Asbestos firm wins first of 'mini-trials' Porter Hayden absolved in fatal illness

June 09, 1993|By Timothy J. Mullaney | Timothy J. Mullaney,Staff Writer

The jury in the first of up to 850 "mini-trials" of suits by ex-Bethlehem Steel workers who claim exposure to asbestos on the job found for the defense in a single case yesterday, reserving judgment on three other cases for more deliberation today.

The jury of two men and four women decided that one worker -- former laborer Joseph Hinton, who worked at Beth Steel's Sparrows Point mill for 28 years -- did not contract his fatal lung cancer from asbestos sold by Porter Hayden Co. of Baltimore and did not have asbestosis, a scarring of the lung that cuts a victim's ability to breathe.

All four cases went to the jury yesterday after a lawyer for Porter Hayden said the workers hadn't met their burden of proving their cancers came from asbestos exposure, and a lawyer for the four workers urged jurors to "use your common sense" and find that asbestos caused the cancers.

The trial is the second stage of a procedure that Baltimore Circuit Judge Marshall A. Levin ordered in 1990 to try 8,555 asbestos personal injury cases, most of them involving former workers at Bethlehem Steel's Sparrows Point mill. Last year, in a "mega-trial" covering all 8,555 workers, a jury found that seven makers of asbestos products were negligent when they made or sold asbestos to Bethlehem Steel and other plants, and that the companies should pay workers' damages, plus punitive damages, for health effects and pain and suffering.

Now, each "mini-trial" is slated to focus on up to 10 workers at a time. Since last year's jury has already established that the companies are liable, the mini-trials are limited to figuring out whether individual workers were really sick, whether their injuries came from asbestos made or sold by the defendant companies, and how much money the workers or their survivors should get.

Two of the four workers -- Albert Kirby and William Eberwein -- died of mesothelioma, a rare cancer that's only known cause is asbestos exposure.

Most of the argument yesterday focused on two other men -- Mr. Hinton and Dillard Howell -- who contracted lung cancer. Of the four, only Mr. Howell is still alive.

The only asbestos company on trial in the mini-trial is Porter Hayden, which was a distributor for Johns Manville Corp. asbestos products. The other defendants have all settled the individual claims of all four workers, including Mr. Hinton.

Ford Davis, a lawyer for Porter Hayden, said the plaintiffs had the burden of proving their diseases came from asbestos and that Porter Hayden's products were a substantial contributing cause of their injuries -- and hadn't met the burden.

"Every exposure [to asbestos] is not a cause," he said. "Every exposure is certainly not a substantial cause."

He said Mr. Howell and Mr. Hinton were both smokers, which could have caused their cancer -- Mr. Howell continued to smoke after heart bypass surgery.

And Mr. Davis contended that both men lacked evidence that they had asbestosis, which asbestos companies claim is a necessary precondition to lung cancer caused by asbestos exposure.

Plaintiff's lawyer Andrew Cantor said the workers should be compensated because "all [asbestos] exposure contributes to the development of the tumor."

"Put it all together: He worked 25 years in visible asbestos dust. He breathed in billions of fibers," plaintiff's lawyer Joe Rice said in a separate summation. "If there had been one doctor that would have said Mr. Howell did not have asbestosis, you would have seen that doctor. . . . They couldn't buy a doctor to say that."

Mr. Rice ridiculed studies claiming asbestos can't cause cancer without first causing asbestosis, citing a different report from the World Health Organization.

Over an objection, he told the jury, "Cigarette companies get articles published to this day saying that smoking doesn't cause lung cancer. . . . I can't help what some journals will publish."

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