in their
entirety. But after this case was argued, the Indiana Supreme
Court determined the statute was unconstitutional as applied
to asbestos claims such as Frankenberger’s. Myers v. Crouse-
Hinds Div. of Cooper Indus., 53 N.E.3d 1160, 1167 (Ind.
2016). As CBS Corporation acknowledged in a subsequent
letter to the Court, the statute “no longer extends to asbestos
claims.” Accordingly, Indiana’s product liability repose
statute does not bar Frankenberger’s claims.

CBS Corporation’s second statute of repose defense is
that Indiana’s construction repose statute bars
Frankenberger’s turbine-related claims. The construction
repose statute bars tort claims arising from a deficiency in the
“design, planning, supervision, construction, or observation
of construction of an improvement to real property” that are

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brought more than ten years after the substantial completion
of the construction. Ind. Code § 32-30-1-5. But the Indiana
Supreme Court has declined to apply this statute to every
contractor that installs or removes asbestos materials,
recognizing that “not everything a contractor does constitutes
an improvement to real property.” Gill v. Evansville Sheet
Metal Works, Inc., 970 N.E.2d 633, 645 (Ind. 2012). In
particular, the Court ruled that “ordinary repairs” do not
constitute improvements. But as CBS Corporation
acknowledges in its brief, “Mr. Frankenberger’s alleged
exposure occurred during turbine maintenance work rather
than during [turbine] installation.” Because maintenance
work is not an “improvement to real property,” Indiana’s
construction repose statute does not bar Frankenberger’s
turbine-related claims.

B.

To bring an asbestos tort claim in Indiana, “a plaintiff .
. . must produce evidence sufficient to support an inference
that he inhaled asbestos dust from the defendant's product.”
Peerman v. Georgia-Pacific Corp., 35 F.3d 284, 287 (7th Cir.
1994).1 “[T]his inference can be made only if it is shown that

1
The District Court, following a thorough choice-of-law
analysis, applied Illinois law because most of
Frankenberger’s alleged exposure occurred in Illinois. But
our conclusion that Indiana’s statutes of repose do not bar
Frankenberger’s claims removes the need for a choice-of-law
analysis, as the substantive laws of Indiana and Illinois do not
differ with respect to any other issue. Accordingly, we will
apply the substantive law of Indiana, the state in which
Frankenberger’s claim was filed. See Lutz v. DeMars, 559

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the defendant's product, as it was used during the plaintiff's
tenure at the job site, could possibly have produced a
significant amount of asbestos dust and that the asbestos dust
might have been inhaled by the plaintiff.” Id., see also
Asbestos Corp. Ltd. v. Akaiwa, 872 N.E.2d 1095, 1098 (Ind.
Ct. App. 2007) (“[A] plaintiff must produce evidence
sufficient to support an inference that he inhaled asbestos dust
from the defendant's product.”) (internal quotation and
citation omitted).

Frankenberger alleges his exposure to asbestos was
caused by two Westinghouse products: turbines and electrical
switchgears. We will address the two claims in turn.

1.

With respect to the turbines, Frankenberger contends
that when Westinghouse employees performed maintenance
on the asbestos-containing thermal insulation inside the
turbine, they created respirable asbestos dust that he inhaled.
Frankenberger points to three main pieces of evidence to
support this allegation: 1) his coworker Sperber’s testimony
that Westinghouse employees supervised the turbine
maintenance; 2) Westinghouse’s admission that insulation
was not required to be asbestos-free until 1973; and 3) his
expert’s testimony that the insulation was saved during
maintenance when possible. But this evidence does not
support the inference that Frankenberger was exposed to a

N.E.2d 1194, 1196 n.1 (Ind. Ct. App. 1990) (citing E. Scoles
and P. Hay, Conflict of Laws § 17.32 (1984 ed.)) (“[W]here
there is no real conflict . . . the forum should apply forum
law.”).

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significant amount of asbestos dust produced by
Westinghouse’s turbines.
The fact that Westinghouse employees supervised the
turbine maintenance certainly provides support for
Frankenberger’s allegation that Westinghouse manufactured
the turbines in the locations he worked. But it does not
answer the more crucial question of whether the original,
asbestos-containing insulation was present in the turbine
during the maintenance. Nor does it answer the question of
whether, if replacement insulation was present in the turbine,
it was manufactured by Westinghouse. Similarly, the fact
that Westinghouse insulation was not asbestos-free until 1973
means little in the absence of evidence that Westinghouse
insulation was used in the specific turbines at issue here until
1973. Frankenberger provides no evidence that the
Westinghouse turbines present in the facilities where he
worked housed pre-1973 Westinghouse insulation that may
have contained asbestos as opposed to replacement insulation
from a different company.

According to Frankenberger, his expert’s testimony
that Westinghouse preserved the original insulation when
possible demonstrates the original Westinghouse insulation
remained in the turbines where he worked. But without
evidence regarding how frequently insulation was able to be
saved during maintenance, this testimony cannot support the
inference that the original, asbestos-containing insulation
remained in the turbines where he worked several years, and
even decades, later. In the absence of evidence that the
original Westinghouse insulation remained in the turbines
where Frankenberger worked, or that replacement insulation
placed in the turbines was manufactured by Westinghouse,

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Frankenberger cannot support his assertion that his exposure
to asbestos was caused by Westinghouse turbines.

2.

Unlike his turbine-related claim, Frankenberger’s
switchgear-related claim relies on specific evidence
Westinghouse switchgears were likely to contain asbestos that
resulted in respirable dust. Frankenberger points to three
main pieces of evidence in support of that assertion: 1) his
coworker Sperber’s testimony that dust was blown out of the
switchgears during maintenance; 2) Westinghouse’s
admission that some of its switchgears incorporated asbestos-
containing parts; and 3) his expert’s testimony that the
switchgear’s asbestos-containing parts would likely
deteriorate and release asbestos dust during maintenance.

Despite this evidence, the District Court held that “no
reasonable jury could conclude . . . that [Frankenberger] was
exposed to respirable asbestos from Westinghouse switchgear
. . . .” It found “no evidence that the dust [resulting from
switchgear maintenance] was from the switchgear itself (for
example, because the switchgear was deteriorating) as
opposed to being external dust on the switchgear (i.e., not
asbestos-containing dust).” But Frankenberger’s expert
testimony does provide such evidence. His expert testified
that asbestos-containing parts in switchgear are likely to
deteriorate and, when air pressure is applied, release asbestos
dust into the air. While it is possible the dust Sperber
observed being blown off the switchgear was external dust, it
would not be unreasonable for a jury to conclude—relying on
Frankenberger’s expert—that the dust contained asbestos.
Factual disputes such as this are best left to the jury.

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 V.

For the foregoing reasons, we will affirm in part and
reverse in part the judgment of the District Court, and remand
for further proceedings consistent with this opinion.

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