Deborah Johnson v. Edward Orton, Jr. Ceramic Foundation, No. 22-1822 (7th Cir. 2023)
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Plaintiff initially brought this product liability action in state court against Edward Orton, Jr. Ceramic Foundation (“Orton”). She alleged that her late husband, Bruce Johnson, contracted mesothelioma as a result of exposure to asbestos contained in vermiculite packaging material used by Orton. Orton removed the action to federal court, and, in due course, the district court granted summary judgment for Orton. It held that, under applicable Illinois state law, Orton did not owe a duty to Mr. Johnson.
The Seventh Circuit reversed the judgment of the district court and remanded this case. The court explained that the district court should not have granted summary judgment on the issue of Orton’s duty in the period after September 1981. Orton had actual knowledge during that time period that the W.R. Grace vermiculite was contaminated with asbestos, and there is a genuine issue of triable fact as to Orton’s continued use of W.R. Grace vermiculite after receiving the Data Sheet. Further, the court reasoned that the district court, because it concluded that Orton did not owe a duty to Mr. Johnson, did not reach the question of whether Ms. Johnson can establish causation. The court wrote it declined to consider the issue of causation in the first instance.
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