Edward Hugo and Gregory Rosse Secure Complete Defense Verdict

Posted on Wednesday, 10 September 2008

TRIAL SUMMARY  

Marguerita Dyer, et al. v. Foster Wheeler, LLC & John Crane, Inc.: San Francisco County  
Superior Court, Case No. CGC-04436441  

Date of Verdict: September 10, 2008  

Judge: Hon. John K. Stewart, SFSC Dept. 505  

Verdict: Defense  

Plaintiff Attorney(s):

• Troyce G. Wolf, Waters & Kraus, LLP; Dallas, TX
• Dimitri N. Nichols, Waters & Kraus, LLP; El Segundo, CA

Defense Attorney(s):

• Edward R. Hugo, Brydon Hugo & Parker, San Francisco, CA (Foster Wheeler, LLC)
• Gregory S. Rosse, Brydon Hugo & Parker, San Francisco, CA (Foster Wheeler, LLC)

• Dane T. Jones, Hassard Bonnington, LLP., San Francisco, CA (John Crane, Inc.)
• Michael J. Boland, Imai Tadlock Keeney & Cordery, LLP., San Francisco, CA (Elliot Company)
• Thomas J. Scully, Walsworth Franklin Bevins & McCall, LLP, Orange, CA (Elliott Company)

Facts & Allegations:

In April 2004 Bobbie Dyer was diagnosed with mesothelioma. His attorneys originally filed a personal injury action in Dallas, TX. After completing Mr. Dyer's deposition under Texas rules, on November 18, 2004 a second action was filed in San Francisco. Numerous companies were sued in the San Francisco action which included causes of action for strict liability (design defect and failure to warn) and negligence (negligent design, manufacture, supply and failure to warn). The complaint included claims for punitive damages against defendants. Mr. Dyer passed away May 25, 2005. The San Francisco action was amended to add causes of action for wrongful death and adding as plaintiffs Marguerite Dyer (decedent's spouse), Michael Dyer and Kellie Dyer (decedent's children).

Prior to the start of trial plaintiffs had settled with all defendants other than Foster Wheeler, John Crane and Elliot Company. Elliot Company resolved with plaintiffs on September 4, 2008 during the trial. Defendant Foster Wheeler's motion for nonsuit, made at the end of plaintiff's case, was granted in part as to plaintiffs' claims for punitive damages as against Foster Wheeler.

Bobbie Dyer was exposed to asbestos during his service in the U.S Navy as a machinist mate from 1963 to 1967 and from 1973 to 1976. He was also exposed during his work at the Puget Sound Naval Shipyard as a marine machinist from 1968 to 1972 and from 1977 to 1989. Plaintiffs alleged that Bobbie Dyer had been exposed to asbestos containing insulation supplied by Foster Wheeler as part of boilers sold to the US Navy. Plaintiffs also alleged that Bobbie Dyer had been exposed to asbestos from work with John Crane gaskets and packing.

Foster Wheeler claimed that the majority of decedent's work while in the Navy and while working for the Navy was spent working on and refueling nuclear submarines. Decedent did not work on boilers and as a machinist would have spent very little time in boiler rooms. Plaintiff's presented evidence that Foster Wheeler had supplied boilers for two Navy ships. Decedent had testified during his videotaped deposition (offered into evidence) that he did not work in the boiler rooms of either of the two ships identified as having Foster Wheeler boilers. Plaintiffs failed to produce any evidence that Foster Wheeler had supplied a boiler to any other ship that decedent had testified he had worked around the boiler on. Further, Foster Wheeler elicited testimony that it had not supplied asbestos containing insulation installed on the exterior of boilers it manufactured.

John Crane claimed that decedent would not have worked with the amount of John Crane gaskets and packing that decedent had claimed in his deposition; that the asbestos in gaskets and packing supplied by John Crane was encapsulated and that plaintiffs had failed to show that decedent would have been exposed to respirable asbestos from working with its products.

Both defendants presented evidence to show that the Navy was aware of the dangers of asbestos and therefore plaintiffs' claims were barred by the sophisticated user affirmative defense.

Injuries/Damages:

Plaintiffs claimed that decedent's mesothelioma was caused by exposure to asbestos and defendants offered no evidence to the contrary. Plaintiffs claimed that decedent's medical expenses, without including his final chemotherapy treatment, totaled $456,000. Plaintiffs also claimed that decedent's pension of approximately $3,000 was reduced to $1,500 (received by Marguerite Dyer) following decedent's death. Plaintiffs also claimed an unspecified loss of household services. During closing arguments plaintiffs' counsel suggested a non-economic award of $20,000,000 ($1,000,000 for each year of decedent's shortened life expectancy).

Result:

The jury found that Bobbie Dyer was not exposed to any asbestos containing product supplied by Foster Wheeler. As to John Crane the jury found that Bobbie Dyer had been exposed to a John Crane product but that the product was no defect in the design of their product, that they had no reason to know of any potential risk.

Plaintiff(s):

• Marguerite Dyer
• Michael Dyer
• Kellie Dyer

Trial Length: 10 Days

Jury Deliberations: 1 Day

Jury Poll: 12-0 as to no exposure to a Foster Wheeler Product
11-1 as to defect in the design of the John Crane product.
12-0 as to all other questions answered in the verdict form

Plaintiff Experts:

• Kenneth Cohen, litigation consultant, former industrial hygienist, San Diego, CA
• Barry Horn, M.D., pulmonary medicine, Berkeley, CA
• Captain Francis Burger, Naval Ship expert, Ocean Springs, MS [Testimony presented through reading of deposition transcript, offered by defense counsel.]

Defense Expert:

• Commander Delaney, Naval ship expert (Called by John Crane Inc.)

Tags: Untagged

Internal Banner

A Winning Record
MAIN PHONE 415-808-0300 MAIN FAX 415-808-0333