FRESNO, Calif. (Legal Newsline) - A California appeals court has upheld a nearly $6 million judgment for the family of a man who died of asbestos-related cancer.

California’s Fifth District Court of Appeal, in a March 17 decision, affirmed the ruling of the Fresno County Superior Court.

Defendant Honeywell International Inc. appealed the judgment of more than $5.8 million awarded to the spouse and three surviving children of James Lester Phillips. The jury found the mesothelioma contracted by Phillips was caused in part by exposure to asbestos contained in Bendix-brand brakes.

Dallas-based asbestos law firm Simon Greenstone Panatier Bartlett PC helped represent the plaintiffs.

On appeal, Honeywell argued a new trial was warranted because the jury’s special verdict was “fatally inconsistent,” the trial court “erroneously refused” to give its proposed jury instruction on the factors relevant to causation, and the trial court “erroneously admitted” prejudicial evidence. 

The company also argued judgment should be entered in its favor -- not the plaintiffs’ -- because the verdict was “based entirely on a failure to warn theory that lacked sufficient evidentiary support.”

In the alternative, if judgment wouldn’t be entered in its favor, Honeywell argued the $3.5 million award of punitive damages should be reversed. The company claimed the plaintiffs failed to introduce sufficient evidence of malice or oppression.

The appeals court, in its decision, rejected Honeywell’s claims of evidentiary error.

“The trial court properly admitted -- subject to a limiting instruction -- a 1966 letter of a Bendix employee sarcastically addressing an article in Chemical Week magazine that stated asbestos had been accused, but not yet convicted, as a significant health hazard,” Justice Donald R. Franson Jr. wrote for a three-judge panel of the court.

“The letter is circumstantial evidence relevant to the issue of Bendix’s awareness of asbestos’s potential to cause cancer.”

The Chemical Week article, published in September 1966, caused E. A. Martin, director of purchases at Bendix’s Troy, New York, facility, to write a now-infamous letter to Bendix’s asbestos supplier. The letter was dated Sept. 12, 1966 and addressed to Noel Hendry of Canadian Johns-Manville Asbestos Limited at Asbestos, Quebec, Canada.

A box appearing immediately above the article’s title listed sources of airborne asbestos, including “motor vehicle brake linings and clutch plates.”

The appeals court also ruled that the trial court properly admitted the testimony of the plaintiffs’ expert about causation and the contributions to Phillips’ risk of cancer from every identified exposure to asbestos that Phillips experienced.

“In the context of this case, the every-identified-exposure theory is distinguishable from the every-exposure theory and we join courts from other jurisdictions in recognizing that distinction,” Franson wrote. “Furthermore, we conclude the application of every-identified-exposure theory in this case was consistent with California law addressing proof of causation in asbestos-related cancer cases.”

Phillips, who was born in September 1953, first learned how to change brakes at a summer job in 1967. Then, while in high school, he worked as an attendant and mechanic at gas stations in Mariposa, performing various brake jobs.

According to court documents, he did brake jobs throughout the 1970s and 1980s and right up to the time he was diagnosed with mesothelioma in 2012.

In addition, after high school, he was employed as a maintenance worker by Mariposa County High School. During his year of employment, he worked directly with insulation and helped with the installation of asbestos cement pipe.

After that, he began working as a plumber, again working with asbestos cement pipe.

In addition, Phillips was exposed to asbestos in doing repairs and maintenance work on vehicles he owned or friends owned, including the installation of clutches and the removal and installation of gaskets, particularly on carburetors.

In its 68-page ruling, the state appeals court rejected Honeywell’s other contentions.

First, it concluded the jury’s answers to questions in the special verdict about causation were not inconsistent. Second, the trial court properly rejected Honeywell’s proposed instruction about the factors relevant to causation of asbestos-related cancer, the court found.

And third, as to the sufficiency of the evidence, the appeals court concluded there was adequate evidentiary support for the jury’s findings that Honeywell was liable under a failure to warn theory and Honeywell’s predecessor, Bendix, acted with malice, or a willful and conscious disregard of the safety of others.

“The jury could reasonably find Bendix’s lack of research and its failure to include a warning on its packaging before 1973 were willful decisions that demonstrated Bendix failed to avoid the probable dangerous consequences to the people installing and removing its brakes from vehicles,” Franson wrote for the appeals court.

In 1939, The Bendix Corporation Bendix began manufacturing friction products, including automotive brakes, that contained asbestos.

Until 1983, Bendix manufactured its brakes using 25 to 50 percent asbestos with other ingredients bound in a resin. In 1983, Bendix began offering asbestos-free brakes for some vehicles, but continued to manufacture and sell asbestos-containing brakes until 2001.

In 1985, Allied Corporation purchased Bendix. Later, Allied Corporation changed its name to Allied Signal Inc., and in 1999 changed it to Honeywell International Inc.

Phillips was diagnosed with mesothelioma in March 2012. He died in February 2013.

Mesothelioma is a relatively rare cancer that occurs in the lining of the lung, which is called the pleura. As the cancer grows, it will eventually entrap the entire lung, creating the tightening effect of a corset by preventing the lung from expanding.

People with mesothelioma live, on average, 12 to 14 months.

In May 2012, Phillips and his wife, Charity Phillips, filed a complaint seeking damages for personal injuries caused by asbestos.

Then, in May 2013, after Phillips’s death, Charity Phillips, individually and as the personal representative of his estate, filed a first amended complaint alleging negligence and strict liability. Three of their children were added as plaintiffs and asserted claims for wrongful death.

The first amended complaint named more than 25 defendants engaged in the manufacture or supply of products containing asbestos. Honeywell was sued individually and as the successor-in-interest to Bendix.

The plaintiffs ended up settling with most of the defendants and the matter proceeded to trial against Honeywell and Calaveras Asbestos Ltd. Calaveras was granted nonsuit during the jury trial. As a result, Honeywell was the only defendant remaining in the case when it was presented to the jury.

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

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