Miss. SC orders new trial in suit over asbestos exposure

Jessica M. Karmasek Jun. 19, 2012, 7:00am


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court, in a ruling earlier this month, remanded for a new trial a case over a chemical company's asbestos-filled drilling mud additive.

In its June 7 opinion, the Court reversed the Jones County Circuit Court's judgment, finding that it erred in allowing the plaintiff's counsel to read from drilling records that were not admitted into evidence during the cross-examination of the company's expert pulmonologist.

From 1963 through 1984, Chevron Phillips Chemical Company LP, successor-in-interest to ConocoPhillips Company, formerly known as Phillips Petroleum Company and now referred to as CPChem, manufactured a product called Flosal.

Flosal contained 85 to 95 percent asbestos and was used as an additive to increase the viscosity of drilling mud fluids.

Drilling mud refers to the fluids used on an oil-drilling rig to lift cuttings -- the dirt, rock or shale that had been drilled -- from the bottom of the well bore to the surface. It is pumped down the well bore via a drill pipe, through the drill bit, and back to the surface, carrying with it the cuttings.

Plaintiff Troy Lofton alleges he suffers from asbestosis as a result of exposure to Flosal during the course of his employment on various oil and gas drilling rigs.

Asbestosis is a lung disease that occurs from breathing in asbestos fibers.

In particular, breathing in asbestos fibers can cause scar tissue, or fibrosis, to form inside the lung. Scarred lung tissue does not expand and contract normally.

How severe the disease is depends on how long the person was exposed to asbestos and the amount he or she breathed in. Often, people do not notice symptoms for 20 years or more after the asbestos exposure.

Lofton worked on several oil and gas rigs from 1964 to 1983. He worked as a floorhand, mixing drilling mud and maintaining mud pumps, as well as a motorman, with responsibility for all the motors on the drilling rig. In these positions, he worked with a variety of viscosifiers, including Flosal.

In May 2004, he filed suit against CPChem and Phillips 66 Company, formerly doing business as Drilling Specialties Company, alleging two theories of product liability -- design defect and inadequate warning -- as well as claims for intentional and negligent infliction of emotional distress.

Following a trial in the Second Judicial District of the Jones Circuit Court, the jury returned a verdict in favor of Lofton on his claims of design defect and negligent infliction of emotional distress.

It assigned 100 percent of the liability to CPChem and Phillips 66, and total damages in the amount of $15,200,000.

CPChem filed a motion for judgment notwithstanding the verdict and a motion for new trial and/or remittur. Both were denied.

CPChem then appealed to the state's high court.

In its ruling, the Court pointed to Dr. Robert Ross' testimony on cross-examination.

Ross, CPChem's expert pulmonologist, indicated he had not reviewed Lofton's work records, which contained reports of the amounts of asbestos drilling additives used in wells in Mississippi between 1964 and 1983.

Over CPChem's objection, counsel asked, "(I)f these documents indicate that over 500 tons of asbestos drilling mud additives were used in Mississippi during that period, you couldn't dispute that, could you?"

Loften's counsel then proceeded to read into evidence the contents of Exhibit 950, including that one of Lofton's employers recorded that, in a six-week period, about 1,750 pounds of Flosal had been used.

At another point of cross-examination, the plaintiff's counsel, reading from one of the reports, stated, "(T)his is Mr. Lofton's employer. And (at) this (rig) there are 42 bags (of mud materials) used, 2,100 pounds, more than a ton?"

Again, the defense objected because Lofton's counsel was reading from the document, but the objection was overruled.

Lofton's counsel continued on, reading from the documents and eventually stating that "during the time Mr. Lofton worked in the oil and gas field for his employers as represented by these well reports, you come up with, just these reports 111,000 pounds of asbestos drilling mud additives."

The witness, Ross, throughout this line of "questioning" kept repeating that he had not reviewed the documents.

"The introduction of this exhibit and the trial court's having allowed the plaintiff's counsel to read it into evidence was an abuse of discretion," Justice James W. Kitchens wrote for the Court.

"First, the evidence was irrelevant under Rule 401, given that the well reports (although some were authored by Lofton's employers) failed to identify any particular well on which Lofton had worked.

"At one point, the defense objected on the basis that plaintiff's counsel was reading from a document from a time period when Lofton was not even employed by that particular drilling company, yet the trial court continued to overrule the objections."

Kitchens continued, "Moreover, these reports included all asbestos mud additives and were not necessarily specific to Flosal or other products manufactured by CPChem."

The Court said the line of questioning appears to be an attempt by the plaintiff's counsel to imply that during Loften's career he had been potentially exposed to as much as 111,000 pounds of asbestos mud additives.

"In that sense, it was highly prejudicial to CPChem, and grossly overestimated, given that there was no way to identify from the evidence how many bags of Flosal Lofton specifically had used," Kitchens wrote.

All other assignments of error raised by CPChem are "without merit," the Court said.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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Phillips 66 Company

Houston, TX

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