Archive for the ‘California’ Category

LOS ANGELES, California – A California court of appeals has reinstated a mesothelioma suit against Foster Wheeler which it says was wrongfully dismissed.

The district Court of Appeal stated that the trial judge who made the ruling was wrong in applying another state’s statute of repose to dismiss the claim by Terry McCann and his wife against manufacturer Foster Wheeler. McCann, who has lived in California since 1975, claims that he developed mesothelioma as a direct result of installing a boiler in Oklahoma fifty years ago.

The original trial judge applied an Oklahoma statute in disposing of the case that involved a California plaintiff and a New York state defendant.

According to the suit, New York based Foster Wheeler designed and manufactured the boiler installed at the Oklahoma refinery where McCann worked in the late 1950s. McCann was diagnosed with mesothelioma in 2005.
Retired Los Angeles Superior Court Judge Jon Mayeda granted a summary judgment to Foster Wheeler based on the Oklahoma statute of repose which bars claims for injury that arises from “the design… of an improvement to real property” if more than ten years has passed since completion of the improvement.

Mayeda rejected the plaintiff’s argument that California rules do not allow application of Oklahoma law to the case, and that the Oklahoma statute was not applicable in this case because Foster Wheeler was not the “designer of a real property improvement”.

Presiding Justice Candace Cooper agreed with the plaintiffs. Her ruling stated that California’s interest in protecting state residents outweighs any interest that Oklahoma holds, especially since Foster Wheeler has no particular ties to Oklahoma and does business worldwide. McCann’s suit was filed within the statute of limitations for California.

Cooper’s decision stated that California’s interest is reflected in the statute of limitations governing civil actions based on asbestos exposure. California is one of the states that gives those injured by exposure to asbestos a year after discovering the disability, no matter how long ago the exposure happened. The California statute is designed to ensure that any person injured by asbestos will have a remedy for compensation when the injury manifests itself. Asbestos exposure often does not show the results and injuries for decades after the exposure.

In addition, Cooper wrote, California’s borrowing statute also provides protections in this case, as it expressly states that a citizen of California should not necessarily be subjected to time limitations imposed by another state’s laws.
The Oklahoma statute of repose is meant to serve the state’s interest by balancing the rights of claimants against those of architects and builders who could otherwise be held liable indefinitely. Cooper explained in her decision that Foster Wheeler, who merely supplied the boiler and supervised its installation, is not a citizen of Oklahoma, and is not the type of defendant which the law is intended to benefit.

In her decision, Cooper wrote that Foster Wheeler’s conduct resulted in an injury to a California resident, which manifested itself in California. The state’s remedial statute is specifically designed to preserve asbestos claims during the latency period, which can extend for decades after the original exposure. Thus, California’s interest in adjudicating the claim outweighs Oklahoma’s interest in cutting off liability for a non-resident defendant.

SANTA MONICA,California – Santa Monica will end up paying an extra $220,677 to remove asbestos from the former Marion Davies estate before it can become a public beach club.

The amount is expected to be approved by the City Council Tuesday. If it is approved, it will bring the contract with Midwest Environmental Control, Inc. to $1.22 million, said city officials. The amount includes an additional 10% contingency and a one-time addition to scope of services for abatement of hazardous materials at City Hall.

City staff wrote in a report to the council that recent rehabilitation has revealed additional hazardous materials that can only be removed by a hazardous waste contractor, requiring a modification to the current contract to add additional fees.

Staff said that the funds for the amendment to the contract are available from the project budget.
The work is part of Santa Monica’s Annenberg Community Beach House Project. The project $30 million project involves combining the remainder of the Marion davies Estate with new facilities like a pool house, gardens, event house, public art feature and child’s water play feature. The project is being funded in large part by a $30 million grant from the Annenberg Foundation. It is expected to open in early 2009.

Originally, MEC was supposed to remove and/or abate asbestos and lead containing materials and perform some demolitions to the former Locker Building, North House and bulkhead, along with providing abatement for any hazardous materials discovered during excavation of the site.
However, while doing some rehabilitation work at the pool, Parking Lot 10 and North House, additional asbestos containing material was discovered, necessitating further abatement activities. The additional asbestos abatement will require more funds in order to finish the project.

The Marion Davies estate was originally built in the 1920s by William Randolph Hearst. It became a gathering place of celebrities. In the 1950s, the estate was briefly run as a luxury hotel and then demolished. It was purchased by the State of California and leased to the Sand & Sea Club for decades.
Like many buildings built during the 1950s and 1960s, the building contains asbestos. The widely used construction material is the only known cause of the deadly cancer, mesothelioma, a growing concern among the health organizations around the world.

“It is anticipated that staff will need to return to Council at a later date to replenish all or a portion of these construction funds in order to complete the project,” staff wrote.
“If necessary, an alternative source of funds for the additional work will be identified at that time.”

THOUSAND OAKS, California – Robert Samuelson, a well known California contractor and philanthropist, died February 17 of mesothelioma. He died at home. He was 81.

We often think of mesothelioma as a working man’s disease, and in many ways it is – but deaths like these remind us of how many people mesothelioma touches. Back in 1946, Samuelson and his brother Jack founded a construction company, Samuelson Partners Co. For years, he worked alongside his crews, building, among other things, residence halls at California Lutheran University in Thousand Oaks, the Orville Dahl Centrum, Peters Hall and locker room addition. In addition to those, he leaves a legacy of philanthropy to the university, in the form of the Samuelson Chapel, the Soiland Humanities Center and the Samuelson Aquatics Center.

He is remembered by the interim president of California Lutheran as “our guardian angel, a legend and a role model.”

Outside his working life, Samuelson was a devoted member of the Lutheran Church, a regent at California Lutheran, and president of the La Canada Flintridge Chamber of Commerce. His influence extended far and wide, and to people who never met him, through projects such as founding, building and funding the local YMCA.

Mesothelioma is a rare cancer, found almost exclusively in those who were exposed to asbestos decades ago. As a contractor and builder during the years when the use of asbestos was most widespread, Samuelson probably worked alongside his men handling the deadly material. A natural mineral, asbestos separates into fine fibers that can be woven or powdered, pressed into shapes, and mixed into other products to make them more resistant to heat. It has remarkable qualities of insulation and heat resistance, and is resistant to mold and other types of decay.

In working with asbestos, Samuelson probably never thought that it would kill him. Like most contractors of his era, it’s likely that he believed what the companies that manufactured construction materials told him – that asbestos was state-of-the-art, offering safety and resilience to the buildings in which he used it. Chances are he believed he was doing good things – building shelters that would last, buildings that would resist fire and keep those inside safe.

Unfortunately, asbestos had a side that was hidden from the general public. Breathing it in causes lung damage, though it takes many years for that damage to become evident. The tiny fibers of asbestos dust that hung in the air around construction sites was deadly to many of those working there, though it was decades before it became obvious. Men like Robert Samuelson, a man who worked with his hands and built a company from the ground up, who took what he earned and invested it back into his community, are the victims of asbestos and the companies that touted it as completely safe.

In many other countries, the victims of mesothelioma have a face. There are no faceless victims – there are names and people who stand up and demand the research and the safety precautions, that demand that asbestos be banned and insist that they be recognized as victims of a killer disease. If mesothelioma had faces here in the United States, Robert Samuelson would be one of them.

These are the faces that are forgotten when discussion turns to reforming asbestos litigation laws. Instead, the big companies want us to see lawsuits, an ocean of lawsuits drowning their industry. It’s important for us all – especially the legislators – to remember that the ocean is made up of drops, and each of those drops is a person who was loved, who made contributions to their community, who lived a life that was ended painfully and unfairly by mesothelioma – a totally preventable disease that the big companies did nothing to prevent.

SAN FRANCISCO, California – The First District Court of Appeals has agreed that a Navy veteran who had brought suit against Foster Wheeler, LLC is entitled to a new trial because a juror relied on his own experiences in explaining to fellow jurors why he did not believe that the plaintiff was exposed to asbestos on board the USS Kitty Hawk in the 1960s.

San Francisco Superior Court Judge Mary Wiss awarded the new trial to Paul Whitlock after a 2006 trial in which one of the jurors, a fellow Navy veteran, used his own experience aboard naval ships in a persuasive arguments during jury deliberations. Wiss stated that the juror’s arguments spoke to a critical issue in the trial – whether the plaintiff had been exposed to asbestos-containing materials manufactured by the defendant, Foster Wheeler.

Whitlock served on board the Kitty Hawk during three separate periods between 1965 and 1967. His suit contends that as a result of exposure to asbestos in the Kitty Hawk’s boilers, he developed terminal mesothelioma. Whitlock was diagnosed in 2005 with the rare cancer that is only caused by asbestos exposure.

Foster Wheeler did not dispute the diagnosis, but the company denied that Whitlock was exposed to Foster Wheeler asbestos in the boilers. They said that it had all been removed by the time Whitlock came on board.

Judgment for Defendants
At the original trial in 2006, the jury found after three days of deliberation that Whitlock was not exposed to asbestos containing materials distributed by Foster Wheeler by a 9-3 vote and judgment was entered for the defendant.

Whitlock’s lawyers moved for a new trial fifteen days later, presenting statements from three of the trial jurors. Each of the three stated that one of the jurors, who was referred to as Mr. W., told them that based on his own experience in the Navy, he believed that all of the original block insulation in the boilers would have been removed by the time Whitlock came on board the ship.

According to Wiss’ decision, the juror’s comments went to a critical issue at the trial. The statements made by the juror “constituted external information in the form of a juror’s own claim to expertise or specialized knowledge for which there was no evidence”. Wiss said that it qualified as juror misconduct. She also noted that the jurors had been given standard instruction which include an instruction not to treat external information as evidence unless instructed to do so, and to determine the case based solely on the evidence, and not to use or consider any special training or unique personal experience because those things are not part of the evidence of the case.

Alameda Superior Court Judge Jeffrey W. Horner reviewed Wiss’ decision as a matter of course. When a new trial is granted, the ruling is reviewed for abuse of discretion. Horner said that there was no abuse of discretion. The comments made by the juror were in blatant violation of the instruction, and were prejudicial because they reflected directly on a central issue in the case.

SAN FRANCISCO, California  - The residents of the Bay View Hunters Point neighborhood are stepping up to accuse the city and politicians of one of the worst cases of environmental racism in the country. The neighbors claim that they have been exposed for months to toxic asbestos with no warning and no notice.

Hunters Point is an economically disadvantaged and racially diverse neighborhood in San Francisco adjacent to the defunct Hunters Point Naval Shipyard. The shipyard is part of one of the most complex Superfund sites in the country. Among the many contaminants left behind when the old Naval Shipyard closed down are radioactive waste materials, petroleum and oil residues, lead and asbestos. The shipyard has been parceled into several sections with priority areas earmarked for cleaning and decontamination, then sale to the city or other entities for development.

The current issue began when Lennar Corporation, a multi-billion housing developer, began work on an area near to the Muhammad University of Islam, a school for Muslim children from across the city. Lennar is developing a housing subdivision for over 1,500 homes on the site of the old shipyard. The first steps of the work involved grading an enormous hill to level it.

The issue, according to neighborhood opponents of the work, is that the earth and dirt being moved at Hunters Point is thick with asbestos and other contaminants. As part of its deal with the city, Lennar is supposed to be monitoring the air quality at the site, as well as upwind and downwind of the construction site, specifically measuring the amount of asbestos released into the air. The monitoring was part of a sweetheart deal in which Lennar, a home builder that boasts a portfolio of over $1.3 billion, purchased four parcels of the old shipyard from the city for $1, and receive $82 million from the defense budget to help clean up the parcels before building.

Critics charge that in their rush to build a new football stadium at the site a bid to keep the San Francisco 49ers in town  and the corporation and the city are overlooking the health impacts of exposing neighborhood residents to asbestos and other toxic wastes.
Lennar claims that the levels of asbestos in the air are so low that it would take 70 years of exposure to cause cancer or respiratory problems. It’s an interesting statement, since the EPA has stated that there is no safe level of exposure to asbestos, and that even small exposures to asbestos have been known to result in mesothelioma, asbestosis and other conditions, most of which are not evident until decades after the exposure.

In addition, the Lennar Corporation did not inform the neighborhood of work or of the possible harmful effects of the environmental toxins.
The San Francisco Department of Public Health has ignored and denied repeated requests to have children at the school and in the neighborhood tested for exposure to environmental toxins from the shipyards. In December 2006, the San Francisco Director of Health wrote that the construction at the shipyard presented no potential health risk to the neighborhood despite the fact that not a single child has been tested.
There have been at least two lawsuits filed against Lennar and its contractors, one alleging that the corporation graded and excavated asbestos containing materials without informing the community as is required by law and another alleging that three employees were demoted by Lennar after voicing concerns about the health of the community.