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2014
TOP VERDICTS NY
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warnings of the hazards that could have stemmed from its products and that Burnham Corp.’s negligence was a substantial cause of Hillyer’s mesothelioma. Burnham LLC was assigned 30 percent of the liability, and the remaining liability was assigned to two nonparties.
The jury determined that the estate’s damages totaled $20 million, all for Hillyer’s pain and suffering. Burnham LLC’s liability is $6 million, which represents 30 percent of the total damages.
EDITOR’S COMMENT This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Burnham LLC’s counsel did not respond to the reporter’s phone calls, and the remaining defendants’ counsel was not asked to contribute.
PLAINTIFF ATTORNEY(S)
PLAINTIFF EXPERT(S)
TRIAL LENGTH
TRIAL DELIBERATIONS
JURY VOTE
mental/psychological - depression pulmonary/respiratory - pneumonia, respiratory
Adam R. Cooper and Benjamin Darche; Weitz & Luxenberg P.C.; New York, NY
David Schwartz M.D.; Occupational Medicine; Denver, CO Steven Markowitz M.D.; Occupational Medicine; Queens, NY
6 weeks
2 days
6-0
FACTS & ALLEGATIONS In March 2012, plaintiff Charles Hillyer, 70, a retiree, developed impairment of his respiration. He also experienced recurrent pain that stemmed from his chest. On March 14, 2013, Hillyer learned that his symptoms were a product of mesothelioma, which is an aggressive, incurable cancer that can result from ingestion or inhalation of fibers of asbestos.
During a period that spanned 1974 and 1983, Hillyer, a steamfitter, worked throughout the greater New York area. He claimed that some work was performed in areas in which other workers were servicing boilers whose insulation contained asbestos. Hillyer claimed that the boilers and/or their components were manufactured by companies that included Burnham Corp., which is a subsidiary of Lancaster, Pa.-based Burnham LLC. He further claimed that his mesothelioma was a result of his inhalation of fibers of asbestos that was contained in the boilers’ components.
Hillyer sued Burnham LLC and 40 other companies that were believed to have distributed, manufactured and/or sold asbestos-containing products that were used in the areas in which he worked. Hillyer alleged that the defendants failed to provide warnings that adequately disclosed the risks that could have stemmed from the use of their products.
Hillyer died after the suit had been filed. The suit was continued by his estate.
The estate’s counsel discontinued the claims against some defendants; other defendants were dismissed; and others negotiated pretrial settlements. The matter ultimately proceeded to a trial against Burnham LLC.
The estate’s counsel claimed that Burnham Corp.’s executives and managers knew that their boilers utilized insulation that contained asbestos. They further claimed that the executives and managers should have known that asbestos’s fibers could not be safely inhaled. They claimed that asbestos’s dangers have been widely publicized since the 1930s, and they contended that Burnham Corp.’s products’ packages should have displayed warnings that disclosed the dangers that could have stemmed from exposure to asbestos.
Defense counsel contended that the estate’s counsel could not prove that Hillyer would have heeded any warning that disclosed asbestos’s related dangers. They noted that Hillyer was a longtime user of cigarettes, which cause cancer. During a deposition, Hillyer acknowledged that he disregarded warnings that appeared on packages of cigarettes.
Defense counsel also contended that the estate’s counsel could not prove that Hillyer worked in the vicinity of boilers that Burnham Corp. manufactured. They claimed that Hillyer was exposed to asbestos-containing products that had been manufactured and/ or distributed by other companies. They also noted that Hillyer had been a member of the U.S. Navy, and they contended that his mesothelioma could have stemmed from environments that he frequented during the nine years in which he was enlisted.
INJURIES/DAMAGES In March 2012, Hillyer developed impairment of his respiration. He also experienced recurrent pain that stemmed from his chest. He claimed that his symptoms hindered his performance of chores, recreational activities and other physical activities. He underwent several rounds of thoracentesis, which involved drainage of his lungs.
On March 14, 2013, Hillyer learned that he was suffering mesothelioma. He underwent 20 sessions of chemotherapy. In June 2013, he underwent a pleurectomy, which involved removal of the inner and outer linings of his lungs. He subsequently underwent application of radiation that was intended to stall his cancer’s progress.
Hillyer’s condition worsened. He claimed that he experienced increasing pain. He required constant use of a wheelchair, and he could not independently perform many basic tasks. He also developed pneumonia that necessitated two hospitalizations, and he experienced depression.
Hillyer died on Sept. 10, 2014. His death was a result of complications of mesothelioma. Hillyer’s estate sought recovery of damages for Hillyer’s pain and suffering.
RESULT The jury found that Hillyer was exposed to asbestos that stemmed from products that were manufactured by Burnham Corp., that Burnham Corp. negligently failed to provide
20 VerdictSearch’s Top New York Verdicts of 2014