- Texas Jury Awards $8
Million to Delmer and Ruby Smith
TEXAS JURY AWARDS $8 MILLION TO DELMER
AND RUBY SMITH
On May 10, 1996, a jury in Brownsville, Texas awarded a
verdict of $8 million in favor of Delmer and Ruby Smith
of Wenatchee, Washington. Delmer
appeared at the trial via a satellite television hook-up from his hospital room. Delmer,
only 56 years old, was suffering from malignant mesothelioma. A day after the jury reached
its verdict, Delmer passed away.
Delmer was a very special person. He worked hard his entire
life to care for his family. He worked in the pot rooms of the Alcoa Aluminum Plant in
Wenatchee from 1965 to 1994. He was not the type of person who wanted to grab headlines.
He enjoyed hunting, fishing and spending time with his family. He and Ruby were
inseparable; she never learned to drive a car.
I'll never forget the morning before I took his videotaped
deposition on June 8th, 1995. I knew that Delmer was very nervous. He was not the sort of
person who thrived on conflict. Before the deposition started, we walked down to the banks
of the Columbia River. It was a beautiful Spring morning. We looked up at the snow capped
Cascade Mountains. The sun was breaking through the clouds. Flowers were blooming. Nature
was alive.
I wanted to reassure him that he was on the side of the
Angels. All his life he'd tried to do the right thing. He'd worked hard for his family and
his employer. He's earned the right to enjoy the fruits of his labor, to enjoy his family,
and the best that the Earth had to offer. Delmer, I said, you belong here. It's the
mesothelioma that's out of place. That tumor in your lungs was put there by the asbestos
companies. It doesn't belong there. There's no place in Nature for Mesothelioma. We can't
get rid of it. But we can send a message to the asbestos companies that they can't poison
people and get away with it.
The nervousness seemed to disappear. He testified like a
champion. I was very, very proud of him. Delmer was a good man, husband and father. He
struggled for 8 months with his tumor. Thanks to Ruby, he never gave up. I'm convinced he
held on because of his love for Ruby. They have been friends for 37 years.
After the verdict, Ruby reflected: "You know, you hear a
lot about husbands and wives arguing and taking separate vacations and so on. I almost
wish Delmer and I had fought. It might make it easier to live without him. He was my best
buddy." Our deepest sympathies go out to Ruby and their children. We will miss
Delmer.
The verdict was against Synkaloid, manufacturers of drywall
products. The case was tried by Peter Kraus at Baron & Budd. Several brothers
from the Aluminum Workers Local 310 in Wenatchee testified for Ruby and Delmer on the
dusty conditions at the Alcoa plant.
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BEAUMONT JURY AWARDS $4.35 MILLION
A jury in Beaumont, Texas recently awarded $4.35 million in
damages to our clients Kay and Frank Bilder of Dallas, Texas. The jury found Defendant
Fuller-Austin Insulation Co. liable for distributing unreasonably dangerous and defective
asbestos products. The case was tried by our co-counsel, Herschel L. Hobson, Ph.D, and
Joseph Blanks.
Kay Bilder was diagnosed with mesothelioma in November of
1994. She was 52 years old. She was exposed to asbestos as a teenager from 1956 to 1959 by
way of washing her stepfather's asbestos fiber contaminated work clothing. Her stepfather
was an asbestos worker for Brown & Root, among other contractors.
Kay was an incredibly strong person. During her last year of
life, she spent much of her time in the hospital undergoing surgeries, chemotherapy and
radiation treatments. In November, 1994, her doctors removed her lung linings and a
portion of her lungs. Despite the pain, Kay remained cheerful and hopeful. She was
fortunate to have a strong network of family and friends from her prayer group who would
call her and stop by to see her.
Mrs. Bilder had great faith. Even so, she had moments of
bewilderment. She did not intellectually understand why, to her thinking, The Lord had put
the cancer inside her. She worked hard all of her life, overcame childhood adversity and a
broken home, and raised two healthy children. She was young and industrious and she had
never abused her body.
Kay's pastor, Edward H. Pauley, Ph.D, testified for her as
follows:
"It has been a serious blow to the [Sunday school]
class not to have Kay's service as a result of the asbestos caused tumors... We know she
has suffered a lot of pain because of the operation and subsequent chemotherapy... Her
family has been devastated by this turn of events and they have feared for her life."
Associate Pastor Jon David Felty added:
"I have personally known the Bilders since August of
1992, and I must say that to know them is to love them. They have contributed much to the
cause of Christ and to the mission of Prestonwood Baptist Church. They are held in high
esteem and our entire church body desires to see their return to that position of service
they each so graciously fulfill."
Her final months were awful. For two months until she died,
Kay had to receive treatment in the hospital nearly every day. Over her last 400 days, she
was hospitalized over 225 times. She was a frequent visitor to the intensive care unit for
heart and kidney failure. The mesothelioma tumors also invaded her liver, despite a
radical pneumonectomy, intrapleural chemotherapy and radiation therapy.
"Without her faith, Kay would not be with us
today," explained her husband Frank, before Kay passed away. "We have a great
support group from the Church. Every day, we have about 10 calls to return. Kay does not
complain. She just tries to maintain her daily activities, although much of the time
lately she has been bed ridden. I bought her an electric wheelchair, which helps her get
around the house better."
Like Ingrid Keierleber, Frank's best advice to other cancer
patients is to "keep a normal schedule. Try to do what you'd normally do."
I asked Frank about Kay's diet. " Kay has become a
vegetarian. We don't eat processed foods, meats or dairy products. She drinks plenty of
carrot juice, which we make at home. She also drinks tomato juice." Kay also took at
least 10 to 15 grams of vitamin C in powdered form per day. Her diet consisted primarily
of rices and vegetables. The Bilders were researching alternative remedies, including
coffee enemas.
"I am very proud of Kay. She has always kept her
dignity. Even now she doesn't complain. I don't think she could get through it without her
belief that there is a better place."
Jury Verdict
Affirmed!
IN THE
COURT of APPEALS
NINTH DISTRICT of TEXAS at BEAUMONT
NO. 09-96-132 CV
FULLER-AUSTIN INSULATION COMPANY, INC., Appellees
v.
KAY BILDER and FRANK BILDER, Appellees
(Excerpts, citations omitted)
This is an appeal from a jury verdict against
Fuller-Austin Insulation Company ("Fuller") an insulation
subcontractor/installer. Kay and Frank Bilder brought an action to recover damages for
personal injuries and loss of consortium stemming from Kay Bilder's childhood exposure to
asbestos which ultimately caused mesothelioma. Fuller brings twelve points of error which
we shall address out of order. * * *
Kay Bilder lived in the household of her
stepfather Ray Hardy, an insulator installer, from 1956 to 1960. She was later a frequent
visitor to Hardy's home. Hardy routinely worked with asbestos insulation provided by
Fuller under extreme dust conditions, and often went home doused with dust from head to
toe. Kay frequently came into contact with the asbestos dust while washing Hardy's clothes
and cleaning up the dust shaken from his clothes. She eventually contracted mesothelioma
and sued 25 companies, claiming exposure to asbestos products provided by various
employers of Hardy. Kay died a few months after the case was submitted to the jury.
The jury found a defect in the marketing of
asbestos insulation and found Fuller negligent for failing to warn of its dangers. The
trial court entered judgment on the verdict. * * *
The evidence indicated that by 1956, Fuller knew
or should have reasonably foreseen that inhaling asbestos dust posed a health hazard. The
jury heard testimony that since 1944, Fuller had carried workers' compensation insurance
which it knew covered the disease asbestosis and that since at least 1956, inhalation of
the dust created in applying the products was "harmful to the body."
Dr. John Dement, an expert in industrial
hygiene, testified that it was know by the 1920's, and well established in the 1930's,
that asbestos exposure caused disease. During trial, Dr. Dement reviewed published
literature from 1913 to 1960 demonstrating that makers and sellers of asbestos products
knew or clearly should have known that inhaling asbestos contaminated dust could cause
incurable disease. Moreover, he noted that in 1955, a major human epidemiology study
concluded that asbestos inhalation caused lung cancer in humans, confirming reports from
1940 and earlier. Dr. Dement also stated that lung cancer from asbestos dust inhalation
had been well established by 1949. He testified that a state health department publication
of 1937 warned about contamination of work clothing with toxic materials and the
prevention of diseases in others who might come in contact with soiled clothing.
The evidence at trial revealed that Fuller sold
or supplied insulation which Hardy used on various jobs in 1956-1960. During that time
period, Fuller did not warn the users or installers of asbestos of its potential harmful
effects, did not train the installers to deal with the dust, did not tell its users or
installers that exposure guidelines existed and did not provide any kind of coveralls to
wear to work or laundry facilities for washing work clothes. Had Fuller provided the
proper warnings of the dangers of asbestos, Hardy may have needed the warnings and not
exposed his family to work clothes which were covered with asbestos dust which ultimately
caused Kay's death. * * *
Recovery under the strict liability doctrine is
not limited to users and consumers. The reason for extending the strict liability doctrine
to innocent bystanders is the desire to minimize risks of personal injury and/or property
damage. Id. Bystanders may recover for personal injuries or wrongful death caused by
exposure to asbestos. Consequently, we reject Fuller's argument that it is not liable to
Mrs.. Bilder because she was not an actual or foreseeable user of asbestos. Because the
Bilders presented evidence supporting each element of a marketing defect theory of
recovery, we find the trial court properly allowed the marketing defect jury charge. We
overrule Fuller's first point of error. * * *
The uncontroverted medical testimony was that
Kay's daily and direct exposure to asbestos in her home caused her mesothelioma. Dr.
Sammuel Hammer, M.D., a pathologist specializing in asbestos cases, testified that after
reviewing Kay's medical records, he believed the cause of her mesothelioma was asbestos.
As stated above, bystanders may recover for personal injuries or wrongful death caused by
exposure to asbestos.
* * *
Affirmed in Part, Reversed in Part
_____________________
Don Burgess, Justice
Opinion Delivered January 8, 1998
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Every case is different. Similar results may not be obtained in your case.
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** POSTED JANUARY 29, 1998
**
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