Ameron International Corporation filed a motion for a directed verdict Thursday in an Edwardsville man’s mesothelioma trial, arguing that the plaintiff failed to provide sufficient evidence that his work with Bond Strand actually exposed him to asbestos.
The trial began Sept. 13 in Madison County Associate Judge Stephen Stobbs’ courtroom and is expected to last until mid-next week.
Foley & Mansfield attorney Anna Kohut of St. Louis argued in Ameron's motion that plaintiff Harold Schaberg failed to present an industrial hygienist, thus providing no opinion on Schaberg’s work with Bond Strand. She also argued that the plaintiff failed to establish that there was a known danger associated with the product.
The defendant argued that Schaberg did not work around Bond Strand on a regular basis and the assertion that Ameron’s products caused Schaberg’s mesothelioma “is speculative at best.”
Ameron also renewed its motion for summary judgment.
The plaintiff, who is deceased, is represented by the Simmons Hanly Conroy firm of Alton and Chandler McNulty LLP in Texas.
Schaberg was born in August 1934 and worked as an insulator for Shell Oil refinery in Wood River for more than 30 years.
Schaberg’s complaint alleges he became aware that he had developed mesothelioma on Oct. 15, 2015 from cumulative exposure to asbestos. He filed suit on March 24, 2016.
According to a deposition taken on March 16, 1988, Schaberg had been previously represented by Randy Bono of Bono, Haine & Schooley, an early pioneer of asbestos litigation. The transcript of the deposition indicates that Schaberg had received at least one settlement decades ago from a company identified as GAP.
Schaberg’s deposition transcript, which aimed at discovering his understanding of product identification, was attached to the docket on Sept. 12, along with other pre-trial filings.
During the trial on Thursday, Schaberg’s counsel presented a short excerpt from the deposition, which discussed Schaberg’s participation in an asbestos union and how old his parents were when they died.
Schaberg was a part of the Asbestos Workers Local 56 union and he received the quarterly Asbestos Workers magazine beginning in the late 50s or early 60s.
Schaberg also testified in the deposition that his dad died at 83 of heart failure and his mom died at age 80.
Following the brief reading of Schaberg’s testimony transcript, Foley Mansfield attorney Duncan Lemmon called certified industrial hygienist Kyle B. Dotson of the Dotson Group LLC to the stand.
Dotson, who has been self-employed for 16 years, opined that Schaberg was never exposed to asbestos from a Bond Strand product in excess of OSHA standards at the time. He added that Schaberg had been around Bond Strand work on four or five occasions.
Dotson explained that permissible asbestos exposure standards put in place by the Occupational Safety and Health Administration started at 5 million particles per cubic foot in 1960. The standard was changed to an average of 5 fibers per cubic centimeter in an eight-hour time span in 1972 and later changed to 2 fibers per cubic centimeter in 1976.
He added that there is “hardly any industrial process that provides constant exposures. There’s always valleys and peaks. A puff of dust.”
During those dusty peaks of exposure, OSHA set a standard of 10 fibers per cubic centimeter for no more than 15 minutes, which was later increased to 30 minutes.
“Asbestos is one of those substances that the medical science was changing dramatically,” Dotson said. “It seemed like every time the professional community was true, then they found exceptions. So at every point, the standard dropped more and more.”
Dotson testified that “no harm is reasonably expected to result from exposures” that are below the permissible exposure limit. He added that exposure to Bond Strand would not exceed OSHA’s standards, especially for a bystander.
“This is a very low exposure,” he said.
Dotson relied upon a study on Bond Strand by Howard Spielman, which found that there was an average of 0.254 fibers per cubic centimeter in an 8 hour time span when the product was cut and sanded.
Dotson acknowledged that Dr. William Longo also tested Bond Strand and found higher exposure numbers. Dotson said the difference could be attributed to the fact that Longo's test was conducted in a small room while Spielman's test was conducted in the open air under normal working conditions.
When asked what Schaberg’s cumulative exposure to asbestos while acting as a bystander to Bond Strand work would have been, Dotson said it would be 0.01 fibers per cubic centimeter at most but would have most likely been 0.001 or less.
“I grossly overestimated, because I did not want to underestimate his exposure,” Dotson told jurors.
Dotson also testified that Bond Strand would not have been required to have a warning label because the asbestos was encapsulated, which would have made it exempt from OSHA’s labeling standards. He explained that Bond Strand pipe was a fiberglass pipe with an asbestos layer inside that is completely encapsulated.
Warning labels were required for friable materials that could be crushed with hand pressure and could easily produce asbestos dust, he said.
During cross examination, Schaberg’s counsel Troy Chandler of Chandler McNulty quoted radio host Paul Harvey, telling jurors, “Now the rest of the story.”
Chandler showed jurors a series of quotes from Dotson’s prior depositions and asked Dotson to tell him if the statements are true or false, using a red marker to mark an “X” next to his answer.
Lemmon objected to the tactic, which was overruled.
When Dotson provided context for the quotes, Chandler responded, “I am going to do my best possible to ask simple yes or no questions to get these jurors home early.”
There was some dispute about whether the risk associated with chrysotile asbestos fibers was “well established or generally accepted.”
“I didn’t think it would be so hard to get through the word ‘or,’” Chandler said.
He then questioned Dotson about a study guide for the industrial hygienist test, which addressed the risk associated with chrysotile asbestos fibers. He stated that the study guide is “given” to students to prepare for the test. Dotson corrected him, saying the book is not “given” to students, who must purchase the study guide.
“Whether it’s $50 or $5,000, I don’t care. You’re making $2.1 million a year, you should be able to afford it,” Chandler said.
Stobbs sustained Lemmon's objection to the statement.
Chandler then questioned Dotson about his company and its workload. Dotson testified that he is a single-person LLC with only one employee – his wife. He added that he hires out independent subcontractors on a regular basis.
He said that 99 percent of Dotson Group’s income comes from working for asbestos defendants.
Chandler continued by questioning Dotson about his fees and profit off of the Schaberg case.
Dotson said he charges $400 per hour but declined to say how much he was paying outside contractors.
A lengthy dispute over Dotson’s earnings regarding the case ensued.
“Certainly, I make a lot of money. But I’m not going to share what I pay others. They don’t want to be involved in litigation. They don’t want to be deposed by you,” Dotson said.
The defense objected to the questioning, saying the information was subject to privacy grounds of third parties.
Stobbs ordered Dotson to disclose his earnings in regards to Schaberg’s case.
“Well sir, you are the judge and I will follow that direction. But I’ve never been compelled to provide that information,” Dotson said.
Stobbs called for a sidebar in his chambers.
When they returned, Stobbs said Dotson’s profit on the case should be disclosed.
Dotson responded by saying the majority of what he billed on the case goes to the Dotson Group.
“You can consider that $15,000 to be my income,” he said.
Chandler objected to the response, saying it is a false answer because Dotson didn’t pay his subcontractors zero.
“I would really be reluctant to trash my business,” Dotson responded.
After some back and forth, Dotson added, “Let’s say this, it’s more than $10,000 and less than $20,000.”
Stobbs said, “Let’s move on at this point.”
But the dispute continued.
“There’s a level that you are not entitled to, and we’ve gone beyond that,” Dotson told Chandler.
Chandler responded by asking how many cases Dotson does each year.
“You’re a numbers guy. Help us out,” he said.
Dotson said, “I don’t know.”
“That’s OK. We can judge your credibility on that,” Chandler said.
Eventually, Lemmon objected to the dispute, saying “You’re honor, this has gone too far,” and requested the issue be resolved as a sidebar.
Madison County Circuit Court case number 16-L-393