Judgment Sought on Union Carbide's Alleged Concealment

August 13, 2003 – Media Coverage

CHARLESTON, W.Va. - Plaintiffs in a massive West Virginia asbestos trial have moved to preclude defendant Union Carbide from asserting a product identification defense during the trial's second phase, where it has been alleged that the defendant intentionally withheld information about the presence of asbestos-containing products on its premises. In Re: Asbestos Personal Injury Litigation Mass Litigation Panel, No. 02-C-9004 (W.Va. Cir. Ct., Kanawha Cty.).

In a motion for partial summary judgment filed Aug. 12 in Kanawha County Circuit Court, plaintiffs contend that allowing Union Carbide to argue that the plaintiffs cannot identify the asbestos-containing products to which they were exposed would run contrary to jury's findings during the first phase of the trial.

Jurors determined during Phase 1 that Union Carbide maintained an unreasonably dangerous premises at the South Charleston, W.Va., facility due to the presence of asbestos fibers there, failed to warn workers about the dangerous conditions, and in doing so, acted 'intentionally, willfully, maliciously... and should therefore pay punitive damages' to the injured plaintiffs, according to the summary judgment motion.

Union Carbide has now moved during the second phase to dismiss the claims for damages on the contention that the plaintiffs cannot identify the specific insulation products that caused their asbestos exposure and subsequent development of asbestos-related disease.

'This defense is without merit, designed to mislead the jury and could result in an inconsistent verdict,' the plaintiffs now contend in their motion for summary judgment.

According to the motion, statements made by plaintiffs indicating that they did not know insulation at the Union Carbide facility contained asbestos were made as a result of the company's efforts to conceal information about the presence of the fiber on its premises.

In one instance, the plaintiffs allege, Union Carbide's insulation group informed a mechanical engineer employed at the facility that a particular insulation product, Kaylo 20, did not contain asbestos, when in fact it did.

'Union Carbide knew of the hazards of asbestos, did not tell the plaintiffs or its own employees about the presence of asbestos on its premises and the corresponding hazards, and now wants to benefit from its concealment of asbestos and the hazards it represents,' the plaintiffs contend.

Such conduct stripped plaintiffs of a degree of protection to which they were entitled and further deprived them of a means of definitively establishing proof of exposure to asbestos-containing products at the site, the plaintiffs assert.

Plaintiffs further allege that Union Carbide's alleged concealment of the dangerous condition is tantamount to concealing or destroying evidence. Had Union Carbide taken action to protect the health of the plaintiffs, which it intentionally failed to do, it would have provided the definitive evidence of exposure that the defendant now argues is the plaintiffs' burden to prove.

'It is difficult to conceive of a clearer case of a defendant profiting from its intentional wrongdoing than the dismissal of these claims because the plaintiff does not know he worked with asbestos, when Union Carbide had the ability to know those facts, and intentionally failed to learn those facts,' the motion states.

As a result of the alleged concealment, the plaintiffs have requested that the court apply the doctrine of equitable estoppel or estoppel in pais to Union Carbide's contention that there is no evidence of exposure to asbestos-containing products in the case. In the alternative, the plaintiffs have asked the court for leave to amend their complaints to state a claim against the company for intentional spoliation of the evidence.

Plaintiffs are represented by Anne McGinness Kearse and Paul Doolittle of Motley Rice in Mt. Pleasant, S.C.; Stuart Calwell and John Skaggs of the Law Offices of Stuart Calwell in Charleston, W.Va.; and James F. Humphreys, J. David Cecil and Geraldine M. Guerin of James F. Humphreys & Associates in Charleston, W.Va.

Union Carbide is represented by Hawkins Parnell & Young in Atlanta and Charleston, W.Va.; and Bernard Taylor of Alston & Bird in Atlanta.

Document Is Available Call (800) 496-4319 or Search www.harrismartin.com Motion Ref# ASB-0308-07

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