(CN) – The 5th Circuit affirmed dismissal of a lawsuit over Stennis Space Center employees’ alleged exposure to beryllium, ruling that “(e)xposure to a potentially harmful substance does not in itself constitute a personal injury.”
Brush Engineered Materials sold products containing beryllium to The Boeing Co. for use in the Stennis Space Center in Mississippi.
Several employees of the space center tested positively for beryllium sensation (BeS), an immune response that often causes a reaction to beryllium.
The plaintiffs’ expert witness, Dr. Lisa Maier, tested their lung tissue and testified that BeS could possibly lead to the development of chronic beryllium disease (CBD), a disease that erodes the lungs and can cause suffocation.
District Judge Frank Montalvo found that the lower court did not abuse its decision in excluding Dr. Maier’s report and testimony, because they were based on erroneous information and assumptions.
As a result of this exclusion, the plaintiffs were unable to prove that any employees suffered from chronic beryllium disease.
The federal appeals court in New Orleans affirmed summary judgment for the defendants, finding that the possibility of future injuries from beryllium exposure did not warrant compensation. A person with BeS has no physical impairment or injury until that person develops CBD, the three-judge panel concluded.
However, the court noted that its ruling “does not preclude the employees from filing suit if they ever develop CBD.”