The jury in Alterman v. Zep Construction awarded punitive damages against both defendants: $100,000 against Zep Construction, and $50,000 against Traffic Control Products.  

The jury found that both defendants’ actions had been unreasonably motivated by desire for financial gain.  The jury polled 6-0 in favor of the verdict in the punitive damages phase.

CVN webcast the entire Alterman v. Zep Construction trial live.

The jury in Alterman v. Zep Construction awarded the plaintiff approximately $4.5 million in compensatory damages, $4M of which was for Tyler Brashear’s loss of his father.

The jury assigned 65% negligence to Zep Construction; 30% negligence to Traffic Control Products, and 5% negligence to Pablo Merlos, the driver of the truck.

The jury also found by clear and convincing evidence that punitive damages were warranted against both Zep Construction and Traffic Control Products.  

As a result, the punitive damages phase of the trial will begin tomorrow (Thursday, February 25th) at 9:30am Eastern Time.

CVN will continue to webcast the Alterman v. Zep Construction trial video live. 

Judge Charles F. Kahn, Jr., informs the jury that the presentation of evidence will be completed today, and then closing arguments will begin this afternoon, in Kuhnke v Alfa Laval. 

 CVN is covering this asbestos-mesothelioma trial live. 

UPDATE 1: Judge Kahn is instructing the jury prior to opening arguments.  UPDATE 2: The case settled during closing arguments.

Aram Megerian, representing Traffic Control Products, began his opening statement by asserting that “Pablo Merlos was the sole cause of this accident because he was not paying attention for at least 10.5 seconds before [the accident.]” He did virtually nothing for those 10.5 seconds. Megerian then counted to ten seconds, “One-one-thousand, Two-one-thousand…”

According to Megerian, the truck driver did not apply his brakes until the very last second. “After hitting James Brashear’s car, and 10 other vehicles, the truck traveled another 200 feet.” Megerian said there was “no doubt” that the truck was traveling at 70 miles per hour.

Mejerian said that the truck driver “was given more than enough warning, and he chose to ignore every one of those warnings.” First, there was a “construction ahead” sign, approximately 2 miles before the construction. “He did not turn off his cruise control. He did not become more alert.”

Megerian urged the jury not to allocate any damages to Traffic Control Products (TCP) because TCP was not responsible for safety at the time of the accident, and did not plan the rolling roadblock, even if one TCP employee participated in the rolling roadblock.

But in any case, Mejerian urged that Tyler Brashear would be more than adequately compensated by $700K-$750K, rather than the plaintiff’s suggestion of $500K/year for 60+ years, which would be more than $30M.  Houses cost $250K, said Mejerian; cars cost $20K. 

Defense attorney Greg Giannuzzi, representing Zep Construction, challenged the plaintiff’s characterization of events.

Giannuzzi began by challenging the credibility of the plaintiff’s expert witness, and denying the appropriateness of punitive damages based on a gross negligence standard.

“There cannot be any question that there was a sign,” said Giannuzzi, naming three witnesses who testified to seeing blinking lights and/or a sign. Further, said Giannuzzi, there was no criticism of the signage by the Florida DOT, nor of the prior rolling roadblocks.

Giannuzzi argued that there is no difference between a rolling barricade and a rolling roadblock, or a rolling blockade.

But, said Giannuzzi, according to the plaintiff’s theory, there was no signage, there was no construction zone. So the truck driver should have stopped, just as if there had been any obstruction in the road, such as due to a fender bender, or slowed traffic due to road debris or a patrol car on the shoulder.

“This rolling roadblock did not change the traffic laws for [the truck driver],” said Giannuzzi. “You could have elephants crossing the road. It doesn’t matter what’s there. He was still required to stop.”

Alterman v. Zep Construction is being webcast live by CVN. 

Judge DeFuria instructed the jury in Alterman v. Zep before closing arguments, so they would know what to look for, and told them he would instruct them again afterwards. Judge DeFuria told the jury that if they found by clear and convincing evidence that punitive damages were warranted, then the parties would provide additional evidence regarding the amount.

CVN is webcasting the trial live. 

Plaintiff attorney Mitchel Chusid began his closing argument by leaving the podium and pointing at the two defendants Zep Construction and Traffic Control Products. He reminded the jury that they had all said during voir dire that they would be willing to award “a boatload of money” if the defendant’s behavior was proved sufficiently egregious.

“The evidence is overwhelming in this case that what the two defendants did on that highway in October 2007 was despicable, and should never happen again.” Chusid argued that they established a rolling roadblock on the downside of a hill with inadequate signage, and that only rolling barricades were permitted, not rolling roadblocks.

“I don’t care who told who to move the signs,” said Chusid. “These two defendants had control over that highway…All they had to do was provide two variable message boards…Nothing. Zero. Not one warning sign was sent out.” All the defendants had to do, said Chusid, was to provide adequate signage, and then Tyler Brashear “wouldn’t be here today, he would be playing basketball with his dad, and doing things that fathers do with their sons.”

The plaintiff and both defendants rested their cases on Friday afternoon, and Judge DeFuria announced that the parties had agreed that Tyler Brashear’s past medical expenses were $46,250.26.  

Judge DeFuria then instructed the jury to return Tuesday morning, February 23rd, at 9:00am Eastern Time for closing arguments. Judge DeFuria predicted that closings would last 5-6 hours, and then deliberation could begin Tuesday afternoon.

CVN is providing live and on-demand coverage of Alterman v. Zep Construction. 

CVN is pleased to announce that our Tobacco Litigation Video Collection now includes six trials: Hess v. RJ Reynolds, Ferlanti v. Liggett Group, Kalyvas v. Phillip Morris, Sherman v. RJ Reynolds, Brown v. RJ Reynolds, and Barbanell v. R.J. Reynolds. In addition, CVN has been approved to cover Cohen v. RJ Reynolds live, starting March 1, 2010. CVN is also approved to cover Williams v. Brown & Williamson, which is likely to be tried in spring, 2010, in Missouri.

These trials are mostly Engle-progency cases in Florida. In Engle v. RJ Reynolds, the Florida Supreme Court vacated a $145 billion class action punitive damages judgment, and decertified the class. 

The Court ruled that the class action had adequately established that cigarettes were harmful, addictive, and defective, and that the Tobacco companies had negligently misrepresented facts when the cigarettes were supplied.

However, the Court concluded that each individual plaintiff had to establish that cigarettes were in fact the legal cause of injury, and the amount of damages, including punitive damages. Approximately 8,000 individual cases were filed within one year of the court’s decision, and thus entitled to rely on the res judicata effect of the decertified class action’s factual findings.

February 3, 2009. The first Engle-progeny case to be tried was Hess v. RJ Reynolds. Stuart Hess’s widow Elaine Hess sued cigarette maker Philip Morris, claiming that her husband could not stop smoking because he was addicted to nicotine. Mr. Hess died of lung cancer at age 55, in 1997. The jury awarded $8M to the Elaine and her son — $3M in compensatory damages, and $5M in punitive damages.

February 23, 2009. Ferlanti v. Liggett Group involved a plaintiff who died at age 81 of lung cancer after suffering chronic obstructive pulmonary disease (COPD) as a result of cigarette smoking for over 55 years. The jury awarded the plaintiff $700,000 against Liggett Group (a part of Vector Tobacco and Vector Group).

April 8, 2009. Kalyvas v. Phillip Morris. Spyros Kalyvas was a baker (pastry chef) who died of lung cancer at age 42. The defense argued that 90% of smokers do not get lung cancer, and Kalyvas actually stopped smoking for a while during a hospitalization, then started again, and thus could have quit. The jury returned a verdict for the defense.

April 20, 2009. In Sherman v. RJ Reynolds, plaintiff Melba Sherman’s husband, John Sherman, died of lung cancer in 1996, after smoking 3-4 packs of Lucky Strike and Winston cigarettes for over 50 years. According to the defense, Sherman enjoyed smoking, chose to smoke, knew the risks, and made no serious attempt to quit.

The jury found that Sherman was addicted to nicotine and that Sherman’s addiction was the legal cause of death. The jury apportioned liability 50% each to John Sherman and RJ Reynolds, based on RJ Reynolds’ concealment of the dangers, and found damages of $1.55M.

May 11, 2009. Brown v. RJ Reynolds involved a life-long smoker who allegedly started smoking when he was 12 years old. He died of lung cancer and esophageal cancer.

The plaintiff claimed that the smoker was addicted to cigarettes that contained nicotine, and that the nicotine addiction caused his death. The defense claimed that the smoker chose to smoke and wanted to smoke, for most of his life.

The jury ruled in favor of the plaintiff and found damages of $1.2M.

July 27, 2009. In Barbanell v. RJ Reynolds, Shirley Barbanell died after smoking two packs of cigarettes per day for 50 years. Barbanell allegedly attempted to quit smoking but did not succeed. The plaintiff, Barbanell’s husband, contended that Barbanell was addicted to tobacco and that the addiction was partly responsible for Barbanell’s death, which allegedly resulted from lung cancer or emphysema, as evidenced by the tumor in her chest.

The defendant contended that Barbanell died of liver cirrhosis, not lung cancer or emphysema, and Barbanell’s death did not result from smoking.

After Phase 1 of the trial, the jury found that Barbanell was in fact addicted to cigarettes, and the addiction was the legal cause of her death from lung cancer.

After Phase 2 of the trial, the jury assigned 36.5% fault to the defendant, and 63.5% of the fault to Barbanell. Damages were found to be $5,339,198.

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The largest verdict in any Engle-progeny suit was Naugle v. RJ Reynolds. In November, 2009, a jury awarded Cindy Naugle over $300M – $56.6M in medical expenses, and $244M in punitive damages. However, the judge in the case subsequently declared the award excessive and said he would reduce it.

According to one attorney, the threat of an attorney fee award against unsuccessful Engle-progeny Tobacco plaintiffs creates pressure to settle.

Tobacco companies have been offering the state’s 8,000 smoker plaintiffs minuscule amounts of money — typically $500 to $2,500 — to settle wrongful death and negligence cases potentially worth millions of dollars. The catch: Florida law says plaintiffs who obtain a significantly smaller judgment than a rejected settlement offer must pay the other side’s attorney fees.

Smokers’ attorneys say the exposure to potentially tens of thousands of dollars in attorney fees is another tactic being used to intimidate their clients as thousands of liability cases go to court.

Florida law states plaintiffs could be forced to pay attorney fees and costs if they reject a settlement offer, even a nominal one, and lose or obtain a judgment at least 25 percent less than the offered amount…

A plaintiff in a Pinellas Circuit Court tobacco case agreed to pay $100,000 in defense fees following a defeat. A Hillsborough Circuit Court judge ordered a smoker plaintiff to pay nearly $30,000 in costs after a loss.

With stakes high on both sides, the next Engle-progeny case CVN will cover is Cohen v. RJ Reynolds, before Judge Jeffrey Streitfeld, starting March 1, 2010.  CVN will webcast the trial live.

CVN is pleased to announce that our Asbestos Litigation Library now includes five trials: Roth v. Goodrich, Thacker v. 3M, Miller v. AW Chesterton, Rich v. Bingham, and Kuhnke v. Alfa Laval.

These five trials bring to practitioners a broad range of asbestos litigation issues, including:

• - Vocational and non-vocational exposure
• - High-level and low-level exposure
• - Lung cancer and mesothelioma
• - Pleural mesothelioma and testicular mesothelioma
• - Many different fiber types

The plaintiff-mail carrier’s mesothelioma allegedly resulted not from vocational exposure, but from exposure to joint compounds in home improvement products that he allegedly purchased from hardware stores in the 1960′s and 1970′s to repair a recurring crack in the walls of his home.

According to the plaintiff, sanding the joint compound created fine asbestos dust that got into the plaintiff’s lungs, and the defense expert witness could only find a different type of asbestos was involved by violating his own methodology.

Defendants, which include R.T. Vanderbilt, Kaiser Gypsum, and Union Carbide, alleged that the plaintiff’s exposure to these products was not sufficient to cause his current cancer, and that some products were not sold at the stores where the plaintiff claims to have bought them.  In addition, the types of asbestos found in the plaintiff’s lung tissue allegedly did not closely match the fiber types used in the products the plaintiff allegedly used.

The jury returned a defense verdict, finding neither negligence nor the the delivery of a defective product by any of the defendants that was the legal cause of Fred Rich’s illness. The case was tried in Fort Lauderdale, Florida, before Judge Patti Henning.

 

Miller v. AW Chesterton

Testicular mesothelioma jury trial based on occupational asbestos exposure.

The plaintiff was born in 1930.  Starting in 1954, he spent 33 years working for the Lindmore Irrigation District maintaining pipes, including replacing concrete pipes with asbestos-cement transite pipes, which mostly were manufactured by Johns-Mansville in Stockton, and mostly relied upon chrysotile asbestos from Advocate Mines and Calaveras Asbestos.

He was diagnosed in February, 2009, as terminally ill from malignant mesothelioma in the tunica vaginalis testes, which had spread to a lymph node.

According to Advocate Mines, tunica vaginalis testes mesothelioma is a classic idiopathic ailment.  With only 100 cases in the world, there is not enough epidemiological evidence to establish that asbestos causes it.  In addition, the defense asserted that chysotile fibers were the least harmful type of asbestos fiber, and did not cause the plaintiff’s disease.

According to Calaveras, its products came with warnings.  Further, Calaveras claimed that its products were not dangerous unless used in such a way as to create dust, and it could not monitor how the product was eventually used.

 

The case was tried in Los Angeles, California, before Judge Terry Green. The parties settled while the jury was deliberating. 

 

Roth v. Goodrich

Plaintiff’s lung was removed due to lung cancer (not mesothelioma).  Plaintiff allegedly was exposed to asbestos as a teenager in the late 1950′s while working in the auto repair business at a Shell service station, and while maintaining his own 1937 Ford.

Defendants — Dana, Ford, Honeywell, Pep Boys, and Pneumo Abex — made and/or sold automotive products (e.g., gaskets, clutches, brakes) containing asbestos, which allegedly were not tested for safety and were not accompanied by any safety warnings.

Defendants alleged that the plaintiff’s lung cancer was actually caused by second-hand smoke.

The case settled approximately one week into the trial. 

 

Thacker v. 3M

Asbestos liability jury trial in Los Angeles Superior Court.

Plaintiff Robert Thacker contracted pleural mesothelioma from asbestos exposure in the 1970s, when he worked as a pipe fitter.  The plaintiff died after the cancer spread to his spine and brain.

The remaining defendant was Weil-McLain, which manufactured boilers that contained asbestos.  Weil-McLain argued that the plaintiff never worked around a Weil-McLain boiler.  Instead, according to the defendant, the plaintiff worked only around larger industrial boilers made by a different manufacturer.

The case settled during the second day of trial.

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