Tuesday, September 22, 2015

Summary judgment reversed on meso death case

Bergstrom was diagnosed with meso in 2013 and died.  The case involves an appeal whether the manufacturer was entitled to summary judgment against the surviving widow based on lack of evidence of exposure during the decades her deceased husband  worked as a drywall installer.  Bergstrom v Welco, ED 102125 (Sept. 22, 2015).

The case involved the significance of deposition testimony whether he had exposure or not and the weight to be given to the party that he "misspoke" in the earlier testimony.    The fight involved what exposure he may have had before 1979.  The court found that exposure may have occurred from 1962-1976 even if the manufacturer discontinued use of asbestos in its products in the mid 1970s.  The court reversed summary judgment that there remained disputes concerning material fact. 

The case clearly demonstrates reliance on letters and documents dating back more than 30 years, a challenge more employers will face in toxic tort claims as a result of worker's comp reform.