Asbestos history laid out in six week trial that ended in deadlock

Steve Korris Jul. 22, 2010, 5:22am





BLOOMINGTON – Two mesothelioma sufferers fell short of a unanimous jury verdict on their claim that a conspiracy among corporations caused their disease.

Jurors rejected a theory that lawyers for Larry Dunham and Norman Shoopman laid out for six weeks before McLean County Circuit Judge Michael Prall.

After three days of deliberation, jurors declared they could not and would not reach a unanimous decision.

Circuit Judge Scott Drazewski, substituting for Prall during deliberations, announced a mistrial at 5 p.m. on Friday, July 16.

Dunham worked as a firefighter in Springfield, Shoopman as a teacher in Bloomington.

They sought damages from Pneumo Abex, Honeywell, and Owens-Illinois, claiming they conspired with other companies for decades to conceal the hazards of asbestos.

Pneumo Abex stood trial as successor to American Brake and Block, and Honeywell stood as successor to Bendix.

The mistrial breaks a string of successes for local conspiracy lawyers James Wylder and Lisa Corwin and their star witness, Barry Castleman.

Wylder's website shows nine verdicts in six years, exceeding $40 million.

Earlier this year, jurors awarded almost $4 million each against Pneumo Abex and Honeywell, plus $10 million in punitive damages against Honeywell.

A mistrial presumably pleased defendants, who moved for that result at trial's end.

They claimed Prall confused the jury by holding two trials at once.

Prall consolidated the cases at a pretrial hearing on May 27, eleven days before trial.

He said, "If we try them all individually, it will take forever."

At the hearing, Abex counsel Ray Modesitt moved for continuance so he could investigate 1,000 pages of exposure evidence he received two days earlier.

Wylder opposed the motion, saying depositions would probably take five years.

Prall denied a continuance.

Honeywell counsel Colleen Baime said limits on evidence provided no remedy protecting Honeywell's rights.

She asked to present exposure evidence beyond what plaintiffs provided.

Prall said, "I am not limiting that."

Baime said he was, because plaintiffs had just identified multiple sites.

"Other exposures matter and there is no way for us to explore those," she said.

Prall said he would not restrict cross examination on an idea that defendants would investigate KFC and Kroger.

"You would be all year, two years, trying to go through all those places," he said.

"I am limiting plaintiff to what they can put you to defend," he said.

"That's it on this issue," he said.

Wylder renewed a motion to seek punitive damages, which Prall had denied.

Honeywell counsel Luke Mangan opposed the motion, saying Honeywell had no connection to either plaintiff.

He said plaintiffs had to show outrageous, close to criminal, conduct.

"The conduct has not occurred for 30, 40 years, and you are punishing the wrong person," he said.

Prall said, "I have already ruled on these."

He said, "It's a jury question. I'll allow the motion."

Modisett pleaded to submit written questions to prospective jurors
about the former UNARCO asbestos plant in Bloomington.

He said asbestos conspiracy suits were "unique to this jurisdiction," adding that trials started in 1979 or 1980.

He said jurors all knew about the former UNARCO asbestos plant in Bloomington but denied it in voir dire.

He said the daily Bloomington Pantagraph ran about 100 articles on asbestos litigation since 1989.

"Pending right now we have, I believe, 88 or 89 cases," he said.

"I am guessing that 90 percent of them are residents of this county," he said.

Wylder said he wouldn't oppose the questions but would oppose a questionnaire.

Prall rejected the questionnaire.

Trial started on June 7, with Baime moving to preclude evidence suggesting brake friction caused mesothelioma.

She said plaintiffs cited no expert and relied on treating physicians.

Prall said, "They have to be what, epidemiologists?"

Baime said all they know is a connection between asbestos and mesothelioma.

Prall asked if there was no study of brake friction, and Baime said, "None."

Prall said, "This has all been going on for so many years. Epidemiology is different from legal causation. That to me is just an issue for the jury."

Owens-Illinois counsel Matt Fischer moved to bar testimony from Castleman, the author who would boast on cross examination that it was his 16th trial of the year.

Fischer said Castleman couldn't testify that a conspiracy existed.

"There isn't anything left that is helpful to a jury," Fischer said.
Prall said, "He can testify because it is helpful to the jury, I think, to have someone who has historical knowledge. I think it is extremely helpful."

Fischer moved for summary judgment and said, "You can't conspire to fail to do something you had no duty to do."

He said there was no evidence of proximity to Owens-Illinois products.

Prall said there was circumstantial evidence.

"There is enough to go forward," he said. "It's a jury issue."
Monisett asked a question about preparing witnesses.

Prall said, "I will be surprised if there is a witness in this case that hasn't testified in 10 others."

Next day, as jury prospects assembled outside the courtroom, one said her father won a mesothelioma verdict against Honeywell and defendants were all guilty.

Owens-Illinois counsel Joshua Lee heard it and told Prall, who brought the prospect and two bailiffs before him for questioning.

Prall excused her, but defendants moved to strike all the prospects.

Prall said, "I don't think we strike everybody without determining they heard something."

He said he would ask prospects if they heard others comment about asbestos, lawsuits, plaintiffs or defendants.

"If they all raise their hands, we will see," he said.

Prall asked the first 14 prospects if they heard anything about asbestos that day.

A woman raised a hand and Prall asked who she heard, but she didn't know a name.

Prall asked if anyone else heard anything.

A woman raised a hand and said she told others about her great uncle's case.

A man raised a hand and said a neighbor was represented by the attorneys there.

Prall asked if anyone else heard anything that day.

Another hand went up, and Prall called the lawyers to his bench.

After a quiet conference, Prall asked prospects if they were aware of prior McLean County suits and verdicts.

A hand went up, and Prall said they would talk to him individually.

For the plaintiffs, Corwin distinguished conspiracy from negligence by comparing conspiracy to a bank robbery.

She asked who would have a hard time finding against Owens-Illinois if Dunham and Shoopman weren't exposed to its products.

One said, "I think I would have a hard time doing that."

Corwin repeated the question directly to a prospect who answered, "If that's the law, that's the law."

Lawyers picked a jury and started testimony that would last more than a month.

As always, Wylder and Corwin counted most heavily on Castleman.

He took the stand on June 21, identifying himself as an engineer and an independent consultant on toxic substance control, from
Garrett Park, Md.

He said his book was almost identical to a 700 page thesis he wrote in 1985, for a Ph. D. degree from Johns Hopkins University.

He said his rate was $400 an hour.

Wylder asked when the first articles appeared about harm from asbestos.

Castleman said they appeared in Germany in 1897 and the United Kingdom in 1898.

In the U.S., he said, an actuary found risks in 1918.

Wylder asked when the word "asbestosis" appeared, and he said 1925.

Wylder asked if there were articles by 1930, and Castleman said there were 82 by 1932.

"There was an explosion of literature in the early 30's from all over the world," Castleman said.

Wylder asked about Metropolitan Life Insurance Company, and Castleman said it hired dust disease expert Anthony Lanza in 1926.

He said Lanza surveyed asbestos plants and reported in 1931 that 53 percent of workers showed some degree of asbestosis.

Wylder asked if asbestos claims had started in 1934, and Castleman said they had started against Johns-Manville in New Jersey and Owens-Illinois in Illinois.

Wylder asked if there was a magazine, "Asbestos," and Castleman said there was.

Wylder asked when it first covered asbestosis, and Castleman said 1969.

Wylder asked if there was a conference in Chicago in 1932, and Castleman said companies met at Johns-Manville.

Wylder asked about Saranac, and Castleman said Leroy Gardner operated an industry contracting laboratory there.

He said companies agreed in 1936 to sponsor research there.

He said Gardner agreed that his research would remain property of the sponsors.

He said the German government declared asbestosis compensable in 1938.

He said the first reference to mesothelioma came in 1943, when a
German doctor reported 29 cancer deaths.

On June 22, Wylder read a letter from Abex predecessor American Brake and Block, asking Vandiver Brown of Johns-Manville to represent its interest at a meeting.

He read a letter Brown wrote to the author of a report after the meeting, asking him to delete references to tumors and cancer.

He asked Castleman about a study Gardner initiated in 1951, and Castleman said he found pulmonary tumors in nine of 11 mice.

Wylder asked if an article ended the debate in the 1950s, and Castleman said Richard Doll found the disease rate in asbestos factory workers 10 times the general population.

Wylder asked what happened to asbestos consumption in the 1950s.

Castleman said, "It just kept going up."

Wylder asked how Owens-Corning was formed, and Castleman said Corning Glass and Owens-Illinois formed it in 1938.

Wylder said Owens-Illinois sold $360,000 of Kaylo pipe insulation in 1948 and $3.5 million in 1953.

He asked if Owens-Illinois advertised it as nontoxic, and Castleman said they did.

Castleman said Owens-Corning took over production of Kaylo in 1958.

He said they made an asbestos free product but didn't make much money off it.

Wylder asked if Selikoff found all sorts of disease among insulators, and Castleman said he warned that they faced risks without respect to job classifications.

Wylder asked how many articles appeared by then, and Castleman said 700 to 1,000.

Wylder asked if Owens-Corning put a warning on the product, and Castleman said no.

Wylder asked if Owens-Corning bought the Bloomington plant in 1970, and Castleman said yes.

He said a study found severe exposure.

"A lot happened from 1970 to 1972," he said.

He said the Occupational Safety and Health Administration issued an emergency standard in 1971 and a permanent standard in 1972.

Wylder asked if any company warned workers, and Castleman said no.

Wylder asked if there was any warning on products, and Castleman said Johns-Manville started vague warnings in the 1960s.

Wylder asked for the peak year of asbestos production, and Castleman said 1973.

He said production today is a thousandth of what it was in 1973.

He said the Environmental Protection Agency wanted to ban asbestos, but courts overturned the ban.

Wylder asked if anyone banned it, and Castleman said 50 countries banned it with an exception for a chlorination process in Europe.

On cross examination, Modisett asked if he made 95 percent of his income on asbestos.

Castleman said, "A little less."

Modisett asked if he made $370,000 last year, and Castleman said that was his gross.

Modisett asked if his book was replete with information for dealing with the defense.

Castleman said, "I am not writing a book for lawyers."

He said he described product liability to people in public health.

Modisett asked if he had a natural bias.

Castleman said, "I call myself an advocate for public health. Workers should be protected."

Modisett asked if plaintiff lawyers suggested he get a doctorate degree to make him more acceptable as an expert.

Castleman said, "My mother suggested it too."

Modisett asked if it was true that he never reviewed documents from headquarters of the asbestos workers union, and Castleman said it was true.

Modisett asked if he ever went to the textile union or the auto workers union, and Castleman said no.

Modisett asked if he read comments of the unions on the OSHA standard of 1972, and Castleman said he didn't recall.

Modisett asked if Abex made brake materials with asbestos, and Castleman said yes.

Modisett asked if by contrast, Johns-Manville mined asbestos and made pipe, textiles, insulation, roofing, tiles and walls with it,
and Castleman said yes.

Modisett asked if different products carry different risks, and Castleman said yes.

Modisett asked if he saw information involving Abex with Asbestos magazine, and Castleman said never.

After lunch, Prall kept the jury out while Honeywell counsel Steve Hoeft asked to cross examine Castleman about what other companies knew in 1949.

Hoeft said Castleman named General Motors, General Electric, Georgia Pacific, GAF and Westinghouse in his book.

Prall said that within reason, he could refer to Bendix and others in the book.

Hoeft said, "But the jury heard it."

Prall said, "I can't help that. That just opens up everything."

Jurors entered, and Modisett asked Castleman if there was another lab besides Saranac equipped to do a study.

Castleman said Saranac was the best.

Modisett said the sponsors wanted a study done, and he asked if it was so cynical for companies being sued for tuberculosis to sponsor
a study.

Castleman said, "Pure scientific interest is perfectly reasonable, but this isn't pure scientific interest."

Modisett asked if the mouse experiment was controlled, and Castleman said no.

Modisett asked if Vandiver Brown complained about that, and Castleman said yes.

Modisett said Gardner wrote to the National Cancer Institute that mice were discarded without autopsies and the strain of mice changed
to ones more susceptible to cancer.

He asked if Gardner applied to repeat his experiment because his results meant nothing.

Castleman said, "It says he was startled to discover it."

Modisett asked if all this information was out in public view in the 1970s, when Dunham became a firefighter.

Castleman said Saranac wasn't published.

Modisett said, "It wasn't hidden from public view."

Castleman said, "It was available in medical libraries."

For Honeywell, Hoeft asked Castleman if more than 3,000 products made in the United States contained asbestos.

Castleman said yes.

Hoeft asked if more than 100 companies made those products, and
Castleman said yes.

Hoeft said, "GM and GE for example?" Castleman said yes.

Hoeft asked if he wrote that use increased steadily, not only due to defendants.

Castleman said, "I didn't comment on that one way or another."

Hoeft asked if others increased their use in the 60s, and Castleman said yes.

Hoeft said, "The U. S. never banned asbestos, right?"

Castleman said, "We still import asbestos."

Hoeft asked if Bendix hired Lanza, and Castleman said no.

Hoeft asked if Abex documents referred to Bendix, and Castleman said no.

Hoeft asked if Bendix was at the meeting in 1936, and Castleman said there is no way of knowing all the companies that were there.

Hoeft asked if Brown urged sponsors to hold the Saranac study in utmost confidence, and Castleman said that was right.

Hoeft said, "He didn't want Abex to see it, right?"

Castleman said, "That's fair to say."

Hoeft asked if Selikoff wrote to him in 1973 that little was known about brake exposure.

Castleman said, "He encouraged me to research that."

Fischer cross examined Castleman for Owens-Illinois on June 23, and he asked if it was true that he never saw Owens-Corning documents after 1958.

Castleman said that was right.

Fischer said he had such a document.

Castleman said, "It was provided to me but I don't know that I read it. I don't read everything lawyers send me.

"No offense. Plaintiff lawyers get the same treatment."

Fischer asked if he read Owens-Illinois's personnel manual, employee safety manual, or medical manual, and Castleman said he didn't recall.

Castleman said, "Mr. Wylder doesn't bother sending documents to me every time some corporation coughs up some files."

Fischer asked if the book says Owens-Illinois did anything with anyone else.

Castleman said, "Let me look."

He said the book talked about formation of the Industrial Hygiene Association and its purpose of developing cooperation and collaboration.

"This was no Caribbean junket," he said.

"These guys were talking business," he said.

Fischer asked if EPA said that prior to 1970, asbestos was considered non toxic.

Castleman said he didn't remember.

Fischer said, "You don't remember me showing it to you in January?"
Castleman said, "This is my 16th trial this year."

Fischer asked if it was a statement by EPA.

Castleman said, "It's a statement by whoever wrote it."

Fischer asked if he saw anything showing Owens-Illinois was a Saranac sponsor in 1956, and Castleman said he had not.

Fischer asked if a 1946 study of 1,074 workers covering pipes in a shipyard found three cases of asbestosis.

Castleman said, "It has been the subject of a lot of discussion."

Fischer asked if there were no workers compensation claims for asbestosis against Owens-Illinois from 1945 to 1958, though asbestosis was compensable.

Castleman said that was right.

Fischer asked if he saw evidence that Owens-Illinois agreed to suppress information or keep silence, and Castleman said no to both.

Fischer asked if he saw evidence that Owens-Illinois agreed not to warn buyers or tell workers, and Castleman said no to both.

Fischer asked if he saw evidence that Owens-Illinois communicated with Johns-Manville, UNARCO, Abex, or Bendix, and Castleman said no to all four.

Fischer asked if a former Owens-Illinois manager testified that on his first day, he was told to be careful with asbestos and told that certain areas needed control.

Wylder objected, and Prall called lawyers to his bench.

Lawyers whispered softly and Prall whispered loudly, "We'll be here for months."

After the sidebar, Fischer asked Castleman if the manager's testimony wasn't one of the things he relied on to reach opinions.

Castleman said, "I don't credit what managers of corporations say as the most reliable."

Fischer said, "You don't know whether to credit it or discredit it because you haven't read it, right?"

Castleman said that was right.

On redirect examination, Wylder asked Castleman how he started researching asbestos.

Castleman said, "I was just amazed at the way it was being used and the total lack of control."

He said asbestos fell like snow on streets as construction workers sprayed it on girders.

That ended Castleman's testimony.

Jurors heard 43 other witnesses supporting or undermining Castleman's theory.

On July 13, with jurors outside, Owens-Illinois counsel Joshua Lee moved for mistrial.

Prall said, "Denied. That's just reargument."

Lee said, "No, your honor, it's new argument."

Prall said, "It's about consolidation."

Lee said, "It's about prejudice from consolidation."

Prall denied it and summoned the jurors.

Corwin told them defendants asserted asbestos was safe, failed to tell workers, and failed to warn buyers.

She said both plaintiffs were exposed through brakes.

She said for a conspiracy claim, they had to prove defendants agreed with each other to do one or more acts and prove the acts were performed by one or more.

"There is nothing about being an employee of any of the companies," she said.

"There is also nothing about being a mechanic," she said.

She said defense experts were paid thousands and thousands of dollars.

"That shows their bias," she said.

She said there was no written agreement to conspire and no confession.

"You don't write these things down," she said.

"An agreement may be implied from the conduct of the companies," she said.

"You don't have to actually participate in or benefit from all the acts of the company to be held responsible under the law," she said.

"You don't even need to know all the things that are going on," she said.

She said no witness said any company's product caused the disease.
"The act of one is the act of all," she said.

"They reassured employees and told them there was no hazard," she said.

"That's worse than not telling them," she said.

She said if Dunham and Shoopman were exposed to Johns-Manville products, Bendix, Abex, and Owens-Illinois were still responsible.

She asked them to award Dunham $4.2 million in compensatory damages and $108,176.54 in medical bills.

She asked them to award Shoopman $4.8 million in compensatory damages and more than $248,000 in medical bills.

She sought punitive damages for both but suggested no amounts.
She told jurors not to base their verdict on sympathy.

"What they want is justice," she said.

Friends and family can give sympathy, she said, but they can't give justice.

For Abex, Modisett told jurors that Dunham's physician never said he thought brakes caused his disease.

He said Shoopman's physician didn't know the dose, intensity, frequency or duration of his exposures.

He said brake friction produces short fibers that lung acid breaks down after magnesium leaches out.

He said studies show no increased risk of mesothelioma for auto mechanics.

"There is no contrary study and if there was, I believe we would have heard about it," he said.

He said nothing was hidden from government, doctors, insurers, academics or labor.

He said Abex had no mesothelioma in its plants for 60 years.

"They want their justice," he said.

"I think they are looking in the wrong place," he said.
He opposed punitive damages and said, "Nothing could be further from the truth, that Abex deliberately harmed anybody."

For Honeywell, Hoeft said neither plaintiff put in evidence of dust exposure.

"They want you to speculate, fill in the gap," he said.

"They have the burden to prove that and they didn't," he said.
He said Bendix never had anything to do with Saranac.

"Before you use circumstantial evidence, make sure you know all the circumstances," he said.

For Owens-Illinois, Fischer said there was very little evidence on the company and absolutely no evidence of involvement in a conspiracy.

He asked how a conspiracy was passed down for decades.

"The law doesn't require a written agreement but it does require evidence of agreement," he said.

In rebuttal, Wylder told jurors, "You don't have to know all the circumstances."

He said they could draw reasonable inferences from the facts.

He said the federal government doesn't say brake dust doesn't cause mesothelioma.

He asked them to look at conduct and contacts.

He called Saranac an example of power.

He said, "Everybody relied on Manville."

Prall instructed jurors and sent them home.

They deliberated for three days, with Drazewski running the show in Prall's absence.

"We had some fights," juror Friedrichs said.

The sun baked the jury room, and on the third day jurors pleaded for a cooler room.

Bailiffs moved them, but the change didn't produce perfect harmony.

"I am disappointed," Friedrichs said.

"I would like to have been able to conclude for these people," she said.

She said she was glad they didn't lose and would have another chance.

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