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California Jury Returns Defense Verdict in Closely Watched Asbestos Trial

May 9, 2009

(Oakland, California).  An Alameda County jury just delivered a defense verdict in favor of an engineer/general contractor in a closely watched asbestos trial.  This two month trial is significant in that a jury exonerated the sole remaining defendant from any liability, despite evidence that the plaintiff, a prominent dentist, developed mesothelioma following exposure to asbestos fibers. The same jury rejected a claim for loss of consortium brought by the plaintiff’s wife.

Trial lawyers Kevin Smith and Greg Amundson, retained just two weeks before the start of the case, stated that this trial is important from a national perspective.  “Many think that when a plaintiff walks into a courtroom with a confirmed diagnosis of mesothelioma, a short life expectancy, imminent painful death, and large medical bills, the result is automatic liability, regardless of the evidence against a particular defendant” said Greg Amundson of Wood, Smith, Henning & Berman.  “It is this perception that has fueled large settlements and has led to crippling financial losses for many companies and their insurers.” 

Alameda County is viewed by many as a hotbed of asbestos cases in California, with many filings made on a weekly basis for asbestos related claims.  “This result should give parties cause to consider whether they are overpaying in settlement of mesothelioma cases, and possibly consider taking more of these cases to trial,” said trial attorney Kevin Smith, a founding partner of Wood, Smith, Henning & Berman.  “We are pleased our case joins the ranks of the other defense verdicts, and hopefully serves as a reminder that this type of occupational exposure litigation can be successfully defended at trial.”

In this case, the original complaint named 21 separate defendants.  Prior to trial, the majority of defendants settled.  During jury selection five additional defendants reached settlements, leaving Smith’s and Amundson’s client as the sole remaining defendant by the time opening statements were presented. The amounts of the other parties’ settlements reached were kept confidential. Plaintiff sought to hold this last defendant, an engineer/general contractor, liable on what is commonly referred to as the “single fiber theory.”  This theory claims that there was at least one single fiber of asbestos which the plaintiff was exposed to as a result of alleged negligence during the construction of a power plant in El Centro, California in 1957. Smith and Amundson were successful in moving the court to dismiss the plaintiff’s product liability claims.  The case proceeded on a successive exposure theory, which contended that plaintiff’s diagnosis of mesothelioma 51 years after exposure to asbestos at the defendant’s construction site could form the basis for liability.

Prior to trial, the settlement demand was $4.95 million, and the engineer/general contractor made a statutory offer of $200,000.  Plaintiff claimed special damages of $1.7 million, and sought non-economic damages in multiples of the economic damages.   As a result of the the statutory offer to compromise, Amundson/Smith’s client can now recover all costs incurred in the defense of this matter.

Plaintiffs were represented by Gordon Greenwood and Andrea Huston of Kazan, McClain, Lyons, Greenwood & Harley of Oakland, California. The engineer/general contractor was represented by Kevin Smith and Greg Amundson of Wood, Smith, Henning & Berman, which has offices throughout California, Nevada, Arizona and Colorado. 



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