California court upholds $24 million verdict for construction owner diagnosed with mesothelioma

by Eric Pearson

A California appeals court has upheld a $24 million verdict against Union Carbine in favor of a construction manager who was diagnosed with mesothelioma due to asbestos exposure. Until 1983, Union Carbide sold asbestos products to companies that manufactured and marketed products for the construction industry.

Bobbie Izell, who filed the lawsuit against Union Carbide, owned and ran a construction business in southern California from 1964 until 1994. Although Izell never worked as labor on the homes his business built, he regularly visited and walked through the jobsites. Mr. Izell was often present when his workers were sanding joint compound on the drywall interiors. He described the resulting dust as a “little fog in the air.” Izell also recalled breathing dust that was disturbed when his workers swept the excess joint compound from the floor.

In July 2011, at the age of 85, Izell was diagnosed with mesothelioma, the most deadly illness linked to asbestos exposure. It is a type of cancer that affects the mesothelium, a thin membrane that surrounds the body’s internal organs. Pleural mesothelioma, the most common form of the disease, affects the lining that surrounds the lungs. Only about 10% of mesothelioma patients are alive five years after being diagnosed.

Izell and his wife filed suit against more than 20 companies allegedly responsible for the asbestos-containing products to which he was exposed. However, by trial, the case was down to five: Union Carbide, one joint compound manufacturer (Kaiser Gypsum), one stucco manufacturer (La Habra) and two gun plastic cement manufacturers (Colton and Riverside).

After a four-week trial, a California jury found Union Carbide 65% responsible and awarded the Izells a total of $30 million in compensatory damages plus $18 million in punitive damages against Union Carbide. The trial court reduced the compensatory damage award to $6 million but did not disturb the punitive damages. Union Carbide appealed but the Second Appellate District of the California Court of Appeals has now affirmed the judgment against Union Carbide. Izell v. Union Carbide Corp., No. B245085, 2014 WL 5361347, at *16 (Cal. Ct. App. Oct. 22, 2014).

To establish a cause of action for asbestos-related latent injuries under California law, a plaintiff must establish exposure to the defendant’s asbestos-containing products. The plaintiff must show more than the mere possibility of exposure. The court of appeals agreed with Union Carbide that Izell’s evidence as to many of the products used by Izell’s business showed no more than a possibility that asbestos in the products came from Union Carbide.

Essentially, the evidence showed that many of the manufacturers of the various asbestos-containing products obtained asbestos from multiple sources. However, the court of appeals rejected Union Carbide’s argument with regard to Hamilton Red Dot joint compound. Significantly, there was evidence at trial that Union Carbide was Hamilton’s exclusive asbestos supplier during the time period when Izell inhaled dust from Hamilton Red Dot joint compound. Izell testified that he frequently encountered Hamilton Red Dot joint compound on his jobsites. Izell testified that his workers used the joint compound to fill in seams between sections of drywall, cover nail heads, and fill in corner sections. When the joint compound dried, the workers sanded it, dispersing a “fog” of dust into the air. Mr. Izell testified that he inhaled dust from Hamilton Red Dot joint compound during the mid to late 1970’s. The court of appeals determined that the evidence at trial was sufficient to support a reasonable inference that Izell more likely than not inhaled Union Carbide asbestos.

If exposure is established, the plaintiff must then establish that, in reasonable medical probability, the exposure to the defendant’s product was a substantial factor causing the illness or increased risk of developing cancer. Dr. Eugene Mark testified that Izell’s exposures to asbestos in which the asbestos-containing product was “dry enough so that asbestos fibers could be released into the air,” and the asbestos became “airborne” and Izell “breathed it in” would be significant enough to contribute to his risk of contracting cancer. As noted above, Izell testified that he not only saw his workers apply Hamilton Red Dot in its wet form, but he also watched them sand the dried product, and inhaled the resulting dust when it became airborne. Viewed in the light most favorable to the judgment, the court of appeals concluded that the evidence was sufficient to establish in reasonable medical probability that exposure to Union Carbide’s asbestos was a substantial factor contributing to Izell’s risk of contracting mesothelioma.

The court of appeals also rejected Union Carbide’s argument that the $18 million punitive damage award was unconstitutionally excessive. The courted noted that the degree of reprehensibility of the defendant’s conduct is the most important indicator of the reasonableness of a punitive damages award. The court of appeals cited evidence in the record showing that Union Carbide acted with a reprehensible indifference to the health and safety of others:

In 1967, Union Carbide produced an internal report concluding that low levels of exposure to asbestos cause mesothelioma, which can occur after only “a brief exposure, which may be as little as three months.” Though acknowledging a “general inference that Crocidolite [asbestos] is more liable to produce mesothelioma,” the report cautioned that “[e]xoneration of [Union Carbide’s] Chrysotile [asbestos] has not been made” and “that on the basis of present evidence, we are not entitled under any circumstances to state that our material is not a health hazard.” Echoing this concern, in 1968,Union Carbide’s Associate Medical Director reported, “[i]t is generally held that much less exposure to asbestos increases the possibility of mesothelioma formation,” and thus advised, “I don’t see that we have any choice in a position except to admit that asbestos is carcinogenic under certain conditions.” Despite these admonitions, Union Carbide chose not to warn its customers about the risk of cancer, stating in 1975, “cancer is a very emotional word and there is a strong possibility that people will react to it far beyond the real danger involved…. We cannot predict with certainty what effect the use of the proposed [cancer warning] will have on our business, but the general feeling here is that it is likely to vary somewhere between serious and fatal.”

Id. The court of appeals found that [a]ll this suggests Union Carbide knew the dangers of its product, but failed to warn consumers of those dangers, while seeking to maintain profits from the sale of asbestos.” Id. Accordingly, the judgment in favor of the Izells was affirmed.

Diagnosed with Asbestos-Related Disease? Know Your Legal Rights

If you or a loved one has been diagnosed with mesothelioma, asbestosis, lung cancer, or other illnesses caused by work on an asbestos jobsite, you may be eligible to file a lawsuit and receive compensation. Legal records have shown that the companies who manufactured asbestos products knew about the health risks associated with asbestos for decades, but failed to alert the public or their workers about the significant dangers posed by asbestos exposure. The first step in filing a case is seeking a consultation with an experienced attorney who can guide you through the litigation process.

The lawyers at Heygood, Orr & Pearson have handled hundreds of personal injury lawsuits on behalf of clients who were injured in the workplace or because of other mishaps. Our attorneys have achieved verdicts and settlements for our clients totaling more than $200 million—including settlements of over $50 million in 2010 alone.

Heygood, Orr & Pearson also has the financial resources to handle cases involving mesothelioma or others asbestos diseases from beginning to end. In many instances, our firm has invested hundreds of thousands of dollars in order to take our client’s case to trial and achieve the best possible outcome for their case. At Heygood, Orr & Pearson, we are committed to achieving justice for our clients, whatever the cost.

Contact the lawyers at Heygood, Orr & Pearson for a free case evaluation and to learn more about filing a lawsuit for mesothelioma and asbestos diseases. You can reach us by calling toll-free at 1-877-446-9001, or by following the link to our free legal consultation form located on this website.

by Eric Pearson

Eric Pearson is a licensed attorney and a partner at HO&P who handles commercial and personal injury lawsuits. Eric has been selected to the Super Lawyers List, a Thomson Reuters publication.