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Attorneys Gonen Haklay and William Kuzmin Secure a $1.99 Million Mesothelioma Verdict

On Wednesday, July 13, 2011, Cohen, Placitella & Roth attorneys Gonen Haklay and William Kuzmin secured a $1.99 million verdict on behalf of their client, Mary Barile, widow of Walter Barile. Mr. Barile’s first job as a union insulator’s helper was ripping off and cleaning up asbestos insulation from a Foster Wheeler boiler in 1962, when he was twenty-seven years of age.

Mr. Barile worked his way up to a union insulator position in 1966, a position he held until 1984. Mr. Barile, who became ill in January of 2007, was diagnosed with pleural mesothelioma. The cancer eventually spread to his brain, and he died from mesothelioma at the age of 72 on December 3, 2007.

The Plaintiff, Mary Barile, contended that Mr. Barile’s disease was caused by the asbestos products used and supplied by the defendant, Foster Wheeler, during work at the Exxon Bayway plant in Linden, New Jersey, and at the PSE&G powerhouse in Jersey City. Mr. Barile began working at Exxon facilities in 1962, as an employee of the Philip Carey Corporation. He returned to work at Exxon facilities in various capacities on various jobs through the 1960’s and 1970’s.

Mr. Barile was exposed to various asbestos containing materials throughout his career, including pipe covering, block, and cement. Additionally, during the course of his work at Exxon’s Bayonne plant, Walter Barile was exposed to asbestos from other products being used at the Exxon refinery, under the direction and control of the premises owner, Exxon.

Foster Wheeler was the general contractor on the job when Mr. Barile worked at Exxon’s Bayway plant in 1962, and supplied all of the asbestos-containing insulation. Mr. Barile was also exposed to asbestos fibers while working on piping connected to a Foster Wheeler boiler at PSE&G’s Hudson powerhouse.

Attorneys David Speziali and Christopher Keale, who represented defendant Foster Wheeler, contended that the time period in which Mr. Barile was exposed to asbestos from ripping off asbestos-containing insulation attributable to Foster Wheeler at Exxon’s Bayway plant was limited to two days to one week and that there was not enough exposure to asbestos-containing products while Mr. Barile worked for Foster Wheeler to find the defendant liable, especially given the vast exposure Mr. Barile had suffered at other jobs throughout his career. Plaintiff presented evidence that the rip-off took three to four months. Foster Wheeler also argued that their failure to provide Mr. Barile with any warning at all about the dangers of asbestos was excused by their argument that Mr. Barile would have ignored a warning had one been given.

It became clear over the course of the trial that Foster Wheeler was digging their feet in, and wanted to use this case as an example for how to try a case of this kind, placing the blame on the plaintiff himself. They pointed to ‘Asbestos Worker’ Magazines and argued that the plaintiff should have known about the dangers and that no warning would have made any difference,” said attorney Christopher M. Placitella.

Attorneys Gary Elliston and Joseph LaSala, who represented defendant Exxon, argued that Mr. Barile’s injuries were subject to the hazard-incident-to-work exception and that the duty owed to Mr. Barile to provide a safe workplace rested on Mr. Barile’s direct employer, and not the property owner.

The trial was held in New Jersey Superior Court in Middlesex County before the Hon. Ann G. McCormick. Legal decisions made by Judge McCormick limited the exposures that Plaintiff could argue against Foster Wheeler to the jury to rip-off work at Exxon’s Bayway plant, and against defendant Exxon to work Mr. Barile performed at Exxon’s Bayonne plant. The case came down to closing arguments. Haklay argued that had Foster Wheeler fulfilled their duty to warn Mr. Barile of the dangers of asbestos at his very first job as an insulator, he would have chosen to support his family in another way. Mr. Barile, in a videotaped deposition given shortly before his death, stated that was exactly what he would have done.

The jury, comprised of four women and two men, found Foster Wheeler 100% liable and awarded the Plaintiff $1,776,892 in damages. Of this total, $1.5 million was awarded for Mr. Barile’s pain and suffering, $68,080 to cover economic damages, and over $208,000 to Mrs. Barile for her loss of consortium. Pre-judgment interest brings the total to $1.99 million. Exxon was found not liable.

We are gratified with the jury’s verdict,” said attorney Gonen Haklay, who went on to state, “The jury saw through the defense and agreed that Mr. Barile should have been warned about the dangers of asbestos at his very first job by Foster Wheeler, and that had the defendants valued his safety as much as their own financial interests, he could have been spared the mesothelioma that took his life, and all of the pain, suffering and mental anguish the disease caused.”

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