Olwen Moeller v. Garlock Sealing Technologies,

Filing

OPINION and JUDGMENT filed: District court's denial of defendant's motion for judgment as a matter of law is REVERSED, decision for publication pursuant to local rule 206. Alice M. Batchelder (AUTHORING), Chief Judge; Ralph B. Guy, Jr. (CONCURRING), Karen Nelson Moore (DISSENTING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0276p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
OLWEN MOELLER, Individually and as
Executrix of the Estate of Robert L. Moeller,
Plaintiff-Appellee, -No. 09-5670
>
v.
,
GARLOCK SEALING TECHNOLOGIES, LLC,
Defendant-Appellant. N
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.
_________________
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.

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_________________
OPINION
_________________
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.

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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

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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-theevidence 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-ofthe-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).

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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).

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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.

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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.

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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.

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____________________
CONCURRENCE
____________________
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.

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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.

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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 abovestated 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

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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.

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_______________
DISSENT
_______________
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.

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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.