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Tuesday, June 05, 2007

WHEELER TRIGG KENNEDY WINS FIRST ASBESTOS CASE TRIED IN BOSTON IN 10 YEARS

In the first asbestos case to go to verdict in Boston in 10 years – Balthazar v. Foster Wheeler, et al., a case closely watched by defense lawyers and equipment manufacturers whose products were often insulated with asbestos by third-parties – Wheeler Trigg Kennedy lawyers John Fitzpatrick, Erik Nadolink, and Kara Rohe won a defense verdict for Foster Wheeler Energy Corp. In 1949, a Foster Wheeler predecessor four large boilers for a Navy destroyer. Plaintiff was assigned to that ship for two years in the early 1960s. The Navy's contract required that the boiler be insulated internally with refractory materials containing asbestos. As required by the contract, Foster Wheeler supplied, but did not manufacture, the refractory materials. The Navy also provided additional external insulation containing asbestos. Other defendants provided various parts used in the boiler room, all of which contained and/or were insulated with asbestos.

Plaintiff was diagnosed with mesothelioma, a form of cancer almost always associated with exposure to asbestos. Plaintiff alleged that defendants breached their warranty and were negligent in failing to warn him of the dangers of asbestos.

Of 47 defendants originally sued, and twelve defendants remaining in the case when trial began, all but four reached a settlement with the plaintiff within the first two weeks of the five-week trial. Two of the remaining defendants argued that plaintiff’s injury was caused by Foster Wheeler insulation. Plaintiffs’ demand on the eve of trial was in the mid-seven figures.

WTK lawyers argued that Foster Wheeler had no duty to warn the Navy that asbestos could be harmful and was not responsible for asbestos-containing materials – required by the Navy – that it did not manufacture. With ships containing 40 tons of asbestos insulation each, the Navy had extensively studied the potential dangers of asbestos by 1949, and even earlier. Also, the Navy as part of its procurement contracts required that Foster Wheeler supply with its boilers very specific materials – including some that contained asbestos. Further complicating the allegations was the fact that in between 1949 when the original boiler and asbestos-containing insulation was installed and 1961 when the plaintiff joined the Navy and was assigned to the ship at issue, the boilers had undergone extensive overhauls during which substantially all the original furnace refractory materials were replaced by a Navy shipyard.

The jury instructions in this case were significant. One jury instruction – the sophisticated user defense – stated that the defendant could not be held liable for a failure to warn of asbestos hazards already known to the Navy. Another jury instruction stated that the defendant could not be held responsible for injuries caused by asbestos when the defendant did not supply or manufacture the asbestos at issue, and did not require that asbestos-containing insulation be used on or in its equipment.

On June 1, 2007, the jury found for the defendants on all counts.
 

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