Lewis Sunderman v. Aqua-Chem Inc.
Published: Mar. 4, 2003 | Result Date: Nov. 21, 2002 | Filing Date: Jan. 1, 1900 |Case number: 318031 Verdict – $150,000
Judge
Court
San Francisco Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Kenneth Cohen
(technical)
Barry Ben-Zion Ph.D.
(technical)
Charles W. Ay
(technical)
Richard J. Cohen
(medical)
Allan H. Smith
(technical)
James P. Srebro
(medical)
Defendant
William S. Breall
(medical)
Norman Moscow M.D.
(medical)
Robert Sawyer
(medical)
Gerald Levine
(medical)
James Rasmuson
(technical)
Facts
The plaintiff, a 79-year-old retired instrument mechanic/maintenance supervisor afflicted with asbestos pleural disease and asbestosis caused by his occupational exposure to asbestos instituted the subject suit against the defendant, a manufacturer of packaged boilers. The case was set for trial preference because of age and health of the plaintiff. The plaintiff had first been exposed to asbestos while serving in the U.S. Marines at boot camp on Paris Island, North Carolina. He was involved in the clean up of asbestos-containing debris from two Cleaver Brooks boilers located at that site over the course of two to three days. Thereafter, the plaintiff honorably served aboard the US Denver in the Pacific Theater for almost two years and was exposed to asbestos onboard ship. He sustained injuries in various naval battles and was awarded the Purple Heart and the Bronze Star. He suffered post-traumatic stress syndrome as a result. He returned to Cincinatti, Ohio after the Second World War and worked for 10 years as an instrument mechanic at Cincinatti Gas & Electric Company. While there, he was exposed daily to asbestos through his work as well as that performed by others. The plaintiff testified to personally mixing and applying 500 bags of asbestos insulating cement while at Cincinatti Gas & Electric. The plaintiff moved to California in the early 1960s and worked for a variety of manufacturing concerns throughout Northern and Southern California as a maintenance supervisor until 1987 when he retired. He was exposed to asbestos intermittently throughout this employment, including as a bystander to maintenance, inspection and repair of Cleaver Brooks boilers at Foremost Food & Chemical, Oakland, California, HITCO, Gardena, California and at Felters Company, Jackson, MI. The plaintiff's exposure to Cleaver Brooks boilers occurred over short periods of time when asbestos-containing gaskets, cements, refractory and millboard were disturbed. Some of the gasket products contained up to 90 percent asbestos fiber by weight. The plaintiff did not protect himself from breathing the dust created by this work as he was unaware of asbestos hazards at that time. Cleaver Brooks (a division of Aqua-Chem Inc. since 1964) had designed, manufactured, sold and delivered packaged boilers since 1931. It is headquartered in Milwaukee, Wis. A replacement parts business was conducted by Cleaver Brooks. Replacement parts from the 1940s to 1970s included asbestos-containing gaskets, refractory lining materials and insulation for Cleaver Brooks boilers. The company provided engineering and service support to their customers. Repair of boilers frequently involved disturbance of asbestos-containing refractory linings and insulation. Cleaver Brooks' attorney claimed in opening and closing statements that the total cumulative exposure to asbestos from Cleaver Brook broiler was less than two days, the same or less than a lifetime of ambient exposure to asbestos. The plaintiff argued that asbestos pleural disease and asbestosis are chronic respiratory diseases caused by inhalation of asbestos fiber and that his diseases were caused by each of his occupational exposures to asbestos, including those attributable to Cleaver Brooks. In the plaintiff's case, these conditions affect his breathing and currently play a significant role in preventing him from receiving needed coronary artery surgery. Sunderman was a lifetime non-smoker.
Settlement Discussions
The plaintiff made a C.C.P. Section 998 offer to compromise for $4,999. The plaintiff submitted a complete release demand of $25,000; the defendant offered up to $10,000. According to the plaintiff: The defendant attempted to accept this offer to compromise but included terms not part of the original offer. The court ruled the acceptance invalid. According to the defendant: A week before trial, the plaintiff's counsel had demanded $49,999 to settle. According to the defendant (and this is disputed by the plaintiff's counsel): During trial, the plaintiff's counsel demanded settlement variously at various times depending on state of the evidence. On the Sunday before opening statements, plaintiff's counsel demanded "low 6-figures" to settle. During the testimony of Dr. James Srebro, plaintiff's counsel said to Aqua-Chem's counsel, "this will cost you at least a couple hundred thousand." To the jury on closing argument, plaintiff's counsel asked for economic damages in the amount of $230,000 (low) and $325,000 (high) for hospitalization, medical treatment and household services. For pain and suffering (non-economic damages), plaintiff's counsel did not state a number, but said: "It's got to be something greater than what is the simple economic value" of plaintiff's claim, i.e., larger than the economic damages asked for (larger than $230,000-$325,000).
Other Information
The jury determined that the total amount of damages, past, present and future, that the plaintiffs suffered was $100,000 in economic damages and $50,000 in non-economic damages. The jury determined that the defendant Aqua-Chem, Inc. was responsible for 7 percent at fault for the plaintiff's injury and damages. This equated to $3,500 of the non-economic award. Judgment was entered in the amount of $103,500, after the court applied the joint and several liability rules of Civil Code Section 1431 et seq., holding Aqua-Chem jointly and severally liable for the economic damages, and 7 percent liable for the non-economic damages. By applying the Greathouse formula, the judgment will be reduced further to a net judgment, before costs, of approximately $78,000. The jury voted unanimously against awarding punitive damages.
Deliberation
five hours
Length
four weeks
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