Barabin v. Albany Intl. Corp., et al., (W.D. Wash., No. C07-1454RSL) (8/18/09)

Traditionally considered hearsay evidence by many Courts, the U.S. District Court for the Western District of Washington, applying Washington state law, recently held that manufacturers’ sales records showing asbestos sales to a paper mill and for use on particular equipment were enough to create a fact question on defendants’ summary judgment motions. Barabin v. Albany Intl. Corp., et al., (W.D. Wash., No. C07-1454RSL) (8/18/09). To view the decision, click on "Download PDF". Pursuant to Washington law, “direct evidence” is no longer necessary for a fact finder to infer exposure to a particular product.

The plaintiff, Henry Barabin, worked at the Crown-Zellerbach paper mill in Camas, Washington, from 1968 until 2001. During that time, Barabin worked various jobs at the plant, and he worked on various paper machines. Barabin was diagnosed with mesothelioma in 2006. As a result, he filed suit against numerous asbestos defendants, including AstenJohnson, Inc. (“Asten”) and Scapa Dryer Fabrics, Inc. (“Scapa”), arguing that his exposure to Asten and Scapa asbestos-containing dryer felts was a proximate cause of his disease. Asten and Scapa later filed summary judgment motions asserting that plaintiff was unable to show that he actually worked with or around their respective dryer felts.

Barabin’s deposition was taken in his case. He was unable to offer any testimony that he actually worked with or around Asten or Scapa asbestos-containing dryer felts at the paper mill. However, he was able to testify that he worked on specific paper machines at the plant for certain lengths of time. Plaintiff also produced sales records showing that both Asten and Scapa sold asbestos-containing dryer felts to the Camas Mill for use during the time Barabin worked there. More importantly, the sales records showed which particular machines the dryer felts were specified for, many of which were the same machines Barabin testified he worked on.

The federal trial court said, “Under Washington law, the plaintiff must establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of the product.” Citing to the Washington Supreme Court case of Lockwood v. AC&S, Inc., 744 P.2d 605 (1987), the Court noted that “The Supreme Court of Washington determined that the Lockwoods presented sufficient evidence of causation, despite the fact that there was no direct evidence that [Mr.] Lockwood worked with or near Raymark cloth on the George Washington [vessel] or that Raymark cloth was torn from that vessel.” The Lockwood court based its decision on witness testimony to conclude that it was “reasonable to infer that since [Raymark’s] product was used on that ship when Lockwood worked there, Lockwood was exposed to it.” 

The Barabin Court ultimately found that “the circumstantial evidence linking defendants’ products to specific machines on which Mr. Barabin worked is at least as sufficient as the evidence linking Raymark’s product to Mr. Lockwood’s work area.” Moreover, “the evidence shows that defendants’ products were not only delivered to the Camas Mill while Mr. Barabin worked there, but were designated for use on specific paper machines on which Barabin worked.” According to the Court, the paper trail of sales records, along with Barabin’s own testimony that he worked on specific machines that used defendants’ dryer felts was “sufficient to establish his proximity to the Scapa and Asten dryer felts and the frequency of his exposure.”  The Court therefore denied defendants’ summary judgment motions accordingly.

With the passing of time between a plaintiff’s first exposure and disease manifestation, the Barabin holding that direct exposure is no longer required to show exposure seems to be the current trend that many state courts are following in asbestos litigation. The Barabin decision is somewhat unique in that the sales records at issue showed general sales of product to the paper mill and the specific paper machines the product would be used on. But make no mistake about it, without Mr. Barabin’s testimony in the case that he worked on specific machines at the mill, summary judgment would have likely been granted in favor of the moving defendants. Case law and logic still dictate in most states that sales records alone are insufficient to create a fact question on the issue of exposure.

It is therefore now more important than ever for defense attorneys to carefully review and get a firm handle on their client’s respective sales records, if available, at the beginning of the case and especially before party and coworker depositions proceed. Developing an early and well-crafted defense strategy plan on product sales, specific locations, relevant equipment and time periods before discovery begins in the case could be the difference between obtaining summary judgment and receiving an unfavorable result in the case.

For further information, please contact Craig T. Liljestrand or your regular Hinshaw attorney. 

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.