On January 26, Washington State appeals court ruled in favor of a secondary asbestos exposure victim’s rights to $3.6 million she was awarded in a lower court’s verdict.
Barbara Brandes filed the mesothelioma lawsuit in King’s County Superior Court alleging asbestos pipe insulation companies were liable for her asbestos exposure.
Mrs. Brandes alleged that she was exposed to asbestos when she laundered her husband’s clothing which contained asbestos fibers. Her husband, Raymond Brandeis, worked at the ARCO Cherry Point Refinery located in Ferndale, Washington, maintaining and removing asbestos pipe insulation within the refinery. The materials were allegedly sold and installed by Brand Insulation Inc. (Brand).
Trial Allegations Against Defendant, Insulated Pipes Supplier, and Installer
In the trial the plaintiff, Mrs. Brandeis alleged that Brand received warnings from the manufacturer of the pipe insulation but did not pass along the warnings to contractors or employees of ARCO.
She further alleged that the defendant owed her and her husband a duty of care to warn them of the presence of the asbestos on the refinery’s pipes.
Not only did they have a duty to warn the employees who worked with the asbestos-insulated pipes. They also had a duty to warn family members who may become exposed to asbestos through skin contact or inhalation after it was taken into the home on the employee’s skin, clothing, or equipment.
Asbestos is a known carcinogen which is responsible for the development of diseases such as mesothelioma, lung cancer, or asbestosis. These diseases have long latency periods, and can develop anywhere from 10-40 years after asbestos exposure.
Asbestos fibers can be brought into the home from the exposure site exposing innocent family members who come into contact with the asbestos.
Mr. Brandeis developed asbestosis and passed away from complications related to his disease. Mrs. Brandeis passed away after developing mesothelioma from her asbestos exposure on the eve of closing arguments in her trial.
The jury awarded the estate of Mrs. Brandeis $3.6 million on April 21, 2015.
State Court Judge Reduces Amount of Jury Award.
After the verdict, the court reduced the verdict by $1 million and allocated 20% to the future wrongful death action brought by the estate. The court also found the jury was influenced when they learned Ms. Brandeis had passed away during the trial before closing arguments had begun.
The defendants argued that the verdict itself was improper due to the state’s statute of repose which they alleged barred the action from being brought to trial. Mrs. Brandeis’s estate appealed the lower court ruling, arguing that the judge’s reduction of the verdict was improper.
Washington State Appeals Court Rejects Defendant’s Argument that Plaintiff Filed Her Lawsuit Too Late
The Washington State Appeals Court disputed the applicability of the state’s statute of repose in the case. The court found that material facts existed whether or not the insulation was an integral part of the refinery and the lower court properly denied the defendant’s motion for summary judgment based on the state’s statute of repose. Once a material fact exists they allowed the jury to decide if the law applies.
The court found the defendants offered no testimony or evidence to back up their arguments that the state’s statute of repose time limit had been missed. Additionally, the court found that the defendants also failed to properly file a motion for a directed verdict at the end of the trial.
Appeals Court Finds Defendant Owed A Duty of Care to the Employee and Family Members in The Home In Take Home Asbestos Exposure Cases
The Appeals Court found that Brand Insulation Inc. was responsible for owing Mrs. Brandeis a duty of care since the asbestos pipe insulation used at Cherry Point presented not only a danger and risk of asbestos exposure to workers but also extended liability to family members in the home.
The court found the asbestos created a dust while being maintained and removed and this created a risk of asbestos exposure through inhalation of the toxic asbestos dust fibers.
Brand Insulation Inc.’s failure to warn of the dangers created by the presence of asbestos on its products created an unreasonable risk of harm to workers and it was foreseeable that asbestos fibers could be brought home resulting in harm to family members.
The court concluded that Mrs. Brandeis presented sufficient expert testimony to show that Brand Insulation created a risk of asbestos exposure and should foresee the harm caused to Mrs. Brandeis for her mesothelioma.
Appeals Court Rejects Lower Court’s Reduction of Jury Award Due to Jury Learning of Plaintiff’s Death on Eve of Closing Arguments
As to the lower court’s reduction of the jury’s award, the Appeals court found that Brand Insulations Inc.’s failure to object timely to the jury learning that Mrs. Brandeis had passed away, waived any challenge they have to this issue.
The court found that Brand Insulation saw the jury’s reaction and could have timely objected and requested a new trial but they had not made any motions or objections in a timely manner.
The appeals court noted that nothing supports a conclusion that the jury improperly awarded post-death damages by being inflamed by passion or prejudice after learning that Mrs. Brandeis had passed away.
The jury had heard enough about the pain and suffering Mrs. Brandeis had gone through and already knew she would pass away from her mesothelioma.
The Court of Appeals reinstated the initial verdict of $3.6 million in favor of Mrs. Brandeis overturning the lower court judge’s decision to reduce the verdict.
