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The $24 million award of both compensatory and punitive damages to a construction company owner and his wife following a mesothelioma diagnosis has been upheld by a California appeals court.
The U.S. District Court for the Southern District of Florida partially granted the defense request to apply DOSHA as it relates to the limitation of non-pecuniary damages. However, it allowed that such damages are recoverable under the general maritime survival law, the Jones Act, as long as they are limited to damages for suffering during the decedent’s lifetime.
The case of Izell v. Union Carbide Corp. is yet another example of how large corporations are continuing to be held responsible for their failure to protect consumers and workers from the serious dangers their asbestos products posed.
As our mesothelioma attorneys know, defendant Union Carbide produced a host of products throughout the 20th century. However, it’s best known for producing metals, chemicals, pipe coverings, and cements that contained asbestos.
In 2002, the firm was found liable for thousands of asbestos-related illnesses at a single West Virginia trial. It has continued to face liability lawsuits since then.
The Izell case is just one of the latest. According to court records, Union Carbide mined asbestos in California between 1963 and 1985, using the fibrous, toxic material in many products it later distributed.
The plaintiff owned a residential construction business that operated in Southern California between 1964 and 1994. Although he was not a laborer or regular supervisor on these projects, he did routinely visit those sites, where workers used various brands of premixed joint compound. Once dried, that compound was sanded several times, creating plumes of dust. Those compounds contained asbestos.
Additionally, the workers used gun plastic cement to apply exterior stucco. That cement also contained asbestos, and the plaintiff was there when laborers tore open those bags and breathed in the dust.
Of those two materials, the plaintiff recalled four different brands of joint compound used and two brands of gun plastic cement. Evidence was presented that at numerous times during the 1970s, Union Carbide provided the asbestos used by all four of those joint compound manufacturers and one of the gun plastic cement manufacturers.
Many years later, at the age of 85, the plaintiff was diagnosed with mesothelioma. This terminal cancer lies dormant in the system for years (usually decades), only resulting in symptoms in its last stages.
The plaintiff and his wife sued several manufacturers. A jury found all of them liable on theories of negligence and strict liability. Originally, jurors awarded the plaintiff and his wife $30 million in compensatory damages and $18 million in punitive damages. Later, the compensatory award was reduced to $6 million.
Jurors also determined Union Carbide was 65 percent liable, Kaiser Gypsum 20 percent liable, and the three others shared 10 percent of the total liability. The remaining five percent was attributed to non-defendant joint compound manufacturers and asbestos suppliers.
It was also found that the two primary defendants acted with malice, oppression, or fraud. Kaiser settled prior to the jury’s apportionment of punitive damages.
In determining Union Carbide’s penalty for acting maliciously, jurors considered the company’s net worth of $4.2 billion and suggested a punitive award of $18 million – $1 million for each year the company sold asbestos after it became aware the product caused cancer.
The defendant sought judgment notwithstanding verdict, or alternatively, a new trial, arguing the damages were excessive. The defendant then appealed.
The California Court of Appeal, Second Appellate District, Division Three, found there was substantial evidence supporting the jury’s causation finding, as well as damages.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C.
Izell v. Union Carbide Corp., Oct. 22, 2014, California Court of Appeal, Second Appellate District, Division Three
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