Appellate Decision—James T. Butler, et al. v. Domco Products: Azrock Flooring Tiles the Source of Asbestos Fibers
Washington State Court of Appeals Reinstates Mesothelioma Case Against Domco Products
State of Washington — February 21, 2008 — The Washington State Court of Appeals reversed a summary judgment in the case of James T. Butler and Kathleen Butler v. Domco Products. Before his death, Mr. Butler and his wife filed suit against Domco Products, claiming that exposure to asbestos from flooring tiles manufactured by Domco’s predecessor, Azrock Industries, Inc., caused his mesothelioma and asbestos-related diseases.
Domco successfully moved for summary judgment on the grounds that Mr. Butler could not show that Azrock flooring tiles had significantly exposed him to asbestos. In the appeal, Butler et al. raised a reasonable inference that he had worked with older style Azrock tiles that released airborne asbestos fibers when cut, and also established that his disease was caused by cumulative exposure to asbestos.
Use of Asbestos Tiles—The Center of the Appeal
There were two main issues decided in this appeal. The first was whether Butler’s evidence was substantial enough to prove that his use of Azrock’s tiles exposed him to asbestos. The second was whether, if there was exposure from Azrock tiles, it was a substantial factor in causing his injury.
Asbestos tiles, as testified by industrial hygienist Kenneth Cohen, underwent a formulation change in the mid–1960s to reduce the airborne asbestos released when tiles were cut or damaged. The original tiles, which Mr. Butler claimed to have worked with, may have been in circulation until as late as 1969 based on Cohen’s testimony. The majority of Mr. Butler’s floor installation work occurred between 1965–1969, reducing in volume after 1970.
Domco argued that a jury would have to speculate that Butler worked with the older style asbestos tile because Cohen’s testimony could equally support the inference that he did not. The appellate court did not see this as a matter of “could have been.” Based on Cohen’s testimony, it was reasonable to infer that the new formulation of asbestos tile did not appear in the marketplace until 1969. Considering that Mr. Butler’s busiest period as an installer of asbestos tile, including Azrock brand asbestos tile, was from 1965–1969, the court found it reasonable to infer that Mr. Butler was using the older Azrock asbestos tile.
The Washington State Court of Appeals reversed the summary judgment in favor of Domco and reinstated Mr. and Mrs. Butler’s case.
Richard Grant of Brayton Purcell’s appellate department represented Mr. and Mrs. Butler.