In Morin v. Autozone Northeast, Inc., et al., 79 Mass. App. Ct. 39 (Mar. 14, 2011), plaintiff’s mother worked over the course of many years in offices near loading bays where her company’s delivery trucks were maintained. After her mother died of mesothelioma, plaintiff sued 40 vehicle parts manufacturers and retailers for wrongful death in Massachusetts Superior Court, asserting claims of breach of express and implied warranties of merchantability and negligence and alleging decedent’s mesothelioma was caused by exposure to defendants’ asbestos-containing parts in the trucks. After the court granted summary judgment to twelve defendants on the ground plaintiff had presented insufficient evidence that their products contributed to her mother’s death, plaintiff appealed the judgment as to three defendants.

The Massachusetts Appeals Court reversed as to two defendants but affirmed as to the third. The court first noted that to prove causation in an asbestos case, plaintiff must establish (1) that defendant’s product contained asbestos, (2) to which the victim was exposed and (3) such exposure was a substantial contributing factor in causing the victim’s harm. The court also noted that the evidence as to the second element would generally be sufficient if it “permit[ted] the reasonable inference of the presence at a work site of both the [victim] and the defendant’s asbestos-containing product for an appreciable period of exposure.” The adequacy of plaintiff’s proof on the third element was not at issue because her expert had testified at deposition that “each and every exposure to asbestos that [the decedent] received as a bystander . . . was a substantial contributing factor in causing [her] malignant mesothelioma,” and the admissibility of this opinion apparently was not challenged in the summary judgment proceedings.

Addressing plaintiff’s claims against two defendants, both suppliers of replacement brakes and clutches, the court found that plaintiff had presented sufficient evidence to establish the element of asbestos content. In so finding, the court cited the deposition testimony of two of decedent’s coworkers that they had purchased from each of the defendants replacement brakes and clutches with the word “asbestos” on the packaging, and defendants’ admissions that their stores carried some asbestos-containing brakes and clutches in the 1970s and 1980s when the maintenance work at issue was done. Additionally, the two co-workers testified that: (i) each defendant was one of eight suppliers from whom they bought replacement brakes and clutches; (ii) the co-workers had performed “hundreds” such replacements, generally one every two or three days in the decades in question; and (iii) they had used air hoses to blow brake dust from the company vehicles during brake replacement. Moreover, decedent’s office was only thirty feet from the vehicle bays and she walked through the area ten or more times a day. Considered alongside plaintiff’s expert’s testimony that asbestos fibers can remain airborne for long periods and drift considerable distances, the court found a jury could infer decedent had been “in close proximity” to defendants’ asbestos-products “on numerous occasions,” so that there was sufficient evidence of exposure.  

As to the third defendant, a trailer manufacturer, the court found there was insufficient evidence for a jury to conclude that its originally installed brakes, even if they contained asbestos, were still in the trailer at the time decedent’s company acquired it. As to plaintiff’s claim defendant should have warned of the danger of using compressed air in removing replacement brakes of any manufacturer, the court found it unnecessary to decide whether Massachusetts law would hold that a manufacturer has a duty to warn about the foreseeable risks of a product supplied by others. The court held that even if such a duty were to be recognized, there was insufficient evidence here to find decedent was exposed to anything other than “insignificant or de minimis” asbestos from other manufacturers’ brakes, as the trailer’s brakes were worked on only six or seven days during the seven years decedent’s company owned it and there was no evidence as to which, if any, of the replacement brakes contained asbestos.