Document DM3KkmxMV43q8zymYQOyVXV0M

FILE NAME: RT Vanderbilt (RTV) DATE: 2008 May DOC#: RTV062 DOCUMENT DESCRIPTION: Newsletter from Arts, Crafts & Theater Safety - RT Vanderbilt Loses Second Mesothelioma Suit ACTS FACTS THE MONTHLY NEWSLETTER FROM ARTS, CRAFTS AND THEATER SAFETY (ACTS) 181 T H O M P S O N S T ,, # 23, NEW YORK, NY 10012-2586 PHONE 212/777-0062 May 2008 V o l. 22, No. 05 R.T. VANDERBILT LOSES SECOND MESOTHELIOMA SUIT Products Liability Reporter, Leonard M. Ream Law Center, Johnny Franklin v. R.T. Vanderbilt Docket No., 04-CI-00274 & depositions o f Paul Vanderbilt, Thomas Rogers, and other trial materials Johnny Franklin, husband o f Flora Franklin, sued RT Vanderbilt under product liability negligence. In 2005, Flora Franklin died from malignant mesothelioma at age 68 after suffering from this disease for a year and a half. She worked as a tile sorter at Florida Tile in Lawrenceburg, Kentucky. Florida Tile used millions o f pounds o f RT Vanderbilt talc over the years and the dust was everywhere in the plant according to testimony from the Plant Manager and other workers. A Kentucky OSHA inspector also testified that when he measured the dust in the air, he identified tremolite asbestos in the talc. Evidence attrial demonstrated that Johns-Manville, a large asbestos manufacturer, specifically tested RT Vanderbilt's product in the 1970s and determined the talc was asbestos-containing. A n d a 1980 NIOSH (National Institute for Occupational Safety & Health) study also found the talc contained tremolite and anthophyllite asbestos. The Trial Court sanctioned RT Vanderbilt for repeatedly failing to turn over court ordered documents and produce individuals for depositions. Specifically, the court ordered the Chief Financial Officer to be deposed regarding the possibility o f misconduct, but RT Vanderbilt refused to produce this witness for a deposition in direct and blatant violation o f the Trial Court's order. RT Vanderbilt also ignored the Court's order to turn over internal documents regarding its own employees suffering from asbestos-related diseases, including malignant mesothelioma and they failed to comply with the court order to reveal the amount o f money RT Vanderbilt has spent to try to have other laboratories and researchers classify its talc as a non-asbestos containing product. The owner of the talc mines, Hugh Vanderbilt Sr., sent his son, Paul Vanderbilt, to oversee their defense team's jury selection process. In a surprise move, Plaintiff's Attorney, Joe Saiterley, subpoenaed him while he was there. Paul Vanderbilt is Vice President, Secretary, and director o f Environmental Affairs for RT Vanderbilt. Yet at trial, he testified that he had no knowledge o f the number o f his workers who developed asbestos-related diseases nor did he seem to have an interest in environmental safety. Joe Satterley's final question to Paul Vanderbilt and his answers were: Q. Final question: You 'll agree that if it is determined that your product kills people, causes mesothelioma, and product should be bannedfrom sale in the United States, correct? A. I f it causes mesothelioma, yes. Q. It should be banned, right? A. Yes. PROOF POSITIVE. Lawyer Satterley was also able to demonstrate to the jury using posters showing enlarged pictures o f the fibers taken under the microscope by his experts, that the same kinds o f fibers known to be in RT Vanderbilt talc were also present in Mrs. Franklin's lungs. l DRAM ATIC TESTIM ONY. Stunning evidence was presented by Thomas Rogers, a 72 year old former employee o f RT Vanderbilt with a 10th grade education. He had worked 27 years for RT V anderbilt as a miner, a mechanic, and in many other jobs. Rogers was asked about an incident that happened sometime in the late 70s or early 80s after a NIOSH study found that the ore contained asbestos, a fact which could have put them out o f business. The jury heard testimony from Rogers that Hugh Vanderbilt, Sr., stated he would spend millions to fight the classification o f the fibers in the talc as asbestos and if that was not successful, he had a Senator in his hip pocket. In Rogers' own words in deposition: A. Well, they was having quite a spell on whether that [the talc] was going to be called asbestos or not and, o f course, they had their own labs 1 guess and they was testing against NYAS [sic. NIOSH] and he [Hugh Vanderbilt] said that in the end i f all else failed he padded [patted] his backpocket he says, I got a Senator right here. Rogers also said that the researchers from the labs that RT Vanderbilt used to defend their talc were supposed to come to the mines without notifying people in advance and take samples at any locations they thought appropriate. But Rogers says it was management that told the workers where to take the samples and to give them to the researchers. This is consistent with the information I have from the first successful lawsuit (see below), in which researchers for the 1980 NIOSH study and other researchers observed that the asbestos occurs in pockets scattered throughout the ore. By carefully selecting samples, it would be possible to get ones that were asbestos-free. T H E DECISION. The jury awarded $5,659,000 in total damages to Franklin. Those damages included $5,000,000 in pain and suffering, $20,000 in medical expenses incurred, awarded punitive damages and found in clear and convincing evidence offraudulent concealment and gross negligence in the amount o f $450,000. The awards to the Franklin estate were reduced by 30% to reflect the jury's allocation o f fault. They found RT Vanderbilt 70% at fault and a few other defendants (Ford Motors for brake linings, Georgia Pacific for joint compound used in the house, etc.) were found jointly responsible for the other 30%. After the apportioning fault, the court entered judgement against RT Vanderbilt totaling $4,090,000. The date o f the verdict was September 10,2007. RT Vanderbilt moved for a new trial and a Judgement notwithstanding the verdict. The Trial Court, after extensive arguments and hearing on the matter, denied RT Vanderbilt's post-trial motions. T H E FIRST SUCCESSFUL LAW SUIT. The Flora Franklin lawsuit was the second successful suit against RT Vanderbilt. Earlier, on November 16,2006, the estate o f a New Jersey pottery shop operator who had used RT Vanderbilt talc and who died of mesothelioma in 2004, was awarded $3.35 million in compensatory damages by a Superior Court jury in New Brunswick. The jury awarded $ 1.4 million for pain and suffering, $ 1.45 million for loss o f earnings and $500,000 for his widow's loss o f companionship. On December 7, the punitive damage phase o f the trial ended in a settlement o f an additional confidential sum. (See also ACTS FACTS 12/06) SUMMARY. Many studies of this talc have determined that it contains asbestos, and now two juries have decided it causes mesothelioma. According to Paul Vanderbilt's own testimony, it should be banned. And RT Vanderbilt has announced they will close their mines at the end o f this year. Since mesothelioma has a latency period o f between 20 and 40 years after exposure, we can be sure this is not the last o f these trials against RT V a n d e r b i l t . _______________________ 2