A complaint alleging that Alcoa products caused the mesothelioma of a Brazilian factory worker has been removed from the Allegheny County Court of Common Pleas for further proceedings in a Brazilian court.
On Oct. 29, Judge R. Stanton Wettick ruled in Untura v. Alcoa that the public and private factors regarding expeditiousness and expense all favored Alcoa’s motion to have the court venue in Brazil. Wettick ordered Alcoa to submit jurisdiction to the Brazilian courts, and said the company cannot raise any statute-of-limitation defenses against any case the plaintiffs file within the next year.
According to Wettick, the underlying case involves the estate of Dante Untura Filho, who worked at a factory in Pocos de Caldas, Brazil, from 1970 until 1987. The factory was owned by Alcoa Aluminio, of which Alcoa is a 60 percent owner. Juliano Cesar Bertozzi Untura, the administrator of Filho’s estate, claimed that Filho worked in maintenance and was exposed to asbestos directly and indirectly on a daily basis. He died in 2010 of mesothelioma.
The plaintiffs filed their case in Allegheny County, and contended that the venue was appropriate because Alcoa controlled Aluminio from its headquarters in Pittsburgh. The plaintiffs further argued that Alcoa not only controlled the factory’s use of asbestos and its industrial hygiene practices from its Allegheny County headquarters, but also purchased the asbestos-containing products in the United States before exporting them to the Brazilian factory. Records and witnesses relating to these actions could be most easily located at the Pittsburgh headquarters, the plaintiffs argued.
According to Wettick, the plaintiffs also claimed that the decisions in Hunter v. Shire US and Wright v. Aventis Pasteur, cases presenting fact patterns identical to Untura, had to be followed.
In Hunter, the plaintiff was prescribed medication in Georgia, took medication in Georgia and then suffered a heart attack in Georgia. The plaintiff then filed suit in Pennsylvania, where the drug manufacturer was headquartered. The manufacturer appealed, claiming that the litigation had no connection to Pennsylvania. The Superior Court, however, kept the suit in Pennsylvania because it dealt with the development, testing and marketing of the drug, all of which occurred in Pennsylvania, according to Wettick.
Alcoa argued that it only assisted Aluminio in improving its occupational health operations, and contended that Aluminio had its own industrial hygiene program and ran the factory independently of Alcoa.
The Untura case was distinguishable from Hunter and Wright, Wettick reasoned, since the critical issues in the latter two cases involved warning labels and development that took place in Pennsylvania. The action in Untura, by contrast, involved exposure that allegedly occurred in Brazil.
Wettick cited the case Auxer v. Alcoa, which involved 244 plaintiffs, mostly Australian citizens, as similar to Untura. The plaintiffs in Auxer claimed to have been exposed to dangerous emissions from a factory owned and operated by an Alcoa subsidiary. A federal court focused on the ease of access to the proof, and found for Alcoa. The appeals court found that the case had been appropriately weighed.
According to Wettick, causation arguments in the case will focus on the decedent’s daily activities, his interaction with the asbestos-containing products, and what safety provisions Alcoa provided. He opined that because of the fact-specific issues in the case, testimony from other employees at the same workplace will be important.
Noting Alcoa’s contentions, Wettick said the case will also focus on how Aluminio ran its business. In this regard, the majority of the evidence could again be found in Brazil, Wettick said.
“Furthermore, in all likelihood, nearly all the witnesses will speak Portuguese as a first language, and the records, described above, in Aluminio’s possession, custody and control will probably be in Portuguese,” he said. “Since credibility will be an issue, live testimony is desirable.”
He also noted that, of seven listed U.S.-based witnesses, one now lives in Brazil, two are deceased and none are current Alcoa employees. He argued that it would not prejudice the case to have the U.S. witnesses deposed in Pennsylvania, with their testimony shown via videotape.
Wettick additionally noted that all the medical evidence will be located in Brazil and that Alcoa already provided some evidence and testimony in relation to its operations in Pittsburgh.
Andrew J. DuPont of Locks Law Firm, who represented the plaintiff, did not respond to calls for comment. Michael J.R. Schalk and Thomas E. Birsic of K&L Gates in Pittsburgh represented Alcoa.
(Copies of the 10-page opinion in Untura v. Alcoa, PICS No. 13-3093, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •