Jury rules in favor of Georgia Pacific in Kansas carpenter's asbestos case

After approximately three hours of deliberation, a Madison County jury on Nov. 15 ruled in favor of defendant Georgia Pacific in a carpenter’s asbestos lawsuit.

Plaintiff James Reef, 69, was not present for the trial. He resides at a nursing home in Kansas and suffers from mesothelioma.

Jury foreman Tom Thompson said the “amount of asbestos and type of asbestos Mr. Reef said he was exposed to” were the deciding factors in the jury's decision.

A man identified only as Juror 1 said there was no argument that the plaintiff was exposed to asbestos from Georgia Pacific’s products. He said, "Not that we believe he never used it, the question was how much.”

As a result, the jury didn’t believe the amount and type of asbestos associated with Georgia Pacific products was strong enough to result in mesothelioma, he said.

Reef began carpentry in 1965 at the age of 19 and claims he spent 50 percent of his time working on drywall using Georgia Pacific’s joint compound paste. He alleged the joint compound he used contained asbestos, which led to his mesothelioma, diagnosed in October 2012.

Georgia Pacific had argued that Reef's mesothelioma came from asbestos in insulation, not its products.

Following the verdict, the company issued a statement:

"Georgia Pacific has the deepest sympathy for Mr. Reef and his family; however, we firmly believe the facts established that Mr. Reef's disease was caused by factors other than exposure to our products. We believe the jury recognized and agreed with the facts presented to that effect."

Plaintiff’s attorney Carson Menges requested a poll of the jurors, revealing a unanimous decision.

Menges began his closing arguments by showing photos of Reef and listing the extensive collection of evidence involving everything from the type of asbestos to types of product packaging.

“But this case really is a lot simpler than that,” Menges said. “Mr. Reef was exposed to Georgia Pacific asbestos-containing joint compound for 12 years.”

He said Reef’s testimony has been consistent throughout the entirety of the litigation, but said the defense was trying to confuse the jury by reading excerpts of the discovery deposition. They had the opportunity to cross examine Reef and never did, Menges said.

“Mr. Reef’s story adds up,” Menges said. “They’d rather confuse you by reading quotes from deposition out of context.”

Menges argued that Reef may have some memory loss, but he was very clear, regarding product identification, that the buckets he used were metal until around 1980 and then switched to plastic.

Menges said Georgia Pacific refuses to believe Reef used its product all those years as a carpenter because of some confusion in packaging.

“Plastic buckets, plastic buckets, plastic buckets,” Menges said. “He must not have used our product.”

Menges claimed that Georgia Pacific was negligent by “failing to do what an ordinary, careful organization would do.” He said Georgia Pacific admitted it knew of the dangers by 1970 but didn’t warn, didn’t research and didn’t test.

“At the very least, let the people using the product know, let them know what you know,” Menges said.

He argued Georgia Pacific claimed it didn’t know its product was dangerous, but a company letter from 1977 showed "they were in it for the money" and wanted to continue producing asbestos.

“I want to continue to provide asbestos containing products as long as possible,” the referenced letter stated, according to Menges.

The letter continued to state that eventually asbestos will be banned, but “by then, it’ll be too late. Our competitors, they’ll have no business," Menges said.

Menges continued to point out that the argument surrounding the harmlessness of Chrysotile asbestos fibers - the type used in Georgia Pacific's joint compound - is not true. He said that it does cause mesothelioma and caused Reef’s mesotheliooma.

Menges pointed out that the studies Georgia Pacific professionals' relied on were funded and written by Georgia Pacific.

“It’s easy to come to the conclusions you want when you rely on studies that you drafted,” Menges said.

He said Georgia Pacific’s plan was to push the blame on the contractors for not requiring a mask.

“As they put it,” Menges said, “make the contractor the whipping boy.

“Place the blame on someone else. It’s their continued attitude.”

He concluded by asking the jury to remove all involved parties from the case and judge through the lenses of independent parties like the government, OSHA and the EPA – to look at what those entities considered dangerous.

Defense attorney Jeff Hebrank delivered his closing arguments stating that the case boils down to a big company, asbestos and Madison County.

He said Georgia Pacific is more than just a big company. It is made up of men and women trying to do the best job they can and must making tough decisions. He said their product contained asbestos until 1977 because not one carpenter working with dry wall had become sick from the company's products. Regardless, he argued they began working on removing asbestos in 1970, but it took seven years to change all of the formulas.

Regarding asbestos, Hebrank said there has been a lot of talk about asbestos and cancer, but asked whether or not the jury believed type, amount and how it was used should be considered in the equation.

Hebrank also said Reef’s deposition changed between the first two in April and the last one in June. In Reef’s original deposition, he said the buckets were white, plastic buckets with a liner inside, according to Hebrank.

“That’s not us,” Hebrank said. “I don’t know who it is. But it’s not us.”

He then said that in June Reef said the buckets were metal. Hebrank accused the plaintiff’s counsel of telling him what to say.

“That testimony can’t fly. You’ve got to change your story,” Hebrank accused the plaintiff counsel of saying.

Hebrank then restated that Chrysotile asbestos can’t cause mesothelioma.

On the other hand, he said, amphibole fibers are long, thin, needle-like fibers and they stay in the lungs for decades. Because it takes decades for mesothelioma to form, it allegedly explains why amphibole fibers are the cause.

The specialists concluded that Reef’s brief exposure to insulation was the cause, as he had to stomp on thousands of bags over a three week period," Hebrank said.

Hebrank said Georgia Pacific provided no exposure, no dose, no harm and no liability.

He provided a football field analogy, stating that the plaintiff had to reach the end zone by starting from the other end of the field.

“They have to go 100 yards carrying solid evidence to prove whether this is true or not,” Hebrank said.

Hebrank said he “feels very sorry for Mr. Reef. He is very sick.” But he said Reef was diagnosed with 23 separate illnesses and mesothelioma is only one of those problems.

In Menges’ rebuttal, he restated that Georgia Pacific knew of the dangers but was only interested in making money and chose to keep asbestos-containing joint compound on the shelves as long as possible.

He argued that its company spokesperson was the defendant’s chance to explain the letter, but she never justified it.

Menges told jurors that when considering causation, it is important to know that causation could mean that it is a contributing factor to the illness. So, he said, if jurors have any doubts as to whether or not joint compound is the sole cause, they should question whether they think it played a role.

“I believe it’s the sole role,” Menges said.

Reef filed his suit in December 2012 against dozens of companies that made, sold or distributed asbestos-containing products including Georgia Pacific, the only defendant to take the case to trial.