March 14, 2017, PLLR Newsletter

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Engine gasket makers’ failure to warn of asbestos danger leads to woman’s peritoneal mesothelioma

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The plaintiffs alleged that various manufacturers of asbestos-containing products were aware of their products’ dangers but failed to adequately warn of the hazard. The net award totals $52.5 million. Robaey v. Air & Liquid Sys. Corp.
 

Marlena Robaey was working as a nurse when she met her future husband Ed, a maintenance mechanic and racing enthusiast, at the hospital where they both worked. They married in 1974. From the early 1970s through the early 1990s, Ed repaired and serviced asbestos-containing boilers at the hospital and frequently handled pipes and valves containing asbestos components. Ed wore his dust-covered work clothing home, and Marlena laundered the clothing on a regular basis.

Marlena also assisted Ed for near two decades as he overhauled the engines in his racecars every two to three weeks. The work included scraping out worn engine gaskets—an activity that released visible asbestos dust. Marlena watched, and on some occasions, also assisted in scraping out the old gaskets. She also swept and cleaned up after the overhaul work and laundered Ed’s clothing afterward.

In November 2012, at age 64, Marlena was diagnosed with peritoneal mesothelioma. She underwent an exploratory laparotomy, an omentectomy to remove the fold of the peritoneum that covers and supports the intestines and abdominal organs, an oophorectomy to remove both ovaries, a hysterectomy, and a salpingectomy to remove the fallopian tubes. In March 2013, she underwent another laparoscopy, removal of an additional tumor, and resection of portions of her diaphragm and small bowel. At that time, doctors also implanted a heated chemotherapy agent.

Despite the surgeries and treatment, the tumor invaded the surrounding tissue and eventually, the pleural space. In April 2016, doctors diagnosed pleural mesothelioma. Marlena underwent additional chemotherapy and immunotherapy, but her prognosis is poor.

She and her husband sued various manufacturers of asbestos-containing products, including Dana Cos., LLC; which manufactured automotive engine gaskets; boiler manufacturer Cleaver-Brooks Co., which manufactured two of the boilers at the hospital; and Crane Co., which manufactured pumps and valve Ed worked with at the hospital. The plaintiffs also sued Federal-Mogul Corp., which had purchased the liabilities of engine-gasket manufacturer Felt Products Manufacturing Co. (Fel-Pro). Federal-Mogul’s bankruptcy filing led to the creation of an asbestos personal injury trust, and the terms required the Robaeys to sue Federal-Mogul as Fel-Pro’s successor and prove a case against it. The plaintiffs alleged that all of the defendants were aware of their products’ asbestos dangers but failed to adequately warn of the dangers.

The lawsuit named various other manufacturers and suppliers of asbestos products. A number of defendants settled before trial or were otherwise dismissed, and the case went to trial against Dana, Cleaver-Brooks, Crane, and Federal-Mogul/Fel-Pro.

Crane and Cleaver-Brooks settled during trial for confidential amounts.

Counsel subpoenaed the defendants’ corporate representatives to testify in the plaintiffs’ case-in-chief. Questioning the representatives on direct, plaintiff counsel obtained admissions that both Dana and Fel-Pro were aware by at least the early 1970s that breathing asbestos could cause mesothelioma.

The plaintiffs also introduced evidence through the corporate representatives that the companies never placed warnings on the replacement parts they sold to mechanics like Ed Robaey, even though the companies were receiving those warnings on the raw materials for the gaskets. Moreover, evidence showed that the defendants included a cautionary statement on the large, bulk packaging they supplied to original equipment manufacturers such as Ford and Caterpillar. At the same time, the representatives admitted, their companies never included the cautionary statement on the individually packaged gaskets they sold to individual consumers.

The plaintiffs also established that the defendants failed to conduct testing to determine the quantity of fibers released by their products and other variables, even though their products’ user manuals instructed consumers to scrape off all of the old gasket before putting on a new one.

Marlena testified about the how she laundered her husband’s dusty clothing two or three times a week for years, shaking out the clothes and causing asbestos fibers to settle everywhere. She testified that she had no idea she needed to vacuum up the fibers and that, by failing to do so, she was exposing and re-exposing herself to asbestos every time she did the laundry.

Dana and Fel-Pro argued that the chrysotile asbestos in their products does not cause peritoneal mesothelioma and that, even if it did, Marlena’s exposure was not significant enough to have caused her disease.

The jury awarded $75 million, allocating fault at 40 percent to Dana, 30 percent to Fel-Pro, 20 percent to Crane, and 10 percent to Cleaver-Brooks. The award included $40 million for Marlena Robaey’s past pain and suffering, $15 million for her husband’s past loss of services, and $10 million each for future pain and suffering and loss of services. The net award totals $52.5 million.

Counsel anticipates post-trial motions, including a motion for remittitur.

Citation: Robaey v. Air & Liquid Sys. Corp., No. 190276/13 (N.Y. Sup. Ct. New York Cnty. Jan. 26, 2017).

Plaintiff counsel: AAJ members Danny R. Kraft Jr., and Peter Tambini, both of New York City; and AAJ member Jerry Kristal, Cherry Hill, N.J.

Plaintiff experts: Barry Castleman, public health, Garrett Park, Md.; Steven Markowitz, occupational medicine, New York City; and David Schwartz, occupational medicine, Aurora, Colo.

Defense experts: David Sicilia, asbestos industry history, College Park, Md.; Donna Ringo, industrial hygiene, Louisville, Ky.; James Crapo, pulmonology, Denver; David Garabrant, epidemiology, Ann Arbor, Mich.; and Frederick Boelter, industrial hygiene, Boise, Idaho.