Products Liability Law Reporter

Ralph Hutt worked at W.R. Grace’s Libby, Mont., vermiculite mill from 1968 to 1969. He allegedly was provided with a paper mask but told that he could wear it or not because he was exposed to “just dust” that would not hurt him. Now 79, he suffers from asbestosis, which progressively affects his ability to breathe. His medical expenses totaled more than $43,500.

Hutt filed suit against workers’ compensation insurer Maryland Casualty Co. (MCC), along with 883 other plaintiffs. The state of Montana’s Asbestos Claims Court selected Hutt’s case as the leading case for guiding litigation and directed the filing of a separate complaint.

In the complaint, Hutt alleged that MCC’s safety program—which engaged in medical monitoring of workers—had negligently chosen to protect against the risk of workers’ compensation claims instead of warning and protecting workers from hidden asbestos hazards. Among other things, the plaintiff asserted that after reviewing his and other workers’ radiological reports, which reportedly showed fibrotic changes, MCC had recommended more frequent X-ray screenings but stated that he and other workers could safely continue working if protected against high dust concentrations.

In response, the defense argued that Hutt had been contributorily negligent for not wearing a mask, and asserted a limitations defense—an issue that was decided in the plaintiff’s favor.

The jury awarded $36.5 million, including $30 million in punitive damages.

Citation: Hutt v. Maryland Cas. Co., No. DV5720158-0175-AE (Mont. Dist. Ct. Cascade Cty. Feb. 17, 2022).

Plaintiff counsel: AAJ member A. Clifford Edwards, Billings, Mont.; and Allan McGarvey, Dustin Leftridge, and Jinnifer Mariman, all of Kalispell, Mont.

Comment: In Budd v. Kaiser Gypsum Co., 2022 WL 521501 (Wash. Ct. App. Feb. 22, 2022), Raymond Budd worked with joint compound from 1962 to 1972 and was later diagnosed as having mesothelioma. He brought a products liability suit against Kaiser Gypsum Co., and a jury awarded him $13.5 million. Kaiser appealed, asserting several arguments, including that the plaintiff had failed to link his disease to the company’s product. Affirming, the appellate court found that Budd had testified, via videotaped deposition, that the manufacturer of the joint compound he had worked with was Kaiser Gypsum and that this was the only joint compound he had worked with between 1962 and 1972. Moreover, a Kaiser corporate representative had testified at trial that Kaiser had sold joint compound in Moses Lake, Wash., the area where Budd had worked. Accordingly, the court concluded that viewing the evidence in the light most favorable to Budd and considering the lenient standard applied to asbestos cases, the evidence here was sufficient to sustain the jury’s verdict. AAJ members Alexandra Brett Caggiano and Brian D. Weinstein, both of Seattle, represented the plaintiff.