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California Verdicts

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Failure to warn of asbestos content resulted in death: suit

Amount:

$38,951,367.10

Type:

Verdict-Plaintiff

State:

California

Venue:

Los Angeles County

Court:

Superior Court of Los Angeles County, Los Angeles

Injury Type(s):

other-death; other-loss of society; cancer-mesothelioma

Case Type:

Wrongful Death; Toxic Torts - Asbestos; Products Liability - Asbestos, Failure to Warn

Case Name:

Patricia Soto, Yolanda Isaak, Leticia Medina and Eli Anthony Canett, as legal heirs to Secundino Medina, deceased, and as successors in interest and representatives of the Estate of Secundino Medina v. A Best Products Company, Amcord Inc., American Optical Corporation, American Smelting and Refining Company, Bobcat Company, BorgWarner Corporation, BorgWarner Morse Tec Inc., Bridgestone Americas Tire Operation LLC, Bridgestone/Firestone Inc., California Portland Cement Company, CalPortland Company, Crown Cork & Seal Company Inc., Dana Companies, Dana Companies LLC, E.D. Bullard Company, Foseco International Limited, Garlock Sealing Technologies LLC, Georgia-Pacific Corporation, Georgia-Pacific LLC, Hamilton Materials Inc., Hanson Permanente Cement Inc., Highland Stucco and Lime Products Inc., Hills Brothers Chemical Company, Honeywell International Inc., Ingersoll-Rand Company, J.T. Thorpe & Son Inc., Kaiser Cement aka Kaiser Gypsum Company Inc., Kentile Floors Inc., et al., No. BC432930

Date:

August 14, 2013

Parties

Plaintiff(s):

Patricia Soto (Female), 

Yolanda Isaak (Female), 

Leticia Medina (Female), 

Eli Anthony Canett (Male), 

Estate of Secundino Medina (Male, 79 Years)

Plaintiff Attorney(s):

Simona A. Farrise; Farrise Firm, P.C.; Los Angeles, CA, for Patricia Soto, Yolanda Isaak, Leticia Medina, Eli Anthony Canett, Estate of Secundino Medina

Plaintiff Expert(s):

Barry Horn; M.D.; Pulmonology; Berkeley, CA called by Simona A. Farrise ■ Barry Castleman; Sc.D.; Asbestos; Garrett Park, MD called by Simona A. Farrise ■ Arnold Brody; Ph.D.; Cell Biology; New Orleans, LA called by Simona A. Farrise ■ Robert Johnson; Ph.D.; Economics; Palo Alto, CA called by Simona A. Farrise ■ William Longo; Ph.D.; Materials Science; Atlanta, GA called by Simona A. Farrise

Defendant(s):

Amcord Inc., 

Kaiser Cement, 

Bobcat Company, 

Dana Companies, 

Parex USA Inc., 

Soco West Inc., 

Dana Companies LLC, 

CalPortland Company, 

Georgia-Pacific LLC, 

Kentile Floors Inc., 

Owens-Illinois Inc., 

E.D. Bullard Company, 

Ingersoll-Rand Company, 

J.T. Thorpe & Son Inc., 

A-Best Products Company, 

Hamilton Materials Inc., 

Pneumo-Abex Corporation, 

Quintec Industries Inc., 

Union Carbide Corporation, 

Bridgestone/Firestone Inc., 

Georgia-Pacific Corporation, 

Parker Hannifin Corporation, 

American Optical Corporation, 

Foseco International Limited, 

Honeywell International Inc., 

Hanson Permanente Cement Inc., 

Crown Cork & Seal Company Inc., 

Hills Brothers Chemical Company, 

Garlock Sealing Technologies LLC, 

California Portland Cement Company, 

NACCO Materials Handling Group Inc., 

American Smelting and Refining Company, 

Highland Stucco and Lime Products Inc., 

Bridgestone Americas Tire Operation LLC, 

Lear-Siegler Diversified Holdings Corp., 

BorgWarner Corporation by its successor by-merger BorgWarner Morse Tec Inc.

Defense Attorney(s):

Jerry C. Popovich; Selman Breitman LLP; Santa Ana, CA, for BorgWarner Corporation by its successor by-merger BorgWarner Morse Tec Inc. ■ Elizabeth L. Phifer; Phifer Law Firm, P.C.; Dallas, TX, for BorgWarner Corporation by its successor by-merger BorgWarner Morse Tec Inc. ■ Steven M. Mitchel; Booth Mitchel & Strange LLP; Los Angeles, CA, for BorgWarner Corporation by its successor by-merger BorgWarner Morse Tec Inc. ■ None reported; for Amcord Inc., Kaiser Cement, Bobcat Company, Dana Companies, Parex USA Inc., Soco West Inc., Dana Companies LLC, CalPortland Company, Georgia-Pacific LLC, Kentile Floors Inc., Owens-Illinois Inc., E.D. Bullard Company, Ingersoll-Rand Company, J.T. Thorpe & Son Inc., A-Best Products Company, Hamilton Materials Inc., Pneumo-Abex Corporation, Quintec Industries Inc., Union Carbide Corporation, Bridgestone/Firestone Inc., Georgia-Pacific Corporation, Parker Hannifin Corporation, American Optical Corporation, Foseco International Limited, Honeywell International Inc., Hanson Permanente Cement Inc., Crown Cork & Seal Company Inc., Hills Brothers Chemical Company, Garlock Sealing Technologies LLC, California Portland Cement Company, NACCO Materials Handling Group Inc., American Smelting and Refining Company, Highland Stucco and Lime Products Inc., Bridgestone Americas Tire Operation LLC, Lear-Siegler Diversified Holdings Corp.

Defendant Expert(s):

Andrew Churg; Pathology; Vancouver, British Columbia, called by Jerry C. Popovich, Elizabeth L. Phifer, Steven M. Mitchel ■ Patrick Hessel; Epidemiology; Chicago, IL called by Jerry C. Popovich, Elizabeth L. Phifer, Steven M. Mitchel ■ William Krebs; Industrial Hygiene; Detroit, MI called by Jerry C. Popovich, Elizabeth L. Phifer, Steven M. Mitchel

Facts:

From 1959 through 1988, plaintiffs' decedent Secundino Medina worked as an assembly line factory worker and security guard for General Motors at its assembly plant in Van Nuys. In December 2009, Medina, then 79 years old, was diagnosed with mesothelioma, which is an aggressive, incurable cancer that often stems from exposure to asbestos. He ultimately died at home on July 4, 2010. The decedent's three daughters (Patricia Soto, Yolanda Isaak and Leticia Medina) and a great-grandson whom the decedent supported (Eli Canett) sued BorgWarner Corp., Borgwarner Morse Tec Inc., American Smelting and Refining Co., and over 30 other manufacturers of automobile parts stocked at the plant. The family claimed that the decedent was exposed to asbestos-containing parts manufactured by the defendants, making the defendants liable for the decedent's wrongful death. Many of the defendants resolved the matter through dismissal or settlement. Also, at the close of the plaintiffs' evidence at trial, the court granted defense counsel' motion for nonsuit and dismissed Canett's claims, as well as granted defense counsel's motion for nonsuit on several of the plaintiffs' other claims, including fraud, breach of implied warranty, and conspiracy. Thus, the trial continued only with the claims of failure to warn, design defect, general negligence and punitive damages made by the decedent's estate and his three daughters against BorgWarner Morse Tec Inc., individually and as successor to BorgWarner Corp. Plaintiffs' counsel contended that the decedent was exposed to chrysotile asbestos-containing automotive clutches that BorgWarner supplied to General Motors to be incorporated in General Motors' automobiles, including, but not limited to, TransAms and Firebirds, amongst many others. Counsel also contended that BorgWarner's clutches were defective because they failed to carry an adequate warning detailing the asbestos content or health risk, despite BorgWarner's own knowledge of such hazards from its own manufacturing operations that incorporated asbestos at plants located throughout the United States. BorgWarner claimed that its products were not defective and that its actions were reasonable. Instead, BorgWarner's counsel argued that the decedent's employer, General Motors, was at fault, as was American Smelting and Refining Co., which employed the decedent's father.

Injury:

Secundino Medina was diagnosed with pleural mesothelioma,a cancer that affects the lining of the lungs, in December 2009, when he was 79 years old. His treatment/therapy included chemotherapy. However, he ultimately passed away on July 4, 2010. The decedent is survived by his family, which includes his three daughters, grandchildren and great-grandchildren. The decedent's three daughters, Patricia Soto, Yolanda Isaak and Leticia Medina, sought recovery of survival damages and wrongful death damages. The decedent's estate sought recovery of economic damages related to the decedent's treatment and death, including medical and funeral expenses. In addition, the estate alleged that BorgWarner acted with malice or oppression, and sought recovery of punitive damages. However, the parties stipulated that the out-of-pocket expenses that the decedent personally paid for his medical treatment was $21,301, and the court precluded the decedent's family from recovering any economic award for the alleged loss of household services, lost pension or lost social security earnings estimated to be approximately $400,000. Counsel for BorgWarner argued that punitive damages were not warranted.

Result:

The jury found that the decedent was exposed to asbestos released from BorgWarner's products and that the decedent's asbestos exposure was a substantial factor in causing his death. It also found that there was no design defect in BorgWarner's products, but that BorgWarner failed to adequately warn of the potential risks and that the lack of a sufficient warning was a substantial factor in causing the decedent's death. The jury further found that BorgWarner was negligent and that BorgWarner's negligence was a substantial factor in causing the decedent's death. Thus, the jury determined that BorgWarner was 35 percent liable, that American Smelting and Refining Co. (which had previously settled out) was 25 percent liable and that the decedent's employer, General Motors, was 40 percent liable. The jury awarded the plaintiffs' $6,451,367.10 in damages, which consisted of $2,130,455.70 to each of the decedent's three daughters and $60,000 in economic damages to the decedent's estate for medical expenses, funeral expenses and other economic loss. In addition, the jury found that BorgWarner acted with malice and oppression, and the matter proceeded to a separate trial to determine punitive damages. Following the separate trial, the jury awarded the decedent's estate $32.5 million in punitive damages, making the plaintiffs' total damages award $38,951,367.10. Based on BorgWarner being found 35 percent liable, the damages award for each of the daughters' non-economic loss was reduced from $2 million to $700,000. Also, each of their $130,455.70 awards for economic loss was reduced by $2,420.75, the stipulated amount of pre-trial settlements and recoveries attributed to economic damages, making each daughter's economic damage recovery $128,034.95. Thus, the net judgment that each daughter would recover is $828,034.95. In addition, the estate's economic damages award of $60,000 was reduced by $1,085.15, the stipulated amount of pre-trial settlements and recoveries attributed to economic damages, making the estate's net economic damage recovery $58,914.85. However, the $32.5 million punitive damages award against BorgWarner was not reduced. Thus, the plaintiffs' total recovery totaled $35,043,019.65.

Yolanda Isaak $130,456 Wrongful Death: economic loss; $2,000,000 Wrongful Death: non-economic loss Estate of Secundino Medina $32,500,000 Wrongful Death: Punitive Exemplary Damages; $60,000 Wrongful Death: medical expenses, funeral expenses and other economic loss Leticia Medina $130,456 Wrongful Death: economic loss; $2,000,000 Wrongful Death: non-economic loss Patricia Soto $130,456 Wrongful Death: economic loss; $2,000,000 Wrongful Death: non-economic loss

Actual Award:

$35,043,019.65

Trial Information:

Judge:

Robert H. O'Brien

Demand:

None reported

Offer:

$300,000 from BorgWarner

Trial Length:

5  weeks

Jury Composition:

6 male/ 6 female

Editor's Comment:

This report is based on information that was provided by plaintiffs' counsel. Counsel for BorgWarner declined to contribute and counsel for the remaining defendants were not asked to contribute.