September 2012

Court RulingOn July 27, 2012, a jury in the matter of Michael Galliher v. American Optical Corp., et al., an asbestos personal injury lawsuit pending in the Superior Court of the State of Delaware, awarded over $2.8 million to the surviving wife and the estate of Michael Galliher.  The jury found the sole defendant at trial, R.T. Vanderbilt (“RTV”), negligent for failing to adequately warn of the hazards of its industrial talc product that was used at Michael Galliher’s workplace.  The $2.8 million verdict is the largest jury award in an asbestos personal injury lawsuit in Delaware in the past decade and well over the $1.7 million in total awarded to the plaintiffs in November 2010 in the consolidated trials of the Elizabeth Henderson and Bruce Henderson matters.

A summary of the Michael Galliher matter is provided below.

Background Facts:

In August of 2010, Michael Galliher was diagnosed with malignant pleural mesothelioma.  He died just a few months later on February 3, 2011 at the age of 62.  He was survived by a wife of nearly 35 years, a son, and a step-son.  From 1966 until the early 2000s, Mr. Galliher worked at a Borg Warner facility in Mansfield, Ohio that manufactured bathroom fixtures, such as toilets and sinks.[1]  The worked at the Borg Warner facility for the majority of his working life and, aside from a few brake changes and some minor home renovation work, all of his known asbestos exposure occurred there.

Mr. Galliher worked at a number of different locations in the Borg Warner facility.  Most important for the purposes of the case was his time in the cast area, where molds were used to form the bathroom fixtures.  Plaintiffs alleged that talc was applied to the molds in the cast area so that mold could be easily removed from the finished bathroom fixture once it had set.  Plaintiffs also alleged that talc was used in an area of the facility where the glaze was applied to the finished products, called the slip area.  Although Mr. Galliher never personally worked in the slip house, the plaintiff alleged that talc dust from the slip area blew into areas of the plant where Mr. Galliher was working.

Plaintiffs’ Case:

Plaintiffs alleged that industrial talc from RTV’s Gouverneur, New York mine was used at the Borg Warner facility and that Mr. Galliher was exposed to asbestos or asbestiform bodies in that talc, which caused his mesothelioma.  Plaintiffs alleged that the talc that RTV mined in New York and supplied to the Borg Warner facility was a fibrous talc, not a “platy” talc as is used in baby powder, and that the fibrous talc was contaminated with other minerals, such as tremolite and anthophyllite.

A number of experts—both medical and mineralogical—testified on behalf of Plaintiffs.  A fiber digestion analysis was performed on Mr. Galliher’s lung tissue after his death and several of Plaintiffs’ experts, including Dr. Jerrold Abraham, Dr. James Millette, and Sean Fitzgerald (a geologist), reviewed the results of the analysis and concluded that the tremolite, fibrous talc, and anthophyllite fibers that were found in Mr. Galliher’s lung were a “finger print” for dust from talc from Gouverneur, New York.  Dr. Abraham and Dr. Arthur Frank testified that the fibers in RTV’s talc caused Mr. Galliher’s mesothelioma and, in anticipating RTV’s defense that the fibers in the New York mine were so-called cleavage fragments and not true asbestos, concluded that the asbestiform fibers in the talc, whatever their geological label, can cause mesothelioma.  Additionally, Dr. Barry Castleman provided testimony that the dangers of talc to miners and millers was known in the talc industry dating back to the 1930s and 1940s.

The Defense:

RTV countered Plaintiffs’ arguments on two fronts.  First, they argued that Mr. Galliher’s actual exposure to RTV industrial talc was minimal and speculative at best.  He did not testify to working with talc from RTV until after his attorney suggested the name “Vanderbilt” to him at his deposition.  Moreover, RTV took the position that Mr. Galliher’s exposure to its talc was minimal.  RTV alleged that its talc product was not suitable for use on the molds in the cast area because its was a coarse grind and that ay exposure through use of the talc in the slip house, where Mr. Galliher never worked, would have been minimal.

The more technical defense that RTV put on was over the content of the ore that was mined in New York.  RTV called Dr. Mickey Gunter, a geologist, and Drew Van Orden, a mineral engineer, who argued that the talc mined in New York did not contain any asbestos.  They agreed that the talc contained tremolite and anthophyllite, but not in the dangerous asbestiform habit.  Rather, they argued that the fibers that are found in the talc in New York are only “cleavage fragments” that look like fibers because of how the minerals crumble when they are ground, not because they formed that way, as is the case with asbestos.  RTV also called Dr. Victor Roggli who testified that there is no evidence to support the conclusion that cleavage fragments cause mesothelioma.

Verdict:

After deliberating for just a few hours, the jury returned with a verdict of $2,864,583.33 in favor of Plaintiffs.  The verdict consisted of $114,583.33 in medical expenses, $1.25 million for Mr. Galliher’s pain and suffering, and $1.5 million for the loss suffered by Mrs. Galliher.  The jury assigned 100% of the fault to RTV, notwithstanding RTV’s argument that Mr. Galliher’s employer should bear partial responsibility for failing to maintain a safe working environment and not taking action to protect its workers.  The Court dismissed the punitive damages claim prior to the jury’s deliberations.

Conclusion:

It remains to be seen, of course, if the $2.8 million verdict will stand.  As would be expected, there were numerous post-trial motions for relief filed by RTV, including a motion for a new trial and a renewed motion for judgment as a matter of law.  Neither of these motions has yet been decided.  Moreover, there will most likely be appeals filed if the decisions do not go RTV’s way.  Stay tuned to this blog for updates on the case as the motions (and likely appeals) are decided.


[1] The plant was owned by Borg Warner at the time Mr. Galliher started working there, but was subsequently purchased by Artesian Industries and, later, Crown Plumbing.  For the sake of simplicity, the facility will be referred to here as the “Borg Warner facility.”

Fantasy Litigation

Over the course of the last 5 years, I have slowly but surely become engulfed, addicted, and borderline obsessed with this time of year, all thanks to football.  However, unlike many Pats or Giants fans, it’s not because I am anxiously waiting to see “Doctor” Brady go to work on Sunday afternoon and pick apart some defense.  Nope.  The real reason lies in the opportunity to play (and hopefully win) fantasy football leagues.  Here, I am allowed to “draft” NFL quarterbacks, running backs, wide receivers, tight ends and team defenses and use their actual statistics they generate each week to score points in head-to-head match-ups.  Weeks of hard work (i.e., scouting reports, mock drafts, countless arguments with “this guy” or “that guy”) go into my league draft preparation, all for the chance to win a pot of money (usually less that $1000) but, most importantly, the opportunity to trash talk and decimate the competition consisting of co-workers, friends, family members, and even clients.  My life at times even reflects that of “The League” on FX.

Every year around this time I am thoroughly engaged in a multi-billion dollar industry, religiously reading Matthew Berry’s Love/Hate selections each week, (although I can’t say I am always in agreement) or on the RotoWire seeking out what is the best match-up for my fantasy team.  I have even been a part to some major disputes and conflicts – one of which almost tore two lifetime friends apart, all over a 3rd down running back, and a payout pot of $250.  And this got me thinking.  With the rise of fantasy sports worldwide, one would expect that at some point, somewhere, we are going to see a new breed of litigation sprout up – fantasy sports litigation.  Before you laugh and dismiss the theory, just know that only a few short years ago, MLB players sued fantasy providers based upon their “right of publicity” to their statistics which generated these online games – and lost (pdf download).

FoxBusiness reports that fantasy football generates profits in excess of $1 billion annually.  With figures that high, only one reasonable, natural conclusion can be forthcoming: that fantasy football litigation will eventually ensue.  Crazy thought?  Maybe not.  Already specialty businesses such as trophy companies to fantasy dispute resolution companies exist – see the www.sportsjudge.com if you think I am kidding.  This web site will offer to mitigate any fantasy dispute for a fee.  A lawyer (yes, a lawyer) will then settle your quibble.  Insurance companies too, are getting in on the billion dollar industry.  For example, Fantasy Sports Insurance (FSI) will provide disability coverage on star players (yes, disability coverage), which will protect fantasy owners should their star player go down early (think Tom Brady, 8 minutes into the 2009 season).

Although an individual league may seem miniscule in overall value, the competition, gamesmanship, and the underlying key to many a lawsuit – the justification of knowing you were right – all describe the key personality traits you would expect to find from a fantasy football player.  Coupled with the ever-growing industry as a whole, my bold prediction for this fantasy season is that we will see a lawsuit between former friends – which will transcend hundreds of thousands of dollars in legal fees – this year in the United States.   Although I have not personally handled any litigation in this arena to date, I hear that this guy might be your man…