California: Retired plumber awarded $41 million for mesothelioma Jury deliberated for weeks before deadlocking on damages

By Correy Stephenson The Daily Record Newswire BOSTON, MA -- In a trial that began in December 2010 and worked its way through two juries to reach three different verdicts, a retired plumber in California was awarded a total of $41 million for developing mesothelioma from asbestos exposure. John Casey worked as a licensed plumber for 40 years at various building sites. He developed mesothelioma following exposure to asbestos from the products he worked with and from being around other workers who used asbestos-containing products, according to his attorney, Gilbert Purcell of Brayton Purcell in Novato, Calif. Mesothelioma cases are "heart-wrenching," Purcell said, noting that his client is in his eighteenth month since being diagnosed and was given a 12-to-18 month prognosis. In trying a case like this, "[w]e need to roll out the evidence in a simple, understandable format, because we are dealing with a lot of science, medicine and historical documents, so we need to be sure the jury is ready to take on another topic and we can't move too fast." Attorneys representing the two defendants named in the verdict, general contractor FDCC California, Inc. (formerly known as Dinwiddie Construction Co.) and Kaiser Gypsum Co., a manufacturer of joint compounds and wallboard materials, did not respond to calls requesting comment. Purcell said that trial Judge Donald Sullivan has already denied FDCC's motion for a new trial and JNOV; Kaiser Gypsum has filed a similar motion, which will be heard on June 16. Trial begins with 12 defendants John Casey began working as an apprentice plumber in 1965 and was licensed by the end of the decade. Over the next 40 years, he worked as a plumber on high-rise commercial buildings in the San Francisco area, retiring in 2008. Not long after, Casey began to develop symptoms of mesothelioma, Purcell said, and was diagnosed in 2009. Because mesothelioma is such a debilitating disease with a 12-to-18 month prognosis, Purcell preserved Casey's testimony well before trial by videotaped deposition. At trial, he played about four hours of tape that included Casey recalling his working conditions, the buildings and sites he worked at and the products he used. "That reduced the amount of time he needed to be on the stand, when he was weaker," Purcell said. Casey spent about an hour updating the jury on his condition, and his wife of 40 years, Jean, also testified. Purcell put several experts on the stand to educate jurors about the science and medicine involved in asbestos exposure and mesothelioma, including: * Two treating physicians, an oncologist and pulmonologist; * An industrial hygienist who testified about asbestos products and what exposures existed for Casey as a plumber; * A pathologist who described why mesothelioma is an incurable disease that can't be treated with surgical intervention; * A cell biologist who explained the sequential steps from asbestos fiber inhalation to clinical diagnosis and cancer; * An expert in occupational and preventative medicine, who told jurors about the history of the knowledge of the dangers of asbestos; * An epidemiologist; and * An economist. Trial began in December 2010 against 12 defendants, but 10 of them settled at various times after it began, Purcell said. One settled right after opening statements, with the rest dropping out along the way until the final settlement after closing arguments. The aggregate total of the settlements amounted to $7.8 million, Purcell said. That left just two defendants for the jury to consider: Kaiser Gypsum, maker of a joint compound containing asbestos that Casey worked with, and FDCC California, the successor to a general contractor of several jobs Casey worked at over the years. According to Purcell, the two defendants argued that Casey was exposed to other kinds of asbestos from other defendants, and that the exposures from their products or interactions did not contribute to his mesothelioma. FDCC also claimed it wasn't aware of the dangers of asbestos until 1985, an argument Purcell rebutted with several sources of information, including California general safety orders dating back to 1936 and Occupational Safety and Health Administration regulations enacted in 1972. Jury deliberates for weeks The jury began deliberating a 14-question verdict form in the first week of March, Purcell said. And they continued to deliberate for weeks. "It was brutal," Purcell said. But every day, jurors would send two to four questions to the judge. "We would have hearings, the judge would make a ruling and we would pencil together a response," Purcell said. "We'd be sending in an answer and here comes another question!" Despite the long wait, Purcell said the jury's questions were revealing, as it was clear they were working their way through the verdict form, and it was better than "total silence" from the jury room. The two-and-a-half weeks of deliberations were "a roller-coaster ride," he said. Jurors then reported they were hopelessly deadlocked on the final question of the form, the predicate question of punitive damages. Relying on California precedent, Judge Sullivan recorded the jury's verdict on the first 13 questions and declared a mistrial on the final question on the form. The first jury awarded $20 million in compensatory damages. However, based on the jury's apportionment of fault -- 7 percent to FDCC and 3.5 percent to Kaiser Gypsum out of 100 percent for all possible contributors to Casey's mesothelioma -- and California's complicated system of damages awards, Casey will receive $2.8 million from FDCC and $1.8 million from Kaiser Gypsum. Clear and convincing evidence Because Judge Sullivan had ruled that the plaintiff had not presented sufficient evidence for the jury to consider punitive damages against FDCC, the trial began anew for just two parties: Casey and Kaiser Gypsum. After picking a new jury, the parties tried issues relevant to the fourteenth and final question on the verdict form: whether the jury found by clear and convincing evidence that the company was guilty of acting with oppression or malice. The second jury unanimously answered in the affirmative, and the parties then spent one day presenting evidence about Kaiser Gypsum's financial condition. The financial condition evidence was "murky and opaque," Purcell said, because the vast majority of Kaiser Gypsum's assets were sold off in 1978 and then transferred by a parent company to another company operating in Panama. "It was very difficult to get discovery about what those proceeds have grown into, so we presented to the jury what that amount of liquidated assets would grow to in the interval between 1978 and today" three different ways, Purcell said: simply accounting for inflation, if the money had been invested in risk-free treasury bills or if the money was placed in the stock market. The liquidated assets -- estimated to be between $36 million and $45 million -- would have grown to $90 million, $200 million or $492 million, respectively, Purcell said. The jury then awarded an additional $21 million in punitive damages against Kaiser Gypsum. Published: Mon, May 30, 2011