Segal McCambridge Legal Blog

Family wins $2.4M verdict in asbestos case

Daniel Tepfer
Updated 07:49 p.m., Wednesday, May 23, 2012
BRIDGEPORT — The family of a New Haven tile setter, who died after contracting an asbestos-related cancer, was awarded $2.4 million.

A Superior Court jury deliberated about three hours Tuesday before finding the Tile Council of North America liable in the death of Hannibal “Scottie” Saldibar and awarding his family $1.6 million. Judge Dale Radcliffe then ordered the association to pay an additional $800,000 in punitive damages.

“The jury made an informed decision based on the facts of the case,” said the Saldibar’s lawyer, Brian Kenney.

A spokesperson for the tile association couldn’t be reached for comment.

The 84-year-old Saldibar, who worked as a tile setter for 30 years, died in January 2010, nine months after being diagnosed with mesothelioma, a form of cancer connected to asbestos contact.

Although it is a trade association, Kenney said Tile Council of North America developed the asbestos-containing mortar used by tile setters for many years.

Company wins asbestos suit on 2nd try

JACKSON, Mississippi — An asbestos lawsuit that once resulted in a $322 million verdict for a Mississippi man has turned in favor of the company he sued.

Thomas Brown’s lawyers had called the verdict last year the largest asbestos award for a single plaintiff in U.S. history. But it wasn’t long before the Mississippi Supreme Court removed the judge in the case for allegedly not disclosing his parents had been involved in similar asbestos litigation.

A specially-appointed judge, William Coleman, threw out the verdict and ordered another trial. The lawsuit was moved to Jones County, where a jury on Wednesday ruled in favor of Union Carbide Corp.

Brown, of Brookhaven, claimed he inhaled asbestos dust while mixing drilling mud manufactured by Union Carbide. He said he was required to take oxygen 24-hours a day.

“Eight experts, including an independent medical examiner, testified at trial that Mr. Brown, like many plaintiffs who have asserted similar asbestos allegations, did not have an asbestos-related disease caused by UCC,” company spokeswoman Sarah Opperman said Friday in a statement.

“UCC is gratified that the jury carefully considered the evidence and reached this unanimous decision,” she said.

Brown’s Dallas lawyer, Allen Hossley, also didn’t immediately respond to a message requesting comment.

After the first trial and record verdict, Union Carbide asked Smith County Circuit Judge Eddie Bowen to toss out the award. They also asked Bowen to step down from the case. When Bowen didn’t respond, Union Carbide went to the Supreme Court and asked the justices to remove him.

Union Carbide claimed Bowen was a practicing attorney when his father and mother sued Union Carbide for $1 million. Union Carbide argued that Bowen’s bias and prejudice against the company was clear from his rulings, comments in front of the jury, and his coaching of Brown’s attorneys in questioning witnesses.

Union Carbide is a wholly owned subsidiary of The Dow Chemical Company, according to its website, with over 2,400 employees. Its corporate center is in Houston and it has other locations in Texas, New Jersey, Louisiana and West Virginia.

The estate of a man who died from malignant mesothelioma did not produce enough evidence to prove he was exposed to the asbestos-containing brake shoes supplied by the defendant.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 24, 2012 — In a recent decision, a Wisconsin appeals court reversed a $1.5 million damages award against a brake-shoe supplier whose product contained asbestos, concluding the evidence was insufficient to prove causation.

John Pender worked as a painter and glass setter for 41 years, from 1952 to 1993. In 2006, he was diagnosed with malignant mesothelioma and died shortly thereafter.

Pender's estate sued various product manufacturers based on negligence and strict products liability, claiming the brake shoes they supplied to Pender's employer, Harnischfeger Corp., contained asbestos that created an asbestos-laden dust during the grinding process.

Pneumo Abex LLC, a brake shoe supplier, was one of the manufacturers. Abex did not dispute that its product contained asbestos. But in Estate of John Pender v. Pneumo Abex LLC, (Jan. 18, 2012), the District I Wisconsin Court of Appeals agreed with Abex that the estate did not produce sufficient evidence to prove Pender had actual exposure to Abex's product.

The record indicated that Abex supplied brake shoes to Harnishfeger Corp. while Pender worked there, but there was insufficient evidence that Abex's brake shoes were supplied to the particular plant where Pender worked.

Harnishfeger had several plants in Milwaukee, and nine different companies supplied brake shoes to the company for a 20-year period. The other suppliers that Pender's estate sued were dismissed at the summary judgment stage. At trial, Abex stood as the sole defendant.

A jury found Abex liable on theories of both negligence and strict liability, awarding damages of nearly $1.5 million. But the appeals court ruled the case was over at summary judgment.

"We would have to pile inference upon inference in order to conclude that Pender was exposed to Abex's brake shoes while working at the National Avenue plant," wrote Judge Kitty Brennan.

"The evidence fails to take Pender's alleged exposure outside the realm of speculation and conjecture." The court noted a lack of evidence that Abex's brake shoes were ever delivered to Harnishfeger's National Avenue plant specifically, or were ever present or grinded there.

"The evidence presented to the trial court created on a 'mere possibility' of causation, which is not enough to survive summary judgment," the appeals court concluded.

The original article can be found here

A link to a recent article quoting Segal McCambridge shareholder Jason Kennedy

Our article is here

The entire article at Inside Counsel can be found here

Several stories on the removal of the trial court judge who oversaw the $322 million dollar verdict in Mississippi

Judge taken off asbestos case, bringing proceedings to a halt
The Mississippi Supreme Court has ordered a Smith County judge to step down from further proceedings in an asbestos case that resulted in a $322 million verdict.

In an order issued Thursday, Presiding Justice Jess H. Dickinson said all proceedings in the case will be halted until a new judge is appointed.

Union Carbide had asked the Supreme Court to determine whether Circuit Judge Eddie H. Bowen should have presided over the case.

In May, attorneys for Union Carbide said Bowen neglected to notify defense lawyers his parents had been involved in similar asbestos litigation and had settled a case against Union Carbide. When Bowen didn’t respond to the petition, Union Carbide went to the Supreme Court.

On May 4, a jury in Smith County awarded $300 million in punitive damages and $22 million in actual damages to Thomas C. Brown, who claimed he had inhaled asbestos dust while mixing drilling mud sold and manufactured by Chevron Phillips Chemical Co. and Union Carbide.

Allen Hosselly, a Dallas attorney who represented Brown, has said he thought both the plaintiff and defense were treated fairly by the judge during the trial. He said if there was some conflict involving the judge the defense “didn’t raise it until after the verdict came down.”

In a statement, Union Carbide said Bowen made “offhand comments” during the trial about how his father might have been exposed to asbestos at Ingalls Shipyard in Pascagoula. Union Carbide said Howard J. Bowen, identified as the judge’s father, had sued Union Carbide and others in 1989 and 1992.

Bowen, according to the motion, was a practicing attorney when his father and mother sued Union Carbide seeking $1 million for emotional distress, and at least one case is still outstanding. Union Carbide settled with the elder Bowens.

Union Carbide $322 Million Asbestos Verdict Put on Hold
A $322 million jury verdict against Dow Chemical Co. (DOW)'s Union Carbide unit and Chevron Phillips Chemical Co. was put on hold while the Mississippi Supreme Court considers whether the trial judge should be disqualified.

Union Carbide claims Circuit Court Judge Eddie Bowen, who presided in the Raleigh, Mississippi, trial over a former oil worker's claim he was sickened by asbestos, should have bowed out of the case because the judge's father suffered from asbestosis, a disease caused by the mineral.

Union Carbide said the companies were denied a fair trial. Bowen might be biased, the company said in its petition to the state high court, citing his father's illness, "improper comments on the evidence," and rulings during the trial.

The May 4 award is the largest ever made to a single asbestos case plaintiff, according to data compiled by Bloomberg. A state punitive-damages cap would erase at least $260 million.

The Mississippi court stopped proceedings in the case in an order signed by Chief Justice William L. Waller Jr. The ruling means the award won't be enforced until the allegations are resolved.

"If there's a disqualification, you would have to retry it with a different judge," said Carl Tobias, a University of Richmond law professor in Virginia. "That's the way most courts would handle it." The state Supreme Court might reject the motion to disqualify the judge, he said..

Oil Worker
The plaintiff, Thomas Brown, developed asbestosis after being exposed to the toxic fibers while mixing drilling mud on oil rigs in the Gulf of Mexico. He said Union Carbide and Chevron Phillips Chemical knew asbestos is toxic and didn't warn him. Brown is on oxygen 24 hours a day, said his attorney, D. Allen Hossley.

Chevron Phillips Chemical is a joint venture of Chevron Corp. and ConocoPhillips. (COP)

The jury verdict included $300 million in punitive damages, awarded equally against Union Carbide and Chevron Phillips Chemical. Mississippi law would limit the punitive award to $40 million, or $20 million per defendant.

The judge didn't respond immediately to a message left in his chambers.

Bowen's father settled claims with asbestos defendants, including Union Carbide, the company's filing said.

"If this is not an appearance of impropriety, I don't know what an appearance of impropriety is," W.G. Watkins, a Union Carbide lawyer, said in an interview.

'Fair Trial'
While the judge's father was involved in asbestos litigation, "it happened 20 years ago and neither defendant was ever sued," Hossley, Brown's attorney, said today in a phone interview. "Everybody got a fair trial."

Watkins said company lawyers are investigating whether the judge had other possible conflicts. Yesterday's ruling is a "statement that the Supreme Court takes the recusal seriously," he said.

The case is Brown v. Phillips Co., 2006-196, Circuit Court, Smith County, Mississippi (Raleigh).

New York City Jury Awards More Than $50 Million in 2 Asbestos Cases, Including $32 Million in Naval Case

A jury hearing arguments in two separate asbestos cases has awarded more than $50 million to the two plaintiffs, including a total of $32 million to a former U.S. Naval worker, Ronald Dummit, who claimed that he was exposed to asbestos-containing products associated with Crane Co. and Elliot Turbomachinery aboard seven U.S. Navy ships over an almost 20 year career. Dummit was awarded $16 million for past pain and suffering and $16 million for future pain and suffering. Crane Co. was allocated 99 percent liability while Elliot Turbomachinery was assigned the remaining 1 percent liability.

The companion case, Konstantin, resulted in a verdict of almost $20 million for mesothelioma of the tunica vaginalis (the serous mebrane which covers the testicles) allegedly resulting from exposure to drywall and joint compounds used at construction sites where the lone remaining defendant, Tishman Liquidating Corp., f/k/a Tishman Realty and Construct Co Inc., was the general contractor at both construction sites. The plaintiff claimed that Tishman had violated Section 200 of the New York Labor Law, which required the Tishman to maintain a safe workplace for construction site workers.

Judge Joan A. Madden presided over the trials of the two cases, which took place before a single jury.

The press release from the Plaintiff’s firm, Jordan and Fox can be found here

From STLToday.com
$320 million verdict in lead smelter case sends clear message
Lead smelter verdict
• $320 million in punitive damages
(Split equally among 16 plaintiffs, $20 million each.)
• $38.5 million compensatory damages
(Awards of $1.5 million to $3 million for each plaintiff.)
• Total damages awarded: $358.5 million

ST. LOUIS • The mystery Friday afternoon was not whether the jury would punish the Herculaneum lead smelter’s former owners for negligently exposing 16 children to harmful lead pollution.

The jury had already said it planned to award punitive damages, on top of a $38.5 million verdict as compensation for health problems and lost lifetime earnings.

The only question still lingering in the St. Louis Circuit courtroom at the end of a three-month trial was the size of that award.

The answer: $320 million.

The amount surprised even the plaintiffs’ attorneys. They had suggested to the jury a punitive award that was one-third lower.

“I’m stunned,” said Gerson Smoger, a Dallas attorney who worked on the case with St. Louis attorney Mark Bronson.

“They obviously wanted to send a message: Don’t choose profits over people,” Bronson said. “That’s what this case is about.”

Aside from the expected appeals and post-trial motions, this was the last phase in a lengthy and complex case, and it carried with it one last surprise with the staggering verdict.

Attorneys for the defendants departed the courtroom without commenting, their papers and files wheeled out in boxes as soon as court adjourned. The plaintiffs and their families, who cried and hugged after hearing the verdict, declined to comment. So did jurors leaving the courthouse.

This case was just one of many targeting the massive lead smelter in Herculaneum, about 30 miles south of St. Louis. The lawsuits claim former and current owners knowingly exposed residents to lead pollution, a neurotoxin that is especially harmful to children. Plaintiffs’ attorneys said their clients, children growing up near the smelter, suffered lost IQ points and other health effects from lead poisoning that the company knew existed and only reluctantly revealed.

This case is the first to reach trial. Current owners of the smelter, Doe Run Resources Corp., settled claims with the plaintiffs earlier this year, according to court records. The court case then centered on the plant’s operation from 1986 to 1994 under former owners Texas-based Fluor Corp., Virginia-based A.T. Massey Coal and Missouri-based Doe Run Investment Holdings Co.

On Thursday, the jury returned verdicts awarding compensatory and punitive damages. The compensatory amount was announced immediately, with the plaintiffs receiving awards of $1.25 million to more than $3 million each.

A separate hearing was held Friday to put a number on the punitive award, which in Missouri is allowed to be used to punish wrongdoing and deter future acts.

What happened during the hearing helps illuminate how the jury made its $320 million decision.

The day started with a forensic economist’s describing just how big and profitable a company such as Fluor is. Robert W. Johnson, hired by the plaintiffs, noted that Fluor posted $20.8 billion in revenue last year. The company also spent $265.2 million on stock repurchases and dividends. Johnson called it “free cash.”

Bronson asked him to explain the term.

“Free to leave the company as designated by the company and it will do no harm,” he replied.

Johnson also noted the financial status of A.T. Massey, which reported $3 billion in revenue last year and which was bought during the trial for $8.5 billion, and the Doe Run holding company, which had no financial data.

Jack Quinn, the defendants’ attorney, took a different tack with Johnson. Quinn reminded him that these companies were publicly traded and so were owned by pension funds and individual investors. But Johnson demurred, saying institutional investors accounted for almost all of the outstanding stock.

The two sides then made their final pleas to the jury to see things their way, to potentially raise or lower the amount of punitive damages.

Quinn, having already lost on the decision to award damages, tried to limit the amount.

“You have made your decision. I respect what you’ve done. Fluor respects what you’ve done,” he told the jury.

He reminded the jury’s six men and six women that they already had awarded a $38.5 million verdict. Quinn called it “a significant amount of money” and “a clear message.”

“Do you think management doesn’t hear it? They heard your message,” he said. “I believe your message has been sent and it’s been sent pretty clearly.”

As he neared the end of his argument, Quinn pointed out that the verdict form allows for an amount of zero.

“I’m not telling you to write ‘none,’” he said. “But what the instructions recognize is, if you think that the message already has been sent.”

Smoger, pleading once more for the plaintiffs, ended the hearing.

He attacked the Fluor leadership that, he said, allowed the lead poisonings to happen and never bothered to even show up in court.

“You’ve been here for months and you’ve never heard that they’ve done anything wrong. You’ve never heard, ‘I’m sorry,’” Smoger said.

—"‘We don’t care. We’re not sorry.’ That’s the message that you’re hearing,” he added.

The jury then went out to make its decision. The plaintiffs had asked for $208 million. The jury returned two hours later.

The verdicts for each of the 16 plaintiffs were identical: 11 of 12 jurors had agreed, $15 million in punitive damages from Fluor, $3 million from A.T. Massey and $2 million from the Doe Run holding company.

That added up to $320 million.

The last thing that Smoger had told the jurors before they made their decision seemed to have resonated, carried with them from the courtroom and into their deliberations.

“They hurt these children and did it for money. In our system, we can only punish them with what is most valuable to them,” he said, adding, “We punish them with money.”

From NERA Economic Consulting (www.nera.com) is the recent publication, “Snapshot of Recent Trends in Asbestos Litigation“
From the website:

“In this third annual review of recent trends in filings and settlements in asbestos litigation, NERA Vice President Mary Elizabeth C. Stern, Senior Vice President Lucy P. Allen, and Senior Analyst Adelina Halim extend their analysis to cover a full decade from 2001 through 2010, using publicly available data to analyze trends in asbestos-related liabilities of more than 150 companies. In the report, the authors find that as the decade drew to a close, aggregate results continued to be generally favorable to asbestos defendants: filings are down; total indemnity payments have stabilized well below the 2004 highs; and pending claims continue to fall. At the same time, dismissal rates have continued to drop and average dollars per resolved claim have increased. While these trends may appear to lead to higher costs, these changes are consistent with the mix of claims shifting toward more malignancies (as non-malignant filings drop).

The authors note that the decade had begun with increasing filings, rising total indemnity payments, and mounting pending claims against defendants. However, by mid-decade, all three trends were reversed, with filings, in particular, falling below 2001 levels. With the close of the decade, filings and payments have stabilized for individual defendants below the mid-decade peaks, but the average claim is more expensive to resolve. Going forward, it is yet to be seen whether the pace of the litigation will change as non-malignant claims no longer clog up certain jurisdictions, and what effect, if any, the new asbestos trusts will have on filings and settlements for still-solvent defendants.”

A copy of the publication “Snapshot of Recent Trends in Asbestos Litigation: 2011 Update” can be found here

The Illinois Appellate Court for the Fourth District has overturned a $2.5 million verdict that was one of several controversial jury awards in asbestos cases filed in McLean County.

In the recent opinion, Plaintiffs claimed that Juanita Rodarmel, a Bloomington woman contracted mesothelioma after she was exposed to asbestos on the clothing of her first husband, Leslie Corry, an employee of the former Union Asbestos & Rubber Co. Corry worked at the plant from 1953 to 1956.

In their decision tossing out the 2009 verdict, the court rejected the plaintiff's argument that Pneumo Abex LLC and Honeywell International should be held accountable for Rodarmel's illness because the companies allegedly conspired with other firms to keep secret information about the hazards of asbestos.

The ruling issued in Springfield appears to have eviscerated the “conspiracy theory” used by attorneys in the Fourth District of Illinois. Specifically, the Court overruled the Burgess v. Abex Corp., 311 Ill. App. 3d 900, 903 (2000) case which had stood for the proposition that the suppression of the report counted as evidence of agreement between asbestos producer Johns-Manville and Abex predecessor American Brake and Block.

They overruled the Dukes v. Pneumo Abex Corp., 386 Ill. App. 3d 425 (2008) decision which allowed several pieces of evidence in support of the conspiracy theory.

Further, the Fourth District held that jury improperly found a duty on the part of employers, in the 1950s, to warn workers against carrying asbestos dust home on their clothes.

The Court wrote that “in 1953 through 1956, the infliction of illness merely from asbestos carried home on clothing was not reasonably foreseeable, given what was known during that period.”

Jurors had awarded $2 million in compensation, $400,000 in punitive damages against Honeywell, and $100,000 in punitive damages against Abex.

The trial court cut compensatory damages to $183,333, after subtracting amounts other companies had paid to settle Rodarmel’s claims.

Some interesting excerpts from the opinion, in terms of Plaintiff’s expert, Barry Castleman’s testimony with respect to animal studies and their casual significance:

“More to the point, perhaps, it was unclear what qualifications, if any, that Castleman had in the field of pathology and, more specifically, in cancer experimentation with mice. He apparently was not a medical doctor or a veterinarian.”

“So that leaves no one – that is, no one with relevant expertise – opining that the eight or nine tumorous mice, in an uncontrolled experiment, were scientific evidence of a causal relationship between asbestos and cancer in humans.”

With respect to Barry Castleman’s testimony on “take-home” exposures to asbestos:

“In summary, then, Castleman conceded the following three points in his testimony. First, it was not until mesothelioma was widely recognized as a disease distinctively related to asbestos that it became possible to scientifically track the risk of asbestos into the homes of workers through the occurrence of mesothelioma among family members. Lung cancer was too nonspecific for that purpose. Second, in the 1950s, mesothelioma was not yet widely recognized as an asbestos disease, that is, a disease distinctive to, or specific to, asbestos. Third, in 1955, it was still an open question whether a person could suffer harm from breathing asbestos in quantities insufficient to cause asbestosis.”

Justice Appleton expressed open contempt for the decision by the trial court for allowing evidence that Johns-Manville (not a party to the case) helped Honeywell’s predecessor, brake maker Bendix, in writing a position paper. “If this paper is evidence of a conspiracy, so is the New England Journal of Medicine.”

Further, the opinion held that membership of companies in trade associations cannot be counted as evidence of some kind of “conspiracy.” “Joining a trade organization was just as consistent with innocence as with guilt.”

The Illinois Appellate Court for the Fourth District opinion in the Rodarmel case can be found here

On June 29, 2011, the Indiana Supreme Court issued three split opinions dealing with what fees are recoverable under the Adult Wrongful Death Statute, holding that attorney fees, litigation expenses, and loss of services can be recovered. Chief Justice Randall T. Shepard and Justice Robert Rucker dissented in each of the three decisions, stating that those items are not permitted under the plain language of the statute.

The justices granted transfer to the three decisions in which separate Indiana Court of Appeals panels had reached opposite conclusions on each of these topics.

The three decisions can be found at
Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance

Indiana Patient’s Compensation Fund v. Beverly S. Brown

The Indiana Lawyer has an article on the decisions which is here