Miami attorneys won an approximately $2.8 million asbestos verdict after securing a retrial based on a Florida Supreme Court decision that directed juries to use a more consumer-friendly test in strict products liability cases.
The Nov. 28 verdict came seven years after the Ferraro Law Firm filed Font v. Union Carbide. Plaintiff Paula Font initially lost at trial after the jury was instructed to evaluate the case using the risk utility test, which places the burden on plaintiffs to provide a reasonable alternative design for the product.
Around the same time, the Ferraro Law Firm was also pursuing an appeal in another asbestos case, Aubin v. Union Carbide, in which the Third District Court of Appeal OK’d the risk utility test.
In 2015, the Florida Supreme Court handed down its Aubin decision finding strict liability cases should use the consumer expectations test to determine whether a product was unreasonably dangerous in design. That test asks a jury whether a product performed as safely as an ordinary consumer would expect.
The decision sent Font back to the trial court — this time for a win.
Font’s amended complaint included only strict liability claims, one for design defect and one for failure to warn. She alleged her father, Luis Torres, died of mesothelioma in 2008 because he was exposed to asbestos provided by Union Carbide for use in Georgia-Pacific joint compound. Union Carbide was the sole defendant at trial.
Plaintiffs attorneys Juan Bauta and Marc Kunen argued the exposure happened between October 1976 and May 1977, when the product went asbestos-free.
That timeframe was when ”the oldest son, David Torres, turns 18 and becomes a drywall finisher,” Bauta said. “His dad would help him out on the weekends and sometimes at night during the week, just helping him get his business started.”
Luis Torres had worked in factories for a commercial bakery and a window manufacturer, but there was no evidence he was exposed to asbestos other than when he worked with his son, Bauta said.
Defense attorneys Gregory Boulos and Ryan Cobbs of Carlton Fields argued the facts “clearly demonstrated that the decedent was not exposed to Union Carbide’s asbestos, that decedent’s disease was caused by asbestos manufactured by other entities and that Union Carbide complied with all applicable government regulations and industry standards,” according to a Union Carbide statement.
Union Carbide also presented the “learned intermediary” defense, arguing Union Carbide acted reasonably in relying on Georgia-Pacific to warn end users about the health risks associated with asbestos.
Defense counsel also argued David Torres deserved some blame as his father’s “employer.” Bauta said the younger Torres didn’t know the product had mesothelioma-causing asbestos in it.
“At the end of the day, maybe he should have been more observant of this tiny little warning that Georgia-Pacific stuck on the side of the can,” Bauta said. “But essentially I argued when you’re looking at the fault of parties, of everybody here, David Torres, he’s right out of high school trying to make a living. The placement of the warning would have required him to sit there and read every little line on the can.”
The jury heard testimony from Torres’ wife of more than 50 years. The pair met in Cuba and had six kids before the family fled to the United States in the 1960s.
“It’s still very vivid for her,” Bauta said. “It’s a terrible death. Mesothelioma is a horrific way to die. You basically suffocate to death.”
The parties had an unusual challenge: Thanksgiving and judicial scheduling created an 11-day break between the bulk of the trial and closing arguments. Miami-Dade Judge Jose Rodriguez allowed the litigants the better part of a day for closings to refresh the jury’s memory.
The jury awarded about $6.9 million in damages to the family, assigning 40 percent of the liability to Union Carbide, or about $2.8 million.
The Fabre defendant breakdown was as follows: Georgia-Pacific was found 35 percent liable for the damages, David Torres 15 percent, and Johns Mansville 10 percent liable as a second asbestos supplier. Another supplier, Philip Carey Corp., was assigned none of the fault because it did not provide asbestos for the relevant product in the correct time period, Bauta said.
Another appeal is on the horizon, the defense said.
“The jury’s findings against Union Carbide are wholly inconsistent with the evidence presented,” the company’s statement said. ”Union Carbide has strong grounds for appeal and will continue to vigorously defend the company through the remainder of the litigation process, and against all asbestos claims brought against the company.”
Case: Paula Font v. Union Carbide Corp. Case No.: 2010-041578-CA-01 Description: Asbestos Filing date: July 30, 2010 Verdict date: Nov. 28, 2017 Judge: Miami-Dade Circuit Judge Jose Rodriguez Plaintiffs attorneys: Juan Bauta and Marc Kunen, The Ferraro Law Firm, Miami Defense attorneys: Gregory Boulos, Miami, Ryan Cobbs, West Palm Beach, Carlton Fields Verdict amount: $2.8 million