Case details

Plaintiff: Asbestos-containing products caused mesothelioma

SUMMARY

$48000000

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
asbestosis, cancer cancer, mesotheliompulmonary, respiratory
FACTS
Between 1954 and 1980, plaintiff Bobbie Izell, a cement contractor and construction superintendent, surveyed projects during which asbestos-containing materials were allegedly used. Some of those materials allegedly contained asbestos mined by Union Carbide, while other materials had asbestos added to them during the manufacturing process by Kaiser Gypsum, Amcord Inc. (the successor company to Riverside Cement Co.), California Portland Cement Co., Georgia Pacific Corp., Kelly-Moore Paint Company Inc. (the successor to Paco Textures), Kentile Floors Inc., Parex USA Inc. (and its related company, La Habra), as well as several other companies. Izell contended that although he never used the products first hand, he was exposed to the asbestos-containing materials for 15 to 60 minutes each day for several weeks each year during the projects her surveyed. In 2011, Izell was diagnosed with mesothelioma, which he attributed to exposure during his time near the asbestos-containing materials. Izell sued Union Carbide, Kaiser Gypsum, Amcord Inc., California Portland Cement Co. (CalPortland), Parex USA (La Habra) and several other companies. He alleged that the defendants were negligent in failing to warn of the products’ dangerous condition. After an initial investigation, many of the defendants either settled with the plaintiff or were discontinued against. Thus, the matter proceeded to trial against Union Carbide, Kaiser Gypsum, Amcord, CalPortland, and Parex USA (La Habra) only. Izell claimed that the defendants were strictly liable for failing to warn of the products they sold that contained asbestos. He also claimed that Amcord and CalPortland were negligent for continuing to sell and distribute their products without knowing of their harmful nature. He further claimed that Union Carbide and Kaiser Gypsum were aware of the harmful nature of their products, but continued selling them anyway without adequate warnings. However, he noted that Parex removed asbestos from its products once it became aware of their harmful nature. Izell’s counsel contended that internal documents indicated that Union Carbide was aware that asbestos was harmful as early as 1967, but it never adequately warned its customers. Counsel also contended that internal memos showed Union Carbide staff physicians reprimanding marketing and sales groups for telling customers that asbestos did not cause cancer. Counsel further noted that safety data sheets for Union Carbide’s products listed the “Hazardous Ingredients” as “Not Applicable.” Izell’s experts opined that the defendants’ construction products contained quadrillions of asbestos fibers. Defense counsel argued that Izell was not exposed to asbestos from the defendants’ products and that if he was exposed, the exposures were too trivial to cause his cancer. The non-Union Carbide defendants also contended that they did warn customers about their products containing asbestos and informed the customers not to create breathable dust while using those products. Union Carbide contended that the products used by Izell’s construction crews did not contain its asbestos. It claimed that the asbestos it supplied, known as Calidria asbestos, does not cause mesothelioma. Union Carbide also contended that even if Izell was exposed to the asbestos it supplied, it would have been such a small amount that it would not have increased the plaintiff’s chance of contracting his disease. Union Carbide contended that it provided adequate warnings to its customers, including Georgia Pacific and Kaiser Gypsum, in the form of toxicology reports. It also argued that the internal memo the plaintiff presented did not indicate that the Union Carbide medical department reprimanded its sales groups, but only indicated that the medical department corrected statements on one memo made by one individual and that the memo pertained to a single group of customers unrelated to Izell’s claim. In addition, Union Carbide contended that its asbestos did not contain additional ingredients, therefore there were no hazardous ingredients to list on the safety sheet and that the safety sheet did not include a “Health Hazard Data” section., On July 7, 2011, Izell was diagnosed with pleural mesothelioma, which is a cancer growth around the lungs. He was given the option of chemotherapy, which was expected to prolong life for several months, or palliative care. He chose to undergo palliative care and was expected to life for approximately one year. At the time of trial, doctors gave him a 20-percent chance of living two years. Izell, who was 86 at the time of trial, sleeps frequently, is not treating for his cancer and is almost bedridden. He did not seek recovery for economic damages, but sought recovery of punitive damages against Union Carbide and Kaiser Gypsum for allegedly continuing to sell products they knew to be hazardous. Thus, Izell asked the jury to award $1 million for every year Union Carbide sold the asbestos-containing products after allegedly becoming aware that its products caused cancer. (Union Carbide ultimately discontinued its asbestos-containing products in 1985.) Izell’s wife, Helen, presented a derivative claim, seeking recovery of damages for her loss of consortium, companionship and enjoyment of life. Defense counsel contended that Izell was 85 when he was diagnosed with pleural mesothelioma and had many pre-existing medical conditions, so he had a very short life expectancy anyway. Counsel also contended that Izell had not suffered much past damages and that the award for his wife should be very minimal, as they were not seeking any economic damages.
COURT
Superior Court of Los Angeles County, CA

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