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An Ohio jury needed less than four hours of deliberation before stinging two defendants for $2 million in punitive damages in what was for plaintiff’s counsel his first-ever asbestos trial. The plaintiffs settled a month later for an undisclosed amount. Dean E. Swartz, a partner in the Washington, D.C., firm of Swartz & Reed, is an experienced medical malpractice attorney who had never litigated an asbestos case before accepting Lois Missik as a client five years ago. He attributed his success in equal parts to help from the close-knit fraternity of plaintiff’s lawyers specializing in asbestos litigation and contradictions in the defense case. “This has been a ton of work for five years,” said Swartz, who accepted the case on a referral from a colleague who is a friend of the Missik family. “I’d tell any plaintiff attorney considering taking a case like this that there is plenty of support,” Swartz said. “Asbestos lawyers as a group are more open about sharing information than any group of lawyers I have ever worked with. I approached the biggest names in asbestos litigation and I found all of them very helpful and generous with their time.” THE COMPANY LOGO Lois Missik, the plaintiff, is the widow of Michael Missik Jr., who worked from 1962 to 1984 at General American Transportation, a manufacturer of railroad tank cars in Warren, Ohio. Mr. Missik died of malignant pleuralmesothelioma, an incurable cancer uniquely associated with inhaling asbestos, on May 17, 1995. The verdict, awarded before Ohio Judge Mitchell F. Shaker on March 16, was $1.5 million in compensatory damages and $2 million in punitive damages, plus attorney fees that Swartz calculated at $1.5 million. The plaintiff additionally sought pre-trial interest in excess of $800,000. The parties have since settled for an undisclosed amount. “Basically, they lied and they got caught and I think that is why the jury awarded punitive damages,” asserted Swartz. Two defense attorneys contacted for reaction declined comment. Mark S. Hura of the Law Offices of Mark Hura in Cleveland referred calls to Daniel O’Connell of Daniel J. O’Connell & Associates of Elgin, Ill., national counsel for John Crane Inc. O’Connell was in trial and declined to return calls. Prior to trial, three defendants — Garlock Inc., M.V.G. Inc. and GATX, the successor firm to General American Transportation — settled for undisclosed amounts. The plaintiff offered to settle with John Crane and The Gage Co. for $1.75 million collectively and $750,000 from Gage separately, but the offer was rejected, Swartz said. “It didn’t surprise me,” he said. “I think they thought they were going to win because they usually do. Cases like ours where we win get noticed but nobody notices all the cases the defense wins.” The key problem for the plaintiff was identifying specific products that caused the exposure, Swartz said. He overcame that with testimony from Mr. Missik’s co-workers, who testified that the John Crane logo was on asbestos sheets they cut with band saws. Swartz said Gage has claimed in sworn interrogatories before him and in other cases that it sold no products containing asbestos prior to 1969, a claim he rebutted with the company’s own catalogs dating to 1947. “The thing that was astounding is that Gage first said they sold no asbestos products before 1969, then they tried to keep us from getting their old catalogs by using an outside consultant to maintain an archive,” he said. “After we got their old catalogs, they said they only sold maintenance quantities,” he said. “Then we got an invoice that showed they’d sold 15,000 pounds of asbestos paper in a single transaction and they said we couldn’t prove the order had been delivered,” he said. As a rule, the defense in asbestos cases is generally successful in avoiding trial through settlement and, more often than not, winning if trial is not avoided, Swartz said. He said that this case is the first asbestos wrongful death case to come to trial in heavily industrialized Trumbull County, Ohio. “The big Cleveland plaintiff’s firms have been trolling this area for clients for quite a while, running ads in the newspapers, which created a problem for me,” Swartz said. “The defense kept referring to attorneys who advertise for clients, and I had to make the point that I did not advertise.” The case is Lois J. Missik v. John Crane Inc. and The Gage Co., No. 99-CV-1105, (Ct. C.P., Trumbull Co., Ohio).

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