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Years of exposure to asbestos caused painful death: estate
U.S. District Court, North Carolina, Middle District
other-tumor other-infection other-scar tissue other-physical therapy other-vomiting/vomition cancer cancer-lung cancer-chemotherapy cancer-mesothelioma cancer-metastatic abdomen surgeries/treatment-colostomy mental/psychological-emotional distress pulmonary/respiratory pulmonary/respiratory-pneumothorax pulmonary/respiratory-collapsed lung gastrointestinal/digestive-gastrointestinal complications(nausea) gastrointestinal/digestive-bowel/colon/intestine; perforation
Toxic Torts – AsbestosProducts Liability – AsbestosWrongful Death – Survival DamagesProducts Liability – Failure to Warn, Marketing Defect, Strict Liability
Franklin Delenor Finch and Ann Finch v. BASF Catalysts LLC, sued individually and as successor-in-interest to Engelhard, Pita Realty Ltd. and Eastern Magnesia Talc Co.; Covil Corp.; Daniel International Corp. f/k/a Daniel Construction Co. Inc.; Fluor Constructors International f/k/a Fluor Corp.; Fluor Daniel Services Corp.; Fluor Enterprises Inc.; Foster Wheeler Energy Corp.; McNeil (Ohio) Corp. Inc.; McNeil & NRM Inc.; Metropolitan Life Insurance Co.; and Pfizer Inc.,
October 5, 2018
Ann Finch ,
Estate of Franklin Delenor Finch (Male, 78 Years)
Jessica M. Dean;
Dean Omar Branham & Shirley, LLP;
Ann Finch, Estate of Franklin Delenor Finch ■ Kevin W. Paul;
Dean Omar Branham & Shirley, LLP;
Ann Finch, Estate of Franklin Delenor Finch ■ Bill Graham;
Wallace & Graham, P.A.;
Ann Finch, Estate of Franklin Delenor Finch
Edwin Holstein; M.D.; Occupational Medicine; Boston,
MA called by:
Jessica M. Dean, Kevin W. Paul, Bill Graham ■ Arnold Brody; Ph.D.; Molecular Biology; New Orleans,
LA called by:
Jessica M. Dean, Kevin W. Paul, Bill Graham ■ Charles Ay; ; Asbestos; Los Angeles,
CA called by:
Jessica M. Dean, Kevin W. Paul, Bill Graham
McNeil & NRM Inc.,
BASF Catalysts LLC,
Fluor Enterprises Inc.,
McNeil (Ohio) Corp. Inc.,
Daniel International Corp.,
Fluor Daniel Services Corp.,
Foster Wheeler Energy Corp.,
Metropolitan Life Insurance Co.,
Fluor Constructors International
Pfizer Inc., McNeil & NRM Inc., BASF Catalysts LLC, Fluor Enterprises Inc., McNeil (Ohio) Corp. Inc., Daniel International Corp., Fluor Daniel Services Corp., Foster Wheeler Energy Corp., Metropolitan Life Insurance Co., Fluor Constructors International ■ William W. Silverman;
Wood Smith Henning & Berman LLP;
Covil Corp. ■ Mark H. Wall;
Wall Templeton & Haldrup, P.A., Attorneys at Law;
In March 2016, plaintiff’s decedent Franklin Delenor Finch learned that he was suffering mesothelioma. From 1975 to 1995, Finch worked at a Firestone plant in Wilson. Finch claimed that his mesothelioma stemmed from his inhalation of fibers of asbestos that was contained in insulation manufactured by Covil Corp. and used during his work at Firestone. Finch sued Covil, alleging claims of strict liability and negligence. A number of other companies were originally named as defendants in the suit, but the claims against those entities were either dismissed prior to trial or concluded via dispositions involving undisclosed terms. The case proceeded to trial against Covil. Finch died after the filing of the lawsuit and his estate was substituted as the plaintiff. According to Finch, he was exposed throughout his 20-year tenure to asbestos-containing insulation that Covil had installed in Firestone’s tire presses. Finch had worked in the curing department at Firestone, placing molds in the tire presses that cured the tires. Plaintiffs’ counsel argued that, when Finch and the other mold changers would bump into, walk on or get near the insulated lines when they went behind the press, dust was released from the asbestos pipe covering. Plaintiffs’ counsel’s expert in asbestos testified that studies have measured very high asbestos exposures from tearing off and replacing asbestos pipe covering. Air testing during this work has measured fiber concentrations from 1 to 250 fibers per cubic centimeter of air. According to the expert, such exposures are magnitudes above the level of asbestos in the ambient air. In an open space like the curing room at Firestone, everyone in that space would have been exposed to asbestos from the removal of asbestos pipe covering, the expert opined. The expert determined that Finch was regularly exposed to asbestos fibers from the pipe covering, including from the work done by the mechanics and from Finch and other workers walking on the insulation and bumping into it. He had daily occasions for breathing dust from this and, over the course of time, this amounted to a substantial inhalation of asbestos, the expert concluded. Plaintiffs’ counsel’s expert in occupational medicine discussed the state of the art of asbestos and what was known when Covil insulated the Firestone plant in the 1970s. The expert opined that it was discovered in the 1930s that asbestos exposure caused health risks. According to the expert, by the 1950s, medical literature was published linking asbestos to lung cancer and, by the 1960s, it had been well-established that exposure to asbestos caused mesothelioma. The expert concluded that Covil should have been well aware of asbestos’ ill effects by the early 1970s. Plaintiffs’ counsel maintained that Covil did, in fact, know about the dangers of asbestos, yet nonetheless installed asbestos-laden insulation at the Firestone facility. Plaintiffs’ counsel argued that, in the 1960s, Covil’s president attended an international conference on the issue of asbestos and acknowledged that some of the company’s employees died from handling Covil’s insulation products. Additionally, it was alleged that Covil had multiple workers’ compensation claims from employees suffering from asbestos-related illnesses by 1975. Plaintiffs’ counsel further noted that Firestone removed approximately 7,400 linear feet of asbestos-containing pipe insulation from the tire press area in 1990 and, according to Firestone, no insulation in the tire press area was replaced before the 1990 asbestos abatement. The defense contended that Covil no longer sold significant amounts of asbestos insulation to the Firestone facility after May 1973. Covil argued that, while it sold miles of insulation that the time frame of the sales suggested, it was asbestos-free because the manufacturer of the insulation claimed it stopped making asbestos insulation in late 1972.
Finch was diagnosed with both pleural and peritoneal mesothelioma. Per Finch’s estate, the cancer initially started in the lining of Finch’s abdomen, known as the peritoneum, and later spread to the lining of his lungs, known as the pleura. He began treating with chemotherapy. On April 24, 2016, Finch underwent surgery to remove a 25-pound cancerous tumor that had grown in his abdomen, the right side of his colon, spleen and parts of his small intestine. During his 31 days of hospitalization, it was determined that he had an infection that resulted from a perforation in his bowel. He was fitted with a colostomy bag. Upon discharge, Finch treated in a rehabilitation facility on an inpatient basis for five weeks. When he was discharged home, he received home health care for 30 days. Finch alleged that he felt better in the ensuing months. However, in October, he was hospitalized for difficulty breathing. It was determined that he suffered a collapsed lung and a liter of fluid had to be drained from the lung. During that time, a CT scan showed that the mesothelioma had spread to his lungs. He was then discharged. In December, Finch returned to the hospital for shortness of breath and again had about a quart of fluid drained from his chest. He developed nausea, abdominal pain and vomiting. His doctors were concerned that his abdomen was blocked by tumor tissue and scar tissue and put a tube in his stomach to pull out fluids and gas. Finch died on Jan. 25, 2017. He was survived by a wife, three children, five grandchildren and a great-grandchild. Plaintiffs’ expert in occupational medicine testified that Finch’s asbestos exposure was the cause of his mesothelioma. Per the expert, if Finch’s exposure to asbestos pipe covering on the steam lines at Firestone had been Finch’s only asbestos exposure, it was at a sufficient level to cause his mesothelioma. Also, the expert stated that Finch’s exposure to asbestos-containing pipe insulation supplied by Covil was a substantial factor in causing Finch’s disease. Plaintiffs’ expert in molecular biology testified about how asbestos enters the body and how it takes years of exposure to develop cancer. In his deposition, Finch testified that his mesothelioma diagnosis “scared the hell out of” him. He stated that he became a different person after his diagnosis and surgery and did not feel as good about himself. Finch allegedly was very self-conscious about the colostomy bag and the noises it made. According to Finch, he felt uncomfortable being away from home and was afraid to drive anywhere in case he had a problem with the colostomy bag. He said he lived in fear that the bag would leak when he was in public and one time he had to leave church when he felt it leaking. Finch further testified at his deposition that, after developing mesothelioma, he was not able to spend time with family the way he used to. He claimed he used to attend his grandchildren’s sports games, but had to give that up because he could not walk far enough. He also claimed he could no longer play baseball with his grandkids, babysit the kids anymore or take his dog for a walk. Finch’s daughter testified that, whenever anything was broken or wrong, her father could fix it. She said that family was everything to Finch. She said Finch’s family had a reunion every year, but he was unable to attend the last year of his life because he was in a nursing facility. Finch’s wife discussed the couple’s marriage and how she stayed by her husband’s side throughout his illness. She said she learned to change his colostomy bag and helped him with that task. Finch’s estate sought damages under the Wrongful Death and Survival Acts. The defense maintained that Finch’s mesothelioma and treatment were caused by exposure to asbestos-containing products that had been manufactured by the other named defendants.
The jury found that Covil was negligent and that its negligence was a proximate cause of injury to Finch. Jurors also found that Covil unreasonably failed to provide an adequate warning or instruction, which was a proximate cause of injury to Finch. The jury determined that Finch’s estate was entitled to damages of $32.7 million. The court also determined that the estate was entitled to pre- and post-judgment interest.
Catherine C. Eagles
Covil has filed a motion for a new trial.
This report is based on information that was provided by plaintiffs’ counsel. Covil’s counsel did not respond to the reporter’s phone calls, and the remaining defendants’ counsel were not asked to contribute to the report.