Workers Comp Only Recourse For 'Borrowed Servant'

Lee Barone died on Nov. 9, 2002, from pleural mesothelioma, a malignant tumor on the lining of the lungs. Barone worked as a stenciler in the paint shop for many years for GATX Corp., a company that manufactured and repaired railroad tank cars. In 1961, a fire destroyed the paint shop and, for 18 months, Barone worked in a temporary paint shop until a new paint shop was completed.

The executor of Barone's estate filed a lawsuit against numerous defendants, claiming that his death was caused by exposure to asbestoscontaining products at GATX during the 18 months that he worked in the temporary paint shop. One of the defendants was John Crane Inc., a company that supplied GATX with gaskets that contained asbestos.

After a trial, the Ohio jury concluded that Barone was exposed to asbestoscontaining products sold or manufactured by John Crane Inc. and that this exposure was a substantial factor in causing his death. The jury awarded Barone's estate damages of $32,600.

Crane appealed to the Ohio Court of Appeals and asserted that Barone's executor failed to prove that Barone was in fact exposed to Crane's gaskets. At trial, former GATX employees testified about the use of Crane's asbestoscontaining products at GATX, and the appellate court agreed that Crane products containing asbestos, including gaskets, were used at the plant.

However, the court ruled that there was no proof that these products were used at the plant prior to 1965. The court said that, although a plaintiff may prove exposure to toxic materials through circumstantial evidence, "we believe that there needs to be some evidence that the product was at a plaintiff's place of work during the time of an alleged exposure." Because the executor failed to prove that Crane products were used at Barone's workplace in 1961 and 1962, the time of his alleged exposure to asbestos, the court overturned the judgment against Crane.

Barone v. GATX Corp., 857 N.E.2d 155 (Ohio App. 2006).
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