Failure to warn of joint compound’s known asbestos risks

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Recent Cases: Industrial Products & Equipment

February/March 2013, Volume 32, No. 1

Failure to warn of joint compound’s known asbestos risks 

Desin v. Asbestos Corp. Ltd., No. CGC-11-275881 (Cal., San Francisco Co. Super. Nov. 2, 2012).

In 1953, after serving for about two years in the U.S. Coast Guard, Melvin Desin began working as an electrician. Desin worked at numerous residential and commercial sites handling or working around asbestos -containing products, including joint compounds manufactured by Kaiser Gypsum Co. He was exposed to asbestos in the workplace until the late 1970s.

In 2011, at age 78, Desin was diagnosed with mesothelioma. He underwent surgical resection of his lung, followed by chemotherapy. His prognosis is poor. His past medical expenses totaled about $111,000, and his future medical expenses are estimated at $150,000.

Desin sued Kaiser Gypsum, alleging that its joint compounds were defectively designed because they contained asbestos and that the company failed to warn of its products’ asbestos hazards, despite knowledge of the risk. The plaintiff contended that Kaiser failed to provide warnings until 1972 and that any warnings it provided after that time were inadequate. Desin also sought punitive damages, alleging that Kaiser had acted with conscious disregard for the safety of others. He presented evidence that (1) the hazards of asbestos were known as early the 1920s, (2) the industry was aware by the 1950s that asbestos could cause cancer, and (3) information was disseminated among Kaiser’s managing directors as early as 1965 showing that asbestos causes cancer. Despite this, Desin claimed, the company did nothing.

The plaintiff also sued Union Carbide, which supplied asbestos fibers to Kaiser Gypsum and other joint compound manufacturers, alleging negligence, design defect, and failure-to-warn claims.

Other asbestos product manufacturers and suppliers were named in the lawsuit, including several other joint compound manufacturers and suppliers of asbestos-containing brake products. The plaintiff also sued Lorillard Tobacco Co., which manufactured Kent cigarettes with asbestos-containing Micronite filters he smoked during the early to mid-1950s, and Hollingsworth & Vose Co., which manufactured the filters. All of the defendants other than Kaiser and Union Carbide settled confidentially or were otherwise dismissed before trial.

Union Carbide settled for a confidential amount during trial, and the case proceeded against Kaiser.

The defendant argued that Desin’s exposure to asbestos in its joint compounds was not sufficient to have caused his disease, and that his mesothelioma resulted from exposure to asbestos in other companies’ products as an electrician or during his service in the Coast Guard. Kaiser also argued that the chrysotile asbestos it used in its products does not cause mesothelioma.

The jury found that Kaiser had negligently designed its products and failed to warn, allocating fault at 5 percent to the defendant, 43 percent to the Coast Guard, and the remainder to other companies no longer parties to the case. The jury awarded approximately $7.23 million in compensatory damages. Kaiser is responsible for about $680,000.

In a second phase on punitive damages, the jury found that Kaiser had acted with conscious disregard for the safety of others and awarded $6 million.

The defense has filed motions for a new trial and judgment n.o.v.

Plaintiff counsel: AAJ member Gilbert L. Purcell and Christopher E. Hersom, both of Novato, Calif.

Plaintiff experts: Allan Smith, epidemiology, and Barry Horn, pulmonology, both of Berkeley, Calif.; Arnold Brody, cell biology, Raleigh, N.C.; Samuel Hammar, pathology, Bremerton, Wash.; and William Ewing, industrial hygiene, Kennesaw, Ga.

Defense experts: William Dyson, industrial hygiene, Greensboro, N.C.; Edward Van der Bogert, construction, Lynwood, Wash.; and David Weill, pulmonology, Los Angeles.

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