November 7, 2017, PLLR E-Newsletter
Insulation supplier’s failure to warn of asbestos hazards led to worker’s mesothelioma
The plaintiffs alleged general negligence against the supplier for its insulation work and breach of express and implied warranties in that the defendant knew or should have known when it sold and installed the insulation that it posed an unreasonable risk of injury. The jury awarded $7.55 million. Sylvestre v. New England Insulation Co.
In 1966 at age 26, Gerald Sylvestre began working at a New Hampshire power plant, where he held various jobs, including equipment attendant. Sylvestre usually worked outages at the plant for overtime. From 1966 to 1973, New England Equipment (NEI) worked outages at the plant as a contractor. NEI distributed and used Owens-Corning Kaylo brand asbestos insulation for the plant’s equipment, and Sylvestre was often present when NEI employees installed and ripped out the insulation.
In 2015 at about age 75, Sylvestre was diagnosed with mesothelioma. He underwent multiple surgeries and chemotherapy, but the disease and treatment destroyed his formerly active lifestyle. He is no longer able to enjoy daily walks, hunting, snowshoeing, and traveling with his wife. His prognosis is poor.
Sylvestre and his wife sued NEI, alleging general negligence for its insulation work and breach of express and implied warranties in that the defendant knew or should have known when it sold and installed the insulation that it posed an unreasonable risk of injury.
The lawsuit named various additional manufacturers and suppliers of asbestos-containing products to which Sylvestre was exposed. Those defendants either settled confidentially before trial or were otherwise dismissed, and the case proceeded against NEI.
At trial, the plaintiffs presented evidence that NEI’s former president was aware of the dangers of asbestos, having first learned of the asbestos-disease connection in 1962, when his stepfather died of mesothelioma. Other evidence showed that the former president provided his own workers with respirators and had closed-air filtration systems at NEI’s Canton, Mass., facility, and that he was on the health and safety committee of the Insulation Distributor Contractors National Association and had attended meetings at which the dangers of asbestos were discussed.
The jury awarded $7.55 million, including $3 million for medical expenses, $3 million for pain and suffering, $1.5 million to Sylvestre’s wife for loss of consortium, and $50,000 for lost earning capacity. The defense has filed motions for a new trial, remittitur, and judgment n.o.v., which are pending as of this writing.
Citation: Sylvestre v. New England Insulation Co., No. 15-7031 (Mass. Super. Ct. Middlesex Cnty. Sept. 21, 2017).
Plaintiff counsel: AAJ members Gary M. Paul and Susan M. Ulrich, both of Los Angeles; AAJ member Christopher L. Johnson, Dallas; and AAJ members Andrea Marino Landry and Andrew S. Wainwright, both of Boston.
Plaintiff experts: David Christiani, occupational safety and health, Cambridge, Mass.; and Michael Ellenbecker, industrial hygiene, Lowell, Mass.
Defense expert: Kyle Dotson, industrial hygiene, Los Altos, Calif.