Bjoin v. BTR LLC

CASE NAME: Bjoin v. BTR LLC

TYPE OF CASE: Product liability

COURT: Los Angeles County Superior Court

JUDGE(S): Judge Graciela Freixes

DEFENSE: Manning Gross & Massenberg (MG+M The Law Firm), B. Adam Hays, Carrie Lin, Kyler H. Stevens; Demler, Rowland & Armstrong LLP, Brian H. Buddell, Jennifer C. Rasmussen

PLAINTIFF LAWYERS: Weitz & Luxenberg PC, Benno B. Ashrafi, Venus Burns

Asbestos litigation -- said to be the longest-running mass tort in U.S. history, dating from the 1960s -- can be a challenge for the defense. "You're battling the testimony of a person with cancer, someone enormously sympathetic," pointed out Carrie S. Lin, who co-led the defense with Adam Hays and Kyle H. Stevens for defendant J-M Manufacturing Co. "You're dealing with events from 20, 30 years ago with evidence either way hard to track down and hard to negate. And California courts of appeal have made these cases as easy as possible for plaintiffs."

CARRIE LIN

Even so, the MG+M team and colleagues from Demler Armstrong & Rowland LLP prevailed with a 12-0 defense verdict after a four-week trial. Jurors took just three hours to decide. In closing statements, the plaintiffs had asked for $100 million.

Plaintiff Kirt Bjoin, a 62-year-old non-smoker, alleged that he developed terminal lung cancer while installing underground utilities with asbestos cement pipe supplied by J-M Manufacturing Co. Inc. and Ferguson Enterprises Inc. in the late 1970s and throughout the 1980s. "A nice, sympathetic family," Lin said of Bjoin and his wife. "They attended court every day. He was going through chemotherapy and clearly not doing very well, coughing a lot."

But Lin and colleagues had several unusual factors in their favor. Bjoin was an owner of the business, making him a so-called sophisticated user of the pipe in question who was expected to have seen and understood the warnings that federal law had begun to require on asbestos products.

KYLER H. STEVENS

"We had a good judge who allowed us to present all our affirmative defenses," Lin said, "including product misuse and that Mr. Bjoin knew or should have known what he was doing." Among other things, Bjoin cut asbestos cement pipe with an unventilated power tool, a practice that had been illegal for more than a decade when he was working. Asbestos cement pipe was a legal product that was mandated for use by various government agencies and was built to require industry specifications.

Evidence showed there were a variety of warnings informing asbestos cement pipe users of the risk of improper work practices, such as cutting with unventilated power tools.

Hays made the opening statement; he and Stevens examined witnesses. In asbestos cases, one of the defense challenges is presenting the corporate representative, who is often depicted by plaintiffs as a hired gun. "Adam did a great job with our representative," Lin said.

Benno B. Ashrafi, the lead plaintiff lawyer, noted that the jury found his client at risk of lung cancer from exposure to the pipe. "However, the jury found that cutting the asbestos cement pipe with a power saw was a highly extraordinary and unreasonable misuse of the asbestos cement pipe." An appeal is in progress.

--John Roemer