History with Asbestos – Asbestos Trades – $15 Mesothelioma Jury Award
Mississippi jury awards money for 'every breath' in $15M asbestos verdict
By Sylvia Hsieh
Publication: Lawyers WeeklyUSA
Date: Tuesday, April 20 2010
AMississippi jury has awarded $15 million to a 71 year-old oil industry worker whodeveloped asbestosis after years of handling bags of product containing 99 percent asbestos.
In opening statements, lead plaintiff's attorney Greg Jones ofFranklin, Cardwell & Jones inHouston asked the jury,
"What is the value of a breath?"
Plaintiff Troy Lofton, who testified at trial with tubes in his nose and ears and holding an oxygen bottle that assists his breathing 24 hours a day, alleged that ConocoPhillips manufactured a dangerous product while knowing of its dangers.
The case is only the third to go to trial of over 700 pending cases involving oilfield workers who developed lung cancer, asbestosis or mesothelioma after handling products made by ConocoPhillips or its subsidiaries.
Among the evidence at trial was a handwritten document indicating that the company had weighed the cost of personal injury lawsuits against the profits of continuing to sell asbestos.
Jones requested punitive damages, but the jury declined to award them.
Alex Cosculluela, lead defense counsel for ConocoPhillips, declined to comment.
Brian Cain, a spokesperson for the defendant, said that the company is "disappointed with the verdict and plans to appeal any resulting judgment. "
The plaintiff, whose parents were sharecroppers, began his lifelong work in the oil and gas industry at age 25 in 1964, around the same time a subsidiary of Phillips 66 (which later merged into ConocoPhillips ) began selling Flosal, a mud additive that assisted in oil and gas drilling.
During the twenty years the product was on the market, the plaintiff was responsible for ripping open 50-pound bags and pouring the contents by hand into mud hoppers, thereby inhaling the dust.
At trial, Jones emphasized that the company continued to sell and market the product to customers without warning them of dangers it knew about.
For example, the company told oilfield employers who purchased Flosal that the dust levels didn't exceed OSHA ceilings and therefore they did not have to provide medical exams, keep medical records or perform dust monitoring.
The plaintiff, on the other hand, testified that he "looked like a snowman" every time he handled the product.
According to Jones, company documents dating back to the 1960s revealed that the mixing conditions were "so dusty it was difficult to see and breathe. "
The company avoided testing the product for 11 years, and even after tests established that asbestos dust was produced in workers' breathing zones, it continued to sell the product for another 10 years, Jones said.
He argued that a warning label added in 1968 was insufficient.
"They never put anything on the bag that said asbestos could cause cancer. It was basically an innocuous warning saying, 'Don't breathe this,'" Jones charged. "They continued to tell their customers that the product was non-toxic and essentially dust-free, all of which was false. "
Company documents exposed internal debate over the warnings.
Jones introduced a company memo showing a handwritten mathematical formula weighing the cost of personal injury lawsuits against the profits of selling the product.
Although the defense dismissed it as a "scrap of paper," it was one of many internal memos questioning whether the warnings were sufficient, Jones said.
One live witness
Only one live witness testified for the defense - an expert who opined that it was unlikely the plaintiff had asbestosis even though he admitted he had not reviewed the plaintiff's extensive workhistory with asbestos, and ultimately acknowledged that Lofton was a "pulmonary cripple. "
Jones also pointed out that the expert stopped seeing patients in 2000 to devote his full attention to serving as an exclusively defense-side expert, from which he has made over $6 million.
According to Jones, in its closing the defense told the jury that it "took courage" for the expert to give his opinion that the plaintiff did not suffer from asbestosis.
Jones countered in his closing: "It didn't take any courage; all it took was money. "
Perhaps most damaging to the defense was not putting a corporate representative on the stand.
Jones' co-counsel Ron Franklin hammered this point home during his portion of closing arguments: "Not one human being, not one executive, not anybody from ConocoPhillips who they can put on the witness stand to tell you this product was safe. Not one person. "
He told the jury the case was "your opportunity to change a man's life and speak for generations of workers nobody cared about. "
After four hours of deliberations, the jury awarded $200,000 in economic damages and $15 million for pain and suffering, loss of enjoyment, emotional distress and fear of cancer.
The next trial over Flosal is scheduled for trial in June inJeffersonCounty, Miss.
Plaintiff's attorneys: Greg Jones and Ron Franklin of Franklin, Cardwell & Jones inHouston; and J. Robert Sullivan of Sullivan & Sullivan in Laurel, Miss.
Defense attorneys: Alex Cosculluela and Jeff Trotter of Adams & Reese inHouston.
The case: Lofton v. Phillips 66 Co.; April 7, 2010; Jones County Circuit Court, Mississippi, 2d Judicial District; Judge Billy Joe Landrum.
· Pre 1860:
· In ancientRome, asbestos fibers were uses to make clothing flame retardant.
· InGreece, the fibers were used to make other textiles.
· InPersia, garments were prized for their ability to be cleaned over a fire, instead of with water.
· InChina, Marco Polo describes similar items that were "washed" by being dropped into flames.
· 1860:Asbestos had appeared again across theUnited States andCanada, mostly used as insulation within buildings.
· 1879:The first commercial asbestos mine appeared inCanada, just outside ofQuebec.
· 1890s Asbestos, which previously had few industrial uses, becomes a raw material for large manufacturing industries, exposing large numbers of workers to asbestos dust for the first time. Asbestos-caused disease often develops decades after a person was first exposed. As a result, it was not until the early 1900s that large numbers of workers developed symptoms.
· 1890 – 1909: By the turn of the century, asbestos use was much more common: flame-resistant coatings, concrete, flooring, roofing, acid resistant materials, and lawn furniture all had asbestos components. The appearance of asbestos in late 19th and early 20th century newspapers was relatively limited. In many cases, reporting on asbestos was limited to its discovery or its uses in antiquity.
· 1918: A Prudential Insurance Company official notes that life insurance companies will not cover asbestos workers, because of the "health-injurious conditions of the industry."
· 1922: Louis Dublin, a statistician for the Metropolitan Life Insurance Company, writes that asbestos workers are at risk of injury to the lungs.
· 1924: a doctor inEngland recognized the pattern of illness and made the first diagnosis of asbestos cancer.
- 1930 Major asbestos company Johns-Manville produces report, for internal company use only, about medical reports of asbestos worker fatalities.
- 1932 Letter from U.S. Bureau of Mines to asbestos manufacturer Eagle-Picher states: "It is now known that asbestos dust is one of the most dangerous dusts to which man is exposed."
- 1933: Metropolitan Life Insurance Company doctors find that 29% of the workers at one Johns-Manville plant are suffering from asbestosis. Johns-Manville settles lawsuits by 11 employees on the condition that the lawyer for the employees agrees that he will not bring any new actions against Johns-Manville.
- 1934: Officials of two large asbestos companies, Johns-Manville and Raybestos-Manhattan, edit an article about the diseases of asbestos workers written by a Metropolitan Life Insurance Company doctor. The changes minimize the danger of asbestos dust.
1935: Johns-Manville and Raybestos Manhattan instruct the editor of Asbestos Magazine to publish nothing about asbestosis.
- 1936: A group of asbestos companies agree to sponsor research on the health effects of asbestos dust, but require that the companies have complete control over the disclosure of the results.
- 1937: Roy Bonsib, Chief Safety Inspector for the Standard Oil Company ofNew Jersey, documents illnesses such as asbestosis and analyzes the dust-creating potential of installing and removing asbestos insulation.
- 1937-38: The Industrial Hygiene Digest at the Industrial Hygiene Foundation includes 2 articles about industrial types of cancer by workers working with asbestos.
- 1942: An Owens Corning corporate memorandum refers to "medical literature on asbestosis . . . [and] scores of publications in which the lung and skin hazards of asbestos are discussed."
- 1942 or 1943: The president of Johns-Manville says that the managers of another asbestos company were "a bunch of fools for notifying employees who had asbestosis." When one of the managers asks, "do you mean to tell me you would let them work until they dropped dead?" The response is reported to have been, "Yes. We save a lot of money that way." .Testimony of Charles H. Roemer, Deposition taken April 25, 1984, Johns-Manville Corp., et al v. theUnited States of America,
- 1944: Metropolitan Life Insurance Company finds 42 cases of asbestosis among 195 asbestos miners.
- 1944: The Journal of the Medical Association reports that asbestos is one of the "agents known or suspected to cause occupational cancer."
- 1948: The American Petroleum Institutes Medical Advisory Committee, whose members include oil giants, received a summary of a paper in which the chief pathologist for E.I. DuPont De Nemours & Co. suggested that the industry "aim at the complete elimination of the exposure" to asbestos.
- 1951: Asbestos companies remove all references to cancer before allowing publication of research they sponsor concerning exposure to asbestos.
- 1952: Dr. Kenneth Smith, Johns-Manville medical director, recommends (unsuccessfully) that warning labels be attached to products containing asbestos. Later Smith testifies: "It was a business decision as far as I could understand . . . the corporation is in business to provide jobs for people and make money for stockholders and they had to take into consideration the effects of everything they did and if the application of a caution label identifying a product as hazardous would cut into sales, there would be serious financial implications."
- 1953: National Gypsums safety director wrote to the Indiana Division of Industrial Hygiene, recommending that acoustic plaster mixers wear respirators "because of the asbestos used on the product." Another company official notes that the letter was "full of dynamite," and urges that the letter be retrieved before reaching its destination. A memo from those files notes that the company "succeeded in stopping" the letter which "will be modified."
- 1964: Dr. Irving Selikoff publishes a study of asbestos workers in the Journal of the American Medical Association, proving that people who work with asbestos-containing materials have an abnormal incidence of asbestosis, lung cancer, and mesothelioma.
- 1966: Raybestos-Manhattan official writes: "We feel that the recent unfavorable publicity over the use of asbestos fibers in many different kinds of industries has been a gross exaggeration of the problems. There is no data available to either prove or disprove the dangers of working closely with asbestos."
- 1971: First OSHA asbestos-exposure standard issued.
- 1973: The U.S. Environmental Protection Agency (EPA) bans spray-on asbestos insulation as an air pollution hazard.
- 1977: Lawyers for injured workers obtain the Sumner Simpson papers, which show that the companies had suppressed information about the danger of asbestos for at least 40 years.
- 1977: The first bill to limit the product liability of asbestos companies is introduced in Congress.
- 1978 Judge rules there had been "a conscious effort by the [asbestos] industry in the 1930s to downplay or arguably suppress, the dissemination of information to employees and the public for fear of the promotion of lawsuits."
- 1979:U.S. EPA announces intention to issue rule that bans all uses of asbestos.
- 1982: Johns-Manville files for bankruptcy protection.
- 1986: OSHA tightens asbestos-exposure standard.
- 1989 and 1991: In 1989, the United States Environmental Protection Agency bans asbestos and most of its uses.
- 1991: asbestos companies win a federal lawsuit which overturns the EPAs asbestos ban.
- 1994: OSHA tightens asbestos-exposure standard.
- 1999: The Florida Supreme Court rules that Owens Corning willfully withheld information about the dangers of working with the companys asbestos products. The Florida Supreme Court describes it as a "blatant disregard for human safety involving large numbers of people put at life-threatening risks."
As stated, the above actions by these companies are just a small sample of the many actions by companies using asbestos which did so in disregard of the safety of their employees and other innocent victims. Companies, who so frivolously ignored the health of the public and their own employees, are the targets of our litigation.
· 2005:Ohio has lead in halting asbestos lawsuits.
2005:Company charged in nearly 200 deaths.