Appeals panel undoes $4.6M verdict for man who claimed contracted cancer from asbestos in welding rods

By Scott Holland | Sep 13, 2018

A state appeals panel has overturned a $4.6 million judgment in favor of a man who said he contracted mesothelioma by inhaling asbestos fibers while working near welding rods.

Justices Peter Cavanagh, Lisa Holder White and Craig DeArmond of the Fourth District Appellate Court in Springfield issued an opinion Sept. 5 in a dispute between former welder Charles McKinney and Hobart Brothers Company, which owned the Portable Elevator factory in Bloomington. Cavanagh wrote the opinion, which resolves an appeal from McLean County Circuit Court Judge Rebecca S. Foley.

McKinney said Hobart Brothers failed to warn him of the danger of asbestos in the welding rods it made and with which he worked in close proximity for eight months in the early 1960s. A jury awarded him $4.6 million, but Hobart Brothers appealed, saying no one knew welding rods could release asbestos fibers at the time McKinney worked with them, meaning there was no established duty for the company to give notice of the potential danger. Hobart said this entitled it to summary judgment regardless of the jury’s determination.

The complaint was initiated Feb. 21, 2012, when McKinney sued other companies alleging the insulation and brakes they made, sold and supplied released asbestos fibers. He added Hobart Brothers as a defendant on April 25, 2013. Cavanagh noted McKinney “did not identify the allegedly dangerous product,” in those additional counts, though “it soon became evident that he meant Hobart 6010 welding stick electrodes, which (Hobart Brothers) manufactured for use in shielded metal arc welding.”

In analyzing the appeal, the panel said Foley was right to allow McKinney’s expert Arthur Frank to suggest the welding rods released asbestos fibers, leading to McKinney’s inhalation. However, it sided with Hobart Brothers’ position that the testimony amounted to “sheer, unsubstantiated opinion” unable to support the allegation it owed McKinney a warning about the potential danger of the rods.

The panel further explained how portions of Frank’s testimony relied on studies determined to lack the substance required to prove the welding rods released tainted fibers. Defense expert John DuPont said any rod fragments would’ve been too small to be inhaled, and the panel said the jury could’ve chosen to believe Frank’s assertions instead.

Still, the decision hinged on whether, in 1962 and 1963, Hobart Brothers knew or should’ve known of the potential danger. Cavanagh’s opinion reiterated testimony and evidence from the trial showing contemporary knowledge of the potential dangers of raw asbestos. But the panel said the McKinney’s team failed to prove anyone knew the specific “product — the Hobart 6010 welding rod — was harmful. That is a crucial distinction.”

To underscore this point, Cavanagh quoted McKinney’s own expert, Frank, when he said: “The asbestos content of a product is not necessarily an indication of its relative health risk. For many products, the fibers are tightly bound to the matrix or encapsulated.”

In addition to failing to show a lack of duty, the panel said, McKinney also failed to show a substantial link between the welding rods and his disease. He worked one level below welders, separated by a grated floor, and said the rods fell through the grates into his work area. But the panel quoted McKinney’s testimony that his work area was off to the side, not directly under the welders, and did not prove the rods fell directly into his space. He also did not offer testimony about clouds of asbestos dust.

Ultimately, the panel said while it’s reasonable to infer McKinney inhaled some fibers at Portable Elevator, he fell far short of proving those months caused mesothelioma, especially in light of “the 40 years he spent as a car mechanic working on asbestos-containing brake lines.”

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