For the first time in nearly 40 years, an asbestos case was tried to verdict in Rhode Island. This case, The Estate of Bonnie Bonito, resulted in a full defense verdict!
I. Factual Background
Plaintiffs alleged that Bonnie Bonito died of mesothelioma caused by her exposure to asbestos from laundering her ex-husband’s work clothes for over 20 years.[1] Mr. Bonito was self-employed and owned his own construction company which built and remodeled residential homes.[2] During this employment, Mr. Bonito allegedly performed hands-on work including: building new forms, framing, installing petitions and siding, installing drywall, applying joint compound, insulation, wiring and installing septic and sewer pipes.[3] Plaintiffs alleged that Mr. Bonito worked with defendants’ asbestos-containing products. Mrs. Bonito was then allegedly exposed to that when she laundered Mr. Bonito’s clothing.[4]
Plaintiffs asserted claims of negligence, design defect, failure to warn, breach of warranty and conspiracy.[5]
II. Expert Issues
Defendants moved to exclude two of Plaintiffs’ experts, Richard L. Kradin, M.D. and Michael J. Ellenbecker, Sc. D. [6]
A. Richard L. Kradin, MD
Dr. Kradin is a pulmonologist and pathologist.[7] Plaintiffs proffered Dr. Kradin to opine on the specific causes of Mrs. Bonito’s disease.[8] Specifically, he concluded the following: “It is my opinion to a reasonable degree of medical probability that [Mrs. Bonito’s] malignant mesothelioma was caused by her cumulative para-occupational exposures to asbestos.”[9] Defendants sought to exclude Dr. Kradin and his opinion regarding causation.[10]
The Court denied Defendants’ motion to exclude the testimony of Dr. Kradin.[11] Using the two-pronged DiPetrillo analysis used in Rhode Island,[12] the Court held: (1) Dr. Kradin held the requisite qualifications to opine upon specific medical causation of mesothelioma; and (2) Dr. Kradin provided a sound scientific methodology in reaching his conclusion.[13] Defendants had argued that Dr. Kradin’s opinion that “all” asbestos exposures above a background level causes mesothelioma is not scientifically supported because it cannot be tested to determine the “frequency, regularity, and proximity” of Mrs. Bonito’s asbestos exposures.[14] The Court rejected this argument, and held that Defendants misread the holding of Sweredoski.[15] Specifically, the Court held that the “frequency, regularity, and proximity” standard outlined in Sweredoski is separate and distinct from the DiPetrillo analysis that controls whether an expert’s testimony will be admitted at trial. Rather, the Sweredoski “frequency, regularity, and proximity” standard establishes plaintiff’s ultimate burden to prove liability in an asbestos context, i.e., that plaintiff was frequently or regularly in proximity to a defendant’s asbestos-containing product.[16] It does not, according to the Court, impose an additional requirement on the DiPetrillo analysis.[17]
B. Michael J. Ellenbecker, Sc.D
Dr. Ellenbecker is an industrial hygienist.[18] Plaintiffs proffered Dr. Ellenbecker to give testimony on the “aerosol properties of asbestos fibers” and “the proper industrial hygiene practices necessary to protect workers and family members from the dangers of asbestos fiber inhalation.”[19] Defendants filed two motions to exclude: (1) to exclude his opinion regarding defendants’ products increasing Mrs. Bonito’s risk of developing mesothelioma, and (2) to exclude his opinions on the warnings associated with those products.[20]
The Court denied Defendants’ motion to exclude Dr. Ellenbecker’s testimony as it pertains to risk.[21] The Court held that Dr. Ellenbecker held the requisite qualifications expected of the Court.[22] The Court further held: “Dr. Ellenbecker’s qualifications, his reliance on the scientifically sound ‘each and every exposure theory,’ and his consideration of scientific literature to support his expected testimony, renders his opinion as it applies to Mrs. Bonito’s increased risk scientifically reliable.” [23]
The Court granted in part and denied in part Defendants’ motion to exclude Dr. Ellenbecker’s testimony as it relates to warnings.[24] Defendants argued that Dr. Ellenbecker was not qualified to opine about the warning labels located on their products.[25] The Court agreed hat because Dr. Ellenbecker “is not an expert on the design of warnings,” his opinions “regarding the adequacy of the design of warnings on [defendant’s] products, or lack thereof, ought to be excluded.”[26] The Court held that Dr. Ellenbecker was qualified, as an industrial hygienist, to “opine on the amount of asbestos released from products similar to the Defendants’ as described in scientific literature—which renders his expected testimony scientifically sound—and how warnings could alert a worker to the dangers of such asbestos created.”[27]
III. Trial
Trial commenced against the sole remaining Defendant, Union Carbide Corporation.[28] After nine days of trial and nearly two days of deliberations, the Providence Superior Court jury returned a defense verdict on November 21, 2024.[29] The jury found that Union Carbide’s products were not defectively designed and that the company did not fail to warn about the potential hazards of asbestos.[30] The trial was presided over by Justice Richard Licht.[31] This verdict is significant as it is the first asbestos case tried to verdict in Rhode Island in nearly 40 years.
[1] Tenth Amended Complaint at 1, Day v. 3M Co. Inc., No. PC-2018-5044 (R.I. Super. 2016).
[2] Id.
[3] Id.
[4] Id.
[5] See generally Tenth Amended Complaint, Day v. 3M Co. Inc., No. PC-2018-5044 (R.I. Super. 2016).
[6] Day v. 3M Co. Inc., No. PC-2018-5044, 2024 WL 4521279, at *1 (R.I.Super. Oct. 11, 2024).
[12] The two-prong DiPetrillo analysis, as established by the Rhode Island Supreme Court, is used to determine the admissibility of expert testimony. The analysis consists of the following two prongs: “(1) scientific knowledge that (2) will assist the trier of fact to understand or determine the fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the fact in issue.”
DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 687 (R.I. 1999).
[13] Day v. 3M Co. Inc., No. PC-2018-5044, 2024 WL 4521279, at *4-5 (R.I.Super. Oct. 11, 2024).
[14] Id. at *5. See also Sweredoski v. Alfa Laval, Inc., C.A. No. PC2011-1544, 2013 WL 3010419, at *5 (R.I. Super. Ct. June 13, 2013) (Gibney, J.).
[15] Day v. 3M Co. Inc., No. PC-2018-5044, 2024 WL 4521279, at *5 (R.I.Super. Oct. 11, 2024).
Rhode Island applies the “frequency, regularity, proximity” test as the proper causation standard for asbestos cases. To satisfy the “frequency, regularity, proximity” test, plaintiffs must present evidence showing “(1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked.”
Sweredoski v. Alfa Laval, Inc., No. PC 2011-1544, 2013 WL 3010419, at *5 (R.I.Super. June 13, 2013).
[16] Day v. 3M Co. Inc., No. PC-2018-5044, 2024 WL 4521279, at *5 (R.I.Super. Oct. 11, 2024).
[17] Id.
[18] Id. at *2.
[19] Id.
[20] Id. at *1.
[21] Id. at *12.
[22] Id. at *6.
[23] Id. at *8.
[24] Id. at *12.
[25] Id. at *8.
[26] Id. at *9.
[27] Id.
[28] Jamie L. Day, et al. v. 3M Co., Inc., et al.; 2024 LexisNexis Jury Verdicts & Settlements 293, PC-2018-5044 (Nov. 21, 2024).
[29] Id.
About The Author
Jacqueline A. Crockwell
Jacqueline is a member of the firm’s litigation group. She represents clients in product liability, toxic tort, premises liability and complex…
