Archive for the ‘Texas’ Category

The owner of a building in Waco, Texas has discovered that the presence of asbestos in buildings scheduled for demolition can cause a variety of different problems, not the least of which is increased demolition costs.

The presence of asbestos in the buildings drives the cost of demolition up considerably for several reasons.

First is the fact that the asbestos must be removed before the buildings can be demolished. Leaving the asbestos intact during demolition could spread clouds of asbestos dust into the air, creating an environmental and health hazard.

Second, the asbestos removal must be carried out by professional contractors who are licensed to handle asbestos. In addition, special procedures must be used in removing the asbestos, to prevent the dispersion of asbestos dust.

These procedures include a process called wet removal, in which asbestos-containing materials are wetted down before they are removed, to prevent the release of dust and airborne fibers.

Finally, the cost of disposing of asbestos waste is significantly higher than disposing of non-hazardous material. Asbestos disposal is generally around three times more expensive than disposal of non-hazardous waste.

All of these are particularly important considerations that are necessary to prevent asbestos exposure to anyone involved in handling the substance. Even a small amount of exposure can cause a deadly cancer called mesothelioma.

The health hazards of asbestos exposure have prompted most states to develop strict regulations about handling the substance, as well as regulations governing demolition of buildings that contain it.

In Waco, Texas, district Judge Vicki Menard ordered the owner of a dilapidated building to begin demolition within 45 days, or incur fines of $1,000 a day.

That means owner Banson Fan must have a city demolition permit, a contractor, and funding ready to go within that time. The problem is, the permit can’t be issued until asbestos abatement is completed, and the abatement has an estimated cost of $50,000. That figure amounts to approximately half the total cost of demolishing the building.

Asbestos was used widely in construction up until the 1980s in part because the addition of asbestos was a cheap and easy way to make building materials stronger and more fire resistant. Now, however, property owners are experiencing one of the far-reaching costs of asbestos, in the high costs of abatement in older buildings.

The Whisnant Vs DuPont case may be back to square one, as Judge Donald Floyd has agreed that the case should be retried.

During February and March, the jury in a six-week asbestos trial listened to plaintiff claims that Willis Whisnant had developed mesothelioma as a result of negligence on the part of contractual employer DuPont. The jury decided in favor of the defendant. Now, the plaintiff’s attorney, Glen Morgan, is asking that the verdict be set aside and a new trial granted.

The case was filed by Caryl Richardson representing the estate of Willis Whisnant, who died in 1999 at 72, after being diagnosed with mesothelioma. During the trial, the jury heard that Whisnant had been a B.F. Shaw pipefitter in 1966 and had been contracted to work at DuPont. The plaintiff attorney argued that Whisnant had negligently and maliciously been exposed to asbestos.

However, on March 25 the jury returned their verdict, which effectively found that DuPont was not guilty of negligence.

Plaintiff attorney Glen Morgan subsequently filed a Plaintiff’s Motion for a New Trial, stating that the jury’s decision was “contrary to the overwhelming weight and preponderance of the evidence.” The sixteen-page motion argued that the jury may have been unduly influenced by an online and print publication, “The Southeast Texas Record,” which publishes articles about local court events.

Morgan claimed that the newspaper, which is owned by the U.S. Chamber of Commerce, deliberately publishes “anti-plaintiff propaganda,” and that articles about the Whisnant trial which were clearly favorable to DuPont may have contributed to the jury’s decision.

The plaintiff’s attorney cited a specific instance in which the Southeast Texas Record described evidence that presiding Judge Floyd had ruled was not admissible. Morgan argued that any juror reading that article would have learned information that had been excluded from the trial, and may have been unduly influenced to decide in favor of DuPont as a result.

DuPont defense attorney M.C. Carrington defended the jury’s verdict, saying that “…the jury had every reason to reach the decision that they did. There is not any way that the court will find that there is insufficient evidence to support the jury finding.” Carrington also said that there was not enough evidence to determine whether or not the jury was unduly influenced by The Southeast Texas Record’s coverage of the trial.

Judge Donald Floyd evidently agrees with Glen Morgan, but in his two-paragraph decision, the judge did not give any reason for his ruling.

Texas - The Whisnant Vs DuPont case may be back to square one, as Judge Donald Floyd has agreed that the case should be retried.

During February and March, the jury in a six-week asbestos trial listened to plaintiff claims that Willis Whisnant had developed mesothelioma as a result of negligence on the part of contractual employer DuPont. The jury decided in favor of the defendant. Now, the plaintiff’s attorney, Glen Morgan, is asking that the verdict be set aside and a new trial granted.

The case was filed by Caryl Richardson representing the estate of Willis Whisnant, who died in 1999 at 72, after being diagnosed with mesothelioma. During the trial, the jury heard that Whisnant had been a B.F. Shaw pipefitter in 1966 and had been contracted to work at DuPont. The plaintiff attorney argued that Whisnant had negligently and maliciously been exposed to asbestos.

However, on March 25 the jury returned their verdict, which effectively found that DuPont was not guilty of negligence.

Plaintiff attorney Glen Morgan subsequently filed a Plaintiff’s Motion for a New Trial, stating that the jury’s decision was “contrary to the overwhelming weight and preponderance of the evidence.” The sixteen-page motion argued that the jury may have been unduly influenced by an online and print publication, “The Southeast Texas Record,” which publishes articles about local court events.

Morgan claimed that the newspaper, which is owned by the U.S. Chamber of Commerce, deliberately publishes “anti-plaintiff propaganda,” and that articles about the Whisnant trial which were clearly favorable to DuPont may have contributed to the jury’s decision.

The plaintiff’s attorney cited a specific instance in which the Southeast Texas Record described evidence that presiding Judge Floyd had ruled was not admissible. Morgan argued that any juror reading that article would have learned information that had been excluded from the trial, and may have been unduly influenced to decide in favor of DuPont as a result.

DuPont defense attorney M.C. Carrington defended the jury’s verdict, saying that “…the jury had every reason to reach the decision that they did. There is not any way that the court will find that there is insufficient evidence to support the jury finding.” Carrington also said that there was not enough evidence to determine whether or not the jury was unduly influenced by The Southeast Texas Record’s coverage of the trial.

Judge Donald Floyd evidently agrees with Glen Morgan, but in his two-paragraph decision, the judge did not give any reason for his ruling.

Houston, Texas – A Texas man was this week awarded a total of $9.7 million by a jury who heard his asbestos-related lawsuit and determined that he developed mesothelioma as a result of negligence on the part of the Crane Company.

Chief Brewer and his wife Gail filed the lawsuit more than a year ago, after Chief Brewer was diagnosed with mesothelioma.

During the trial, the jury heard that Brewer had served as a machinist mate in the U.S. Navy, and had been exposed to asbestos because the Crane Company, a defense supplier, had manufactured pumps, seals, and other products that contained asbestos.

Asbestos was commonly used in ship-building and construction in the twentieth century, particularly between the 1940s and 1980s. Its fire-resistance, strength and durability made it an ideal material to use for insulation and packing materials on board Navy vessels, and it was widely used in Navy ships for several decades.

In addition to causing deadly cancers—including mesothelioma and lung cancer—asbestos exposure causes a chronic lung disease called asbestosis, and other types of lung damage. Mesothelioma is perhaps the most lethal of the asbestos-related diseases. This cancer is difficult to diagnose and treat, and is incurable.

During the trial the Brewers’ attorneys claimed that the Crane Company had continued to sell its asbestos-containing products long after it was aware that asbestos exposure was a serious health hazard.

In addition, the plaintiff’s attorneys showed that the Crane Company manufactured and sold its asbestos-containing products without warning users that asbestos was a dangerous substance, and that exposure could cause serious diseases.

The last year has been difficult for the family. In addition to coping with the stress of the court case, Brewer has been hospitalized numerous times for treatment, undergoing grueling courses of chemotherapy.

Both Chief and Gail Brewer were appreciative of the jury in their case as well as their attorneys. Gail Brewer said, “we appreciate and applaud the efforts of the jury, who put their lives on hold for two long months away from their jobs and families. I think it is a huge sacrifice and very commendable for them to do that for our family.”

The $9.7 million awarded to the Brewers included $700,000 for medical expenses and loss of income, as well as $5 million in non-economic damages awarded to Chief Brewer, and $4 million in non-economic damages awarded to Gail Brewer.

Jefferson County, Texas – Last week, the plaintiff’s attorney in the Whisnant Versus DuPont trial claimed that the jury had been unduly influenced and had wrongly delivered a verdict in favor of the defendant as a result. The defense attorney has since responded to the claims, saying that “The plaintiff is just arbitrarily asking the court to set aside [the verdict] because it didn’t go their way.”

The Whisnant Versus DuPont trial played out over six weeks in February and March of 2008. During the trial, the jury heard plaintiff claims that Willis Whisnant had developed mesothelioma as a result of negligence on the part of contractual employer DuPont.

The case was filed by the estate of Willis Whisnant, who died in 1999 after being diagnosed with mesothelioma. During the trial, the jury heard that Whisnant had been a B.F. Shaw pipefitter in 1966 and worked at DuPont on a contractual basis. The plaintiff attorney argued that Whisnant had negligently and maliciously been exposed to asbestos.

However, on March 25 the jury returned their verdict, which effectively found that DuPont was not guilty of negligence.

Last week, plaintiff attorney Glen Morgan filed a Plaintiff’s Motion for a New Trial, stating that the jury’s decision was “contrary to the overwhelming weight and preponderance of the evidence.”

The motion argued that uncontroverted witness testimony established that while working at DuPont Whisnant was exposed to working conditions which posed an unreasonable risk of harm, and that DuPont had admitted knowledge of the danger. The motion says that DuPont cannot dispute that it failed to exercise “ordinary care” in Whisnant’s case.

The motion also accused a local publication, The Southeast Texas Record, of publishing material that may have unduly influenced the jury. Morgan claimed the Southeast Texas Record published several reports on the Whisnant case that favored DuPont.

The specific instance Morgan cited was an incident in which the publication described evidence presiding Judge Floyd had ruled was not admissible. Morgan argued that a juror who read the article would have learned information which had been excluded from the trial, and may have been unduly influenced in favor of DuPont as a result.

Defense attorney M.C. Carrington has defended the jury’s verdict, saying that Morgan’s arguments were simply a rehashing of the points that the jury had already rejected by deciding in favor of the defendant. “…the jury had every reason to reach the decision that they did. There is not any way that the court will find that there is insufficient evidence to support the jury finding.”

Carrington also said that there was not enough evidence to determine whether or not the jury was unduly influenced by The Southeast Texas Record’s coverage of the trial.

Galveston, Texas - A woman from Galveston, Texas, claims that she developed mesothelioma as a result of secondary exposure, and has filed suit against the Marathon Petroleum Company and several other defendants, including the Todd Shipyards Corporation and the BASF Corporation.

Cynthia Leigh Chason filed suit on May 8, 2008, claiming that her asbestos exposure occurred as a result of her father’s work on asbestos-containing products.

The petition filed on May 8 states that “Ms. Chason was exposed to asbestos through household contact from her father, Loy Garner, who was employed by Marathon from 1969 through at least 1979. In addition, Ms. Chason was exposed through her father who also worked at Smith Douglass in Texas City from 1961 to 1969; and additionally he did some short-term contracting work in the 1970s for BASF in Freeport, Todd Shipyard in Galveston, and Monsanto in Texas City.”

The suit claims that Cynthia Leigh Chason was “exposed to large quantities of asbestos” as a result of her father’s occupations, some of which involved handling asbestos-containing products, or working with or around asbestos-containing machinery.

The suit also argues that the defendants in the case were aware that asbestos was a dangerous substance and that they failed to warn their employees that exposure to asbestos was a health hazard. In addition, claims the lawsuit, the defendants also failed to warn employees that asbestos fibers could be transported home and that other family members could be exposed to the fibers.

Asbestos-related disease caused by secondary asbestos exposure is relatively rare. In most, if not all, cases of secondary exposure, the resulting diseases is mesothelioma rather than asbestosis, because the cancer can develop after relatively small amounts of asbestos exposure. Asbestosis usually develops after long-term or heavy exposure to airborne asbestos fibers.

Secondary exposure to asbestos usually occurs in people who live with a family member who works with or around asbestos or asbestos-containing products. If the family member working with asbestos does not take the precautions needed to prevent their own exposure, they are able to expose the people they live with if they arrive home with asbestos fibers adhering to their clothing.

Mesothelioma is a particularly devastating disease due to the aggressiveness of this type of cancer. The disease spreads quickly and is highly resistant to all current forms of treatment. Mesothelioma has a very high mortality rate, and around half those diagnosed with the disease will die within two or three years.

The lawsuit states that litigation will continue even after Cynthia Leigh Chason dies.

Jefferson County, Texas - During February and March, the jury in a six-week asbestos trial listened to plaintiff claims that Willis Whisnant had developed mesothelioma as a result of negligence on the part of contractual employer DuPont. The jury decided in favor of the defendant. Now, the plaintiff’s attorney, Glen Morgan, is asking that the verdict be set aside and a new trial granted.

The case was filed by Caryl Richardson representing the estate of Willis Whisnant, who died in 1999 at 72, after being diagnosed with mesothelioma. During the trial, the jury heard that Whisnant had been a B.F. Shaw pipefitter in 1966 and had been contracted to work at DuPont. The plaintiff attorney argued that Whisnant had negligently and maliciously been exposed to asbestos.

However, on March 25 the jury returned their verdict, which effectively found that DuPont was not guilty of negligence.

Plaintiff attorney Glen Morgan has now filed a Plaintiff’s Motion for a New Trial, stating that the jury’s decision was “contrary to the overwhelming weight and preponderance of the evidence.”

The motion-which runs to sixteen pages-argued that during the trial, uncontroverted witness testimony established that the working conditions Whisnant was exposed to at DuPont posed an unreasonable risk of harm, and that DuPont had admitted knowledge of the danger. The motion says that DuPont cannot dispute that it failed to exercise “ordinary care” in Whisnant’s case.

The motion also accuses local publication “The Southeast Texas Record” of publishing material that caused undue influence over the jury.

“When one considers the overwhelming evidence of DuPont’s negligence in the above captioned case, it becomes clear that someone or something outside the courtroom must have influenced the jury’s verdict.”

“In this case, the outside influence was almost certainly the Southeast Texas Record. The Southeast Texas Record is a local ‘newspaper’ that is owned by the U.S. Chamber of Commerce.”

“The U.S. Chamber of Commerce has identified one of its top goals is to end what it perceives to be lawsuit abuse and unfair litigation. In order to accomplish this goal, the U.S. Chamber of Commerce has instituted what it calls a multifaceted and multipronged attack…One prong of this attack is the creation of ‘newspapers’ to disseminate anti-plaintiff propaganda in areas of the country that the U.S. Chamber of Commerce believes are favorable venues for plaintiffs, including…Southeast Texas.”

Morgan claims that the Southeast Texas Record published several different reports on the Whisnant case that were clearly favorable to DuPont. The motion further alleges that the U.S. Chamber of Commerce was “clearly attempting to influence jurors” by making the paper freely available at the courthouse.

The specific instance that Morgan cites is an incident in which the Southeast Texas Record described evidence that presiding Judge Floyd had ruled was not admissible. Morgan argued that any juror reading that article would have learned information that had been excluded from the trial, and may have been unduly influenced to decide in favor of DuPont as a result.

The motion will be heard in Judge Floyd’s court on May 16.

Jefferson County, Texas – Throughout his career as a pipefitter, Earnest L. Edwards was in direct contact with asbestos. When he developed an “asbestos-related disease,” he sued and received a claim.

Now deceased, Edwards’ family is seeking compensation for a “different malignant asbestos-related injury,” which they claim prematurely ended his life.

Provost Umphrey attorney Bryan Blevins filed suit on Edwards’ behalf against the A.O. Smith Corp. and 34 other companies. The suit was filed in the Jefferson County District Court on May 7. Betty Palmer is representing Edwards’ estate.

According to the plaintiff’s petition, the A.O. Smith Corp., along with the 34 other companies named in the suit, knowingly and maliciously manufactured and distributed asbestos-containing products throughout Jefferson County.

Edwards worked as a pipefitter and general laborer for various employers, “which caused him to suffer from…industrial dust diseases caused by breathing the asbestos-containing products,” the suit said.

The suit alleges the defendants in the lawsuit were negligent for failing to adequately test their asbestos-laced products before flooding the market with dangerous goods and for failing to warn the consumer of the dangers of asbestos exposure.

Some of the defendants listed in the suit include aerospace giant Lockheed Martin and iron supplier Zurn Industries.

In addition, the petition faults Minnesota Mining and Manufacturing Corp. (3M Corporation) and American Optical Corp. for producing defective masks that failed to provide respiratory protection.

Although Edwards has already sued and received a claim, the suit says, “Plaintiff now seeks damages against defendants not released in the previous actions pursuant to Pustejovsky v. Rapid-American Corp.”

In the precedent-setting Pustejovsky opinion in 2000, the Texas Supreme Court held that a victim of asbestos disease may later have a second lawsuit for an asbestos-related cancer if he develops the cancer at a future date. The opinion overruled a long history of Texas cases holding that a person may only bring one lawsuit for an asbestos-related injury, even if he develops a second, catastrophic mesothelioma cancer at a much later date.

“The court must apply a separate accrual rule in these cases because a single action rule would forbid a second suit and in doing so force the asbestos plaintiff to file premature litigation on speculative claims, which the court in Pustejovsky notes is neither efficient or desirable,” the suit said.

Edwards’ family is suing for exemplary damages, plus physical pain and suffering in the past and future, mental anguish in the past and future, lost wages, loss of earning capacity, disfigurement in the past and future, physical impairment in the past and future, and past and future medical expenses.

After the Manhattan Institute released its damning report on asbestosis lawsuit scams, a doctor who has been involved in testifying as an expert witness commented on the situation.

Dr. David Weill, who has testified twice as an asbestosis expert before Senate committees, is the director of the Lung and Heart-Lung Transplant at the Stanford University Medical Center.

Asbestosis, says Weill, is a “pretty serious thing, possibly fatal.” That makes it frustrating that thousands of fake asbestosis claims have made it difficult for the genuine asbestosis sufferers to obtain fair compensation for their injuries.

Weill says that the genuine claims “get diluted out by the false claims.” In the very large class action lawsuits, plaintiffs often receive only a few thousand dollars. A windfall for people who don’t actually have the disease, but for people who are genuinely affected by asbestosis, a few thousand dollars can’t begin to compensate them for the way their lives are changed by the disease.

In recent years, Weill helped uncover facts about a massive scam that was carried out in Texas. It was discovered that plaintiffs suing for compensation for silicosis had already received compensation for asbestosis, a disease with an entirely different cause. The scam involved both lawyers and doctors, and the manufacture of thousands of false silicosis claims.

In testifying to the Senate, Weill explained that on an x-ray asbestosis and silicosis look like entirely different diseases, and furthermore than it “would be extremely unusual for one person in a working lifetime to have sufficient exposure to both types of dust to cause both diseases.”

In addition, said Weill, “outside the litigation setting, confusion between silicosis and asbestosis does not occur.”

Weill says that the attempted fraud in the Texas case was so blatant that the same plaintiff was diagnosed with asbestosis by one screening firm in February, and the next month was diagnosed with silicosis by another screening firm. However, in both cases the screening firm didn’t pick up any symptoms of the other disease. According to Weill, a treating physician would have diagnosed both silicosis and asbestosis in the same x-ray if both diseases were present.

However, in these massive class action suits, the physicians who read the x-rays rarely had any contact with the patients who supposedly had the diseases.

Weill was later hired by W.R. Grace & Company to help design a clinical study of the asbestos claims that had been made against the company. The study demonstrated that more than 80% of the asbestosis claims that had been made against W.R. Grace & Company were actually false.

The American Bar Association has been supporting federal legislation that would establish specific medical criteria for asbestos-related litigation since 2003. However, the Manhattan Institute report says even that may not be enough, as unscrupulous attorneys might soon find ways around such legislation.

A new report from the Manhattan Institute’s Center for Legal Policy part of a series of reports called “Trial Lawyers, Inc.,” describes how some unscrupulous attorneys have turned to profiteering and “abusive litigation” involving asbestos.

The Manhattan Institute’s report centers on the practice of using class action lawsuits to generate thousands of false asbestos claims. This practice, says the report, not only allows people to claim compensation falsely; it also means that people who are genuinely affected by asbestos-related diseases don’t get the compensation they need or deserve.

The report proposes four law reforms that, it says, will “prevent the worst of [the] documented abuses.”

First, the report says, medical criteria laws should be established, to prevent the practice of mass screening. The report points to an example of a law passed in Texas in 2005 as a good example of such a reform: “Texas legislation outlaws mass screenings, requires a certified medical report, and places mesothelioma and other malignant cases at the front of court dockets.”

Second, states should prevent trial lawyers from “forum-shopping.” This refers to the practice of lawyers hunting down the states and court rooms that are most likely to look upon their cases favorably. A good example, says the report, are the laws established in Mississippi in 2004, where “a plaintiff could file a claim only in the county in which he resided, where the defendant corporation was headquartered, or where the injury actually occurred. In addition, Mississippi’s reform required that the rule apply to every plaintiff so that lawyers could not bundle claims together and ship them to a permissive county where only one of the plaintiffs resides.”

Third, says the Manhattan Institute, states could adopt “joint-and-several” liability reforms that would solve the “solvent defendant” problem. This problem occurs when lawyers sue companies that are more or less unrelated to the manufacture of asbestos products. The report suggests that such companies should not be held “severally liable.” meaning they shouldn’t be held 100% responsible for asbestos-related damages in cases where they are not 100% responsible for a plaintiff’s injuries.

Fourth, the practice of “double-dipping,” where plaintiffs can win compensation multiple times for related conditions, should be outlawed to prevent scams of the type that was uncovered in Texas in 2005. In that scam, plaintiffs were receiving compensation for both asbestosis and silicosis in separate lawsuits.

The Manhattan Institute report also points out, however, that “judges, prosecutors, and even corporate defendants must be involved in defeating the asbestos litigation morass.”