When plumber Ernest G. Smith was diagnosed with malignant mesothelioma, he and his wife filed suit against Cleaver-Brooks, Inc., the manufacturer of the cast-iron sectional boilers that he disassembled as part of his daily work. The company filed a motion to have the claim against them dismissed based on an argument that the boilers he would have encountered would not have been old enough to require replacement. After that claim was denied, they submitted a second motion to dismiss based on a judge’s decision on another case filed by a salvage worker. The judge denied the second motion as well, noting the difference between a salvager and a professional plumber.
Asbestos Used in Boiler Blamed for Plumber’s Mesothelioma
Before it became widely known that exposure to asbestos causes malignant mesothelioma, the carcinogenic material was used in numerous applications, including boilers. Mr. Smith’s lawsuit accused Cleaver-Brooks of negligence in having exposed him to asbestos without warning. The company’s first motion for summary judgment argued that his asserted exposure was between 1984 and 1989, and that they had only started manufacturing the boilers in September of 1985. That motion was denied based on testimony that the boilers would have required replacement before 1989, and therefore Mr. Smith could have been exposed.
After this decision, a salvager with mesothelioma filed a claim against another boiler manufacturer, and his case was dismissed because his exposure to the equipment was not reasonably foreseeable. Based on this decision, Cleaver-Brooks filed a second motion that made the same argument – that Mr. Smith’s disassembly of its boilers was not foreseeable.
Judge Denies Boiler Manufacturer’s Argument Against Mesothelioma Liability
In denying the boiler manufacturer’s petition, Judge Sherry Klein Heitler of the Supreme Court of the State of New York noted the significant differences between Mr. Smith’s work and the salvager, whose job “consisted of ripping, cutting, breaking, and smashing, anything he could to salvage the desired metal for his employer.” She contrasted that with Mr. Smith, whose “skillful preparation of boiler equipment for removal was an integral, direct, necessary, and therefore foreseeable aspect of product replacement projects.”
The judge also noted that testimony from the company’s representatives demonstrated that they had known that their boilers could have a lifespan of as little as two years, that they needed to be dismantled, and that asbestos would be disturbed in the process. Based on all of this, she denied the company’s request for dismissal of the case and allowed the case to proceed for a jury to hear.
If you or someone you love has been diagnosed with malignant mesothelioma, the Patient Advocates at Mesothelioma.net can help. Contact us today at 1-800-692-8608.FREE Mesothelioma Packet