In follow up to our post of “Segal McCambridge argues in front of the Indiana Court of Appeals” on March 29, 2011, the Indiana Court of Appeals affirmed the dismissal and compelled arbitration sought by Segal McCambridge client, Brown Mackie. The Indiana Court of Appeals published opinion can be found here.
Shareholder Jason Kennedy and Associate Jill Felkins represented Brown Mackie on appeal.
From the Madison County Record
Crowder hears arguments on asbestos standing order
EDWARDSVILLE – Madison County Circuit Judge Barbara Crowder, heir to the biggest asbestos docket of any state court in the nation, must decide the future dimensions of her docket.
She heard a triple argument on March 25, among plaintiffs who would retain a calendar providing about 500 trial dates a year, defendants proposing 250 dates, and other defendants opposing both.
For the group favoring half as many dates, Robert Shultz of Heyl Royster attacked reservation of multiple dates for specific firms.
“This is all about the slots,” he said.
“You’ve got to be in the club in order to get a reservation,” he said.
“The more I live this life, the more I see what goes on, the more reasonable this is.”
Other defendants sent Jeff Hebrank of HeplerBroom to warn that Shultz’s calendar would increase defense costs and unpredictability.
Hebrank endorsed changes Crowder made since replacing asbestos judge Daniel Stack, who retired.
Hebrank agreed with Shultz that the calendar encourages lawyers to go out and market dockets.
Bill Kohlburn of John Simmons’s firm in East Alton argued for plaintiffs that if defendants have issues with where cases come from, they should file forum motions.
Kohlburn told Crowder adoption of a calendar was an administrative function.
He said it doesn’t create slots to be filled.
He said it allows plaintiffs to request trials in an orderly fashion.
Elizabeth Heller of Goldenberg Heller countered HeplerBroom’s proposal to base trial dates only on numbers of mesothelioma claims.
She said her firm filed 110 cases, and 58 were lung cancer.
She said her firm represents people in Madison County, writing wills and leases, and resolving commercial disputes.
She said when clients get cancer, they ask the firm to review their cases.
She said the firm represents more than 3,000 Madison County residents with non malignant asbestos disease.
J.R. Stever of Michael Bilbrey’s firm said, “Lung cancer is probably a majority of our business.”
Hebrank opened for the defense, saying it was essential that the number of cases decrease.
He said the average case takes 44 months to go to trial.
He said there is no need to expedite cases.
“Your honor has started to push some deadlines back,” Hebrank said.
He said all cancers but mesothelioma were questionably related to asbestos.
He said if local plaintiffs need a court date, there are plenty of docket spaces for them.
He called the plaintiff calendar a wish list.
“We have an expedited docket that frankly has been abused,” Hebrank said.
He said with new treatments and surgeries, mesothelioma victims live longer.
“We don’t need to set them in six months, or nine, or fifteen,” he said.
Shultz followed, for “a cross section of businesses that are sued frequently if not automatically, including some small local businesses.”
“It’s something I refer to as indiscriminate naming,” Shultz said.
He asked Crowder to dispel any impression that the system works.
He said a fellow from Texas came up three times.
“The first two times, he was told he needed to talk to the local firms,” Shultz said.
“That is the antithesis of justice.
“We are not dealing with a backlog by any means.
“In 2009, they couldn’t fill the dates we gave. This has become an aspirational goal.It results in a referral network.
“The plaintiff bar can’t tell us a deposition has been scheduled until two weeks before.
“There are too many cases. They are set too fast.”
He said on Monday morning of trial week, defendants don’t know which plaintiff among 19 will go to trial.
“We understand why plaintiffs want it that way, but is that fair?” Shultz said.
“You have to prepare for all nineteen.”
He said there are about 2,900 mesothelioma diagnoses in the nation and about 140 in Illinois each year.
He said there were 506 mesothelioma cases filed in Madison County last year.
“It’s because there are so many trial dates available,” he said.
He flashed a chart showing asbestos suits outnumber all other suits together in Madison County.
“It tells you the cases are coming in from somewhere,” he said.
“Let’s cast aside this relic of the past.”
Ray Fournie of Armstrong Teasdale said expediting to six months might be okay for one case but not for 19.
He said defendants pay to expedite expert reports and find out they don’t need them.
He said wise use of defense costs allows more indemnity amounts to resolve claims without trial.
Kohlburn, for plaintiffs, said there are mechanisms to deal with issues Shultz raised.
“This is not a slot,” he said. “This is not a reservation.
“This is not the property of any plaintiff’s firm anywhere.”
Crowder said she would get an order out as soon as she could.
She said she wasn’t an apologist for the past or an advocate of it.
A former Merrillville doctor who's awaiting sentencing for health care fraud has been ordered to pay $13 million in the first of more than 350 malpractice lawsuits against him.
A jury Thursday night in Hammond rendered the judgment against Mark Weinberger, the former Merrillville ear, nose and throat specialist.
The award includes $10 million in punitive damages for the estate of the late Phyllis Barnes.
The Barnes family attorney, Kenneth Allen, said the jury verdict "will be enough to send Weinberger a message that he's not going to reap any profits from his ill-gotten gains or future deals. This verdict will follow him and make sure that one way or the other, he pays for his wrongs."
Weinberger, who remains in the Metropolitan Correctional Center in Chicago, did not attend the trial. He's scheduled to be sentenced April 27 in federal court in Hammond, where he pleaded guilty to 22 counts of health-care fraud.
Weinberger admitted in October to fraudulently billing health insurance companies for $200,000 to $400,000 worth of surgeries he never performed.
He was charged in 2006, two years after he fled the country when clients began to complain and the FBI started to investigate him. He generated national media attention when he was finally caught in December 2009 in northern Italy, living in a tent at the base of a mountain.
In Barnes' case, Weinberger and Valparaiso physician assistant Joe Clinkenbeard were accused of failing to diagnose the cancer that claimed her life at age 50 in 2004. Weinberger was separately accused of performing unnecessary sinus surgery on Barnes, causing her pain and suffering.
The jury cleared Clinkenbeard of any liability in Barnes' death.
Before closing arguments, Dr. Dennis Han, an otolaryngologist who treated Barnes after Weinberger's surgery said he diagnosed her cancer immediately and performed numerous surgeries to remove the tumor and repair her vocal chords. Han repeated his earlier contention that Weinberger should have diagnosed Barnes' cancer and that the surgery he performed was unnecessary and caused her harm, irreversibly destroying bone and tissue.
Because Indiana law allows a maximum of $1.25 million per incident of malpractice, Weinberger's insurers are likely to file a motion to reduce the jury's award.
Weinberger still faces more than 350 other suits, including one scheduled to go to trial in May.
The Sun-Times article is here
An interesting debate at PENNumbra
The evolving case law on aggregate litigation, based largely on notions of notice and due process (embodied in "day in court" principles), has been met with significant criticism on both sides by reformers who claim that the system is inherently unfair or wasteful.
Professor Sergio Campos argues for a change in course from the current treatment of mass torts. The current model of providing each individual plaintiff a "day in court,"he suggests, ultimately undermines plaintiffs' interests by dividing the potential recovery—and thus the litigation incentives—among the plaintiffs while leaving the defendant with the full incentive to invest in the litigation. Although the Supreme Court has recently upheld plaintiffs' right to individual litigation, due process need not be inherently inflexible. By looking to older precedent, such as Mullane, Campos supports a "compelled, collective ownership" of claims by procedures such as multi-district litigation or the mandatory class action. Although this model may infringe on "litigant autonomy," Campos argues that this is ultimately necessary to best protect the interests of mass tort plaintiffs.
In response, Professor Erichson argues that one need not resort to mandatory class actions or similar procedural tools in order to even the playing field between mass tort plaintiffs and defendants. Often, even non-class mass tort litigation is resolved by mass settlement and involves consolidated pretrial work. Because most mass tort lawsuits involve highly incentivized lawyers who do common benefit work, the marginal gain from a mandatory class action does not outweigh the losses associated with fully separating control over settlement from ownership of the claim. Indeed, the current state of mass tort litigation may well provide greater leverage for mass tort plaintiffs than those with completely independent claims. Thus, Professor Erichson concludes, it is not at all clear that the future of mass torts is "bleak."
Pfizer, Quigley Seek Court Approval of Asbestos Settlement
Pfizer Inc. (PFE), the world's largest drugmaker, reached a settlement with asbestos claimants that may bring an end to its Quigley unit's seven-year-old bankruptcy case.
U.S. Bankruptcy Judge Stuart Bernstein refused to allow Quigley to exit Chapter 11 court protection in September, saying Pfizer had manipulated the bankruptcy process to benefit itself. Pfizer and a committee of asbestos claimants entered into an agreement on March 20 that may resolve their dispute over claims, according to court papers filed yesterday in Manhattan.
The accord "resolves the legal and equitable issues that existed under that plan, including enhancing distributions for current claimants and future demand holders, improving reorganized Quigley's long-term feasibility, and rectifying concerns regarding good faith," lawyers for Quigley wrote.
Asbestos claims against Quigley may total $4.45 billion during the next 42 years, according to testimony cited by Bernstein in September. Under the deal, which requires court approval, asbestos claimants would vote in favor of Quigley's bankruptcy plan and waive all rights to a jury trial.
In exchange, Pfizer would contribute $264.9 million in cash and all of the stock in a reorganized Quigley to a trust to pay asbestos claims. New York-based Pfizer also would forgive its own claims against the non-operating unit, according to a draft of the plan.
'Best Interests'
"Once Quigley's reorganization plan is presented to and confirmed by the U.S. Bankruptcy Court, asbestos-related liability arising from Quigley will be resolved through a fund established as part of the bankruptcy reorganization," Pfizer spokesman Christopher Loder said in a statement. The agreement is "in the best interests of the company," he said.
Pfizer in November reported a $701 million third-quarter charge for asbestos litigation for Quigley. The ad hoc committee, representing 43,100 asbestos claimants, had asked the court to lift an injunction that has barred them from bringing claims against Pfizer since 2004.
Quigley, founded in 1916, made three products for the steel industry that contained asbestos from the 1940s to the 1970s. Pfizer bought Quigley in 1968.
The case is In re Quigley Co., 04-15739, U.S. Bankruptcy Court, Southern District of New York (Manhattan).
Here is a link to the article
25-year-old death certificate fails to carry McLean County asbestos case
SPRINGFIELD – McLean County lawyer James Wylder, whose mesothelioma conspiracy claims usually succeed, suffered a loss when he sued on the strength of a death certificate from 1982.
Circuit Judge Scott Drazewski rejected Freda Barden’s certificate last year, and Fourth District appeals judges affirmed the decision this year.
“No records exist summarizing and detailing the performance of the coroner’s official duties in performing a medical examination upon decedent or an autopsy, as none was performed,” Justice John Turner wrote.
“Moreover, the preparers who could shed light on their conclusions are no longer living,” he wrote.
He wrote that Drazewski correctly excluded testimony of Arthur Frank of Philadelphia.
“Dr. Frank’s conclusion that decedent died from mesothelioma was based on evidence that would not be admissible into evidence at trial,” he wrote.
Justices James Knecht and Carol Pope agreed.
Wylder has won a string of conspiracy trials in McLean County, holding Honeywell and other companies responsible for events that occurred 50 to 100 years ago.
Verdicts keep growing, and the most recent one exceeded all previous verdicts together.
On March 11, jurors awarded about $40 million in punitive damages against Owens-Illinois, $20 million against Honeywell, and $20 million against Pneumo Abex.
They awarded about $9 million in actual damages against those three and John Crane Inc.
But Barden’s estate won’t win a penny, Drazewski and the Fourth Circuit decided.
Wylder sued Honeywell, Pneumo Abex, Sprinkmann Sons, Rapid-American, Owens-Illinois, and Garlock Sealing Technologies in 2007, for estate administrator Linda Durbin.
She claimed Barden contracted mesothelioma on jobs at Armour Packing and Hiram Walker distillery in Peoria from 1959 to 1980.
Defendants moved to dismiss under a two year statute of limitation.
Wylder answered that the limit didn’t apply because Durbin just discovered the cause of death.
Drazewski denied the motions, so defendants sought an equal result through summary judgment on the death certificate.
After a hearing, Drazewski ruled he couldn’t admit the certificate or Frank’s report.
Wylder moved for reconsideration, offering as new evidence a diagnosis of mesothelioma in a letter from late oncologist Robert Thompson to a lawyer in 1976.
Barden’s daughter, Linda Marks, swore in an affidavit that she found the letter with her mother’s personal papers.
Drazewski held a hearing, decided not to admit the letter, and denied reconsideration.
Wylder appealed, arguing the defendants didn’t dispute the diagnosis on the certificate.
Defendants answered by challenging all of Wylder’s conspiracy claims.
“Repeated trials of claims for asbestos related injuries against defendants who are not even alleged to have made or sold the asbestos products to which the plaintiff was exposed, and whose purported liability is based solely on a civil conspiracy theory, is a phenomenon unique to the central Illinois courts,” Neil Lloyd and Joshua Lee wrote for Owens-Illinois wrote.
They argued that a Fourth District decision from 1999 should have put an end to civil conspiracy claims against Owens-Illinois.
They wrote that they defended four multi week trials in 2010.
Abex lawyer Reagan Simpson of Austin, Texas, wrote that it wasn’t his client’s burden to prove Barden didn’t have mesothelioma.
He wrote that it was Durbin’s burden to produce admissible evidence that she did have it.
Fourth District judges upheld Drazewski, finding state law limits evidence to results of post mortem and laboratory examinations.
“Although plaintiff attempts to argue that no dispute exists that mesothelioma was the cause of decedent’s death, it is hard to imagine what the arguments in the trial court were about if not,” Turner wrote.
He rejected Frank’s report and the letter from the dead doctor.
“As the letter was in her possession long before the hearing on the motion for summary judgment, plaintiff cannot establish due diligence,” he wrote.
The Fourth District issued its mandate on March 7.
Here is a link to the Madison Record article
Illinois Supreme Court deciding ‘take home’ asbestos case; CSX says if allowed would create ‘unlimited universe’ of plaintiffs
SPRINGFIELD – Illinois Supreme Court Justices must decide whether to allow claims that asbestos caused disease in families of workers who brought fibers home on their clothing.
CSX Transportation seeks to reverse appeals judges who ruled that the railroad should have warned the late Annette Simpkins about hazards her late husband Ronald Simpkins brought home.
“The list of potential plaintiffs is endless,” Kurt Reitz, of Thompson and Coburn in Belleville, wrote for CSX in February.
He wrote that in asbestos litigation, “once a duty is recognized, it will quickly become a magnet for new attempts to expand its scope.”
Ronald Simpkins worked for B&O Railroad from 1958 to 1964.
He and Annette divorced in 1965.
In 2007, she sued CSX and 72 other companies in Madison County.
She blamed CSX for “take home” exposure, as successor to B&O.
CSX moved to dismiss, denying it owed any duty to warn families of employees.
Annette Simpkins died three months after suing, and Circuit Judge Daniel Stack substituted daughter Cynthia as plaintiff.
At a hearing, CSX argued that only appellate courts or legislatures can create new causes of action.
Stack dismissed the case and said, “It sounds like a great argument for the Supreme Court.”
Fifth District judges in Mount Vernon reversed Stack last year, finding B&O should have foreseen a risk to Annette while Ronald worked for the railroad.
“CXS argues that the B&O Railroad did not know of the dangers of take-home asbestos while Ronald Simpkins worked for it,” Justice Melissa Chapman wrote.
“The question, however, is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether, through reasonable care, it should have foreseen the risk,” she wrote.
“While apparently the likelihood of contracting mesothelioma or another asbestos related lung disease through take-home exposure varies depending on the duration of exposure, these cases also demonstrate that the likelihood of developing such a disease from anything more than incidental exposure is not remote,” she wrote.
“We do not believe that the issue of whether anyone other than a member of an employee’s immediate family is owed a duty is before us,” she wrote.
“Whether harm to any such person is foreseeable depends on an assessment of circumstances not presented in this case,” she wrote.
“While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure,” she wrote.
“Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products,” she wrote.
“Duty is not the equivalent of liability; she must still prove a breach and proximate cause,” she wrote.
Justices James Donovan and James Wexstten concurred.
Reitz appealed to the Supreme Court, writing that the decision “creates a specter of massive liability to an unlimited universe of potential plaintiffs.”
He wrote that Simpkins died of lung cancer after smoking a pack and a half a day for 41 years.
Heath Hooks, a colleague of Reitz at Thompson Coburn in Belleville, also represents CSX.
So do Michelle Odorizzi of Chicago and Andrew Tauber of Washington, both with the firm of Mayer Brown.
John Barnerd and Amy Garrett, both of John Simmons’s firm in East Alton, and Charles Chapman of Lakin Chapman in Wood River, represent Cynthia Simpkins.
Related to our previous posts on “Further reaction to the $90M asbestos verdict in Illinois,” “Illinois jury awards almost $90 million in asbestos suit,” and “Reaction to the $90M asbestos verdict from Illinois” below is a recent article from the Madison Record, “Fourth District weighing asbestos conspiracy and ‘take home’ verdicts out of Bloomington”
The oral argument referenced in the below article, In re Estate of Holmes Case No.: 4-10-0462 argued 3-16-11 can be found here
Fourth District weighing asbestos conspiracy and ‘take home’ verdicts out of Bloomington
3/21/2011 7:24 AM By Steve Korris
SPRINGFIELD – Defendants say they will appeal a recent McLean County jury’s $90 million verdict in an asbestos conspiracy trial, but for practical purposes they already did.
Five days after jurors hit Honeywell and Pneumo Abex with $20 million each in punitive damages, Honeywell and Abex argued at the Fourth District for relief from an earlier conspiracy verdict.
The district’s website posted a link to audiotape of the March 16 oral argument, which featured Justices James Knecht, Thomas Appleton and John Turner.
The Fourth District plans oral argument on another McLean County conspiracy verdict on April 28.
The court clerk will announce in April whether the same judges will hear it.
Last year Honeywell, as successor to Bendix, and Abex, successor to American Brake and Block, appealed verdicts in two other conspiracy trials with five plaintiffs.
In all the cases, clients of local lawyer James Wylder claim business owners concealed the risks of asbestos 40 to 100 years ago, in order to protect profits.
Wylder’s clients hold Honeywell responsible for buying a company that bought a company that conspired with other companies.
Punitive damages matter a great deal in McLean County, because defendants set off compensatory damages by the amounts of prior settlements with other companies.
In the case set for April 28, offsets caused Circuit Judge Dennis Drazewski to reduce compensatory damages from $2,000,000 to $183,333.34.
He abided by the jury’s judgment on punitive damages, entering $400,000 against Honeywell and $100,000 against Abex.
Honeywell and Abex appealed in October.
“Plaintiffs failed to present evidence of any type of outrageous conduct similar to that usually found in a crime,” Michael Weaver of Chicago wrote for Honeywell.
“Even in the light most favorable to plaintiffs, Honeywell’s conduct is not close to the standard required for the submission of punitive damages,” he wrote.
He wrote that no evidence provided sufficient basis to hold Honeywell liable for civil conspiracy.
“Illinois law requires that there be a relationship between the plaintiff and a defendant before a court may impose a duty, so that defendants will not be subject to limitless liability to an indeterminate class of persons conceivably injured by its negligent acts,” Weaver wrote.
The appeal the judges heard on March 16 didn’t involve punitive damages, but instead challenged both the conspiracy theory and a theory that workers took asbestos home on their clothes.
The “take home” theory recently prevailed at the Fifth District appeals court in Mount Vernon, but defendant CSX Transportation petitioned the Illinois Supreme Court for review.
“The list of potential plaintiffs is endless,” Kurt Reitz of Belleville wrote for CSX in a Supreme Court brief on Feb. 16.
Jurors at the “take home” trial in McLean County awarded $2,632,611.66 in compensatory damages to Roger Holmes for the estate of Jean Holmes.
Drazewski reduced it to $1,546,361.66.
On appeal, Craig Zimmerman of Chicago argued that Honeywell owed no duty to the decedent, evidence of conspiracy was insufficient, and Drazewski misstated the law to the jury.
“Bendix’s conduct throughout the 1930s and to early 1970s was the norm in corporate and industrial America, not the exception, as portrayed by plaintiff to the jury,” Zimmerman wrote.
On appeal for Abex, Reagan Simpson of Austin, Texas, argued that plaintiffs produced no evidence of duty or proximate cause.
“Abex finds itself potentially liable to persons who were never its employees, or customers, or invitees, for alleged injuries arising from raw materials Abex never used, products it did not make, manufacturing processes it did not use, and working conditions it did not create,” he wrote.
In a January brief for Honeywell, Weaver attacked the “take home” theory.
“As a matter of public policy, plaintiff’s theory stretches potential liability beyond reason and should be disallowed,” he wrote.
The latest McLean County verdict dwarfed those awards, punishing not only Honeywell and Abex but also Owens-Illinois, at $40 million.
Jurors awarded about $9 million in compensatory damages against Honeywell, Abex, Owens-Illinois, and John Crane Inc.
2 articles on a $25M asbestos verdict out of Newport News, Virginia
Below is an article from WDBJ7.com
Newport News jury hands down $25 million verdict against Exxon in asbestos case
The jury verdict will be reduced to $17.5 million, and Exxon is expected to appeal
NEWPORT NEWS— A Newport News Circuit Court jury on Thursday hit oil giant Exxon Mobil with a $25 million verdict in an asbestos lawsuit brought by a former shipyard worker — among the largest jury verdicts ever handed down in a Virginia personal injury case.
Rubert “Bert” Minton, 72, of the Carrollton section of Isle of Wight County, was a repair supervisor on commercial vessels at Newport News Shipbuilding between 1966 and 1977, and had previously worked there for seven years as a ship fitter in new construction.
During his time at the shipyard, Minton worked on 17 Exxon commercial oil tankers then being repaired.
Decades later, he was diagnosed with mesothelioma, a deadly asbestos-related cancer that doctors said he got from breathing billions of asbestos fibers while at the yard. He has a life expectancy of about two more years and faces a painful death, his lawyer said. He sued Exxon in late 2009.
After a nearly three-week trial in Newport News Circuit Court before Judge Timothy Fisher, the seven-member jury began deliberating Wednesday morning, reaching a verdict Thursday morning.
The jury awarded Minton $12 million in compensatory damages, $12.5 million in punitive damages, and $430,961 in medical expenses, plus interest. That brings the total verdict to about $25 million, said Bobby Hatten, Minton’s lead attorney.
“Exxon got a good, old-fashioned horse whipping is what it is,” said Hatten, who was at Al Fresco’s restaurant Thursday afternoon celebrating with about 35 staffers and attorneys from his law firm, Patten, Wornom, Hatten and Diamonstein.
But the $25 million verdict will be automatically reduced to about $17.5 million, Hatten said. That’s because although the jury awarded $12.5 million in punitive damages, it was legally limited to the $5 million that Hatten had requested for that portion of the verdict.
“They awarded two-and-a-half times what I asked for,” Hatten said, saying he had not previously seen punitive damages of more than $100,000 in an asbestos case. “That shows how upset they were at Exxon.”
Exxon Mobil is expected to appeal the entire verdict — a process that Hatten said could go on for more than two years before a final judgment. After subracting out the firm’s litigation costs, Minton stands to get about two-thirds of any final judgment, with the firm getting the other one-third.
Asbestos, made with microscopic fibers with heat-resistant properties, was used heavily on ships for decades, for such things as insulation, gaskets, seals and pumps.
Suits against ship owners — rather than makers of asbestos-laden shipboard parts — is a recent twist in local asbestos litigation. Most of the dozens of cases brought annually here are against parts makers. Shipyards are immune from worker asbestos suits, on the basis that the yards pay out worker’s compensation claims.
The suit against Exxon contended that the oil giant had known about the problems with asbestos — developing rules to protect workers at refineries beginning in the 1930s — but took no steps to warn shipyard workers or crewmembers. They learned about a cancer link in the following decades, Hatten said.
Exxon contends that the shipyard — not Exxon — was responsible for worker safety. It has in the past argued that there was no firm evidence workers were exposed to asbestos on the Exxon ships. The company said it’s “disappointed” in the verdict.
“We relied on Newport News (shipyard) and its personnel to ensure repair activities were safely carried out,” Exxon spokesman Ray Botto said. “We believe that the protective practices … at the time represented the best measures available.”
He said Exxon is “evaluating our post-trial options, including appeal.”
It was the second time Hatten’s firm had squared off against Exxon and Bill Armstrong, a privately hired attorney from Oakland, Calif. The first time, in 2009, the jury awarded no damages — the first time in decades Hatten lost an asbestos trial.
“I was more prepared this time,” Hatten said. “I knew all of his tricks … He got me once, but he wasn’t going to get me twice.”
Hatten said that Minton had major lung operations in 2009 to help treat the cancer. That increased Minton’s expectancy from the time of the operation from 18 months to between three and five years, Hatten said.
—–
Below is an article from CNBC.com
NEWPORT NEWS, Va. – A jury awarded a former shipyard employee $25 million Thursday in his lawsuit against Exxon for asbestos-related medical problems.
The verdict, which followed a two-week Circuit Court trial, was one of the largest jury verdicts ever handed down in Virginia.
Bert Minton, 72, of Carolton, worked on 17 Exxon commercial oil tankers as a shipfitter and then a repair supervisor at Newport News Shipbuilding in the 1960s and ’70s. He contacted mesothelioma, an asbestos-related cancer that doctors said he contracted by breathing billions of asbestos fibers while working at the shipyard.
Minton’s attorney, Bobby Hatten, said Minton has a life expectancy of about two more years and faces a painful death. Both of Minton’s lungs were removed and cleared of cancer material, then replaced, in 2009, Hatten said.
“Exxon got a good, old-fashioned horse whipping is what it is,” Hatten told the Daily Press.
Minton chose to sue Exxon, the ship owner, rather than the parts supplier, which is target of dozens of similar cases brought annually.
The lawsuit argued that Exxon knew about the problems with asbestos, and even developed rules to protect workers at refineries beginning in 1937, but did not warn shipyard workers or crewmembers. Hatten said the case proved Exxon knew about the cancer link since the 1940s, and knew by the 1960s that it caused mesothelioma.
Exxon countered that its ships were some of many that Morton worked on, that there was no firm evidence he was exposed to asbestos on an Exxon ship, and that the shipyard was responsible for worker safety.
The shipyard is immune to asbestos lawsuits from workers because of workman’s compensation law, while the Navy is immune under defense contracting law.
Asbestos is made with microscopic fibers with heat-resistant properties. It was used heavily on ships for decades, for such things as insulation, gaskets, seals and pumps.
From SFGate.com
A San Francisco jury has awarded $1.36 million to a terminally ill man who smoked filter-tipped Kent cigarettes in the 1950s that contained asbestos.
Lawyers for Don Lenney and his wife, Monica, said the verdict was a rare victory for plaintiffs who have sued over Kent’s use of asbestos in its Micronite filters from 1952 to 1956. The cigarette’s manufacturer, Lorillard Tobacco Co., says it has won 15 out of 20 trials nationwide and contends the filters released only trace amounts of asbestos that posed no danger.
Lenney, 73, a former Bay Area insurance agent, now lives in Placerville. He was diagnosed with mesothelioma, a form of cancer linked to asbestos, in November 2009 and had a lung removed in early 2010, his attorney said Thursday.
“He tries not to dwell on it too much and just wants to live as long as he can, and be there for his wife and children and grandchildren,” attorney Laurel Simes said.
Lenney started smoking other brands in 1953 at age 16 and soon switched to Kents, Simes said. She said he stopped smoking in 1965, shortly after the U.S. surgeon general warned of the dangers of cigarettes.
Medical groups’ concerns about tobacco in the early 1950s prompted companies to start selling filtered cigarettes. Kent’s ads promoted the Micronite filters as “the greatest health protection in cigarette history” and said they removed seven times as much tar and nicotine as other leading filters. The company removed asbestos from the filters in 1957.
During the seven-week trial in San Francisco Superior Court, lawyers for Lorillard and the filter’s manufacturer, Hollingsworth & Vose, argued that the filters were safe and that the evidence failed to show that Lenney had smoked Kents when they contained asbestos.
Simes said Lenney had testified that he used the brand during that period and was backed up by two former high school classmates.
The jury rejected a claim that the companies had been negligent but voted 9-3 to find that they had violated Lenney’s right to buy and use a safe product. The March 3 verdict apportioned 35 percent of the fault to Lorillard, 25 percent to Hollingsworth & Vose and the rest to other asbestos suppliers, a verdict that makes the two companies responsible for just over $1 million in damages, the Lenneys’ lawyers said.
Defense lawyer Randall Haimovici said the companies would appeal. The negligence verdict shows that jurors agreed “we didn’t do anything wrong by using asbestos in filters back in the 1950s,” he said.
The entire article is here