Unique Suit Targets Appliance Firms Family Claims Asbestos Killed Local Repairman. San Clemente, CA

March 15, 2001

By Gina Keating
Daily Journal Staff Writer

LOS ANGELES - In cozy, close-knit San Clemente, John Doe was known as "Mr. Fix-It." As long as his appliance repair shop on Del Mar Avenue - stayed open for business, retirees in the seaside town never had to junk their ancient toasters, crockpots and irons. But the combination of his' skill and his clients' frugality proved deadly when the repairman developed abdominal cancer in May 1997, after 34 years of alleged exposure to asbestos. He underwent surgery and chemotherapy but died Sept. 15, 1999, at 66, his 6-foot frame wasted to 114 pounds. "It's a very rare cancer," said attorney Diane Abraham of Brayton Purcell in Dana Point, who represents the the family. "We know that, when you've got it, you got it from asbestos." In a unique personal-injury, wrongful-death lawsuit, his wife and two adult daughters have sued more than 100 appliance manufacturers and component-part makers, alleging they should have alerted him to the dangers of working with the asbestos-laden products. What makes the case so unusual, and potentially frightening to the American consumer, Abraham said, is how he was exposed to asbestos.

Before he filed his 1997 personal-injury suit, asbestos litigation commonly centered on workers who inhaled the deadly fibers while making or installing asbestos-containing products such as insulation, Abraham said. "To have somebody who did nothing but repair appliances, that's when we start realizing all these appliances had asbestos in them," she said. "Things that you and I grew up with contained asbestos components." Attorneys for defendant Hamilton Beach/Proctor Silex said the company denies ever using asbestos in its products. A trial judge dismissed the company from the lawsuit last year, but the plaintiffs' appeal is pending. "The company denies all liability and continues to do so and has a judgment in its favor," Roy Weatherup of Haight Brown & Bonesteel of Santa Monica said. U.S. Consumer Protection and Safety Commission officials said most, if not all, American manufacturers stopped using asbestos in the mid-1980s. The suit contends the manufacturers remain liable for products in circulation.

Manufacturers such as Hamilton Beach, which certified his shop as an authorized service center, easily could have informed the repairman of potential dangers, Abraham argued. "Hamilton Beach knew that many of their appliances contained asbestos," she said. "Don't you think they owed him a duty to tell him to take precautions like using a respirator?" Hamilton Beach attorney Caroline Chan said her client foresees no wave of asbestos litigation, even if the family prevails in court. "This is a very unique case, and the claims are very unique, but it doesn't mean the claims have any merit," Chan said. Small-appliance manufacturers haven't worried about asbestos liability in decades, according to New York attorney Leonard Samuels, who represents the Association of Home Appliance Manufacturers. "The issue hasn't come up because of the fact that they don't use it, to my knowledge," Samuels said. "It has not been a legal issue for many, many years." The complaint also takes aim at Underwriters Laboratory, the nonprofit product-safety testing organization that has certified the safety of household appliances for more than a century.

The organization made the lengthy list of the defendants for allegedly certifying dangerous consumer goods. "When you see the UL symbol, it creates a certain level of trust in the American consumer," Abraham said. he filed his personal-injury case in Los Angeles Superior Court while he was alive. ____ v. Asbestos Corp., BC178554 (L.A. Super. Ct., filed Sept. 29, 1997). That suit merged in 1999 with his family's wrongful-death action, now before an Orange County judge. ____ v. Asbestos Corp. Ltd., 817211 (Orange County Super. Ct., filed Nov. 18, 1999). Several companies settled their claims with the family after losing summary judgment motions, though the list of litigants remains prodigious, Abraham said, refusing to disclose the cumulative size of the settlements. Whether companies should have to pay for appliances that were considered safe when they rolled off the assembly line is an issue that some defendants are pondering. In a successful summary judgment motion, attorneys for the Hoover Company explored that question and will revisit it in appellate arguments next month, according to Hoover attorney Pamela Dunn of Robie & Matthai in Los Angeles. "There has to be a time in which every wrong, if there is a wrong, the right to sue expires," Dunn said.