Moeller v. GARLOCK SEALING TECHNOLOGIES, LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0276p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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OLWEN MOELLER, Individually and as

Plaintiff-Appellee, --

Executrix of the Estate of Robert L. Moeller,

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No. 09-5670

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v.

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Defendant-Appellant. -

GARLOCK SEALING TECHNOLOGIES, LLC,

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Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 07-00065—John G. Heyburn II, District Judge.

Argued: July 20, 2011

Decided and Filed: September 28, 2011

Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

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COUNSEL

ARGUED: Cary Schachter, SCHACHTER HARRIS, LLP, Dallas, Texas, for

Appellant. John R. Shelton, SALES TILLMAN WALLBAUM CATLETT &

SATTERLEY, PLLC, Louisville, Kentucky, for Appellee. ON BRIEF: Cary

Schachter, SCHACHTER HARRIS, LLP, Dallas, Texas, John K. Gordinier, Ilam E.

Smith, PEDLEY & GORDINIER, PLLC, Louisville, Kentucky, for Appellant. John R.

Shelton, Joseph D. Satterley, SALES TILLMAN WALLBAUM CATLETT &

SATTERLEY, PLLC, Louisville, Kentucky, for Appellee.

BATCHELDER, C. J., delivered the opinion of the court, in which GUY, J.,

joined. GUY, J. (pp. 9–12), delivered a separate concurring opinion. MOORE, J.

(pp. 13–14), delivered a separate dissenting opinion.

1

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OPINION

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ALICE M. BATCHELDER, Chief Judge. Defendant-Appellant Garlock Sealing

Technologies, LLC, (“Garlock”), a manufacturer of industrial sealing products, appeals

the district court’s denial of its motion for judgment as a matter of law following a jury

verdict against it. Because we conclude that the evidence is not sufficient to support the

jury’s verdict, we REVERSE.

I.

Robert Moeller (“Robert”), a pipefitter, worked with asbestos-containing gaskets

made by Garlock from about 1962 until about 1970. From 1962 until about 1975, he

also sustained significant exposure to asbestos insulation. He died on April 19, 2008,

of mesothelioma, a cancer of the lining of the lung. Prior to his death, Robert and

Plaintiff-Appellee Olwen Moeller, the surviving wife of Robert and executrix of his

estate, sued Garlock (and several others not party to this appeal) under various theories,

including strict liability and negligence, alleging that Robert’s exposure to Garlock’s

asbestos-containing gaskets was a substantial factor in causing Robert’s injuries and

death.1 Garlock does not dispute that asbestos-containing products likely caused

Robert’s mesothelioma; rather, Garlock argues that the mesothelioma was caused by

Robert’s exposure to asbestos insulation, and that its own gaskets were not a substantial

factor in causing the mesothelioma. The case was tried by a jury in February 2009.

At trial, the Plaintiff presented evidence that Garlock learned in the 1950s that

its asbestos-containing gaskets may cause or contribute to cancer, but did not begin

testing to determine the amount of asbestos fibers released by its products until 1980.

She also presented evidence that Garlock placed no warnings on its gaskets during the

time frame that Robert worked with them. Richard Hatfield, an expert for the Plaintiff,

1

The case is properly in federal court due to diversity of citizenship. The parties agree that

Kentucky law controls the substantive components of this case.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 3

testified that he had tested gaskets substantially similar to those removed by Robert, and

he concluded that Robert would have inhaled asbestos fibers in excess of the current

Occupational Safety and Health Administration (“OSHA”) regulations for an eight-hour

work period.

With respect to causation, the Plaintiff presented the testimony of Dr. Arthur

Frank, a medical doctor who serves as a professor in the Department of Internal

Medicine at Drexel University. Frank sub-specialized for forty years in the study of

occupational exposure to asbestos. He testified that Robert’s exposure to asbestos from

Garlock gaskets, along with his other exposures, contributed to Robert’s mesothelioma.

One of Robert’s treating oncologists, Dr. Charles Webb, also testified. He stated that he

treated Robert from December 2005 until he died on April 19, 2008, and that if Robert

had worked for many years (as he did) scraping and grinding asbestos gaskets, and if

Robert breathed those fibers, then that exposure would have caused his cancer.

In rebuttal, Garlock presented evidence that Robert had sustained substantial

exposure to asbestos insulation products between 1962 and 1975. It also presented

evidence that whereas asbestos insulation was banned in the 1970s, leading asbestos

safety authorities believed that gaskets, such as those sold by Garlock, posed “no health

hazard,” and are sold lawfully in the United States even today. Garlock also suggested

that the Plaintiff presented only evidence that Robert had installed Garlock gaskets (an

activity that both parties agree did not create a risk of injury), not that he had ever

removed them (the activity that the Plaintiff alleges caused the injuries). Garlock

presented the testimony of Dr. James Crapo, a pulmonologist, who testified that the

particular type of asbestos fibers found in Garlock gaskets could not have caused

Robert’s mesothelioma, and the asbestos exposure from the insulation was far more

severe than any exposure from gaskets.

After the Plaintiff’s evidence had been presented, Garlock moved for a directed

verdict, arguing that the Plaintiff had failed to establish that exposure to Garlock gaskets

was a substantial cause of Robert’s mesothelioma. The court did not rule on the motion

and instead submitted the case to the jury. The instructions for Question 1, dealing with

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 4

strict liability, told the jury to find for the Plaintiff if Garlock’s product was defective

and sold “without a reasonable notice or warning of danger.” The instructions for

Question 2, dealing with negligence, characterized the claim as one of “negligent failure

to warn.” Garlock objected to the instructions as duplicative. The court overruled the

objection, and the jury ultimately answered “no” to the strict liability question (finding

that Garlock’s product was not defective by reason of failure to warn or otherwise), but

“yes” to the negligence question (finding that Garlock was negligent for failing to

adequately warn about its product). The jury returned an award for the Plaintiff in the

amount of $516,094.

Subsequently, Garlock moved for judgment as a matter of law, renewing its

previous argument that the evidence presented by the Plaintiff was insufficient to sustain

the jury verdict, and also arguing that the jury verdict was inconsistent. Garlock moved

for a new trial on the same grounds. The district court denied both motions, and Garlock

filed this timely appeal. It argues that the district court erroneously denied its motion

for judgment as a matter of law and that the district court should have excluded certain

expert testimony presented by the Plaintiff.

II.

Garlock argues that the district court erred by denying its motion for a judgment

as a matter of law.2 Specifically, it argues that the Plaintiff failed to establish that

exposure to Garlock gaskets was a substantial cause of Robert’s mesothelioma.

In diversity cases, we look to state law for the standard under which to review

the denial of a motion for judgment as a matter of law. Pivnick v. White, Getgey, &

2

The Plaintiff briefly argues that Garlock never presented its sufficiency of the evidence challenge

to the district court. However, Garlock made an oral motion for judgment as a matter of law, which the

district court accepted as “on any and all grounds that are available,” and Plaintiff acknowledged the

motion. Garlock subsequently submitted a written motion, in which it fully briefed its sufficiency-of-the-

evidence argument. Garlock renewed its motion after the jury verdict, arguing that the verdict was

inconsistent and, in any event, was not supported by the evidence. Garlock also noted its sufficiency-of-

the-evidence objection when it submitted its proposed jury instructions. In light of these actions, Garlock

preserved its sufficiency-of-the-evidence challenge. Cf. Del Rio v. Toledo Edison Co., 130 F. App’x 746,

751 n.3 (6th Cir. 2005) (holding that a party preserved an issue for appellate review even though she

merely “allude[d] to the argument” in district court and did not fully develop the argument until her

appeal).

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 5

Meyer Co., 552 F.3d 479, 483 (6th Cir. 2009). Under Kentucky law, the jury’s verdict

must be upheld if, “draw[ing] all fair and rational inferences from the evidence in favor

of the party opposing the motion,” the evidence is sufficient to sustain the verdict.

Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky. 1974) (internal quotation marks omitted).

To prevail on a negligence claim, Kentucky law requires a plaintiff to prove that

a defendant’s conduct was a substantial factor in bringing about the harm. Deutsch v.

Shein, 597 S.W.2d 141, 144 (Ky. 1980). Causation requires a link between the specific

defendant’s conduct and the plaintiff’s injuries. See Estes v. Gibson, 257 S.W.2d 604,

607 (Ky. 1953) (absent connection between a specific act and injury, there is no legal

liability); Cardinal Indus. Insulation Co., Inc. v. Norris, 2009 WL 562614, at *8 (Ky.

Ct. App. 2009) (“In the end, the asbestos defendant, like every tort defendant, remains

entitled to have a causative link proven between that defendant’s specific tortious acts

and the plaintiff’s injuries.”). Substantial causation refers to the probable cause, as

opposed to a possible cause. See Bailey v. N. Am. Refractories Co., 95 S.W.3d 868, 873

(Ky. Ct. App. 2001). “[O]ne measure of whether an action is a substantial factor is the

number of other factors which contribute in producing the harm and the extent of the

effect which they have in producing it.” Martin v. Cincinnati Gas & Elec. Co., 561 F.3d

439, 443 (6th Cir. 2009) (internal quotation marks omitted) (discussing causation in a

diversity case based on Kentucky law); see Cardinal, 2009 WL 562614, at *8 (“The

question whether [defendant’s] acts probably caused [plaintiff’s] mesothelioma must be

viewed in the context of [plaintiff’s] other substantial exposure to asbestos . . . .”).

In their briefs, both parties suggest that the Plaintiff’s experts testified that

exposure to Garlock gaskets substantially caused Robert’s cancer. (“[Dr. Webb] testified

that Mr. Moeller’s exposure to asbestos from gaskets was a substantial cause of his

mesothelioma.”)3 However, briefs are no substitute for the record itself, and after

conducting our own careful review of the record, including the testimony of each expert,

3

We also note that at times, Garlock cites portions of expert testimony that were, in fact, excluded

at trial. See, e.g., Appellant’s Br. at 24 (citing R. 100 at 117, containing excluded testimony only present

in the deposition “so that [the judge presiding at trial] will have a complete record for . . . appeal.” R. 100

at 116).

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 6

we must conclude that the Plaintiff failed to prove that Garlock’s product was a

substantial factor in bringing about the harm. Here, the Plaintiff presented various

witnesses to support her claim that Robert’s mesothelioma was caused by his exposure

to Garlock gaskets. The Plaintiff claims that Drs. Frank and Webb provided this causal

link. However, Dr. Webb never testified that Robert’s exposure to Garlock gaskets was

a substantial factor in causing Robert’s cancer, nor was Dr. Webb even certified as an

expert on asbestos. Similarly, Dr. Frank testified only that all types of asbestos can

cause mesothelioma and that any asbestos exposure counts as a “contributing factor.”

(“All of his exposures—and one can’t differentiate them—contributed to his developing

his mesothelioma.”). That testimony does not establish that exposure to Garlock gaskets

in and of itself was a substantial factor in causing Robert’s mesothelioma.

At oral argument the Plaintiff expressly admitted—contrary to claims made in

her brief—that her experts never explicitly testified that Robert’s exposure to Garlock

gaskets was a substantial factor in causing his mesothelioma. However, she argued that

the testimony was sufficient to allow the jury to infer that Robert’s exposure to Garlock

gaskets was a substantial factor in causing his mesothelioma. In support of that

argument, the Plaintiff relies on Lindstrom v. A-C Product Liability Trust, 424 F.3d 488,

492 (6th Cir. 2005). In Lindstrom, a case governed by maritime law, this court noted

that it “ha[s] permitted evidence of substantial exposure for a substantial period of time

to provide a basis for the inference that the product was a substantial factor in causing

the injury.” Id. However, the court cautioned that “where a plaintiff relies on proof of

exposure to establish that a product was a substantial factor in causing injury, the

plaintiff must show a high enough level of exposure that an inference that the asbestos

was a substantial factor in the injury is more than conjectural.” Id. The court also

quoted with approval the following observation made by the district court in that case:

[The plaintiff’s expert] opines that there is no safe level of asbestos

exposure, and that every exposure to asbestos, however slight, was a

substantial factor in causing Lindstrom’s disease. If an opinion such as

[the plaintiff’s expert’s] would be sufficient for plaintiff to meet his

burden, the Sixth Circuit’s ‘substantial factor’ test would be meaningless.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 7

Id. at 493.

Even if we assume that Lindstrom applies, the evidence presented by the Plaintiff

was insufficient to allow a jury to infer that exposure to Garlock gaskets was a

substantial cause of Robert’s cancer. Lindstrom requires that a plaintiff present proof

of “a high enough level of exposure,” id. at 492; but the Plaintiff here presented no

evidence quantifying Robert’s exposure to asbestos from Garlock gaskets. There is

testimony that Robert removed gaskets for several years, and that some of those gaskets

were Garlock’s. Robert testified that he worked with Garlock gaskets “every day,” but

the Plaintiff failed to establish how many Garlock gaskets he removed, or how

frequently he removed—as opposed to installed—them.4 The record also shows that

Robert regularly tore out asbestos insulation during the relevant years, and that his

exposure to asbestos from insulation would have been thousands of times greater than

his exposure from removing gaskets.

While Robert’s exposure to Garlock gaskets may have contributed to his

mesothelioma, the record simply does not support an inference that it was a substantial

cause of his mesothelioma. Given that the Plaintiff failed to quantify Robert’s exposure

to asbestos from Garlock gaskets and that the Plaintiff concedes that Robert sustained

massive exposure to asbestos from non-Garlock sources, there is simply insufficient

evidence to infer that Garlock gaskets probably, as opposed to possibly, were a

substantial cause of Robert’s mesothelioma. See Martin, 561 F.3d at 443 (holding that

defendant’s liability must be evaluated in the context of other exposures); Cardinal,

2009 WL 562614, at *8 (same); cf. Bailey, 95 S.W.3d at 873. On the basis of this

record, saying that exposure to Garlock gaskets was a substantial cause of Robert’s

mesothelioma would be akin to saying that one who pours a bucket of water into the

ocean has substantially contributed to the ocean’s volume. Cf. Gregg v. V-J Auto Parts,

Co., 943 A.2d 216, 223 (Pa. 2007).

4

The Plaintiff does not allege that Robert’s mesothelioma was caused by merely working with

or installing Garlock gaskets; she argues that it was caused by cutting and removing them.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 8

Because the evidence is insufficient to support the jury’s verdict, the district

court erred when it denied the Defendant’s motion for judgment as a matter of law.

III.

For the foregoing reasons, we REVERSE the district court’s denial of Garlock’s

motion for judgment as a matter of law. Consequently, we need not address the other

issues raised by Garlock in this appeal.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 9

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CONCURRENCE

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RALPH B. GUY, JR., Circuit Judge, concurring. I concur in Chief Judge

Batchelder’s well-reasoned opinion, but I would address the issue of jury instructions

raised by Garlock because I think it provides an additional ground for reversal.

Acknowledging that courts should reconcile arguably inconsistent verdicts if

possible, Garlock asserts that the jury’s finding against strict liability for failure to warn

of an unreasonably dangerous product is inconsistent with the jury’s determination that

it was negligent for “failure to warn.”

In Kentucky, a product is defective for lacking a warning if the product, at the

time it is sold, creates “‘such a risk’ of an accident of the general nature of the one in

question ‘that an ordinarily prudent company engaged in the manufacture’ of such a

product ‘would not have put it on the market.’” Tipton v. Michelin Tire Co., 101 F.3d

1145, 1149 (6th Cir. 1996) (quoting Nichols v. Union Underwear Co., 602 S.W.2d 429,

422 (Ky. 1980)).

Garlock cites Tipton in support of its argument. Tipton involved a plaintiff who

mounted a 16" tire on a mismatched 16.5" rim. The tire exploded, causing plaintiff’s

injury. The Tipton jury was instructed on both strict liability and negligence. As in this

case, the jury found for defendant under a strict liability theory and for the plaintiff on

the negligence case. We considered the specific jury instructions in the case, finding that

both “claims in this case depend on the existence of a defective product.” Tipton, 101

F.3d at 1150.1 Determining that it was inconsistent to find that the product in question

1

In Tipton, the jury received the following interrogatories:

(1) Do you believe from the evidence that the Defendant, Michelin Tire Corporation,

manufactured the tire in question, that the tire was in a defective condition unreasonably

dangerous to the user, and that the defective condition was a substantial factor in

causing the accident and Mr. Tipton’s injuries?

(2) Do you believe from the evidence that the Defendant, Michelin Tire Corporation,

failed to exercise ordinary care in the design, manufacture, sale or distribution of the tire

and that the failure to do so was a substantial factor in causing the injuries to Mr.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 10

was not in a defective condition for purposes of strict liability but was for purposes of

negligence, we reversed.2

Kentucky’s unpublished, similar asbestos case of Cardinal Industries Insulation

Co. v. Norris, 2009 WL 562614 (Ky. App. 2009), also supports Garlock’s argument. In

Cardinal Industries, the court held that

under the circumstances of this and similar cases, we are persuaded that

the appellants’ proposed negligent failure to warn instruction was

redundant with the strict liability instruction actually given. In

considering whether the asbestos was in a defective condition

unreasonably dangerous, the jury was obligated to consider as one of the

factors in reaching its determination whether warnings were required

and, if so, whether those warnings were properly given.

Id. at *10. See also Lane v. Deere and Co., 2003 WL 1923518 (Ky. App. 2003)

(unpublished).

Although this case has facts different from those in Tipton, it appears that the

opposite answers to the jury questions cannot be reconciled under Kentucky law.

Unlike Kentucky, many states have now adopted legislation or standard jury

instructions that combine all of the liability theories into one form of action for products

liability.3 For that reason many of the cases from other jurisdictions which discuss the

jury instruction issue found in this case are older cases. They are nonetheless quite

uniform in reaching a result consistent with that which we reach here. Sprankle v. Bower

Ammonia & Chemical Co., 824 F.2d 409, 413 (5th Cir. 1987) is illustrative. The issue

Tipton?

The jury answered “no” to the first question, and “yes” to the second. Tipton, 101 F.3d at 1147-48.

2

We distinguished the case of Byrd v. Proctor & Gamble Mfg. Co., 629 F. Supp. 602 (E.D. Ky.

1986) in that decision. As in Tipton, the plaintiff in Byrd (who was harmed by chemicals in a home

permanent solution) was successful under a negligence theory, but not on her strict liability claim. The

district court did not disturb the verdict on defendant’s motion for judgment notwithstanding the verdict,

however, because the verdict questions clearly indicated that a finding of negligence depended on the

jury’s assessment of the conduct of the manufacturer, rather than any defect of the product’s design. This

is different than the instant case, where both instructions included the “failure to warn” language.

3

See, for example, Repola v. Morbark Indus., Inc., 934 F.2d 483 (3d. Cir. 1991) discussing New

Jersey products liability law.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 11

in Sprankle was the trial court’s failure to submit a failure to warn issue to the jury under

a negligence theory as well as a strict liability theory. In finding no error the court

stated:

Although conceptually different,5 the two theories of liability

each present the essential question whether an inadequate warning

caused the plaintiff’s injuries. The jury’s finding under the strict liability

theory that no failure to warn caused Sprankle’s injuries thus cures any

possible error in the district court’s not submitting Sprankle’s negligent

failure to warn claim to the jury. Accordingly, for both of the above-

stated reasons, we reject Sprankle’s complaints concerning the failure to

submit his theory of negligent failure to warn.

5

Courts and commentators alike differ in the extent to

which they find conceptual differences in failure to warn

cases brought under negligence and strict liability

theories. Those who view the two as conceptually

distinct emphasize that a warning could satisfy a

negligence standard and yet be inadequate for strict

liability purposes. As one court described the distinction:

“In a strict liability case we are talking

about the condition (dangerousness) of an

article which is sold without any warning,

while in negligence we are talking about

the reasonableness of the manufacturer’s

action in selling the article without a

warning. The article can have a degree of

dangerousness because of a lack of

warning which the law of strict liability

will not tolerate even though the actions

of the seller were entirely reasonable in

selling the article without a warning

considering what he knew or should have

known at the time he sold it.”

Since “strict tort liability shifts the focus from the

conduct of the manufacturer to the nature of the product,”

this view maintains, liability may result in strict liability

where it would not attach under a negligence theory. No

court or commentator has suggested the reverse, however.

The consensus thus seems to be that while a greater

showing (i.e., the additional proof of negligence) may be

required of a plaintiff suing under a negligent failure to

warn theory than one suing under strict products liability

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 12

theory, in no event is “less” required. Hence, although a

jury finding against a claim of negligent failure to warn

may not preclude a finding of strict liability, a jury

finding against strict liability for failure to warn

necessarily precludes a finding in favor of the plaintiff on

a negligence theory.

Id. at 413-14 (emphasis added) (citations omitted).

In this case, the jury was asked to find for plaintiff on her strict liability claim if

it determined that, in pertinent part,

as manufactured and marketed by Defendant, the asbestos-containing

product was in a defective condition, unreasonably dangerous for use by

persons expected to use it or be exposed to it, without a reasonable

notice or warning of the danger.

(Emphasis added.). The jury was also given instructions on plaintiff’s negligence claim

to “[i]ndicate on the Verdict Form at Question 2 whether [it found] for Plaintiff on her

claim against Defendant for negligent failure to warn.” (Emphasis added.) In line with

the reasoning discussed above, the jury’s affirmative finding on the question of

negligence was fatally inconsistent with its contrary finding for Garlock on the strict

liability claim.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 13

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DISSENT

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KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent

from the majority’s conclusion that insufficient evidence supported the jury’s verdict for

the plaintiff in this case. The plaintiff presented evidence at trial from which the jury

could conclude that Garlock products were a “substantial factor” in bringing about

Robert’s mesothelioma. Because the facts bearing on causation were disputed and

capable of more than one reasonable inference, it was appropriate for the district court

to deny Garlock’s motion for judgment as a matter of law following a verdict against it.

Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010).

Dr. Frank, the plaintiff’s well-qualified expert, explained that mesothelioma is

a dose-response disease; as a result, the likelihood of mesothelioma goes up with

increased exposure to asbestos fibers. The Sixth Circuit has stated that an expert’s

opinion that “every exposure to asbestos, however slight, was a substantial factor” was

insufficient to satisfy causation because it would render the substantial factor test

“meaningless.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005).

The plaintiff, however, did not rely on testimony that low-dose exposures, “however

slight,” may contribute to the development of mesothelioma.

Instead, Dr. Frank reviewed Robert’s medical records and occupational history

and testified specifically that, in his opinion, Robert’s exposure to the Garlock gaskets

was a contributing cause of his mesothelioma. Plaintiff presented expert testimony that

removing Garlock gaskets in the manner Robert had employed generated asbestos dust

that greatly exceeded OSHA guidelines for permissible exposure levels. In accordance

with this evidence, Dr. Frank testified that breathing the toxic dust from old Garlock

gaskets contributed to Robert’s mesothelioma. When counsel for Garlock questioned

Dr. Frank extensively about Robert’s other asbestos exposures, Dr. Frank acknowledged

that those other sources of asbestos dust were also contributing factors. Nonetheless, Dr.

No. 09-5670 Moeller v. Garlock Sealing Technologies Page 14

Frank testified that Garlock products in particular were a cause of Robert’s

mesothelioma.

Garlock’s main defense at trial was that the type of asbestos in Garlock gaskets

at the level of exposure experienced by Robert does not cause mesothelioma. Because

“differences in opinions among medical experts,” when supported by peer-reviewed

studies, “create material issues of fact which must be resolved by the jury,” Dr. Frank’s

specific opinion that Garlock gaskets constituted a cause of Robert’s illness precludes

judgment as a matter of law for Garlock. Glaser v. Thompson Med. Co., 32 F.3d 969,

975 (6th Cir. 1994). The defense expert acknowledged, furthermore, that government

agencies and private health organizations, including the EPA and American Cancer

Society, have adopted policies recognizing that asbestos fibers of the type in Garlock

gaskets are capable of causing mesothelioma.

The evidence presented at trial—which included test results obtained from

removing gaskets in the manner that Moeller had employed and testimony from a

medical expert who had reviewed Robert’s occupational history—permits the conclusion

that Garlock products were a “substantial factor” in causing Robert’s mesothelioma.

Lindstrom, 424 F.3d at 492. Although “[t]he testimony conflicted as to whether

Garlock’s gaskets were dangerous,” I believe that “the jury was entitled to weigh that

testimony, ascribing credibility as it saw fit.” Garlock Sealing Tech., LLC v. Robertson,

No. 2009-CA-000483-MR, 2011 WL 1811683, at *5 (Ky. Ct. App. May 13, 2011). I

therefore respectfully dissent.