UPDATE: Mass Trial in W.Va. Moving Forward to Liability Phase

October 31, 2002 – Media Coverage

CHARLESTON, W.Va. - The next phase of the West Virginia asbestos trial involving thousands of plaintiffs was scheduled to get underway on Dec. 2, at which time arguments over liability in cases involving Union Carbide employees were expected to commence, sources close to the case told HarrisMartin Publishing. Adkins v. Dow Chemical Corp., No. 02-C-9004 W.Va. Cir. Ct., Kanawha Cty.

The second phase of the trial follows an Oct. 24 verdict by a Kanawha County Circuit Court jury, which determined that approximately a half dozen of Union Carbide's facilities in West Virginia and Ohio were dangerous from 1945 to 1980 because of asbestos dust circulating in the work environment. The decision allows any of the nearly 2,000 plaintiffs who worked at any of the six plants between 1945 and 1980 to proceed to the damages phase, sources said.

The jury determined that Union Carbide had acted recklessly in exposing workers on its premises to asbestos. As a result, the jury decided a multiplier of three could be applied to any compensatory damages that might be awarded at the conclusion of the liability phase of the trials.

The jury also determined that the company's Calidria chrysotile asbestos product was defective from the years 1964 through 1972, sources said. The jury, however, failed to find that Union Carbide had engaged in a conspiracy to hide the dangers of the chrysotile product from those working on the company's premises.

During the trial's first phase, the plaintiffs called experts Samuel Hammar, MD, pathologist; Arnold Brody, M.D., Ph.D., pathologist; Edwin Holstein, M.D., occupational medicine; John Dement, Ph.D., environmental science; Richard Lemen, M.D., Ph.D., epidemiologist; William Longo, Ph.D., exposure analyst; and Dominic Graziano, M.D., pulmonologist.

Union Carbide called Lawrence Birkner, CIH, industrial hygienist; Victor Roggli, M.D., pathologist; Allen Gibbs, M.D., pathologist.; and John Spencer, CIH, industrial hygienist.

Union Carbide is the only defendant remaining in the case, which was the subject of a recent appeal before the U.S. Supreme Court. Several defendants, including ones that eventually settled out of the case, had asked the nation's highest court to stay commencement of the trial until it could be determined whether the manner in which it was being adjudicated violated the due process clause of the U.S. Constitution.

The U.S. Supreme Court ultimately rejected the appeal, refusing to hear argument and paving the way for the trial's late September start date. Since the decision, nearly 200 defendants have either been dismissed or reached settlements with the plaintiffs, who include contract workers and laborers allegedly exposed to Calidria.

It has not yet been determined how the cases are going to proceed in future phases, whether in individual trials or as groups. Plaintiffs had offered to settle the cases with Union Carbide prior to the verdict, but the company refused and has said it has no plans to do so before the next phase.

Plaintiffs are represented by Paul H. Hulsey, Anne McGinness Kearse and Cherie K. Dibbell Durand of Ness, Motley in Mt. Pleasant, S.C.; Bruce E. Mattock and David Chervenick of Goldberg, Persky, Jennings & White in Pittsburgh; and Scott Segal of the Law Office of Scott S. Segal in Charleston, W.Va.

Union Carbide is represented by Hawkins Parnell & Young in Atlanta; Peter Bicks of Orrick , Herrington & Sutcliffe in New York; and Bernard Taylor of Alston & Byrd in Atlanta.

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