ALAMEDA, Calif. (Legal Newsline)- A former car dealership maintenance worker who is seeking $70 million in damages over his cancer failed to prove he was ever exposed to a Honeywell product, the parent company of a brake manufacturer said in closing arguments in California’s first all-Zoom jury trial.
Plaintiff Ricardo Ocampo claims he contracted peritoneal mesothelioma from sweeping floors in three car dealerships where mechanics installed and worked on Bendix brake pads containing asbestos. But in final arguments to a remote jury, defense attorney David Ongaro of Ongaro PC said Ocampo never proved any Bendix brake pads entered the dealership while he worked there from 1991 to 1997, let alone brake pads containing asbestos.
Even if he had been exposed to asbestos dust, Ongaro argued, large-scale epidemiological studies have found brake mechanics have no higher risk of mesothelioma than the general population and other studies suggest peritoneal mesothelioma isn’t caused by exposure to asbestos at all.
Closing arguments were marred by several of the technical hitches that led defendants in this trial and another asbestos case to complain about a COVID-compliant process that may have put them at a disadvantage. Metalclad, in the second case, unsuccessfully moved for mistrial twice over issues including the plaintiff’s informal conversation with jurors over Zoom.
In the Ocampo case, Honeywell filed a “notice of irregularities” complaining of inattentive jurors including one who was emailing from a different computer and an alternate who was watching from bed. The original judge in the Ocampo case, Frank Roesch, recused himself after accidentally revealing online that he thought he had been exposed to asbestos from brakes and hoped it wasn’t enough to give him mesothelioma.
Alameda Superior Court Judge Jo-Lynne Lee took over the Honeywell trial for Roesch. She began the final phase by instructing jurors on the elements Ocampo’s lawyers must prove to win damages from Honeywell, including that its Bendix unit sold brakes to the dealership or they were in GM cars serviced on site, that they contained asbestos, that Bendix should have warned of the cancer risk, and that asbestos dust from the company’s products were a “substantial factor in causing harm” to the plaintiff.
Attorney Peter C. Beirne of the Paul Law Firm, representing Ocampo, told jurors to “bring your common sense to determine what is more likely than not to have occurred,” reminding them of the standard for civil liability, which is substantially lower than in criminal cases. He also suggested Honeywell had withheld evidence from the jury, noting “missing pages” from documents the company presented in its defense.
Ongaro, arguing for Honeywell, said Beirne had proven “there were some asbestos-containing brakes out there.” But he failed to provide any evidence Bendix brakes containing asbestos were at any of the dealerships, Ongaro said.
By 1991, when Ocampo began working there, the dealership would have to follow strict safety procedures when handling asbestos brakes including respirators, hazmat suits, special filters for vacuum cleaners, and all the floor waste Ocampo swept up would have to be bagged and sent to a certified landfill. None of the dealerships, which belonged to a large corporate chain, had any such measures, Ongaro said, suggesting they knew they weren’t risking an Occupational Safety and Health Administration fine by handling asbestos brakes.
“Common sense tells us either Courtesy Chevrolet wasn’t using asbestos brakes …or they were violating OSHA,” the lawyer said. “More likely than not, because Courtesy was a sophisticated operation, had unionized mechanics and multiple locations, they didn’t use asbestos brake pads.”
The defense lawyer also ridiculed Beirne’s claim Honeywell had withheld documents, saying the company turned over more than 250,000 pages to plaintiff lawyers.
“If there were missing pages, Mr. Beirne would have brought them to you,” he said.
The plaintiff presented expert testimony from doctors and an industrial hygienist who said asbestos dust from brake pads could have caused Ocampo’s illness. But they all started with the assumption the car dealership handled asbestos brake pads and they were manufactured by Bendix, Ongaro said, two points plaintiffs never proved.
By 1991, when Ocampo started sweeping floors at the car dealerships, there had been seven epidemiological studies showing no increased cancer risk to brake mechanics, he added, so there was no reason Bendix would have been required to place a warning label on the product.
In his final rebuttal argument, Beirne repeated his allegation Honeywell had withheld documents, saying Honeywell did “a document dump so it’s difficult to find those documents.” He also referred to an infamous 1966 letter by a Honeywell executive who said “if you have enjoyed a good life while working with asbestos products, why not die from it.”
Ongaro had chided Beirne for almost exclusively citing such old documents instead of information from the time when Ocampo was allegedly exposed to Bendix products. Quoting author Maya Angelou, Beirne responded, “when someone shows you who they are, believe them the first time.”
Both lawyers had to pause several times during their arguments for technical glitches, once because a juror apparently was logged off. Honeywell’s lawyer also lodged objections repeatedly during Beirne’s rebuttal argument for stating facts not in evidence and bringing up topics outside of the defense’s closer. The judge denied them, telling the jury not to regard anything the lawyers said in closing as fact.