Case details
Employer did not warn plaintiff of asbestos exposure: installer
SUMMARY
$0
Amount
Verdict-Defendant
Result type
Not present
Ruling
KEYWORDS
loss of consortium cancer, mesothelioma
FACTS
In 1992 or 1993, plaintiff Joel Hernandezcueva, who came to the United States in 1990, first stated working in maintenance as a janitor for a company that he only remembered was named “American.” He worked for “American” at facilities owned by Fluor Daniel America Ltd. for 6 months, before he was hired directly by Fluor to continue working maintenance at buildings in Irvine. During his employment at the buildings, Hernandezcueva cleaned up construction debris from workers who were modifying the inside of the Fluor buildings. He then shifted his employment to heating/ventilation/air technician in the 1990s. Hernandezcueva claimed that he was exposed to asbestos during his jobs, especially during his prior job, when he cleaned up the demolition of drywall and joint compound used in installing the drywall. Subsequently, in 2011, Hernandezcueva, then 42, was diagnosed with terminal pleural mesothelioma, which is an aggressive, incurable cancer that often stems from exposure to asbestos. Hernandezcueva sued Fluor Corp., Fluor Daniel America Ltd., Fluor Maintenance Services Inc., Kaiser Gypsum Co. Inc., Expo Industries Inc., E.F. Brady Co. Inc. and many other companies that were believed to have manufactured and/or distributed products that contained asbestos. Hernandezcueva alleged that the defendants failed to provide adequate warnings that disclosed the dangers that could have stemmed from exposure to their products’ asbestos. Many of the defendants were either dismissed or settled, and the matter proceeded to trial against E.F. Brady, Expo Industries, Kaiser Gypsum and the Fluor entities only. However, Kaiser Gypsum and the Fluor entities ultimately settled out, and Expo Industries was severed from trial due to its bankruptcy. Thus, the trial continued against E.F. Brady only, which Hernandezcueva claimed was strictly liable for installing asbestos-containing products, negligent for installing asbestos-containing products, and negligent for failing to warn Fluor of the asbestos content of the products installed in the Fluor buildings. Plaintiffs’ counsel contended that E.F. Brady installed approximately 1 million square feet of drywall when building the four, four-story Fluor buildings and concourse, which E.F. Brady did the core and shell drywall work for, during the original construction in 1975 and 1976. Thus, counsel contended that when the demolition occurred in the 1990s, Hernandezcueva provided maintenance for the demolition of drywall and joint compound installed by E.F. Brady. At the close of the plaintiffs’ case, counsel for E.F. Brady moved for nonsuit in regards to the plaintiffs’ claims of strict liability. Specifically, counsel for E.F. Brady contended that the joint compound in question had chrysotile asbestos, which is less friable than other types of asbestos and is viewed to be the safest of the asbestos types, and that the drywall did not have asbestos as an ingredient. Instead, the drywall had vermiculite, a naturally-occurring mineral, though it was contaminated with tremolite asbestos, which is generally thought to be responsible for the diagnosis of many cases of asbestos-related cancer throughout the world. However, counsel for E.F. Brady contended that the vermiculite was contaminated because the mine Kaiser Gypsum acquired the vermiculite from near Libby, Montana, also contained tremolite asbestos and was the source of over 70 percent of all vermiculite sold in the United States from 1919 to 1990. Thus, the court granted the motion for nonsuit as to the plaintiffs’ claims of strict liability. Counsel for E.F. Brady argued that although E.F. Brady knew about hazards in 1975 and 1976, it did not know that the drywall and joint compound used at the time contained asbestos. Counsel contended that the products did not contain information or warnings that it contained asbestos, and that the joint compound was a Hamilton product, which indicated a vinyl joint compound and which did not inform users of any asbestos content. Defense counsel also contended that by the early 1990s, Fluor, a large construction company, was subject to Environmental Protection Agency regulations affecting property owners, such that if it were to demolish any construction products that it installed before 1980, it had to implement an asbestos assessment. If asbestos was found, it would have to implement an asbestos abatement, which E.F. Brady’s counsel contended that Fluor did none of. Additionally, counsel contended that Fluor did not warn Hernandezcueva that he could be working around asbestos-containing products; did not train him as to what products could contain asbestos; and did not provide masks or respirators. Thus, E.F. Brady’s counsel argued that because Fluor built refineries that used asbestos and built buildings that used the drywall, Fluor should have known of the asbestos before the 1990s. In addition, E.F. Brady’s counsel contended that all of the materials E.F. Brady installed in the mid-1970s were specified by the construction architect, and approved by the architect and general contractor, before E.F. Brady installed them., In 2011, Hernandezcueva was diagnosed with mesothelioma, which was confirmed by a biopsy. Later that year, he underwent a decortication of the lung, a surgical procedure whereby the pleura was stripped of as much of the tumor as allowed. Hernandezcueva then had one round of chemotherapy, which lasted a few weeks. He is now in palliative care. Hernandezcueva is married to plaintiff Jovana Hernandezcueva and they have three children, all under the age of 12. Mr. Hernandezcueva claimed that he might undergo further chemotherapy, if he is strong enough. He also claimed he requires oxygen and might potentially require 24/7 nursing care, as well as might need one or two hospitalizations for potential complications. The plaintiffs’ cell biology expert testified about the lungs, asbestos in the lungs and how it causes cancer. The plaintiffs’ expert in occupational medicine, who also specialized in internal medicine and preventative medicine, testified about the cause of mesothelioma and how it is caused by asbestos. In addition, the plaintiffs’ expert in cardiovascular and thoracic surgery testified about the nature of pain and suffering from the medical procedures, and about the events leading up to death. The court ruled that the plaintiffs could not recover any amount for past medical expenses that they did not personally pay out of pocket. Thus, Mr. Hernandezcueva claimed past paid medical costs of $22,464, future medical costs of $150,000 to $500,000, and future loss of earnings of $1.2 million to $1.6 million from his employment as an HVAC technician. Mrs. Hernandezcueva sought recovery of damages for her loss of consortium. Counsel for E.F. Brady noted that the plaintiffs’ economics expert was not able to testify about the wife’s loss of nighttime household security, as the losses claimed were beyond the anticipated date of death, and that this, resultantly, reduced the plaintiffs’ claim.
COURT
Superior Court of Los Angeles County, Los Angeles, CA
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