It was wrong that three hard working, blue collar New York State construction workers should die of mesothelioma, and a New York Supreme Court jury said so by awarding $12.5 million dollars to their families last Tuesday.
The jury decided that Harry Brown (a career Local 12 asbestos insulator), Patrick McCloskey (a career Local 638 steamfitter), and Carl Terry (a career Local 1 electrician) would not have developed mesothelioma but for the negligence of the defendant companies.
“Mesothelioma is the signature cancer caused by exposure to asbestos and it is 100 percent fatal,” said Danny Kraft Jr., a member of the Weitz & Luxenberg trial team. “This incurable form of cancer is, however, 100 percent preventable. If you are not exposed to asbestos, you don’t develop mesothelioma. It’s that simple.”
Mr. Brown, Mr. McCloskey and Mr. Terry developed and ultimately died from mesothelioma because they had been exposed to asbestos on the job site.
“While they knew they were working with products, equipment and materials that contained asbestos, no one ever told them that this industrial toxin would lead to cancer 30, 40, 50 years later,” said Mr. Kraft. “Asbestos exposure is a deadly serious matter. There is no safe level of exposure to asbestos. Coming into contact with this deadly toxin even once may be enough to cause mesothelioma,” he explained.
Added Weitz & Luxenberg trial teammate Phan Alvarado, “Our clients weren’t given a fighting chance. Had they known that asbestos would eventually lead to cancer, they would have protected themselves. They’d be enjoying their retirements, their families, their grandkids.”
Michael Fanelli, another key member of our trial team, said that over a span of four months evidence was introduced showing that the defendants “made, used and installed asbestos, that our clients were exposed to asbestos as a result of defendants’ negligence and recklessness, and that the carelessness and irresponsibility of the defendants caused Brown, McCloskey and Terry’s mesothelioma. Not wanting to be held liable, the defendants fought bitterly.”
However, Mr. Kraft, Ms. Alvarado and Mr. Fanelli were at all times one or more steps ahead of the defendants.
Asbestos is a mineral that until the latter part of the 20th century was prevalent in materials used by many different trades in the construction industry.
“Unfortunately, tiny particles of asbestos are often released into the air when someone works with asbestos-containing products and materials,” said Ms. Alvarado. “Once inhaled, these particles become trapped in the lungs and decades later lead to scarring diseases, lung cancer and mesothelioma,” she continued.
That is precisely what happened to Mr. McCloskey, Mr. Brown and Mr. Terry.
“Mr. McCloskey came from a family of Local 638 steamfitters,” said Mr. Kraft. “In fact, he was taught the trade by his father. He worked at dozens of locations throughout New York State where he was exposed to asbestos almost on a daily basis between approximately 1962 and the late 1970s.
“At trial, evidence was introduced about how he was exposed to asbestos during the construction of the World Trade Center, North Tower, between August 1969 and May-June 1970.
“The jury found Mr. McCloskey was exposed to asbestos spray applied by Mario & Dibono, that Mario & Dibono acted negligently when installing almost 2-million pounds of this asbestos insulation at the World Trade Center, and that Mario & Dibono’s negligence was a substantial factor in causing Mr. McCloskey’s mesothelioma.
“The jury also found that Mario & Dibono acted with reckless disregard for the safety of those at the World Trade Center site.”
Mr. Kraft added, “Mr. Brown, a career Local 12 Insulator, worked at various locations throughout New York State where he was exposed to asbestos almost on a daily basis between approximately 1958 and 1972. At trial, evidence was introduced about how he was exposed to asbestos during the construction of Con Edison’s Ravenswood Powerhouse in the mid-1960s.
“The jury found that Con Edison acted negligently in failing to make the Ravenswood Powerhouse job site reasonably safe and that Con Edison’s negligence was a substantial factor in causing Mr. Brown’s mesothelioma.”
According to Mr. Fanelli, “Mr. Terry was the true American success story. He was born and raised in Fairmont, West Virginia. His mother died when he was three and his father worked the night shift in the coal mines.
“As a young adult Mr. Terry came to New York City in search of a better life. After his discharge from the military he became an electrician. He worked as an electrician from 1973 until 2012.
“Mr. Terry lived by the motto ‘work and church.’ What is so tragic about the Terry case is that before Mr. Terry ever touched an electrical product manufactured by Cutler Hammer, this company had the actual knowledge that asbestos was dangerous. For more than a decade Cutler-Hammer continued to manufacture and sell asbestos-containing electrical equipment.”
Mr. Brown, Mr. McCloskey and Mr. Terry did not file a joint lawsuit against the defendants. Rather, their three separate cases — docketed as New York Supreme Court Index #190441-12, #190415-12, and #190403-12 — were combined in court for the sake of trial efficiency and convenience.
Said Mr. Kraft, “What we do is haul companies into court who made asbestos containing products, used asbestos in some way or specified its use in some way. We then let the jury decide whether and to what extent these companies were negligent or even reckless.
“In this case, a number of companies at the start of the trial said. ‘We don’t think we are at fault, prove it.’ Weitz and Luxenberg, did just that.
“What the jury in this particular case decided was that several companies claiming they’d done nothing wrong had in fact breached a duty owed to our clients. What was the cost of defendants’ negligence? Our clients paid with their lives.”
The estate of Mr. McCloskey was awarded the largest share of the damages — $6 million. The estate of Mr. Brown received $3.5 million and the estate of Mr. Terry $3 million.