Posted: 7:00 pm Sun, January 2, 2011
By Lawyers USA
The sons and estate of a forklift driver who unloaded bags of raw asbestos for six years as part of his job have won a $2.2 million verdict against Union Carbide, which mined and sold the asbestos to his employer.
The jury actually awarded $2.4 million, but the award was reduced Dec. 22 under the state’s cap on non-economic damages.
The plaintiffs’ attorneys argued that Union Carbide failed to adequately inform the worker, Daniel Edwards, about the dangers of asbestos when the medical literature and internal corporate documents showed a link between asbestos and mesothelioma as early as 1967, two years before Edwards started working with the product.
Edwards died in 2008.
Union Carbide argued that it was up to the employer, National Gypsum, to warn about the risks of asbestos, but the plaintiffs’ attorneys were helped by a legal standard making that defense argument an uphill battle.
“They would have to prove that they made a conscious decision not to adequately warn because they were aware that the employer was providing [its own] warnings,” said plaintiffs’ counsel William Minkin of The Law Offices of Peter G. Angelos PC, in Baltimore. “It’s a difficult standard to meet.”
The employer, National Gypsum, is bankrupt and was not a party to the suit.
Defense attorneys Morton Dubin of Orrick in New York and Thurman Zollicoffer Jr. of Whiteford Taylor Preston, LLP in Baltimore did not return calls seeking comment.
Edwards worked at the same National Gypsum plant in Maryland his whole life, operating a forklift to load and unload deliveries.
From 1969 to 1975, Union Carbide shipped more than 2.4 million pounds of raw asbestos to National Gypsum by rail from a mine it owned in California, according to the lawsuit.
Two of Edwards’ co-workers testified that when asbestos arrived in 35-pound bags, they lifted them and dumped them onto Edwards’ forklift, releasing white clouds of asbestos. The bags were then broken open and mixed with other ingredients to make products like joint compound.
“Each and every one of the bags created clouds of visible dust,” said Charles Candon, also of The Law Offices of Peter G. Angelos.
According to the plaintiffs’ lawyers, the defense first argued that the type of asbestos in question, known as chrysotile, does not cause mesothelioma, at least not in the amounts that Edwards was exposed to. Although both sides’ experts agreed that chrysotile is less potent than amphibole asbestos, the plaintiffs’ expert testified that it can still cause mesothelioma, especially given that Edwards was exposed to it for several years.
Plaintiffs’ attorneys also admitted 40 to 50 documents showing a link between asbestos andmesothelioma, including a 1967 internal corporate document on the hazards associated with the product.
“That document outlined pretty much all you needed to know about the hazards two years before Union Carbide began selling asbestos to National Gypsum,” said Minken.
The defense asserted that Edwards’ cancer was caused by a different exposure to asbestos.
But that argument didn’t go far.
“He started working at the plant in 1948, but there really was no specific evidence of what those [other] exposures were. It was speculative,” claimed Minkin.
On the failure to warn claims, Union Carbide argued that the bags of asbestos contained a “caution” label that mentioned a dust hazard.
The plaintiffs’ attorneys argued that wasn’t enough.
“There was nothing about asbestos on it, and it did not have the word ‘cancer’ on it,” said Candon.
The defense also tried to shift the duty to warn onto Edwards’ employer, National Gypsum, whom it claimed was a “sophisticated user” whose own knowledge of the risks supplanted the manufacturer’s duty to warn.
According to Minkin, the defense called to the stand a Union Carbide representative and former head of asbestos sales who testified that the company provided information to National Gypsum about asbestos hazards and assumed National Gypsum then warned its employees.
But under the “sophisticated user” defense, Union Carbide had to prove more than an “assumption” that National Gypsum warned its employees; it had to prove that at the time Union Carbide sold the asbestos, it relied on National Gypsum’s knowledge as a reason not to give its own warnings.
“If Union Carbide had been able to show it had a meeting with National Gypsum and discussed the fact that asbestos caused mesothelioma and National Gypsum told them it was requiring all its employees to wear respirators, that would be a defense,” Minkin said.
Minkin suggested to the jury that Union Carbide’s claims that its sales brochures contained complete warnings didn’t make sense in light of its sales goals.
“In our opinion, if Union Carbide was honest about the hazards, people wouldn’t buy the product,” said Minkin.
Edwards’ two sons and his longtime girlfriend testified about watching a normally stoic man deteriorate.
Mesothelioma is a cancer that affects the lungs’ casing, so a patient gradually suffocates to death, said Minkin. He said that family members testified in detail about how in the last months of his life, Edwards thrashed around and ripped at his oxygen mask as he gasped for more air.
“His family described him as someone who would not in any other situation have shown pain. For him to be in such obvious pain was very striking to them,” said Candon.
The plaintiffs’ attorneys asked for $2.4 million in damages, and the defense told the six-person jury that if it decided to award damages, $700,000 would be appropriate.
After three hours of deliberation, the jury returned with verdicts just over $2.4 million, consisting of $607,500 for each son and $1.2 million to their father’s estate. After the cap on non-economic damages was applied, each son received $521,000.
EDWARDS V. ACANDS/UNION CARBIDE
Baltimore City Circuit
Stuart R. Berger
$2.4 million, reduced to $2.2 million
Incident: 1969 – 1975
Suit filed: Sept. 9, 2008
Disposition: Dec. 7, 2010
Charles Candon, William Minkin and Steve Smith of The Law Offices of Peter G. Angelos in Baltimore.
Morton Dubin of Orrick in New York; Thurman Zollicoffer Jr. of Whiteford Taylor Preston in Baltimore
Product liability; Failure to warn