A Connecticut state court jury recently returned a defense verdict in case alleging injury from exposure to asbestos that drifted into the air from a facility, but in doing so thrust to the forefront the potential of future similar claims in Connecticut. In Lagerberg v. Armstrong International, Inc., plaintiffs’ decedent was a former factory worker at Rogers Corporation in Killingly, Connecticut between 1958 and 1978. Rogers conceded that the decedent was exposed to raw asbestos and asbestos-containing materials during his employment at the facility. In an effort to avoid the exclusivity of the Connecticut Workers’ Compensation Act, plaintiffs also alleged that decedent’s condition was then exacerbated by exposure to airborne asbestos particles that drifted away from the plant to his neighborhood, which at times was as close as 830 feet from the Rogers facility and at other times as far away as several miles.
In pitching this theory to the jury, plaintiffs highlighted at length that even when decedent had clocked out for the day, he was still being exposed to asbestos when he went home, when he was around town at the grocery store, the post office, Little League, running errands and visiting friends and family. Plaintiffs’ counsel made every effort to paint a picture of constant and cumulative exposure that was a substantial contributing cause of the decedent’s mesothelioma.
Defendant conceded causation due to the occupational exposures. Was this a risky approach? Not really, because to argue otherwise would have resulted in a loss of credibility with the jury. The defense argued that in the face of that massive work place exposure, these “environmental” claims were specious.
Under Connecticut law, negligence contributes materially to the production of an injury if its causative effects remain in active operation until the moment of injury, or at least until the setting in motion of the final active injurious force which immediately produces or precedes the injury. By this definition, negligence which makes only a remote, a trivial or an inconsequential contribution to the production of an injury is not a substantial factor in bringing about the injury, and thus cannot be proximate cause of the injury. See Doe v. Manheimer, 212 Conn. 748, 757-58 (1989) quoting Kowal v. Hohfer, 181 Conn. 355, 359-60 (1980). Therefore, the court instructed the jury that it had to find that the environmental exposure in and of itself was sufficient to cause the decedent’s mesothelioma and thereafter to apply a substantial factor analysis. Ultimately, the jury found that the inhaling of asbestos particles by the Plaintiffs’ decedent away from the Rogers’ facility was not the proximate cause (substantial factor) of decedent’s malignant mesothelioma. While the jury has reached a verdict in this case, the story isn’t yet over. Recently, counsel for the Lagerberg family filed a motion seeking a new trial on the grounds of discovery of new evidence. Whether this new evidence will entitle Plaintiffs to a new trial has yet to be determined.
Putting aside the issue of a potential new trial in Lagerberg, certain questions must be asked about the underlying verdict and its ramifications moving forward. Would a purely environmental exposure claim receive the same treatment from a Connecticut jury? In other words, would a plaintiff claiming asbestos-related disease, with no occupational exposure but solely based upon living within close proximity to a manufacturing facility that used raw asbestos, be able to establish substantial factor causation? The answers to those questions will likely be answered soon, as the law firm that represented the plaintiffs in Lagerberg filed that precise claim against Rogers Corporation and others within a month of the Lagerberg verdict.