EDWARDSVILLE, Ill. (Legal Newsline) - Opening statements began Tuesday in a rare asbestos trial in Madison County Associate Judge Stephen Stobbs' courtroom, three months after its last trial.
Madison County, dubbed the nation's "epicenter" of asbestos litigation by the American Tort Reform Association, typically averages about one trial every other year, so this one should come as a surprise.
Brothers Tom King, Jr. and Brian King, from Tennessee, are representing their father, Tom King, Sr., on behalf of the lawsuit he filed Jan. 8, 2013, just before he died from inoperable mesothelioma on May 23, 2013, at age 71.
Defendants Crane Co. and John Crane Inc. are the only two left of the original 119 defendants in the negligence lawsuit.
According to the lawsuit, Tom King was a machinist mate for the United States Navy from 1959-1962 and again from 1965-1969, serving on the USS Forrestal, USS Tallahatchie County and the USS Hollister.
King's job in the Navy was to change gaskets, repair pumps and repair valves. Part of his job required him to scrape out the dry, baked asbestos from gaskets in order to replace them with new ones. He used a wire brush and a scraper to clean the asbestos from the old gaskets.
He was also exposed to asbestos packing, which was used in valves and pumps as a sealant to prevent leaking.
Prior to opening statements, counsels for Crane Co. and the plaintiffs addressed a motion in limine requesting an order prohibiting the defendant from presenting circumstantial evidence regarding King's asbestos exposure to insulation aboard the Navy ships.
Plaintiff attorney Allyson Romani of Shrader & Associates argued that Crane Co. should only be permitted to pursue insulation asbestos exposure if its attorneys could bring solid evidence supporting their claims. She believes the defense is ignoring sole proximate cause.
She further alleges the information is misleading as pipe insulation was just a small portion of King's work. His day-to-day activities involved working with chrysotile valves, gaskets and packing, she says.
However, Jeff Hebrank of HeplerBroom stepped in briefly to argue on Crane Co.'s behalf. He explained that the defense does not have the burden of proof and, therefore, can rely on circumstantial evidence.
Stobbs decided to allow insulation exposure arguments in court.
During opening statements, attorney Jim Lowery represented Crane Co. and presented his argument that the pipe insulation must have caused King's illness. He supported the company's products, claiming they were safe and could not have caused King's mesothelioma.
"You're looking for a cause?" Lowery asked. "That's the cause, the insulation."
The insulation aboard the ship was friable amosite asbestos insulation, which means it could be easily crushed to a powder in someone's hand.
All asbestos-containing products sold or manufactured by Crane Co. were encased and were considered safe, he said. In fact, gaskets and packing aren't even banned today, he said.
Gaskets and packing weren't considered in published studies until 1991 and were declared acceptable and not dangerous, he said
Frank Wathen of Shrader & Associates, who delivered opening statements for the plaintiffs, prepared for Crane Co.s inclusion of insulation asbestos exposure allegations by telling the jury that the defense will present excuses - blaming other companies' asbestos-containing products, saying the Navy was liable to warn and claiming their gaskets are safe.
"What Crane Co. is telling you is, 'It's OK to poison someone a little bit,'" Wathen said.
"To this day, Crane Co. will come into court and say their gaskets are safe."
Lowery responded by saying he brings only facts.
"Keep in mind that these will be facts, and facts are not excuses," Lowery said.
Lowery also argued that the Navy chose to use asbestos gaskets and packing, not Crane Co.
Crane Co. had products that didn't contain asbestos and could have offered those products if the Navy hadn't already made it very clear that their military specifications, Mil-Specs, required asbestos-containing products. The Navy also dictated the warnings, or lack thereof, of the products.
"We followed precise military specifications because if we didn't, the Navy wouldn't buy it," Lowery said.
"The Navy controlled every aspect of Mr. King's life and workspace on the ship ... If the navy gave you an order, boy you did it," he continued.
The Navy was one of the largest consumers of asbestos products at the time due to fire protection. Regulations required the military to use asbestos as a fire retardant.
Asbestos was also lightweight, allowing for faster ships and the ability to store more ammunition.
When the ships were ordered, asbestos was used in more than 3,000 products, from oven mitts and fake snow to insulation and joint compound.
Asbestos was common, and the Navy made sure to know everything there was to know about asbestos, Lowery said. With that, it still didn't consider asbestos-containing gaskets and packing dangerous, he added.
In Wathen's opening statements, presented to a jury of six men and six women with one female alternate, he argued that Crane Co. created a gasket material called Cranite, which contained 75 to 85 percent chrysotile and amphibole asbestos.
"To this day, Crane Co. contends that asbestos in its products is safe," Wathan said.
The sheets did not come with warnings and continued to be sold until the mid 1980s, which Wathan considers negligent due to the studies on asbestos dangers released years in advance.
"This case is about business as usual for Crane Co.," Wathen said.
He added that chrysotile fibers, specifically, get stuck in the lungs and are easily transferred from the inside of the lungs to the lining.
"The bottom line is," Wathan said, "asbestos, and all types of asbestos, cause cancer, cause asbestosis and can kill you."
After opening statements, Tom King, Jr. gave a tearful testimony about his fond memories of his father and what he knew of his father's career in the Navy.
"He was the cornerstone of our family," King said, "and it's like somebody pulled a pin and everything collapsed."
Tom King, Jr.'s father left the Navy in order to spend more time with his family and moved back to Tennessee.
Just after leaving the Navy, he went to college for environmental engineering and chemistry and got a job in water treatment. He was remembered for his love of the outdoors and reading.
Tom King, Sr. had been living with prostate cancer for several years, but Wathen said it was manageable and had not spread at the time of King's death.
He was eventually diagnosed with mesothelioma in 2012. After stints of chemotherapy and radiation, King died in May 2013.
"Prostate cancer did not kill Tom King," Wathen said. "Mesothelioma killed Tom King."
Crane Co. attorney Rebecca Nickelson of HeplerBroom cross-examined the witness, pointing out that after Tom King Sr. was diagnosed with prostate cancer, he refused conventional medicine and opted to try natural remedies like healthy eating.
Tom King Jr. said his father had stacks of books about prostate cancer to fully educate himself on the diagnosis.
Edward Burns of O'Connel, Tivin, Miller & Burns LLC represents John Crane, Inc. but did not deliver opening statements.
From Legal Newsline: Reach Heather Isringhausen Gvillo at firstname.lastname@example.org