Segal McCambridge Legal Blog

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.

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).

Two follow-ups on the recent $322 Million asbestos verdict in Mississippi in an alleged asbestosis case.

From the Wall Street Journal Law Blog

* May 6, 2011, 5:32 PM ET

By Ashby Jones

Mississippi Jury Returns Largest Asbestos Verdict in U.S. History

Asbestos litigation.

Ho-hum, right? After all, it's about as current as Ivan Lendl, as hip as Vanilla Ice, as played out as Gary Hart.

Uh, yeah, time for you to give asbestos litigation another look.

The news: A jury in Mississippi on Thursday has awarded a 48-year-old man the largest plaintiffs' asbestos verdict in U.S. history.

In a case against Chevron Phillips Chemical and Union Carbide Corporation, Thomas Brown Jr., was awarded $322 million dollars for future medical expenses, pain and suffering, and punitive damages. Click here for the article, from the Laurel Leader-Call.

According to the story:

Brown, who worked in the oil fields of Mississippi from 1979 to the mid 80's, was diagnosed with asbestosis and is currently on oxygen 24-hours a day. He worked as a roughneck mixing drilling mud on drilling rigs in Mississippi and offshore in the Gulf of Mexico, and inhaled asbestos dust while on the job

"Brown inhaled asbestos dust while mixing drilling mud sold by CP Chem and manufactured by Union Carbide," said Allen Hossley, a lawyer for the plaintiff. "Although the asbestos was known to cause cancer and lung disease, CP Chem and Union Carbide continued to market these almost 100 percent pure asbestos products long after they knew the dangers."

The jury found that CP Chem and Union Carbide were liable to Brown for defectively designing their product and failure to provide an adequate warning.

A Union Carbide spokesman told the LB:

This verdict is outrageous and completely unsupported by the facts or applicable law. . . . There were numerous judicial errors as to both the substantive law and the conduct of the trial that prejudiced Union Carbide's defense and provide strong grounds for appeal. Union Carbide has confidence in the Mississippi appellate courts and believes . . . that this verdict will be completely set aside by post-trial motions or through the appellate process.

A call by the LB to CP Chem was not immediately returned.

—————
From the Laurel Mississippi Leader-Call

Leader Call
May 6, 2011
Smith County jury awards $322M verdict
Largest asbestos verdict in U.S. history

By Charlotte Graham, countyreporter@laurelleadercall.com
Laurel Leader-Call

RALEIGH — A Smith County jury has awarded a 48-year-old Brookhaven man the single largest plaintiff’s asbestos verdict in United States history.

In a case against Chevron Phillips Chemical (CP Chem) and Union Carbide Corporation, Thomas "Tony" Brown Jr., was awarded $322 million dollars for future medical expenses, pain and suffering, and punitive damages.

Brown, who worked in the oil fields of Mississippi from 1979 to the mid 80's, was diagnosed with asbestosis and is currently on oxygen 24-hours a day. Asbestosis is a debilitating lung disease caused by asbestos exposure and induces lung scarring and shortness of breath, which progresses over time. Exposure to asbestos can cause cancer and death.

Brown, who worked as a roughneck mixing drilling mud on drilling rigs in Mississippi and offshore in the Gulf of Mexico, was represented by Allen Hossley, Dawn Smith, and Ray Turcotte of the Hossley Embry law firm in Dallas, along with Gene Tullos and Gary King of Tullos & Tullos of Raleigh.

"Brown inhaled asbestos dust while mixing drilling mud sold by CP Chem and manufactured by Union Carbide," said Allen Hossley. "Although the asbestos was known to cause cancer and lung disease, CP Chem and Union Carbide continued to market these almost 100 percent pure asbestos products long after they knew the dangers."

The jury found that CP Chem and Union Carbide were liable to Brown for defectively designing their product and failure to provide an adequate warning.

Hossley went on to say that many industrial companies like CP Chem and Union Carbide put innocent workers at an extreme health risk just to insure greater profits.

"It's my commitment to make sure that these irresponsible companies are held accountable to the lives and families that they have destroyed," he said. "Despite stronger regulations, many people are still suffering the lasting effects from asbestos exposure."

Brown was unable to read and write when he started working in oil fields as a floor hand at age 16 and defendants argued that because Brown couldn't read, he didn't deserve protection under Mississippi's statue requiring defendants to warn the oil-field workers about the known dangers of their asbestos drilling products.

"The jury's verdict made it clear that the people of Mississippi think that everyone, including the young men entering the work force that can't read, deserve equal protection under Mississippi law," said Dawn Smith.

Attempts to reach the defendant's attorney's were unsuccessful Thursday.

Representing Defendant CP Chem was Alex Cosculluela of Adams and Reese of Houston, Texas; Jeffrey Trotter of Adams and Reese of Jackson; Robert Johnson of Natchez and David Garner of Raleigh.

Representing Defendant Union Carbide was Michael Terry of Hartline, Dacus Barger Dreyer, LLP of Corpus Christi and Marcy Croft of Forman Perry Watkins Krutz & Tardy of Jackson.

Jury Awards $322 Million in Asbestosis Case Involving Drilling Mud
Additives

In what is believed to be the largest asbestos verdict in the history of the United States, a Smith County, Mississippi jury has awarded $322 million to a plaintiff who claimed he developed asbestosis as a result of working with drilling mud additives.

Jurors allocated 50 percent liability each to the two remaining defendants, Chevron Phillips Chemical Company and Union Carbide Corp.

Judge Eddie Bowen presided over the trial that began with just over one week of jury selection, followed by two-and-a-half weeks of trial.

Plaintiff, Thomas Brown claimed exposure to asbestos in the defendants' products during work he completed mixing drilling mud from 1979 to 1985. As a result of this exposure, Brown says he developed asbestosis. The plaintiff asserted claims for failure to warn, design defect, damages, and fear of cancer.

The defendants argued during trial that their products were not defective in design and that there were no other feasible alternative designs. Chevron Phillips Chemical Co. and Union Carbide Corp. also contended that the products functioned as expected and that the warnings were compliant with OSHA standards.

Local sources indicate that the Plaintiff was allegedly a 1/0 asbestotic who weighed 300 lbs. He complained of shortness of breath. Plaintiff was only able to show approximately $44K in medicals. Despite this dearth of evidence, the jury awarded $11 million for future medical expense. The jury awarded another $11 million for pain and suffering (despite Mississippi having a $1 million cap on non-economic damages). Finally, the jury awarded punitive damages of $150 million against each defendant bringing the total verdict to $322 million.

Reports are that the judge, Eddie Bowen, was quite new and allowed "everything in” offered by the plaintiffs. Off the record, reports are that the plaintiff's attorney, Gene Tullos “owns the county” and apparently the jury since 4 former Tullos clients were on the jury. Additionally another four jurors were allegedly related to plaintiffs in earlier cases prosecuted by Attorney Tullos.

Testifying on behalf of the plaintiffs were Steven W. Stogner, M.D., plumonology; Edwin C. Holstein, M.D., occupational medicine; and Edward R. Ziegler, P.E., C.S.P., petroleum engineer.

Among those testifying on behalf of the defendants were Robert Ross, M.D., pulmonologist/B-reader; and William Dyson, Ph.D.

Counsel for Chevron Phillips were Alex E. Cosculluela of Adams and Reese in Houston and Jeff Trotter of the firm's Jackson, Miss. office; Robert L. Johnson III of Robert L. Johnson II Law Offices in Natchez, Miss.; and David Garner of G. David Garner Law Offices in Raleigh, Miss.

Union Carbide was represented by Michael G. Terry of Hartline, Dacus, Barger, Dreyer and Kern LLP in Corpus Christi, Texas; and Marcy B. Croft of Forman, Perry, Watkins, Krutz & Tardy LLP in Jackson, Miss.

The plaintiff was represented by D. Allen Hossley, Dawn M. Smith and Raymond Turcotte of Hossley Embry in Dallas; and Gene Tullos and Gary King of Tullos & Tullos in Raleigh, Miss.

The Plaintiff’s press release is here

On December 9, 2010, the Mississippi Supreme Court overturned a $1.86 million Copiah County, Mississippi jury verdict in favor of a welder who claimed welding rods manufactured by The Lincoln Electric Co. and ESAB Group Inc. caused his magnesium-related neurological disease

As stated by the Mississippi Supreme Court:
This case involves a welder's claim of product liability and failure to warn against Lincoln Electric Company (Lincoln) and the ESAB Group, Inc. (ESAB), manufacturers of welding rods ("Defendants"), for exposure to harmful welding fumes that resulted in his eventual diagnosis of manganism, a neurological disease caused by high exposure to manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants' rods, which contained manganese, to weld materials together.
McLemore filed a complaint in the Circuit Court of Copiah County on November 14, 2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants filed a motion for summary judgment, claiming that McLemore had filed suit outside the three-year statute of limitations. The trial court denied the motion for summary judgment. The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash, which the trial court denied.
The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Following the trial court's denial of the motions, the Defendants filed a notice of appeal raising three issues:
I. Whether the trial court improperly admitted McLemore's medical expert's diagnosis.
II. Whether McLemore proved that each Defendant's products were a substantial factor in causing his injury.
III. Whether McLemore's claims were barred by the statute of limitations, and whether the form of the verdict misstated the relevant question on the issue of statute of limitations.

Finding the issue of the statute of limitations to be dispositive, this Court reverses and renders the trial court judgment enforcing the verdict of the jury.

The Mississippi Supreme Court decision of 12/9/10 can be found here

From LegalNewsline.com

Two asbestos attorneys in Mississippi are appealing a federal jury’s ruling that they committed fraud in litigation against Illinois Central Railroad.

Attorneys William Guy and Thomas Brock were ordered in March to return $210,000 in settlements secured on behalf of two clients and to give another $210,000 in punitive damages to Illinois Central Railroad, which filed a fraud lawsuit against the two in November 2006.

The attorneys are alleged to have concealed their clients’ previous involvements in a mass action years before their lawsuits were filed against Illinois Central.

Guy and Brock filed their notice of appeal Friday. They are appealing an order granting prejudgment interest, the jury verdict and the opinion and order overruling their motions for judgment as a matter of law and for a new trial.

The full article can be found here

Legallinenews.com report
JACKSON, Miss. (Legal Newsline) – A divided Mississippi Supreme Court has decided a judge was right to buy the story of asbestos attorneys in a “he said, he said” dispute over a private settlement conference, with a group of resentful dissenters lamenting the long-term effects of the decision.

Illinois Central Railroad Co. and the Pittsburgh asbestos firm Peirce, Raimond & Coulter disagreed about the settlement process set up at a private meeting in Pittsburgh in 2006. The process would have settled 216 claims against the company.

However, ICRR argues that it only agreed to immediately settle all claims except the 25 diagnosed by Bridgeport, W.Va., radiologist Dr. Ray Harron, who has been accused of fabricating lung disease diagnoses. The Peirce firm said ICRR agreed to settle all claims at the meeting.

Holmes County Circuit Court Judge Robert Goza agreed with the Peirce firm, as did the state Supreme Court on Aug. 26.

The entire story can be found here

The story from the Washington Post can be found here

By JACK ELLIOTT
The Associated Press
Thursday, September 2, 2010; 6:15 PM

JACKSON, Miss. — Ford Motor Co. on Thursday settled a Mississippi lawsuit over a 2001 accident in which a New York Mets prospect was killed when his SUV crashed in the Florida Panhandle, a lawyer for the player’s family said.

The settlement came shortly after the jury in Jasper County had awarded $131 million in actual damages to Cole’s family and before it was to consider possible punitive damages, Tab Turner an attorney for the family of Brian Cole, told The Associated Press.

Turner, from Little Rock, Ark., said the settlement amount and terms were confidential.

“The family is glad this is finally over. I thought the verdict was an appropriate response to the evidence. They put zero percent of the fault on Brian Cole and 100 percent of the fault on Ford Motor Co. for a defective and unreasonably dangerous vehicle,” Turner said.

Ford spokeswoman Marcey Evans said the accident was a tragedy and the company offered its sympathy to the Cole family for their loss.

However, Evans said in a statement that the Mississippi court “denied Ford a fair trial by excluding evidence that the jury should have heard and considered about Brian’s driving and the speculative nature of plaintiffs’ claims.”
Cole, then 22, died from injuries he suffered when his Ford Explorer overturned as he drove home on March 31, 2001, from spring training in Port St. Lucie, Fla., to Meridian, Miss., with his cousin, Ryan Cole. Brian Cole was ejected from the SUV.

He was taking his Explorer home and was to fly Sunday to Binghamton, N.Y., to join the Mets’ Double-A team for its season opener.

The one-car accident occurred on Interstate 10 near Florida Highway 286, just south of the Georgia border and about 45 miles northwest of Tallahassee, according to the Florida Highway Patrol.

Brian Cole, who was single and the youngest of five children, was pronounced dead at Jackson Memorial Hospital. Ryan Cole, then 17, was treated and released.

Turner said the family made two claims: the Explorer was unstable and its safety belts didn’t work in rollovers.

“That permitted Brian Cole to be thrown out of the car during the rollover despite being belted,” he said.

Evans said Ford blamed speeding and reckless driving for the accident.

“Brian Cole had been driving over 80 mph when he drifted off road for unknown reasons, suddenly turned his steering wheel 295 degrees, lost control, and caused the vehicle to roll over more than three times,” Evans said. “He was not wearing his safety belt and died after being ejected from the vehicle. His passenger, who was properly belted, walked away from the accident.”

Brian Cole went to Meridian High School and was Baseball America’s junior college player of the year in 1998 at Navarro Junior College in Texas. He was selected by the Mets in the 18th round of the 1998 amateur draft and turned down a football scholarship to Florida State.