When Georgia-Pacific and Bondex International get their chance to defend themselves in a Madison County asbestos trial next week they'll introduce some unusual evidence.
A metacognition specialist is expected to testify that it is highly unlikely that a person can remember the brand name of a product used 40 years ago. And, a pulmonologist will state that in 80 percent of mesothelioma cases involving women, the cause is unknown. In the other cases, cause is attributed to working in a trade.
In the court's first asbestos trial this year, 84-year-old plaintiff Anita O'Connell claims the defendants were negligent for injuries she received from asbestos fibers that became airborne while she shook out her husband's and sons' work clothes before washing them between 1966 and 1970. Michael O'Connell, Anita's son, testified that joint compound produced by Georgia Pacific and Bondex was responsible for causing his mother's illness.
Michael O'Connell contradicted his mother's testimony when he stated that after a days work, his brothers would come home covered white as snowmen. In a deposition, Anita O'Connell stated that she didn't really think that there was much dust, and even if there was, she didn't think she breathed it.
In court, Michael O'Connell stated that he would often see Georgia Pacific and Bondex joint compound in his father's shop. However, he admitted he also saw other products as well.
Anita's husband, George O'Connell, owned Bel-Aire plastering in Burbank, Ill. -- an important aspect in the case because plasterers do not use joint compound, drywallers do.
But due to the Lipke Rule, it is highly unlikely that presiding Circuit Judge Daniel Stack will let the defendants present evidence that there were many asbestos-containing plastering products that could be responsible for O'Connell's exposure.
In the last week, O'Connell's attorney Chris Panatier of Baron & Budd in Texas has called on witnesses who've testitfied that all asbestos is dangerous. He is expected to deliver closing arguments on Monday.
Panatier called former U.S. assistant surgeon general deputy director of the National Institute for Occupational Safety and Health, Richard Lemen, Ph.D., to illustrate the difference between chrysotile asbestos and amphibole asbestos.
Lemen also is the co-chair of the Asbestos Disease Awareness Organization's Science Advisory Board.
Pathologist James Robb, M.D., who was an expert witness in a Louisiana case in which a jury awarded $12.8 million to a man who also has outlived the life expectancy of a person diagnosed with mesothelioma, also testified for the plaintiff.
During opening statements, Georgia Pacific defense attorney Mark Phillips of Nelson Mullins Riley Scarborough in South Carolina, asserted that short fiber chrysotile asbestos was used in its joint compound and it was purchased from companies like Johns Manville.
Phillips told the jurors that chrysotile can be expelled from the body by coughing or sneezing while amphibole asbestos stays in the lungs.
Jeff Hebrank of the Burroughs Firm in Edwardsville, lead attorney in the case for both companies, and Phillips, plan to call several experts.
Gerald Kerby, M.D., board certified in internal medicine and pulmonary medicine, is expected to testify that short fiber chrysotile does not cause mesothelioma and that no joint compound could have caused the disease. He will also state that the cause of mesothelioma in most women is idiopathic, or unknown.
Kerby will testify that if asbestos in joint compound caused mesothelioma, there would be an epidemic in mesothelioma cases due to the amount of people working in the drywall business decades ago.
In May 2005, Kerby was a witness for Hebrank and Phillips in a separate asbestos trial in which Georgia Pacific was victorious.
Hebrank and Phillips also are expected to call James Rock, Ph.D, who is a certified industrial hygienist from Texas A&M University. Rock is expected to testify that even if Anita O'Connell was exposed to asbestos in joint compound there was not enough to cause her illness.
A human memory expert, Charles Weaver, III, Ph.D. from Baylor University, will testify about metamemory and metacognition, the relationship between what individuals know and what they believe they know.
Weaver will state that it is unlikely that Michael O'Connell can remember the brand name of a product his father used 40 years ago.
The case is expected to go to the jury late Wednesday or early Thursday.
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Nelson Mullins Riley & Scarborough