7th Circuit Reverses, Finds Supplier May Be Liable for Asbestos in Packaging

Bruce Johnson, a ceramics artist and teacher, routinely dug through shipping packages stuffed to the brim with vermiculite in order to pull out the pyrometric cones that he used for his work with hot kilns.

That packaging material was the very same asbestos-laced stuff extracted from W.R. Grace’s vermiculite mine in Libby, Montana that killed hundreds and sickened thousands of workers and their families, Johnson’s widow says in a lawsuit.

Bruce died from mesothelioma in January 2020. A decision Tuesday by a panel of the Seventh Circuit Court of Appeals opens a path for his widow, Deborah, to win compensation from the company that she says exposed him to asbestos by using vermiculite in its packaging.

The panel reversed a decision by the US District Court for Northern Illinois to dismiss Ms. Johnson’s lawsuit, finding that a jury could find that the Edward Orton Jr. Ceramic Foundation had a duty to care for Bruce Johnson because it should have known its packaging material was contaminated. The panel said the District Court erred by not holding Orton, a manufacturer and seller of ceramics equipment, to the standard of care that Illinois courts expect from manufacturers.

“Because Orton’s duties as a manufacturer extended to ensuring that its pyrometric cones were transported reasonably safely, we must conclude that, given the policy concerns that animate Illinois law, Orton should be held to an expert standard of knowledge with respect to the packaging that it used to ship its pyrometric cones and to which it exposed consumers such as Mr. Johnson,” the opinion says.

Johnson, an Illinois resident, was diagnosed with mesothelioma in March 2017. A year later he filed a lawsuit, along with his wife, against Orton and other parties potentially liable for exposing him to asbestos. The case was removed from state court to the federal Northern District of Illinois in Chicago, where Deborah Johnson filed an amended complaint after her husband died in January 2020.

Johnson had been a ceramics artist and teacher. As part of his work he used pyrometric cones manufactured by Orton. The devices are used to monitor the temperature of kilns.

Before his death, Johnson testified in a deposition that he received the cones in packages that were packed in vermiculite. He would dig through the packing material to retrieve the product or pour the vermiculite out of the package. Either way, unpacking the packages always produced some dust that typically coated his face, he said.

US District Judge Mary M. Rowland granted Orton’s motion for summary judgment. She found that Ms. Johnson had failed to show that Orton owed Mr. Johnson a duty of care. Under Illinois law, manufacturers are held to “degree of knowledge and skill of experts” in ensuring a product is safe, Orton was not a manufacturer of vermiculite and should not be held to the same standard, Judge Rowland reasoned.

Johnson appealed.

The Seventh Circuit panel said manufacturers have a duty to warn consumers of any known dangerous properties of their products. A manufacturer is liable for any harm incurred if it knew or should have known about the potential harm, the opinion says.

Orton used vermiculite from the Libby mine until 1982. In 1981, it received a Material Safety DataSheet from Orton showing that trace amounts of asbestos were found in its vermiculite.

There was also evidence in the record that Orton could have known that asbestos was in its packing material even before then, the opinion says. Articles had been published prior to 1963, when Orton started buying vermiculite from W.R. Grace, that the mine was producing vermiculite contaminated by asbestos. Air monitoring at a W.R. Grace facility in Kentucky, where vermiculite from the Libby mine was stored, showed airborne asbestos fibers.

The appellate panel said the evidence was adequate to conclude that Orton should have known about the contamination present in its packaging. The panel reversed the District Court’s judgment and remanded the case and directed Orton to pay Johnson’s costs for the appeal.