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Borg-Warner Corporation and Asbestos Corporation Ltd. (ACL) attacked the credibility of witnesses called in the February 2008 trial, among other arguments against the jury’s ruling and the Hackensack judge’s actions in the case.
They even questioned the unprecedented amounts awarded to the three young daughters of Mark Buttitta, of Glen Ridge, who was 50 when he died just days before Christmas 2002.
But in a rather lengthy response, the appeals court said the judge in the case rightfully allowed testimony of the experts — including one from Yale University Hospital and another from Mt. Sinai Medical Center.
His widow, plaintiff Susan M. Buttitta, sued several defendants, including General Motors Corp., Allied Signal Inc., and its successor Honeywell International, among others, alleging that Mark Buttitta contracted mesothelioma at GM’s Englewood and Bloomfield warehouses, where he worked several summers in the early 1970’s — and indirectly, from contact with his father, who worked for GM from 1952 through the 1970’s.
Claims against most of the defendants were disposed, and Honeywell/Bendis settled during the trial.
Buttitta wasn’t just any part-time summer warehouse employee. As an advertising executive, his clients included Coca-Cola and Continental Airlines.
Jurors ruled for the family, finding that Borg-Warner and ACL had manufactured, sold, or distributed a product not reasonably safe for its intended use, that Mark was exposed to the product, and that it contributed to his mesothelioma.
The jury awarded plaintiff $8,000,000 for pain and suffering, $2,000,000 for loss of consortium, $9,281,660 for loss of earnings, $2,030,544 for loss of services, and $3,000,000 for each of their three daughters for loss of parental care and guidance.
But Borg-Warner and ACL appealed, arguing that the judge erred by accepting testimony from the plaintiff’s experts, by accepting the amounts of the awards and by hearing the case in the United States instead of remanding it to Canada, where ACL is based.
“After careful review, we find no error in any of the judge’s rulings,” the judge wrote, in a ruling released this week.
“In examining whether Borg-Warner was entitled to judgment, we must consider the evidence offered in support of plaintiff’s claim, including, first, the extent of Mark’s exposure to asbestos-related products,” the ruling says.
Borg-Warner manufactured automotive parts, including disc-type clutches, which were sold as a three-piece set that included a pressure plate, clutch disc and bearings. Attached to the pressure plate was a friction material made of chrysotile asbestos — one for which no warnings were contained on the product or its packaging, the judges wrote.
They cite a 1972 study conducted by Borg-Warner itself revealing that its clutch manufacturing operations generated levels of airborne asbestos fibers in excess of the governing OSHA standards.
Borg-Warner admitted that its “clutch-facing inspector,” who was operating in a generally clean area, “received an exposure that is higher than most other employees’ exposures.”
It also recommended that all employees working with clutch facings wear respirators, and that the plant install a “rigid housekeeping program,” including installation of a ventilation system and the prompt disposal of scrap and sweepings.
From the early 1960’s to the early 1980’s, Borg-Warner supplied those clutches to GM for installation on its new vhidles.
Borg-Warner then “disposed of its clutch operation” and destroyed its records relating to “its product sales to any General Motors facility in New Jersey,” the appeals panel noted.
Mark Buttitta was born in December 1952. He worked as a “parts picker” at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift.
Mark worked with his father, who had been employed by GM since the 1940’s. During the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother. All wore the same clothes for day at a time and, according to experts, brought the deadly particles home with them each day.
As a “picker,” Mark retrieved parts from open racks or bins located at various locations within the warehouse. Some parts were packaged in boxes and some were stored loose on shelves.
If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area, the judges noted.
Mark swore in an affidavit that on some days he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. A co-worker supported his claim.
Mark, Frank, Jr., and the co-worker described the warehouse as very dusty, with thick layers of dust on the shelves, boxes, and automotive parts, which became airborne when disturbed. The warehouse had no windows and ventilation was poor.
Mark wore street clothes to work; masks and respirators were not provided. He often returned home from work “covered with dust”; Frank said he came home covered in a “gray kind of dirt”; the co-worker said that after a day working in the warehouse “you’d blow your nose in a handkerchief and you know there would be dust.”
The workers identified Borg-Warner as a supplier.
Frank recalled that the clutches handled by GM part pickers were packaged in thin, square, flat boxes similar to a “pizza box,” which matched the packaging of Borg-Warner’s clutches as depicted in its marketing material.
In August 2001, Mark, who had been in “excellent health,” developed soreness in his right rib area, and an X-ray revealed that fluid had built up in his lung. A few months later, he was diagnosed with mesothelioma.
Despite chemotherapy, the disease progressed. By the time he underwent surgery in July 2002, it had spread throughout his body. A lung was removed, but in December, during a third surgery, doctors discovered that his abdominal cavity had been “essentially replaced by the tumor.” He died Dec. 21, 2002.
The law firm of Levy, Phillips & Konisberg presented several key witnesses:
Ronald Gordon, the director of the electron microscopy laboratory at Mt. Sinai Medical Center, testified that exposure to “short asbestos fibers” was the likely contributor to Mark’s test.
The small fibers likely penetrated deeper into Mark’s lung because the mucous system intercepts the larger ones, he said.
Gordon testified that several organizations, including the Occupational Safety and Health Administration, the National Institute for Occupational Safety and Health (NIOSH), the World Health Organization (WHO), and the Environmental Protection Agency (EPA) have concluded that exposure to asbestos is a “causative factor” in the development of mesothelioma.
The chrysotile fiber Mark was exposed to is the most common type of asbestos used in the United States, and is considered less durable than other types of asbestos, and thus more easily broken down by the body, the judges noted.
Gordon examined a piece of Mark’s lung tissue, which had been removed during a biopsy, and found 20,700 fibers of asbestos per gram of lung tissue, or approximately 6 million fibers in one lung. He also examined a sample of Mark’s lymph nodes and found over 64,000 asbestos fibers per gram of tissue, or more than three times the amount found in his lung tissue.
Gordon determined that there had apparently been a “significantly higher amount of chrysotile” absorbed by the body.
Gordon concluded that the size and distribution of asbestos fibers found in Mark’s lung and lymph node, was a “significant causative agent” in his development of mesothelioma. The size of the fibers found in the samples was “very consistent” with Mark’s occupational history.
He was backed by Jacqueline Moline, a physician specializing in occupational and environmental medicine, who testified that working with asbestos-containing friction products, including clutches, can cause mesothelioma, and that Mark’s exposure to these products caused him to develop the disease.
She also cited the distinction between asbestosis and cancer of the lung, which develop from continuous exposure to substantial quantities of asbestos over a period of years, and mesothelioma, which is associated with the “smallest exposure” to asbestos and can develop from the cumulative effects of minimal and infrequent exposure.
She testified that “people can work for very short periods of time [with asbestos] and then develop . . . mesothelioma years later,” and that typically there is a 30-year latency period from exposure to development of mesothelioma.
The fact there was visible dust present at the GM plant indicated workers had a “significant exposure” to asbestos, she said.
A third expert, Richard Dodson, who specializes in asbestos-related diseases, testified that Mark’s exposure to asbestos, both directly by handling clutches at the warehouse, and indirectly, through contact with his father, contributed to his development of mesothelioma.
Even small quantities of asbestos are sufficient to cause mesothelioma, all exposures contribute to the disease, and cumulative exposures result in less efficient clearance rates, he said.
Dodson said he experimented by rinsing a number of used clutches with distilled water, and found respirable asbestos fibers in the runoff. He found that working with clutches can result in “[a]ppreciable exposure to asbestos” at a rate “sufficiently high to result in disease.”
Borg-Warner argued that the experts proved nothing, because mesothelioma cases can develop with infrequent exposure to a relatively small amount of asbestos.
They tried to bar Gordon’s testimony, claiming his methodology wasn’t reliable. The appeals court supported the judge, who denied the motion, noting that Gordon‘s research was both exhaustive and reviewed by another expert.
Borg-Warner also argued that Moline’s “conclusions were not based on valid science.” In assessing the reliability of the testimony, the trial judge examined Moline’s expert report, resume, and deposition testimony. Moline was a board-certified licensed physician, who completed her residency in internal medicine at Yale University Hospital, and her residency in occupational and environmental medicine at Mt. Sinai Hospital, the appeals court noted.
She also had extensive experience in occupational health, was a contributing editor to the American Journal of Industrial Medicine, lectured on the subject and had written numerous peer-reviewed articles.
The appeals court, as a result, found that a reasonable jury would find that Borg-Warner clutches were at the GM facility; Mark was directly exposed when he “picked” clutches from the shelves; and such exposure was a “substantial factor” in his development of mesothelioma.
“The issue here centers on ‘medical causation.’ To prove medical causation, a plaintiff must show that exposure was a substantial factor in causing or exacerbating the disease,” the judges wrote.
The task “is invariably made more complex because of the long latency period of illnesses caused by carcinogens or other toxic chemicals.”
However, the appeals court noted that it already had adopted a “frequency, regularity and proximity” test in a previous case to prove “medical causation.“
They also cited a Supreme Court ruling that “a plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation by establishing: (1) factual proof of the plaintiff’s frequent, regular and proximate exposure to a defendant’s products; and (2) medical [or] scientific proof of a nexus between the exposure and the plaintiff’s condition.”
“These decisions demonstrate that we have recognized a distinction between diseases such as asbestosis and lung cancer caused by asbestos, which develop from continuous exposure to substantial quantities of asbestos over a period of years, and mesothelioma, which, as the experts here testified, can develop from the cumulative effects of even minimal and infrequent exposure to asbestos,” the appeals court ruled.
“Mark worked for three summers and during his winter breaks at the GM warehouse,” they added. “He was also exposed through his contact with his father who worked at GM. That rather brief work history must be considered in light of the nature of mesothelioma and the experts’ testimony that the disease can be contracted after infrequent exposure to asbestos. This was sufficient to establish the frequency of exposure.”
Although Borg-Warner argued that the plaintiffs had no proof that their products were even in the warehouse at the time Mark got sick, the appeals judges said the company “suffered from the fact that it could not demonstrate the number of sales of Borg-Warner clutches to GM because it had ‘disposed of its clutch operation‘ and destroyed its records relating to “its product sales to any General Motors facility in New Jersey.”
In addition, there was the testimony of those employees who said they deal with the products.
“To be sure, there was evidence that Mark was exposed to chrysotile asbestos-containing GM manufactured parts, Bendix brakes, and GM parts containing asbestos supplied by Zimmerman and mined by ACL,” the appeals court wrote. “And a reasonable jury could conclude that there were concurrent causes of Mark’s death, given that he had been exposed to various chrysotile asbestos products.”
Amid all that, Borg-Warner disputed the awards to Mark’s family, calling the damages for parental and spousal services “excessive.”
Their lawyers argued that each daughter should receive a third of the $3 million each, based on a calculation that took into account how much time he could have reasonably been expected to spend with them until their 18th birthdays.
To which the appeals judges noted: “The expert did not determine the value of the loss of advice, guidance and counsel to the children.”
Each child “had a special relationship” to her father, including one daughter who was 12 when he died, his widow argued.
From the original court transcript: “The record is replete with specific instances [of Mark] not being present to counsel his eldest daughter up to her marriage, to his guidance to his youngest daughter with her schoolwork.
“Furthermore, the record shows that [Mark] was constantly involved in the lives of his children, from coaching their teams to providing invaluable life lessons.”
Although the trial judge called the jury’s award “generous,” he also emphasized that “the record clearly demonstrates the ‘quality’ of advice given by [Mark] was unquestionably high.”
Buttitta’s family established the Mark Buttitta Memorial Foundation for Research for the “Prevention, Treatment and Cure of Mesothelioma,” according to the foundation’s Web site http://www.markbuttittafoundation.com/
Also, see: www.nynjmesothelioma.com or www.lpklaw.com
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