Boilers' asbestos caused mesothelioma, estate alleged
|Failure to Warn, Products Liability - Asbestos, Products Liability - Industrial Machinery, Wrongful Death - Survival Damages|
|Kit L. McCormick v. A.W. Chesterton Company, AmChem Products, Inc., n/k/a/ Rhone Poulenc AG Company, n/k/a/ Bayer Cropscience Inc, American Optical Corporation, American Standard, Inc., Anchor Packing Company, BMCE Inc., f/k/a United Centrifugal Pump, Burnham, LLC as successor to Burnham Corporation, Certain Teed Corporation, Cleaver Brooks Company, Inc., Crane Co., Dana Corporation, DB Riley, Inc., Durabla Manufacturing Company, Foster Wheeler, L.L.C., Fulton Boiler Works, Inc., Garlock Sealing Technologies LLC, f/k/a Garlock Inc., General Electric Company, Goodyear Canada, Inc., Goodyear Tire and Rubber Company, Goulds Pumps, Inc., H.B. Fuller Company, Ingersoll-Rand Company, J.H. France Refractories Company, Keeler-Dorr-Oliver Boiler Company, Kentile Floors, Inc., Kohler Co., Lockheed Martin Corp., as successor in interest to Martin Marietta Corp., as successor in interest to American Marietta Corp., Minnesota Mining & Manufacturing Company, Morse Diesel, Inc., et al., No. CV 04 2405|
|U.S. District Court, Eastern District, NY|
|Jack B. Weinstein
- Samuel M. Meirowitz; Weitz & Luxenberg, PC; New York, NY, for Estate of Kit L. McCormick
- Kyle A. Shamberg; Weitz & Luxenberg, PC; New York, NY, for Estate of Kit L. McCormick
- Barry Castleman Sc.D.; Public Health; Baltimore, MD called by: Samuel Meirowitz, Kyle Shamberg
- James Strauchen M.D.; Pathology; New York, NY called by: Kyle Shamberg, Samuel Meirowitz
- Suzanne M. Halbardier; Barry, McTiernan & Moore; New York, NY, for Cleaver Brooks Co. Inc.
- None reported; null, null, for A.W. Chesterton Co., AmChem Products Inc., American Optical Corp., American Standard Inc., Anchor Packing Co., BMCE Inc., Burnham, LLC, Certain Teed Corp., Crane Co., Dana Corp., DB Riley Inc., Durabla Manufacturing Co., Foster Wheeler, L.L.C., Fulton Boiler Works Inc., Garlock Sealing Technologies LLC, General Electric Co., Goodyear Canada Inc., Goodyear Tire and Rubber Co., Goulds Pumps Inc., H.B. Fuller Co., Ingersoll-Rand Co., J.H. France Refractories Co., Keeler-Dorr-Oliver Boiler Co., Kentile Floors Inc., Kohler Co., Lockheed Martin Corp., Minnesota Mining & Manufacturing Co., Morse Diesel Inc., Oakfabco Inc., Owens-Illinois Inc., Patterson Kelly Division, Patterson Pump Co., Peerless Industries Inc., Pfizer Inc., Proko Industries Inc., Quigley Co. Inc., Rapid-American Corp., Reynolds Metals Co., Sequoia Ventures Inc., Okonite Co. Inc., U.S. Rubber Co., Union Carbide Corp., Viacom Inc., Weil-McLain
During a period that spanned 1974 and 1998, plaintiff's decedent Kit McCormick, a repairman, worked at McConnell Air Force Base, which is located at 2800 S. Rock Road, in Wichita, Kan. McCormick's duties involved the repair of boilers that were manufactured by Thomasville, Ga.-based Cleaver-Brooks. The boilers' components included insulation, refractory cement and other parts that contained asbestos.
In 2004, McCormick learned that he was suffering mesothelioma, which is an aggressive, incurable cancer that often stems from exposure to asbestos. He claimed that the disease was a result of his exposure to asbestos that was present in the components of Cleaver-Brooks' boilers.
McCormick sued Cleaver-Brooks and many other companies that were alleged to have manufactured and/or distributed products that contained asbestos. He alleged that the defendants failed to provide warnings that disclosed the dangers that could have stemmed from exposure to their products' asbestos.
McCormick died after the suit had been filed. The case was continued by his estate.
Several defendants were dismissed; the estate's counsel discontinued the claims against others; and other defendants negotiated settlements. The matter ultimately proceeded to a trial against Cleaver-Brooks.
McCormick's professional career was preceded by a period in which he was a member of the U.S. Navy. The estate's counsel acknowledged that McCormick's military service included the performance of tasks that may have involved his exposure to asbestos, but they contended that those tasks were not a predominant cause of McCormick's mesothelioma.
The estate's counsel also acknowledged that the U.S. Air Force bore some liability for McCormick's performance of tasks that involved his exposure to asbestos, but they contended that McCormick's mesothelioma primarily stemmed from his exposure to asbestos that was present in the components of Cleaver-Brooks' boilers. They contended that asbestos's dangers had been clearly explained by hundreds of published articles, and they argued that Cleaver-Brooks had to have been aware of the substance's dangers. The estate's expert pathologist opined that the boilers' asbestos was a contributing cause of McCormick's cancer.
Defense counsel contended that Cleaver-Brooks was not predominantly liable for McCormick's cancer. She argued that the U.S. Air Force and the U.S. Navy also failed to provide warnings that disclosed asbestos' associated dangers. She argued that liability would have to be apportioned to those parties and the company that manufactured the asbestos that Cleaver-Brooks' boilers contained.
The parties stipulated that McCormick was exposed to asbestos that was contained in products that were produced by five other companies. The jury was instructed to consider those companies' share of the liability for McCormick's mesothelioma.
In 2004, McCormick learned that he was suffering mesothelioma. He underwent chemotherapy; the application of radiation; pleurodesis, which involved fusion of his pleural cavity; and thoracenteses, which involved the drainage of fluid that occupied his lungs. McCormick's mesothelioma could not be eradicated, and it ultimately claimed his life.
McCormick, 59, died Aug. 16, 2005. He was survived by a wife and six children. Mr. McCormick's estate sought recovery of wrongful-death damages that included damages for the estate's lost earnings, damages for the estate's loss of services, and damages for McCormick's pain and suffering.
The jury found that Cleaver-Brooks was liable for McCormick's mesothelioma, but nonparties were assigned a total of 40 percent of the liability.
The jury determined that the estate's damages totaled $3.8 million, which was subject to an offset of the nonparties' liability. Kansas law prevailed, so each noneconomic component could not exceed $250,000. The result was a recovery of $980,000.
Estate of Kit L. McCormick
$1,500,000 Personal Injury: Past Pain And Suffering
$100,000 Personal Injury: economic damages (negligence)
$1,500,000 Wrongful Death: Survival
$400,000 Wrongful Death: economic damages (wrongful death)
$300,000 Wrongful Death: loss of services and care (wrongful death)
Defense counsel has moved to set aside the verdict.
This report is based on court documents, information that was provided by plaintiff's counsel and information that was provided by Cleaver-Brooks' counsel. The remaining defendants' counsel was not asked to contribute.