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Asbestos: Winning the Fight for Justice that the Insurance Industry Predicted

By: Christopher M. Placitella & Jared Placitella

In 1933, Samuel Greenstone of Newark, New Jersey settled the first asbestos lawsuits ever brought against Johns Manville on the condition that he would never file another case; thus averting the first blow to the asbestos industry and its producers.

In 1958, a creative solo practitioner from New Jersey charted new waters and sued Johns Manville not as an employer, like Greenstone had done, but under a product liability theory—perhaps, the first such case of the twentieth century. While the plaintiff took the stand tethered to an oxygen machine, the insurance carrier settled the case for fear that a verdict would receive national publicity. To avoid publicity, the settlement was placed on the record for chronic lung disease, not asbestosis.

During the 1960s, there were a few third party asbestos cases that were quietly settled with very little fanfare. Ten years after secretly settling Mr. LeGrande’s lawsuit, Johns Manville, and its insurance carrier, settled the first environmental asbestos case very quietly admitting internally that the insured had been contaminating the “hell out of both the air and water for quite some time.”. The insurer further predicted that given the exposures created by the numerous asbestos containing products available to the general public “ we can find ourselves overwhelmed with claims for the variety of diseases attributable to asbestos dust.

In 1973, the Borel decision was handed by the Court of Appeals for the 5th Circuit setting the stage for asbestos litigation for the foreseeable future. Internally, one insurance company executive labeled Borel a “disaster” and predicted that industry should “expect the reservoir of sleeping claims to shortly be breached: Eventually those standing closest to the dam will be overwhelmed first.” Insurors correctly predicted that all those responsible would eventually be held accountable including manufacturers, distributors, premises owners and companies that utilized asbestos as a component part for equipment.

In order to get a handle on potential exposure, the insurance industry attempted to estimate the number of people who would get sick and die as a result of asbestos. The initial estimates of death ranged from 25,000 to 65,000 American workers with as many as 400,000 people sick enough to file claims for asbestos disease. A subsequent study by the American Insurance Association predicted that just looking at women occupationally exposed to asbestos 256,000 would die from cancer through 1995 and that asbestosis case would double the number of lung cancer cases. None of the estimates included illness for wives, people living near factories and school children. Fortunately for industry, most of these cases of death would occur before 1980, and therefore, not become lawsuits because of the statute of limitations.

Litigation during the 1970s was difficult and very expensive for people injured from the ravages of asbestos. Many of these first cases were lost, and countless other workers settled their cases for far less than they were worth because they were simply not armed with the true universe of evidence demonstrating industry misconduct. As time progressed, more and more evidence was uncovered concerning what industry actually knew about the dangers of asbestos and when that information first became known. Pioneers of the asbestos bar slowly and methodically disgorged the evidence that industry so desperately tried to keep secret. These trailblazers included Ronald Motley, Fred Baron, Steve Kazan, Scot Baldwin, Tom Henderson, Paul Gillenwater, Gene Locks and others. As more and more workers began to win their cases in court, new defense strategies emerged in an attempt to fight off the onslaught of cases which industry forecasted would occur once the truth was made public.

Just as the insurance industry predicted, for the next 20 years the battle for just compensation involved not only asbestos manufacturers, but also other corporate giants that sold and utilized asbestos with full knowledge of the potential health risks. The baton was passed from the pioneers to a new breed of lawyer just as committed to providing justice and compensation to the wrongfully injured. The first tier of plaintiffs warriors have been replaced by new names just a fearless. New technology and organization permitted the new warriors to compete with the country’s largest law firms and well financed defendants. At the time of this writing, the focal point of the organization of victim advocates centers around the American Association of Justice (“AAJ”). The battles rage on as the industry defenses become even more sophisticated including the perversion of medical science not unlike that which occurred during the 1940s and 1950s.

Examples from recent trials  provide a snapshot of the barrage of defenses deserving plaintiffs continue to encounter and the strategies used by their attorneys to overcome those hurdles. The names of the AAJ attorneys whose work is featured herein and who are all available to provide more in depth information, may be found in the endnotes referred to in the accounts below. There are many others who are equally successful in the pursuit of justice for their clients but space does not permit listing everyone so deserving.

Proving Knowledge

While the defendants, the exposures, and the defenses involved in asbestos cases are often different than decades ago, the formula for success has not changed. Jury research continues to emphasize that the defendant’s knowledge of the dangers of asbestos and the response thereto are the keys to success. It is a mistake to assume that there is no work to be done concerning these issues given the maturity of the litigation. New evidence is constantly being uncovered and freely exchanged amongst members of the asbestos plaintiffs’ bar.

Essential to success is offensive discovery to prove the defendant’s knowledge and directly attack the defenses asserted. The greatest weapon for exposing the truth is the carefully crafted 30b6 deposition of the corporate representative. The discovery obtained through this discovery tool and shared amongst plaintiffs’ counsel has played a key role in almost every case tried over the last year.

The product of ongoing offensive discovery is evident in the victories involving exposure to asbestos containing joint compound where new evidence seems to be uncovered weekly. Thus, for example “the not enough exposure” defense has been obliterated in cases with the discovery of a document that there is so much asbestos in joint compound “ if all the fibrils in 1 gram of asbestos were put end to end, they would circle the earth at the equator 40 times.” This evidence was introduced in a victory against Union Carbide in New Jersey , and in California where two different juries found Union Carbide Corporation responsible for selling the asbestos used in joint compound. In this regard, the jury awarded $3.2 million in compensatory damages and $6,000,000.00 in punitive damages  in one case and $8,465,000 in the other.

A Georgia jury also awarded $10,500,790 against Union Carbide Corporation and Scapa Dryer Fabrics, Inc. The plaintiff in that case was exposed to asbestos while working at Scapa’s asbestos textile plant and to Union Carbide’s asbestos through joint compound used during the construction of his home.. The jury also found that punitive damages should be awarded against both parties. The New Jersey Appellate Division affirmed another verdict against Scapa including a $514,220 award to a paper mill worker for asbestosis (which included $200,000 for medical monitoring — unprecedented in New Jersey). Proof of knowledge was key to all these victories.

A San Francisco jury similarly found Kaiser Gypsum Company, Inc., a manufacturer of joint compounds and wallboard materials, guilty of acting with oppression or malice by clear and convincing evidence, imposing a $20,000,000 punitive damages verdict. Just last week another multimillion dollar award against joint compound maker Georgia Pacific was handed down by a Florida jury.

The importance of offensive discovery in proving corporate knowledge was at the forefront of what may become a landmark case brought under 905(b) of the Longshore and Harbor Workers Compensation Act, which allows shipyard workers injured while working aboard ships to bring negligence actions against the ships’ owners. In this regard, a Newport News, Virginia jury  awarded $12 million in compensatory damages $12.5 million in punitive damages against Exxon. Depositions of corporate representatives as well as convincing state of the art expert testimony was essential to this victory.

Discovery obtained against CSX was similarly pivotal in the  Illinois Appellate decision which held that CSX Corporation owed a duty of care to the wife of its employee because it created or contributed to creating the risk to her.. Similarly, using carefully crafted offensive discovery, plaintiff’s counsel obtained a $9.6 million award against an insulation contractor in four lung cancer cases.

Over the past year new discoveries have demonstrated that products that were once thought to be asbestos free are in fact not asbestos free.  These cases involve industrial and cosmetic talc and even fertilizer. As of the time of this writing these cases are being actively litigated and juries are being  impaneled to decide which side is correct.

Blaming the Plaintiff & the Employer

Because many recently filed cases focus primarily on exposures beginning in the 1960s, traditional state of the art defenses are much harder to assert for many defendants. Instead, the new defense tactic as preached at the DRI has been to assert that everyone knew of the dangers including the plaintiff and his or employer. This strategy is best defeated first by in limine motion to exclude such evidence as not relevant to the issue of duty and if unsuccessful by demonstrating actual or constructive knowledge of the defendant and comparing those resources to the information available to the public. This approach was successfully employed in a  case involving a National Gypsum plant worker who unloaded palettes of asbestos from rail cars and transported them through the plant. In awarding the plaintiff $2.4 million the jury rejected the defendant, Union Carbide’s sophisticated user defense.

In another case, Foster Wheeler blamed the plaintiff who died from mesothelioma and his union arguing that a warning would not have made a difference in light of the information allegedly known and provided by the insulator’s union and according to the defendant ignored by the plaintiff. A Middlesex County, New Jersey jury rejected that defense and awarded $1,998,000 with interest finding the defendant, Foster Wheeler, 100% responsible.

The Tennessee Supreme Court expressly rejected the “blame the employer” strategy in holding the “learned intermediary defense” will not be extended to asbestos cases. An analogues battle is currently being waged in the Federal Courts where the defendants seek to blame the Navy for the plaintiffs’ injuries arguing that the Navy controlled the work environment or the ability to warn. The decisions thus far have been mixed. In a series of recent cases the Southern District of Illinois remanded cases, holding that Foster Wheeler could not demonstrate that the United States Navy forbade or discouraged warnings on products Foster Wheeler sold to the Navy.

Battling the Friction Defenses

From the 1940s well into the 1990s asbestos was used in the manufacture of brake linings and related products. As a result, millions of people were exposed to asbestos during the installation and removal of these products giving rise to an increasing number of cases. These cases are defended aggressively including assertions that the chrysotile asbestos used in brakes does not cause mesothelioma and that even if it does exposure is insufficient.

The friction defenses are again best met with actual corporate knowledge contradicting the defense experts and exposing the opening arguments of counsel as empty. This strategy has been successfully utilized in a number of cases over the last year. In California two separate juries found the defendants acted with malice, fraud and oppression and awarded 13.5 million dollars in punitive damages in one case and $4,665,000 in compensatory damages in the other. The fact that the plaintiff was able to prove that the defendants continued to sell asbestos well into the 1980s with no warnings was considered important evidence to present. One excellent lawyer, Jon Ruckdeschel, seems to have made it his personal mission to expose the truth about the dangers posed by exposure to friction products.

In other successful friction cases the plaintiffs focused on the amount of dust generated during the installation and removal of brake products resulting in jury awards of $1.48 million , 2.5 million and $15 million . In a New Jersey case the plaintiff, a former warehouse worker, was awarded $30 million dollars as a result of plaintiff’s proofs that the defendant knew that even removing asbestos products from boxes would cause exposure.

Meeting the Encapsulation Defense

One of the primary defenses utilized in modern day asbestos litigation is the “encapsulation defense.” In this regard, the defendant argues that although the product may contain asbestos, it is bound up in a matrix and will not release asbestos fibers or if it does release asbestos it does not do so in sufficient quantities to cause disease. In the past, this defense was often successful particularly in cases where there was also exposure to other insulation products. Successful plaintiffs now employ experts who test the release of asbestos fiber using simulations demonstrating the release of asbestos particularly during removal. A sophisticated simulation methodology that has had great impact with juries is “tyndal lighting” which makes dust visible otherwise invisible to the naked eye. Industrial hygiene experts also play a key role in explaining the aerodynamic properties of asbestos, it ability to travel long distances and contaminate and environment for extended periods of time. Focus in cases that have been successful utilize these experts to prove the release of a significant amount of asbestos fiber during removal coupled with excellent scientific evidence demonstrating that all exposures are substantial factors in causing injuries.

In earlier litigation, defendants were often successful with its “our products don’t release asbestos” defense. The tide however seems to have turned. Using the approach outlined above juries around the country are now siding more often with the plaintiffs. The following verdicts were recently returned in mesothelioma cases assessing a percentage of responsibility to the scorched earth gasket manufacturer John Crane– Philadelphia ($1.24 million). , California ($8.25 million in compensatory damages and $14.5 million in punitive damages) , and Texas ($ 27.5 million). A New York jury similarly rejected Goodyear’s encapsulation defense awarding $22 million in two lung cancer cases assessing a percentage of responsibility against Goodyear for its gaskets.

The encapsulation defense has also met defeat in asbestos wire and cable cases. Thus, a California jury returned a verdict for the plaintiff of $5,482,047.54 against the manufacturer and supplier of Rockbestos asbestos insulated wire and cable products also finding the defendant acted with malice and oppression. A Philadelphia jury similarly found Rockwell Automation partially responsible for the asbestos-related death of a Navy electrician’s mate assessing $6.5 million in damages.

Conclusion

From the 1920’s to the present, lawyers have devoted their professional lives to seeking justice for those devastated in injury and mortality from asbestos. There is little doubt based upon the evidence uncovered that industry knew people would be injured. Injury was so certain to occur that the insurance industry attempted to predict who would die and who would seek justice. Instead of accepting responsibility, the choice was made to fight asbestos victims at every turn. As predicted by the insurance industry, the fight continues every day in courtrooms around the country. Few cases are easily settled. The formula for winning asbestos cases in reality has not changed much over the years. Just compensation is only achieved through perseverance, meticulous preparation and the belief that what we do makes a difference in the lives of the people we represent and paves the way for a safer and better America for our children.

Thank you to the advocates for Justice

Lawyers who handled the cases mentioned above include:

Picinic v. Georgia-Pacific Corporation, et al., Docket No. MID-L-888-06 AS (N.J. Super. Ct. 2009). Pl.’s Counsel: Joel Rosen & Christopher Placitella).

Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23 (Second Dist., Div. 5 ; Pl.’s Counsel: Simona Farrise, Campbell Filmer, Carolin Shining and Kelly A. McMeekin.

Steffen v. Cal Portland Co., Case No. BC446485 (L.A. Co. Super. Ct.). Pl.’s Counsel: Scott Frost, Tae Kim & Peter Klausner.

Knight v. Georgia Pac., No. 09-v-0799 (Ga. Super. Ct., Ware City. 2009). The jury held Scapa and Union Carbide each 40% liable and apportioned the remaining liability to Georgia Pacific who settled prior to trial. Pl.’s Counsel: Christian Hartley; Robert Buck .

New Jersey Riegel Paper Trial, [Walter Grube, Docket No. L-5727-02AS; Harry Wilson Docket No. L-5653-01AS; Walter Patton, Docket No. L-5603-01AS]. Pl.’s Counsel: Angelo Cifaldi, Greg Shaffer, Kevin Friedman . & Fritz Jekel (Motley Rice).

John Casey v. FDCC Cal., Inc. Kaiser Gypsum Co., Court Case No. 277517 (S.F. Super. Ct.). Pl.’s Counsel: Gilbert Purcell & Dustin Bodaghi .

Rubert E. Minton v. Exxon Mobil Corp., Docket No.:CL09-01505F-15(TF) (Newport News Cir. Ct.). Pl.’s Counsel: Robert Hatten, William Harty, Hugh McCormick, III.

401 Ill.App.3d 1109, 929 N.E.2d 1257, 341 Ill. Dec. 178 (5th Dist. 2010). Pl.’s Counsel: John . Barnerd, Amy Garrett & Simmons Browder ,Charles Chapman , Kurt E. Reitz & Heath Hooks.

See No. 24X09000419 (Balt. City Ct.). Pl.’s Counsel: Fritz Jekel & Mike Edmonds.

Daniel Edwards v. A.C. & S, Inc., No. 24X08000416 (Cir. Ct. Balt. City). Pl.’s Counsel: William Minkin, Steve Smith & Charles Candon.

Barile v. 3M Co., Docket No. MID-L-7862-07 AS (N.J. Super. Ct. 2011). Pl.’s Counsel:  William Kuzmin.

Evelyn Nye v. Bayer Cropsci. Inc., No. E2008-01596-SC-R11-CV (Tenn. filed on June 7, 2011), on appeal from No. 06C760 (E. Section Hamilton Cty. Cir. Ct. App., Sept. 2, 2010) (Thomas, J.). Pl.’s Counsel: John Guerry, III, Benjamin Cunningham & Jimmy F. Rodgers, Jr..

Baker v. Air & Liquid Sys. Corp., No. 10-L-1168 (Madison Co. Ill. Cir. Ct., filed Nov. 17, 2010);Stephens v. A.W. Chesterton, Inc., No. 3:09-cv-00633-GPM, 2009 WL 3517560 (S.D. Ill. Oct. 22, 2009); Sether v. AGCO Corp., No. 3:07-cv-809, 2008 WL 1701172 (S.D. Ill. March 28, 2008); Johnson v. Foster Wheeler Energy Corp., No. 3:08-cv-00755-GPM (S.D. Ill. Jan. 5, 2009); Rees v. Foster Wheeler Energy Corp., No. 3:10-cv-00063-GPM (S.D. Ill. Jan. 28, 2010) Pl.’s Counsel: Ethan Flint & Andrew Balcer

Gordon & Emily Bankhead v. Allied Packing & Supply, et al., Alameda County Superior Court Case No. RG10502243 (2011). Pl.’s Counsel: Joseph Satterley , Leigh Kirmsse and Justin Bosi.

Bankhead, Case No. RG10502243 (2011). Pl.’s Counsel: Law firm of Lipsitz Ponterio.

Dixon v Bondex, Case No. 24X08000322 (Balt. City. Cir.). Pl.’s Counsel: Jonathan Ruckdeschel, Z. Stephen Horvath , Dawn P. O’Croinin & Christian Hartley.

Buttitta v. Allied Signal Inc., et al, 2010 N.J. Super. Unpub. LEXIS 703, Pl.’s Counsel: Moshe Maimon & Holly Peterson

Richard & Beverly Heckelsberg, Case No. 2038 (Phila. Cty. Ct. Com. Pl., June Term 2010), Joseph & Roberta Smith, Case No. 3412 (Phila. Cty. Ct. Com. Pl., June Term 2010), consolidated Case No. 1864 (Phila. Cty. Ct. Com. Pl. May Term 2010). Pl.’s Counsel: Jessica Dean, Ben Braly, David Halpern, Larry Brown & Steve Cooperstein.

Pfeifer v. Buffalo Pumps, Inc., Docket No. BC416536 (L.A. Co. Super. Ct. Nov. 18, 2010). Pl.’s Counsel: Jay E. Stuemke & Robert A. Green,.

Johnston v. John Crane Co., Case No. 47341 (Dist. Ct. Brazoria Cty., Tex., 239th Jud. Dist.). Pl.’s Counsel: Chris Panatier & Clay Carroll.

Carol Ann McCarthy, Ex’x for the Estate of Eugene G. McCarthy v. A.C. & S, Inc., Docket No. 100490/99 (1999); Dorothy A. Koczur, Individually & as Ex’x for the Estate of Walter S. Koczur v. A.C. & S, Inc., No. 122340/99 (1999). Pl.’s Counsel: Danny Kraft Jr. & Michael Fanelli.

Ronald Merrill Ricker & Suzanna Ricker v. RSCC Wire & Cable, Inc., Docket No. RG10496251 (Alameda Ct. Sup. Ct. 2010). Pl.’s Counsel: William Ruiz & Ian Rivamonte, Gordon Greenwood & Frank Fernandez.

Lanpher v. Alfa Laval, Inc., Cause No. 03698 (Phila. Ct. Com. Pl.). Pl.’s Counsel: Troyce Wolfe & Demetrios Zacharopoulos.

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