The history of asbestos litigation has been part of Kazan Law’s legacy as pioneers in asbestos litigation. The first asbestos products lawsuit in the modern era was filed on December 10, 1966, in Beaumont, Texas, by attorney Ward Stephenson on behalf of his client Claude Tomplait. Mr. Tomplait had been diagnosed with asbestosis in July of that year. The defendants were eleven manufacturers of asbestos-containing insulation products, including:
- Owens Corning Fiberglas
The case proceeded to trial on May 12, 1969 and a week later the verdict was returned in favor of defendants. But Stephenson was not deterred by this initial loss. In October 1969, he filed a case for one of Mr. Tomplait’s co-workers, a man named Clarence Borel. Again, he named numerous asbestos manufacturers. However, this time the result was different. The jury returned a verdict for Mr. Borel in the amount of $79,436.24. The verdict was appealed and on September 7, 1973, Ward Stephenson died. However, four days later, the Fifth Circuit Court upheld the award.
The legal battle on behalf of asbestos victims shifted to other parts of the United States. Starting in late 1973, cases were filed in many other jurisdictions.
Steven Kazan sues Johns-Manville on behalf of Reba Rudkin
In 1974, Steven Kazan filed a precedent-setting lawsuit on behalf of Reba Rudkin (JM Products Corporation v Superior Court of Contra Costa County (1980) 27 Cal.App.3d 465), who developed asbestosis after working for 29 years at the Johns-Manville manufacturing plant in Pittsburg, California.
Using a creative approach that has since become common, Kazan sued Johns-Manville in a civil lawsuit. Normally, because Mr. Rudkin worked for Johns-Manville, the company would be protected from a lawsuit because workers’ compensation is the prescribed remedy for an employee suing an employer. However, Kazan Law argued that Manville and its executives should not be shielded from fraud and conspiracy charges.
In January 1978, at a deposition taken during the course of discovery in this case, Wilbur Ruff, the Pittsburg plant manager in the 1960s, was asked if there had been “a policy in the company…not to talk to the employee about chest findings, findings that suggested asbestosis, pneumoconiosis or mesothelioma.” Ruff testified, “Yes, it was policy.” [Brodeur p.167-168] It was known as the hush hush policy. The evidence of fraud and conspiracy started to emerge.
The Court held that a worker can sue his/her employer in a civil action—in addition to a workers compensation claim) if the employer aggravates an existing injury known to the employer. This established an exception to the workers compensation exclusive remedy rule, later codified in Section 3602(b)(2) of the California Labor Code.
Building on success
In November 1981, Steven Kazan tried the case of Bob Speake (Speake v. Johns-Manville (1982) Superior Court of Contra Costa County 16099-3), a co-worker of Reba Rudkin. By this time a major victory had been won against Johns-Manville, when the California Supreme Court ruled that workers could sue their employers when circumstances like those in Rudkin applied. This enabled Mr. Speake and other Pittsburg plant workers to proceed with their cases in civil court against their employer, Johns-Manville.
- In February 1982, Kazan obtained a verdict of $150,000 for Mr. Speake against Johns-Manville.
- Paul Brodeur has written that this case marked a “threshold in asbestos litigation” because it gave rise to a number of punitive damage verdicts against Johns-Manville.
Responsible parties use bankruptcy to avoid paying victims
Kazan Law set many other Johns-Manville factory worker cases for trial, but in August 1982 Johns-Manville filed for Chapter 11 bankruptcy protection to avoid paying compensation to the growing number of victims of diseases caused by exposure to its asbestos products.
Unfortunately, several other asbestos companies—Eagle Picher, UNARCO, Amatex, H.K. Porter, Carey Canada, Celotex and Raybestos Manhattan/Raymark—followed Johns-Manville’s lead into the bankruptcy courts. Within a few years, the entire asbestos textile industry was in bankruptcy, as were several major asbestos insulation manufacturers.
Asbestos exposure diseases spread
Part of the insidious nature of asbestos-caused diseases is that it can be decades before symptoms present themselves. Because diagnosis is challenging, catching the symptoms before they become incurable cancer is difficult. At the same time manufacturers were declaring bankruptcy, the patterns of asbestos disease were changing.
- Initially, most cases were seen among workers at asbestos mines and factories.
- A second wave appeared, involving workers injured by exposure at sites where asbestos-containing products were installed. Asbestos litigation diversified as these injured workers filed suit based on their exposure at WWII shipyards, refineries, railroads and power plants.
- A third wave also emerged of workers injured by asbestos exposure in the construction industry. They were exposed to different products such as fireproofing sprays, drywall products, textures and other asbestos-containing construction materials.
Thus, as manufacturers filed for bankruptcy to avoid compensating victims, new defendants were brought into the litigation including:
- Owners of premises like refineries and power plants
They also included manufacturers of other types of asbestos-containing products. For example, in 1985 Kazan Law obtained a significant victory against Johns-Manville’s co-conspirator, Raybestos Manhattan—a $2 million verdict for an 81 year-old retired brake mechanic who was dying of mesothelioma. It was the first verdict against an asbestos brake lining manufacturer.
Litigation adapts to changed circumstances
The bankruptcies and other changes did not halt litigation on behalf of victims of asbestos-related disease, but they did make it much more complex and diverse, and the litigation was pushed in two somewhat divergent directions:
- Some plaintiffs’ counsel took on large volumes of cases. They included many clients not necessarily sick from asbestos, but who had medical evidence of exposure. Some of these offices undertook large-scale medical screening programs using mobile x-ray vans—a number of which have been criticized as fraudulent and are the subject of litigation. As a result, some workers settled for relatively small sums and were not fully compensated when later diagnosed with more serious asbestos diseases, including mesothelioma.
- A few plaintiffs’ firms began limiting their representation to a smaller number of seriously ill workers. By the mid-1980s, Kazan Law filed cases only on behalf of workers with serious asbestos-caused disabilities, particularly those with mesothelioma.
At the forefront of litigation
Kazan Law has remained at the forefront of asbestos litigation in California and nationally:
Sullivan v. Delta
In 1996 Kazan Law principal Dianna Lyons took on the Appellate Court ruling in Sullivan v Delta (1997) 15 Cal.App.4th 288. In this case (not originally a Kazan Law case) a trial court awarded damages to a plaintiff, but he died while his case was on appeal.
The Appellate Court had ruled that because he died before the appeal was concluded, he therefore lost the damages awarded him for his pain and suffering. Realizing the gross injustice that would be inflicted on asbestos victims in California – and others suffering from catastrophic diseases who were unlikely to survive the years of waiting while their cases were on appeal – Kazan Law volunteered to handle the issue before the California Supreme Court. As a result of The Firm’s arguments, the Supreme Court reversed the lower court ruling.
Steele v. Chevron, Inc.
In Steele v. Chevron, Inc. (1990) 219 Cal.App.3d 1265, Kazan Law established itself as a leader in formulating workers’ compensation law involving occupational diseases in California. Mr. Steele was diagnosed with a relatively mild asbestos disease in 1976, but eleven years later he came down with mesothelioma. The Firm filed a new workers’ compensation application on his behalf. This new application was contested. However, but former firm principal Victoria Edises prevailed when the court ruled that the same asbestos exposure can give rise to separate and different asbestos-related injuries and disabilities.
This ruling is especially important for asbestos victims because people with one disease such as pleural plaques or asbestosis are at a much higher risk of later developing other asbestos diseases including mesothelioma or lung cancer.) The Steele decision acknowledged that even though Harvey Steele had already filed a workers compensation claim for one asbestos disease, he was nevertheless entitled to file another workers compensation claim for the separate injury and disability he suffered when he became ill from mesothelioma.
Force v. Director, OWCP
Force v. Director, OWCP (1991) 938 F.2d 981 is another ground breaking ruling of great benefit to workers’ compensation applicants in California. In 1984, Kazan Law obtained workers’ compensation benefits for Mr. Force, a former shipyard worker. A third party lawsuit against various asbestos manufacturers and distributors was also filed, and substantial recoveries were obtained.
After Mr. Force died, his wife brought a longshore compensation claim. The insurance carrier attempted to obtain credit against its liability for benefits to Mrs. Force, from the monies Mrs. Force and other family members received in their successful third party case. As a result of Ms. Edises’ arguments, the Court limited the credit to that part of the third party settlement apportioned to Mrs. Force, excluded the amounts apportioned to the Force children and found that the employer had the burden of proving apportionment of any third party settlement between multiple parties.
Because of this ruling, insurance carriers can only receive credit for monies paid to the actual applicants and cannot receive credit for monies paid to other parties. For instance, if a jury awards damages to an injured asbestos worker and to his wife and three children, then under Force, the workers compensation carrier can get credit only for the monies apportioned to the worker himself and not for the monies apportioned to his family. The effect of this ruling is to enhance the overall recoveries of workers with asbestos-related diseases and their families, from their workers compensation claims and third party lawsuits.