In the first asbestos-related jury verdict in the state in several years, a national trade association has been ordered to pay $2.4 million to the estate of a man who worked as a tile setter for parts of four decades and later died from asbestos exposure.
Hannibal “Scott” Saldibar, of New Haven, was diagnosed in February 2009 with mesothelioma, a rare form of cancer caused by exposure to asbestos. He died just 11 months after his diagnosis.
“It’s such an aggressive form of cancer [attorneys] don’t have a lot of time to get up to speed because clients pass away so soon,” said Brian Kenney, one of Saldibar’s lawyers. “We had approximately six days of depositions and then his health got to the point we were unable to complete it.”
Kenney, of the firm Early, Lucarelli, Sweeney & Meisenkothen’s New Haven office, said this case was unique for a couple reasons. First, it was the first jury verdict in a Connecticut asbestos case since 2009, as most such cases settle. Secondly, the defendant was a trade association, rather than the company that made or used the asbestos-laced product.
“Most of the companies that are involved in [asbestos litigation] know what the implications are, know what the [financial] risk is and have come to accept it after they’ve had a number of trials around the country,” said Matthew Shafner, of Suisman Shapiro in New London, whose practice handles many asbestos cases but was not involved in the Saldibar case.
“[The defendants] can’t win these anymore so they settle them more and more,” continued Shafner. “Occasionally you get a company that hasn’t had experience in this and you end up going to trial. The company has trouble accepting the reality that their asbestos was a major factor in causing a person’s cancer or death.”
According to Kenney, who represented Saldibar along with Chris Meisenkothen, who works for the same firm, Saldibar breathed in the asbestos dust for years as a self-employed tile setter. The asbestos was in a mortar used to make the tiles adhere to other surfaces.
Kenney said that the Tile Council of North America designed the mortar product prior to its sale, had control over the manufacturer of the product and received royalties from all of the product’s sales. “They also had a Tile Council hallmark or seal that was placed on bags of dry set mortar,” Kenney noted.
Because of its resistance to the likes of fire and chemical damage, and its affordability, asbestos was commonly used by builders and manufacturers during the 1940s through 1970s, when Saldibar was exposed to the fibers.
Kenney said his client was 83 years old when he died and that he was healthy and active until his cancer diagnosis the year before. Saldibar did multiple rounds of chemotherapy but it was unable to stop the growth of his tumor. “The tumor as it grows develops on the outer linings of the lungs,” explained Kenney. “It presses into the chest cavity and your chest has an awful lot of nerves in that area.”
The tumor, continued Kenney, presses into those nerves “and causes a lot of pain and a lot of fluid to develop in the lungs. It forces a person to go on oxygen. The evidence in this case showed he suffered a pretty bad death and [Saldibar] was on multiples medications to control his pain and anxiety.”
Kenney said the latency period for the onset of mesothelioma is very long. “It can be anywhere from 20 to 40 years,” Kenney said.
Lawyers for what is now called the Tile Council of North America, which was known as the Tile Council of America when the product was developed, argued that the trade association should not be found liable, but the actual manufacturers of the mortar should shoulder the blame. “Their main defense was that they weren’t a product seller or manufacturer under the [state's] Product Liability Act,” said Kenney.
But Kenney explained that Connecticut’s product liability law is worded in such a way that even if companies do not technically manufacture something, if they “hold themselves out as a manufacturer,” then the law applies to them just the same. Further, Kenney said the law defines a manufacturer as someone who designs its product prior to its sale to consumers, which he said applies to the defendants in this case.
The Tile Council of North America’s lawyers, Philip J. O’Connor, of Gordon, Muir and Foley in Hartford, and Robert S. Bystrowski, of Morrison Mahoney, also in Hartford, argued that the trade organization had far less control over the design and manufacture of the dry set mortar than the plaintiff claimed.
Kenney said that he and Meisenkothen settled claims against a slew of other manufacturer defendants in this case, the terms of which they declined to disclose, but noted that there were minimal settlement discussions with the Tile Council. And so the lawsuit proceeded to trial.
The plaintiffs’ product liability claim included a failure to warn of the dangers of asbestos, a wrongful death claim and loss of consortium for Saldibar’s wife, Eleanor. The case was part of the special asbestos docket in the Judicial District of Fairfield at Bridgeport before Judge Dale Radcliffe. The trial lasted three weeks.
The plaintiffs presented three expert witnesses; a pulmonary pathologist who reviewed Saldibar’s medical records, including a biopsy of his lung and linked the mesothelioma to the product Saldibar used as a tile setter; a teaching expert, who explained to the jury how asbestos causes mesothelioma; and an expert who discussed what companies should have known or did know regarding the dangers of asbestos during that era. Also introduced into evidence by the plaintiffs were portions of the deposition Saldibar gave prior to his death.
The defendants presented no expert witnesses. The Tile Council of North America’s executive director testified for the defense.
After three hours of deliberations in late May, the jury came back with a plaintiff’s verdict and awarded roughly $1.6 million, $1.5 million of which was for non-economic damages. An additional $100,000 was awarded for loss of consortium. Also Radcliffe awarded an additional $800,000 in punitive damages after the jury ruled that the Tile Council of North America acted with “reckless disregard.” This totaled the plaintiffs’ award at $2.4 million.
O’Connor, one of the two defense lawyers, said he has already filed a motion to set aside the verdict or, at the very least, reduce the jury’s award. “We’re hopeful that’ll be granted,” said O’Connor, adding that it was too early to say whether his client will want to appeal if their motions are denied.
O’Connor said he and his co-counsel were instructed by their client not to discuss the case any further.
The last Connecticut asbestos case to result in a jury verdict came in 2009 when Meisenkothen netted $2.6 million for a woman whose husband, David Fortier, of Florida, died from mesothelioma in 2008 just two days before his 60th birthday. At the time, it was the first asbestos case in Connecticut to result in a jury verdict in more than two decades.
From 1969 to 1972 Fortier, while in the Navy, worked with equipment that was insulated with asbestos. The defendant, the Allis-Chalmers Manufacturing Co. of Wisconsin, supplied pumps with asbestos in their gaskets for the Groton-based aircraft carrier on which the plaintiff worked.
Shafner, the New London attorney, explained that with some mesothelioma diagnosed clients, there is initial uncertainty where they were exposed to asbestos. “What the lawyer has to do is figure out every place the person worked and lived,” said Shafner.
Some jobs, he said, like a welder, provide an obvious link to the hazardous substance. Other times clients are unsure about whether they might have been exposed to sheet rock, brake linings, or even an ironing board cover made with asbestos.
“Mesothelioma is a horrible death,” said Shafner. “By the time they diagnose it it’s too late to do anything that’s effective except to try to make the person comfortable.”•