Another Selman Breitman Jury Trial Win
Joe Gunter and Mark Love Defend Keenan Properties, Inc. in Northern California Asbestos Case with Clear Identification of Client Products
After a three-and-a-half week trial in Alameda County (Oakland), California, the jury returned a defense verdict for Keenan Properties, Inc. in a case involving asbestos exposure from industrial gaskets defended by Selman Breitman LLP.
Decedent Arthur Lacy was a career pipefitter who worked in refineries from the late 1940s until retirement in 1987. He died from lung cancer in 2014. Plaintiffs were Decedent's widow and adult daughter. Plaintiffs contended that asbestos exposure was the cause of Decedent's cancer. Keenan Properties, formerly Keenan Supply, provided asbestos-containing gaskets to the refineries where Mr. Lacy worked and asbestos from these gaskets allegedly contributed to Decedent's cancer.
Every aspect of the case was disputed. Plaintiffs called two coworkers who testified that Mr. Lacy was exposed to asbestos from thousands of gaskets supplied by Keenan over the course of his career. One coworker, Don Gosney, was a union officer for Local 342 for 19 years. The second coworker, Charles Ford, is a current client of the Keller Fishback firm with his own lung cancer case pending.
Our defense showed that Keenan was only one of several suppliers to Decedent's jobsites. The gaskets were fungible items that were intermixed in storage facilities at the refineries. Coworker Don Gosney admitted three times on cross-examination that there was no way to tell who supplied any gasket that Mr. Lacy may have removed. Though Mr. Gosney attempted to recant this testimony on redirect, the jury was not persuaded. Our closing argument contained slides of Mr. Gosney's specific testimony for each of the three times he stated that he could not tell who supplied any gasket removed.
Mrs. Lacy testified that her husband was a light smoker who quit "cold turkey" in 1991. She provided tearful testimony that her husband was still baling hay on their farm in Oklahoma up to the point he developed terminal cancer. Our cross-examination established that Mr. Lacy had at least a 90 pack-year smoking history. The jury was shown medical records which indicated that Decedent was still smoking as of 2000 and that he was wheelchair-bound in his last years from severe heart problems caused by smoking.
Mr. Lacy had multiple pleural plaques. Four asbestos bodies were found in the pathology. This evidence was the cornerstone of Plaintiffs' argument that asbestos contributed to the causation of Decedent's cancer. In response, our defense team displayed Decedent's chest films that showed no evidence of asbestos-related fibrosis. However, the x-rays did show an enlarged heart, calcified coronary arteries and hyper-inflation, indicating smoking-related emphysema. Mr. Lacy's pacemaker was also bright and obvious in each chest film shown to the jury. Our pathology expert explained that there was no fibrosis found in any of the lung tissue slides, and that the number of asbestos bodies found would have been insufficient for a finding of asbestosis.
In closing argument we were able to explain that the plaques and asbestos bodies were from pipe insulation – not gaskets. During evidence, the jury was shown a spiral wound gasket and a composite gasket. Both were obviously hard to break and inert. The gaskets contrasted starkly with testimony from witnesses on both sides that Mr. Lacy was repeatedly exposed to chalky, highly carcinogenic pipe insulation found on half the pipes in the refineries.
In addition to strict liability and general negligence, Plaintiffs pursued a negligence per se theory based on the warning requirements stated in the 1972 OSHA regulations. We established that the asbestos in gaskets was encapsulated and therefore exempt from the warning requirement pursuant to the specific language of the OSHA regulations. We also turned Plaintiffs state of the art evidence against the pipefitters union. Coworker Don Gosney was a former president of Local 342, to which Decedent belonged his entire career. He testified that the pipefitters union originated in Brooklyn in the late 1800s. Local 342 was founded in 1916. The union required its apprentices to attend formal training courses twice a week for five years, and those courses included training on the use of gaskets. The jury agreed with our theme that union officials could have consulted with medical experts, gone to science libraries and researched any danger posed by gaskets as easily as Keenan. Jurors later asked why the union was not on the verdict form.
Trial lasted almost four weeks and was disrupted by the holiday break. Plaintiffs claimed past and future economic loss. Plaintiff counsel did not request a specific dollar award for general damages, but asked the jury to use their common sense in determining the value of Mr. Lacy's companionship to Plaintiffs. The jury was sent to deliberations in the late afternoon of January 9th and returned a defense verdict the following morning. They specifically found that the gaskets supplied by Keenan did not have a design defect, did not pose a substantial danger to users and that Keenan was not negligent.
Plaintiffs were represented by Bruce Jackson of the Keller, Fishback & Jackson firm.
Keenan Properties was represented by Joe Gunter and Mark Love from Selman Breitman LLP office in San Francisco.
Oakland, CA January 10, 2017
Jean Lacy v. Keenan Properties, Inc.
Defense Verdict – Alameda County – Judge Seligman (Department 30)
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