Peter  R.  York
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Court Affirms Verdict Involving Exposure to Asbestos in Talc Products

February 17, 2009 – Media Coverage
HarrisMartin

FRANKFORT, Ky. -- A Kentucky appellate court has affirmed a $5.6 million verdict in a talc case, rejecting defense efforts to have the verdict thrown out on several grounds, including that the case was untimely and that discovery sanctions were improper. R.T. Vanderbilt Co. Inc. v. Franklin, et al., No. 2007-CA-002103-MR (Ky. Ct. App.).

In the Feb. 6 opinion, the Kentucky Court of Appeals noted in part that, while severe, the sanctions imposed against the defendant for its failure to comply with discovery orders were not an abuse of discretion.

The claims were asserted on behalf of Flora Franklin, who was diagnosed with mesothelioma in 2004. A few months later, Flora, and her husband, Johnny, filed a lawsuit against 31 defendants. Initially, the plaintiffs contended that Flora's exposure was from work clothing worn by Johnny Franklin during his employment at General Electric Appliance Park. The plaintiffs later argued that Flora was also directly exposed to asbestos while working at Florida Tile and General Electric Plastic.

R.T. Vanderbilt was added to the complaint in 2006 for its alleged supply of asbestos-containing talc to Florida Tile's products. A jury found for the plaintiffs, awarding $5.6 million, which was later reduced to $4,090,000. The jury assessed 70 percent liability to R.T. Vanderbilt.

The defendant appealed the verdict, however, naming several assignments of error. Specifically, R.T. Vanderbilt challenged the timing of the amended complaint; whether sanctions related to discovery orders were proper; whether the trial court erred in putting a disputed fact in the jury instructions; the admissibility of expert testimony; and the failure to reduce post-judgment interest rate.

The appellate court first addressed the defendant's contention that the claims asserted against it were untimely. Noting that the plaintiffs first did not discover the presence of talc in Florida Tile's products until a tissue digestion analysis was complete, the court concluded the trial court was correct in its finding that Franklin's question of reasonable diligence was one for the jury.

The appellate court also noted that the plaintiffs submitted evidence that R.T. Vanderbilt misrepresented the asbestos content in its product, which it said delayed plaintiffs' discovery.

"It was well within reason for the jury to find that Franklin exercised due diligence to discover that Flora's disease was caused by Vanderbilt's talc," the appellate court said. "After the filing of their original complaint, Franklin launched a massive discovery effort to ascertain the identity of any unnamed tortfeasors. Yet, until Flora's death and subsequent tissue analysis, Franklin was unaware of the presence of talc in Flora's tissue. Prior to that time and despite inquiries, Vanderbilt's denial that its talc was asbestos caused the identity of Vanderbilt as a defendant to be unknown."

The court also rejected R.T. Vanderbilt's challenge to a sanctions order, ruling that the defendant's failure to produce workers' compensation records warranted the trial court's decision to limit its defenses at trial, including the contention that its product was a non-asbestos form of talc.

"The court found that the failure to reveal the financial records, the workers' compensation records, and the expert's report prejudiced Franklin's ability to establish causation," the court said. "We agree with the [trial] court that its sanction was appropriate in light of the information Vanderbilt withheld .... Although the sanction was harsh, we cannot say it was an abuse of discretion."

In affirming the verdict, the court also held that a pretrial transcript indicated that the defendant was well aware of the jury instructions and that challenges to expert testimony were unfounded. Finally, the court concluded that the trial court did not abuse its discretion in refusing to reduce the post-judgment interest rate.

Representing the defendant during oral argument was Matthew W. Breetz of Stites & Harbison of Louisville, Ky. Additional counsel for the defendant during briefing were Bethany A. Breetz, Michael D. Risley and Jamie K. Neal, also of Stites & Harbison in Louisville, Ky.; Stephan G. mato and John N. Billings of McBrayer, McGinnis, Leslie & Krkland in Lexington, Ky.; and Peter R. York of Hawkins Parnell & Young in Atlanta.

During oral argument, the plaintiffs were represented by Joseph D. Satterley of Sales, Tillman, Wallbaum, Catlett & Satterley in Louisville, Ky. Additional counsel for the plaintiffs during briefing was Corey Ann Finn of the same firm.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0902-09

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