Metropolitan News-Enterprise


Tuesday, March 21, 2017


Page 1


Court Upholds $5.8 Million Award in Asbestos Case

Panel Says Decades-Old Letter Properly Admitted to Show Knowledge of Cancer Link




A letter written by an employee of the defendant manufacturer was properly admitted at the trial of an asbestos suit in order to show the defendant’s knowledge of the potential risk of cancer resulting from exposure to the company’s products, the Fifth District Court of Appeal has ruled.

The justices Friday affirmed a $5.8 million judgment in favor of Charity Phillips and her three children. Charity Phillips and her husband, James L. Phillips, sued numerous defendants after he was diagnosed with mesothelioma in March 2012.

James Phillips died 11 months after the suit was filed. His widow filed an amended complaint, alleging wrongful death causes of action and adding the couple’s adult children as additional plaintiffs.

All but two of the defendants settled before trial, paying more than $4 million. One defendant secured nonsuit, leaving Honeywell International, Inc. as the lone defendant.

Honeywell is the corporate successor to The Bendix Corporation, which used asbestos in brakes that it made at a plant in upstate New York beginning in 1939. Asbestos was used in all brakes made at the plant until 1983 and in some until 2001.

Phillips testified in his deposition that he began working on brakes and clutches at service stations in his early teens, and later worked with insulation as a high school maintenance worker, and with asbestos cement pipe as a plumber. He also removed asbestos cement pipe as a construction worker, and continued to work on brakes and clutches on his own or his friends vehicles.

He identified Bendix as one of several companies that made the products he worked on.

Counsel’s Argument

Plaintiffs’ counsel argued that Bendix had a longstanding realization that asbestos exposure was unhealthy. Evidence showed that the company installed a ventilation system at the plant by 1944 in order to remove excess dust, and that New York state adopted regulations limiting airborne asbestos in 1956.

In 1966, two articles appeared suggesting that asbestos dust was a cancer hazard. One appeared in the New York Times, the other in Chemical Week. After the Chemical Week publication, the purchasing director at the plant sent a letter to an employee of asbestos manufacturer Johns-Manville,

The Bendix official wrote:

“My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause.”

Honeywell’s counsel objected to the admission of the letter, arguing that it was “nothing more than a sarcastic expression of confidence in a product ingredient by a corporate employee who was not an officer, director or managing agent of Bendix,” and that it was hearsay, irrelevant, unauthenticated, and prejudicial. Fresno Superior Court Judge Jeffrey Hamilton agreed to admit the letter, subject to a limiting instruction telling jurors it could only be considered to determine whether Bendix had knowledge of the risks of asbestos.

The plaintiffs’ attorney noted in closing argument that the letter was written “one year before James Phillips ever touches a brake,” while defense counsel argued that the purchasing director was not a director or high-ranking executive, and that the letter was “like that one bad email we have all written at one time” and that it would be unfair “to judge an entire company based on one letter from someone who orders supplies.”

Jurors found in favor of the plaintiffs, concluding that Baxter was 30 percent responsible for wrongful death and that the Phillipses had suffered nearly $6 million in noneconomic damages. The parties stipulated they had suffered $900,000 in economic damages.

Baxter was also found to have acted with malice or oppression. After a second evidentiary phase, the jury awarded $3.5 million in punitive damages.

Adding the punitive damages, 30 percent of the noneconomic damages, and the economic damages minus the portion of the pretrial settlements allocated to economic damages produced a total award of $5.877 million.

Justice’s Opinion

Justice Donald Franson Jr., writing yesterday for the Court of Appeal, said Hamilton acted within his discretion in admitting the letter.

The justice said the letter was circumstantial evidence that Bendix knew of at least the potential that its products were hazardous to health. And he distinguished a pair of out-of-state cases holding the same letter inadmissible, noting that no limiting instruction was given in those cases.

He also concluded that the letter was of particular probative value in the Phillips case, given the proximity of the date of the letter to the date Phillips began working on brakes.

Attorneys on appeal were Lisa Perrochet, Robert H.Wright, and Curt Cutting of Horvitz & Levy and Brian F. McMahon of Perkins Coie for the defendant and Brian P. Barrow of Simon Greenstone Panatier Bartlett for the plaintiffs.

The case is Phillips v. Honeywell International, Inc., 17 S.O.S. 1459.


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