By: Kendra Bergeron, Esq. and Nicholas Blei, Esq.

In a unanimous opinion in an asbestos personal injury case, the Connecticut Supreme Court reversed a trial court judgement and granted defendant Wyeth Holdings Corporation’s (“Wyeth”) motion to set aside the verdict and motion for judgment notwithstanding the verdict. The opinion, in Wayne Bagley et al. v. Adel Wiggins Group et al. (SC 19835), reverses the $804,777 verdict previously awarded to Plaintiff Marianne Bagley. The ruling is set to be officially released today.

At issue was whether expert testimony is necessary to prove that an asbestos-containing product caused a worker’s fatal mesothelioma under Connecticut law. As explained below, the Connecticut Supreme Court held that under the specific facts at issue expert testimony was required to prove both strict liability and causation.

At trial, Plaintiff Marianne Bagley claimed that her husband, Wayne Bagley, who was diagnosed with mesothelioma and subsequently passed away, developed the disease from inhaling asbestos fibers emitted from an adhesive epoxy material known as FM-37. Evidence was offered that Wyeth manufactured FM-37 and that it contained 8.6% asbestos. Mr. Bagley worked as a manufacturing engineer for Sikorsky Aircraft Corporation. A co-worker testified that other Sikorsky employees applied FM-37 to helicopter blades and then sanded off any excess material; this work was performed in Mr. Bagley’s presence. The co-worker further testified that the sanding process created dust that Mr. Bagley inhaled.

The plaintiff relied on several expert witnesses to support her claims against Wyeth including Dr. Barry Castleman, Dr. Arnold Brody and Dr. Jerrold Abraham. Dr. Abraham, an expert in pulmonary pathology and occupational medicine, testified that Mr. Bagley’s mesothelioma was caused by exposure to asbestos from FM-37. Significantly, he testified that Mr. Bagley was exposed to visible dust from other workers sanding FM-37 in his presence. Dr. Abraham opined that “a product that was only 8.6 percent asbestos still would contain a large number of asbestos fibers” such that Mr. Bagley’s exposure to dust emitted from this product would have exposed him to asbestos. However, on cross-examination, Dr. Abraham conceded that he did not inspect FM-37 or have any specialized knowledge about the product.

On appeal, Wyeth argued that the plaintiff’s evidence was conclusory and failed to prove that FM-37 emitted respirable asbestos fibers when sanded. Although there was co-worker testimony that sanding the product created dust, there was no expert witness testimony to prove that any of that dust contained asbestos. The plaintiff’s experts conceded that they had not tested or examined FM-37 or any similar epoxy adhesive products. The Court held that the plaintiff’s failure to offer factually-supported expert witness testimony on this issue was fatal to the plaintiff’s claim as “proof that there was dust did not equate to proof that the dust contained respirable asbestos fibers.”

As part of the plaintiff’s opposition to Wyeth’s appeal, she argued that she was entitled to a new trial because the “requirement of an expert witness on the issue of whether FM-37 emitted respirable asbestos fibers when sanded” represented a change in the law that came about during the appeal. The Court disagreed, holding that its ruling is consistent with longstanding Connecticut jurisprudence. Thus, the Court denied the plaintiff’s request for a new trial.

The attorneys at CMBG3 Law LLC have represented clients in asbestos, products liability, and toxic tort matters for many years. We provide the most current advice by staying informed of legal, scientific and medical developments regarding a wide variety of substances and products, including talc-containing products, used by consumers every day. If you have any questions or would like more information, please contact Kendra Bergeron (email her or 617-936-4353) or Nicholas Blei (email him or 617-936-4353).