Failure to Warn of Joint Compound’s Known Asbestos Risks

After serving close to two years in the U.S. Coast Guard in 1953, Melvin Desin began working as an electrician. Desin worked at both residential and commercial sites handling and/or working close to asbestos-containing products, including joint compounds, which were manufactured by Kaiser Gypsum Co. He was exposed to asbestos in the workplace until the late 1970s.

In 2011 Desin was diagnosed with mesothelioma at the age of 78. He underwent surgical resection of his lung, followed by chemotherapy. His past medical expenses totaled about $111,000 and future medical expenses are estimated to be close to $150,000. His prognosis is poor.

Desin sued Kaiser Gypsum, alleging that its joint compounds were defectively designed because they contained asbestos and that the company failed to warn of its products’ asbestos hazards, even though they were well aware of the potential risk.  Desin contended that Kaiser failed to provide warnings until 1972 and that any warnings it provided after that time were inadequate. Desin also sought punitive damages, alleging that Kaiser had acted with conscious disregard for the safety of others. He presented evidence that the hazards of asbestos were known as early as the 1920s, and that the industry was aware by the 1950s that asbestos could cause cancer and that as early as 1965, information was disseminated among Kaiser’s managing directors showing that asbestos causes cancer. Even despite this, Desin claimed, the company did nothing.

The dangers of asbestos were well known and documented in the medical and scientific communities by the 1930s. However, asbestos containing products still were manufactured and used in the construction field until the late 1970s. This includes the joint compound industry. The manufacturers of asbestos containing joint compound were completely aware that their products could cause mesothelioma and lung cancer.  They thought they could get away with it.

According to a Consumer Product Safety Commission publication in the July 29, 1977 Federal Register, a potential health risk occurs when asbestos fibers become airborne, such as by mixing, sanding or clean-up operations when using patching compounds. This publication states that, “asbestos is known to be carcinogenic in humans, causing lung cancer, mesotheliomas, and pleural lesions.”

In a Press Release dated April 1, 2009, the U.S. Department of Health & Human Services Office of the Surgeon General stated that, “there is no level of asbestos exposure that is known to be safe and minimizing your exposure will minimize your risk of developing asbestos-related disease.”

Desin also sued Union Carbide, which supplied asbestos fibers to Kaiser Gypsum and other joint compound manufacturers, alleging negligence, design defect and failure-to-warn claims.

Other asbestos product manufacturers and suppliers were named in the lawsuit, including several other joint compound manufacturers and suppliers of asbestos containing brake products. Desin also sued Lorillard Tobacco Co., which manufactured Kent cigarettes with asbestos containing Micronite filters he smoked during the early to mid 1950s, and Hollingsworth & Vose Co., which manufactured the filters. All of the defendants, other than Kaiser and Union Carbide, settled confidentially or were otherwise dismissed before trial.

Union Carbide settled for a confidential amount during trial, and the case proceeded against Kaiser.

The defendant argued that Desin’s exposure to asbestos in its joint compounds was not sufficient to have caused his disease, and that his mesothelioma resulted from exposure to asbestos in other companies’ products while he worked as an electrician or during his service in the Coast Guard. Kaiser also argued that the chrysotile asbestos it used in its products does not cause mesothelioma.

The jury found that Kaiser had negligently designed its products and failed to warn, allocating fault at 5 percent to the defendant, 43 percent to the Coast Guard, with the remainder to other companies no longer parties to the case. The jury awarded approximately $7.23 million in compensatory damages. Kaiser is responsible for about $680,000.

In a second phase on punitive damages, the jury found that Kaiser had acted with conscious disregard for the safety of others and awarded $6 million.

The defense has filed motions for a new trial.

Many manufacturers continued to use asbestos in their products, even though they understood the risk and health hazard these products caused. The profits were more important to them than safety.  These manufacturers failed to place warning labels on their products because they thought that any illnesses caused by exposure to asbestos would not develop or surface until long after workers could prove that they were responsible.  Fortunately, for Melvin Desin, they were wrong.

Feel free to comment on this blog post. For more information, contact a Gacovino Lake attorney at 1-800-246-HURT (4878).

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