Appeals court reinstates ceramic artist widow’s mesothelioma lawsuit

A federal appeals court has reinstated litigation filed by the widow of a ceramics artist who allegedly contracted mesothelioma from the packaging material from which he obtained materials.

The Westerville, Ohio-based Edward Orton Jr. Ceramic Foundation manufactures and sells pyrometric cones, which are used to measure the temperature of a kiln during the firing of ceramic products, according to Tuesday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Deborah Johnson, individually as the representative of the estate of Bruce Johnson v. Edward Orton, Jr. Ceramic Foundation.

Orton ships the cones to its customers in cardboard boxes filled with packing material intended to keep the cones from breaking. 

From 1963 to 1975 and from 1979 to 1981, Orton purchased the mineral vermiculite from W.R. Grace & Co. to use as its packing material.  W.R. Grace operated a vermiculite mine near Libby, Montana, that also contained asbestos deposits, according to the ruling.

Bruce Johnson, a ceramics artist and teacher, used pyrometric cones manufactured by Orton from 1971 to 1984, and testified the boxes in which he received the cones were filled almost to the brim with vermiculite. 

Mr. Johnson was diagnosed with malignant mesothelioma, which is almost always caused by asbestos exposure, in 2017, and died of the disease in January 2020, according to the ruling.

A product liability lawsuit was filed against Orton, by the Johnsons and pursued by Ms. Johnson after Mr. Johnson’s death. 

In January 2021, the U.S. District Court in Chicago granted Orton’s motion for summary judgment dismissing the case. It was overturned by a three-judge appeals court panel.

The district court “should not have granted summary judgment on the issue of Orton’s duty in the period after September 1981,” it said. By that time, Orton “had actual knowledge” 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 it.

Attorneys in the case did not respond to requests for comment.