The Washington Supreme Court recently upheld an $81.5 million verdict, against GPC and NAPA, in an asbestos peritoneal mesothelioma case. The award included $30 million for loss of consortium. Coogan v. Borg-Warner Morse Tec Inc., 12 Wash. App. 2d 1021, 2020 WL 824192 (2020), rev’d in part, No. 98296-1, 2021 Wash. LEXIS 383 *, 2021 WL 2835358 (Wash. July 8, 2021).[1] The main points of contention on appeal were plaintiffs’ counsel’s misconduct and the excessiveness of the verdict, which was for only compensatory damages. Twelve defendants settled before trial for a total of $4.4 million. Of the settling defendants, Defendant Manville paid $1.5 million.
Plaintiffs’ proofs against GPC and NAPA were for chrysotile exposure from their brake and clutch parts used by Coogan. Not surprisingly, given that Coogan died of peritoneal mesothelioma, there was a strong suspicion of crocidolite exposure from Manville’s transite product over the course of two years. Apparently, GPC and NAPA failed to show that Coogan was exposed to crocidolite, even though the workplace was small and other workers had succumbed to asbestos disease.
While the court’s opinion on misconduct and the excessiveness of the verdict are of interest, the most interesting part of the story is what was not told. It is hard to imagine that defense counsel did not try hard to establish the workplace exposures to Manville’s transite. What is not clear is why they failed. Obviously, Manville took the threat seriously enough to pay a significant sum to settle the case before trial. Why could GPC and NAPA not prove at trial what Manville knew? Were GPC and NAPA the victims of budgetary pressures or limited resources, or were they misled or stonewalled by plaintiffs’ counsel or co-workers?
Given the propensity for crocidolite, such as was used in Manville’s transite, to cause mesothelioma, and especially peritoneal mesothelioma, the trial defendants certainly had an adequate motivation to investigate and to document the crocidolite exposure.
A recent, large, long-term cohort study in Denmark showed that vehicle mechanics, who use brake linings and clutch parts, as did Coogan, have no increased risk of mesothelioma. Compared with other workers, automobile mechanics actually had a lower than expect risk of mesothelioma or pleural cancer, with an age-adjusted hazard ratio of HR=0.74 (95% CI 0.55 to 0.99)), based upon 47 cases.[2]
The Danish study is in accord with previous studies and meta-analyses,[3] and stands in stark contrast with the epidemiology of mesothelioma among men and women exposed to crocidolite. By way of example, in a cohort of British workers who assembled gas masks during World War II, close to 9% of all deaths were due to mesothelioma.[4] In a published cohort study of workers at Hollingsworth & Vose, a company that made the filters for the Kent cigarette, close to 18 percent of all deaths were due to mesothelioma.[5]
Dr. Irving Selikoff and his colleagues worked assiduously to obscure the vast potency difference between chrysotile and crocidolite, by arguing falsely that crocidolite was not used in the United States,[6] and by suppressing their own research into disease at the Johns-Manville plant that manufactured transite and other products. What is interesting about the Coogan case is what has not been reported. Crocidolite is clearly the most potent cause of mesothelioma.[7] Even if chrysotile were to have posed a risk to someone such as Mr. Coogan, crocidolite exposure, even for just two years, likely represented multiple orders of magnitude greater risk for peritoneal mesothelioma. Without evidence that Coogan was exposed to crocidolite from Mansville’s transite, the manufacturers of brake and clutch parts were unable to seek an apportionment between exposures from their chrysotile and Mansville’s crocidolite. Trying the so-called chrysotile defense is more difficult without being able to show substantial amphibole asbestos exposure. The bar, both plaintiffs’ and defendants’, could learn a great deal from what efforts were made to establish the crocidolite exposure, why they were unsuccessful, and how the efforts might go better in the future.
[1] Kirk Hartley kindly called my attention to this interesting case.
[2] Reimar Wernich Thomsen, Anders Hammerich Riis, Esben Meulengracht Flachs, David H Garabrant, Jens Peter Ellekilde Bonde, and Henrik Toft Sørensen, “Risk of asbestosis, mesothelioma, other lung disease or death among motor vehicle mechanics: a 45-year Danish cohort study,” Thorax (July 8, 2021), online ahead of print at <doi: 10.1136/thoraxjnl-2020-215041>.
[3] David H. Garabrant, Dominik D. Alexander, Paula E. Miller, Jon P. Fryzek, Paolo Boffetta, M. Jane Teta, Patrick A. Hessel, Valerie A. Craven, Michael A. Kelsh, and Michael Goodman, “Mesothelioma among Motor Vehicle Mechanics: An Updated Review and Meta-analysis,” 60 Ann. Occup. Hyg. 8 (2016); Michael Goodman, M. Jane Teta, Patrick A. Hessel, David H. Garabrant, Valerie A. Craven, Carolyn G. Scrafford, and Michael A. Kelsh, “Mesothelioma and lung cancer among motor vehicle mechanics: a meta-analysis,” 48 Ann. Occup. Hyg. 309 (2004).
[4] See J. Corbett McDonald, J. M. Harris, and Geoffry Berry, “Sixty years on: the price of assembling military gas masks in 1940,” 63 Occup. & Envt’l Med. 852 (2006).
[5] James A. Talcott, Wendy A. Thurber, Arlene F. Kantor, Edward A. Gaensler, Jane F. Danahy, Karen H. Antman, and Frederick P. Li, “Asbestos-Associated Diseases in a Cohort of Cigarette-Filter Workers,” 321 New Engl. J. Med. 1220 (1989).
[6] “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); “Playing Hide the Substantial Factors in Asbestos Litigation” (Sept. 27, 2011).
[7] See, e.g., John T. Hodgson & Andrew A. Darnton, “The quantitative risks of mesothelioma and lung cancer in relation to asbestos exposure,” 14 Ann. Occup. Hygiene 565 (2000); Misty J Hein, Leslie T Stayner, Everett Lehman & John M Dement, “Follow-up study of chrysotile textile workers: cohort mortality and exposure-response,” 64 Occup. & Envt’l Med. 616 (2007); David H. Garabrant & Susan T. Pastula, “A comparison of asbestos fiber potency and elongate mineral particle (EMP) potency for mesothelioma in humans,” 361 Toxicology & Applied Pharmacol. 127 (2018) (“relative potency of chrysotile:amosite:crocidolite was 1:83:376”). See also D. Wayne Berman & Kenny S. Crump, “Update of Potency Factors for Asbestos-Related Lung Cancer and Mesothelioma,” 38(S1) Critical Reviews in Toxicology 1 (2008).
