The Florida Supreme Court has reinstated a $6.6 million verdict in an asbestos liability lawsuit, quashing an earlier ruling by the Third District Court of Appeals that reversed a trial court’s judgment.
The case, Aubin v. Union Carbide Corp., is one of a string of lawsuits against the Texas-based producer and purchaser of a chemical called ethylene. A number of its products produced at its plants from 1945 to 1980 contained various types of asbestos, including Calidria chrysotile asbestos. Exposure to asbestos is the only known cause of a terminal cancer known as mesothelioma.
While many have decried the fact that the wave of asbestos litigation has clogged courts and forced companies into bankruptcy, these arguments gloss over the fact that these firms were aware of the danger posed by their products, and failed to warn or protect their workers or consumers. In fact, in the case of Union Carbide, evidence produced in a 2012 jury trial in Los Angeles that resulted in a $37.5 million judgment revealed an internal memo that proved the company knew asbestos exposure caused cancer.
In these cases, it is personal injury lawyers, fighting on behalf of those individuals who have lost loved ones or who are now grappling with an awful, terminal disease, who have worked so tirelessly to hold these companies accountable. These companies are not the innocent parties here. They knew the risk at which they were putting workers and consumers, and yet they allowed greed to trump the duty they owed to ensure their products were safe.
In the Aubin case, plaintiff worked at a construction supervisor at his father’s company in the early 1970s, where he supervised the construction of residential homes in Southwest Florida. During that time, he breathed in dust created by sanding and sweeping drywall joint compounds and also while spraying ceiling texture sprays. Unbeknownst to him, those compounds and ceiling texture sprays – produced in part by Union Carbide – contained asbestos. So when he breathed in that dust, he was inhaling poison.
Asbestos-related illnesses have a long latency period during which they are not detectable. In this case, plaintiff was diagnosed with malignant peritoneal mesothelioma, a fatal, incurable cancer that forms in the abdomen lining. (The other form of mesothelioma, pleural mesothelioma, forms in the lining of the lungs.)
Plaintiff filed a product liability lawsuit against a number of defendants, including Union Carbide, alleging his illness was the result of exposure to asbestos in those construction materials. Claims against other defendants were either settled or dismissed before his case with Union Carbide went to trial.
At trial, plaintiff asserted negligence against defendant on theories of strict liability design defect, strict liability failure to warn and negligent failure to warn. There was conflicting evidence at trial as to whether defendant properly warned intermediary manufacturers and sellers of these joint compounds and texture sprays. It was also disputed whether defendant knew of the dangers, whether the company initiated a campaign of misinformation to conceal the truth about the dangers and also whether it failed to put warning labels on the bags.
Plaintiff provided substantial evidence showing the company was in fact aware of the many dangers of its products. Among this evidence was an internal “Asbestos Toxicology Report” issued in 1964, in which the company took note of the fact that workers exposed to asbestos dust were at high risk of developing cancer. But it didn’t stop making its product and neither did it issue a warning or do anything to make the material safer.
Jurors awarded $6.6 million to plaintiff. Defendant appealed to the 3rd DCA. In its reversal, the appellate court determined trial court had improperly applied the Third Restatement of Torts to the claim of strict liability defective design and also that there was a failure to instruct jurors on the intermediary defense with respect to the failure to warn claim.
When the Florida Supreme Court took on the case, justices noted that the 3rd DCA was alone among appellate courts in its interpretation of the Restatement of Torts in this situation. Further, the reversal on the jury instruction issue was improper.
Our experienced Fort Myers personal injury lawyers recognize that mesothelioma litigation is incredibly complex. These cases can take years to resolve, but it is possible with a knowledgeable, prepared and well-resourced legal team to reach a favorable conclusion.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Aubin v. Union Carbide Corp., Oct. 29, 2015, Florida Supreme Court
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Wrong, Missed, Delayed Diagnosis Happens to Majority of Americans, New Report Says, Nov. 3, 2015, Fort Myers Asbestos Lawyer Blog