Selman Breitman Obtains Defense Verdict For Amcord, Inc. in $10 Million Los Angeles Mesothelioma Trial
After 5 Week Trial, Jury Finds Mesothelioma Did Not Result From Exposure to Asbestos
Los Angeles, CA
September 30, 2016
Gary Schiszler v. 3M Company; Amcord, Inc.
After a five-week trial in the Stanley Mosk Courthouse in downtown Los Angeles, the jury returned a defense verdict for Amcord, Inc. after two hours of deliberation in a case alleging asbestos exposure from Riverside Gun Plastic Cement. Gary Schiszler v. Amcord, Inc., et al. Superior Court of California, for the County of Los Angeles, Case No. BC484667, Judicial Council Coordination Proceeding No. 4674, Judge Stephen M. Moloney presiding.
Virginia Schiszler, age 68, developed pleural mesothelioma in late 2011 and passed away in Lyon County, Nevada, on June 11, 2012 after she collapsed in the shower the day before when her heart stopped. The suit against Amcord, Inc. and 27 other defendants was filed by the Weitz & Luxenberg firm alleging that Mrs. Schiszler was exposed to asbestos while performing laundry of her husband’s clothes between 1970 and 1979 and alleged that her death was caused by the mesothelioma.
Plaintiff Gary Schiszler, who worked as a laborer and general contractor, had identified working with various construction materials containing asbestos, including Riverside Gun Plastic Cement (by Amcord). Plaintiff alleged that asbestos dust from his work with the construction materials got onto his clothing that was laundered by Virginia Schiszler, which involved her shaking off the dusty clothes prior to putting them into the laundry.
Although plaintiff focused on a “simple” case of cause and effect associated with asbestos exposure, the defense case presented was a medically complex, three-tiered defense; essentially trying three different trials in one.
Amcord, who was defended by Paul Stephan and Craig Maki of Selman Breitman LLP, contended that Mrs. Schiszler’s mesothelioma was not caused by any asbestos exposure that she may have experienced from laundering, but instead was caused by 4,400 rads of total nodal radiation treatment that Mrs. Schiszler had between 1979/1980 for her treatment for Hodgkin’s lymphoma. Amcord also disputed that the mesothelioma was the cause of Mrs. Schiszler’s death, and presented evidence that she passed away from a sudden cardiac event, that was a result of the radiation treatment decades before. Lastly, Amcord argued that Mrs. Schiszler’s scant exposure to chrysotile asbestos from the Amcord product would not have any substantial effect on the health of plaintiff – as it was within the range of background exposures.
While the final evidence had been presented to the jury on Monday, September 26, counsel engaged in two days of argument over the wording of the special verdict form. While the court was initially inclined to use the majority of the verdict form presented by plaintiff’s counsel, Selman’s attorneys were able to show that the use of preliminary questions regarding the defense theories of causation were necessary to allow the jury to find in favor of their defenses. The judge ultimately agreed and two preliminary questions were added to the special verdict.
Defendant Amcord was successful in obtaining a rarely used "adverse inference" instruction on spoliation of evidence. In that regard after the initial living meso suit was served, the lawyers for Plaintiff conducted a tissue removal of the heart, lungs and brain from the decedent upon her death, kept portions of the lung tissue but then destroyed, without examination, the heart and brain.
In closing arguments on Thursday, Plaintiff’s counsel asked for just under $10 million dollars in special and general compensatory damages. Amcord’s counsel asked the jury to return a complete defense verdict, which was the jury’s finding.
After receiving all of the evidence over the preceding five weeks, the jury got the case for deliberations on Friday morning. Two hours and five minutes later, they returned with a defense verdict. In a 10 to two decision, the jury found that Mrs. Schiszler did not develop her mesothelioma as a result of asbestos exposure. Interviews of jurors after the verdict did reveal that while they did find that Mrs. Schiszler did have some exposure from the Amcord product, they could not reach a finding that it was a substantial exposure and thus answered the first question on causation in the negative - completing their job as a jury.
In juror interviews after the verdict, they focused on some inconsistencies in plaintiff’s evidence that defendant brought out in trial such as evidence from plaintiff’s daughter that the "windowless laundry room" testified to by Mr. Schiszler was actually a two car garage. Further, the daughter established years of home oxygen use which contradicted Mr. Schiszler’s testimony that decedent was on home oxygen only since the mesothelioma was discovered.
Plaintiff’s experts were Barry Horn, M.D; Arnold Brody, Ph.D; John Templin, CIH; Allan Smith, M.D.; Mark Eastham, M.D.; and economist, Robert Johnson.
Amcord’s expert team consisted of Radiation Oncologist, Phillip Beron, M.D., UCLA Medicine; Cardiologist, C. Alan Brown, M.D., Cottage Health Santa Barbara; Pulmonologist, James Caplan, M.D. Cedars-Sinai, Beverly Hills; Radiologist, Norman Moscow, M.D. Alta Bates Summit Medical Center, Berkeley, CA; and Industrial Hygienist, Tim Bormann, CIH, with The Cohen Group.
Plaintiff was represented by Venus Burns, Peter Bierne and Mark Bratt of Weitz & Luxenberg.
Amcord, Inc. was represented by Paul Stephan from Selman Breitman, LLP, Santa Ana, and Craig Maki from Selman Breitman LLP, Los Angeles.
Selman Breitman provides this information for educational purposes. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case. This information should not be construed or relied on as legal advice or to create a lawyer-client relationship.