Foster-Wheeler Claim Rejected by Appeals Court in Suit by Olympic Gold Medalist
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For over two years Foster-Wheeler has used every trick in the book to dodge liability for the injuries and eventual death of Olympic Gold Medalist Terry McCann, who died from mesothelioma on June 7, 2006. The California Court of Appeals finally put an end to their tricks and ordered the manufacturer of asbestos-insulated boilers to report back to trial in Los Angeles. Terry won his weight class as a wrestler in the 1960 Rome Olympics, and was a dynamic, inspiring leader who headed Toastmasters International before being stricken with mesothelioma. A fixture at the San Clemente morning surf crew, Terry was beloved by his family, admired by his friends, and respected in the community. "Terry knew that our judicial system had problems, but he always had faith in the end that justice would win out," said widow Lucille McCann, who visits Terry's grave site every Sunday. "Terry was never a quitter. When I talk to him this Sunday, I know he'll be pleased to learn that Foster-Wheeler can't wriggle out of this one. He's got one more big match and this case will finally be over." In May 2006, Terry and Lucille, after settling with several companies, were in trial against Foster-Wheeler. Though weakened by his mesothelioma, Terry was determined to go the distance and let the jury decide the facts. The trial judge, however, dismissed Foster-Wheeler based on the application of Oklahoma's statute of repose, which requires all personal injuries based on the defective design of fixtures to land to be brought within ten years of the construction. Terry was exposed to asbestos working in a Tulsa refinery while he was preparing for the 1960 Olympics. Foster-Wheeler's lawyers argued that Terry's injuries were barred in California because Oklahoma's statute barred the filing of such suits, even though Terry was a long-time resident of this state. The California Court of Appeals strongly rejected Foster-Wheeler's claim. In a published opinion, the higher court wrote that California had a substantial interest in making sure its residents with serious asbestos diseases had a remedy. The court cited the possibility that without a remedy, the medical bills of victims would be borne by state taxpayers. The appellate court also noted the prevalence of asbestos diseases in California, a recognition that explains the presence of so many valid asbestos claims in the state. The court emphasized that California's interest in providing a remedy to its citizens was superior to Oklahoma's interest in protecting Foster-Wheeler, a New York corporation, from liability for its defective design of boilers. On September 20, 2005, during his videotaped deposition, Terry described the dusty conditions working around the multi-story Foster-Wheeler boiler at the Tulsa refinery. Roger Worthington: Could you explain to the jury what it looked like when you personally saw insulators cutting pipe covering up high on a [Foster Wheeler] pressure vessel? Terry McCann: Yeah, the asbestos would be flowing down like snow ...." Before having the case dismissed on technical limitations grounds, Foster-Wheeler attempted to have the case dismissed on grounds Terry had not shown that he was exposed to asbestos used to insulate their gigantic steam boiler. The trial court denied that motion. Terry McCann died a few short weeks after the trial judge wrongly dismissed his lawsuit. Under California's wrongful death law, the jury will not be allowed to award damages to his estate for the pain, suffering, and anguish Terry experienced as a result of his malignant mesothelioma. The case has been remanded to the trial court to be set for trial. Terry was a lifelong Republican, businessman, and reformer who believed that no company should have the right poison innocent people. He worked to help defeat the asbestos company bailout legislation that would have left thousands of people without meaningful justice. To learn more Terry McCann and his personal efforts to reform the justice system, please click here. Tribute to Sherry Swanstrom, by Virgil Martenson Sherry K. Swanstrom lost her battle to mesothelioma on January 27, 2008 at the age of 51. I met Sherry eleven years ago as my new boss, and I remember everyone thinking we were in for trouble because before she transferred over she was the manager for loss prevention at Sears. She would turn out to be the only boss I've ever had whose first and foremost care was the people who worked for her. Sherry always made sure we had everything we needed. She really cared about everyone, not just how we did our jobs but also about our personal lives. She made an unforgettable difference by caring enough to just listen as I was going through the toughest time of my life. It's amazing what you think are "tough times" when you see what other people have to endure. Due to company downsizing they closed our unit. On the last day of work Sherry found out she had terminal cancer. I remember telling her I thought it was sad enough that she was losing her job, and on top of that she had this awful cancer. She told me that it wasn't all that tough. She just had to deal with the cancer; it was the rest of her family that would need help. That's the kind of caring person she was. I later found out they had given her just six months to live. Click here to read complete tribute. |