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Asbestos victim wins record $33.7 million. (National Report).

In what may be the largest single-plaintiff jury award in California in an asbestos-related case, a jury has awarded a retired navy electrician $33.7 million.

Last year, Alfred Todak, who worked as a boiler room electrician for the navy during the 1960s, was diagnosed with mesothelioma, a rare form of cancer commonly associated with asbestos exposure. Todak and his wife filed suit against the navy and more than 20 companies, including Foster Wheeler, a manufacturer of marine boilers, whose parts have been found to contain asbestos.

Although the other companies settled out of court, the San Francisco jury found Foster Wheeler liable for 30 percent of the verdict, saying that the company's boilers not only contained asbestos, but were defective under California consumer safety laws, due to their design and the fact that the company failed to warn of the product's dangers. Another 30 percent liability was attributed to the navy, which, under federal law, cannot be held responsible. Todak's lawyers, therefore, argued that Foster Wheeler should be held liable for the entire 60 percent.

Foster Wheeler has said that it intends to move to set aside the verdict, arguing that no credible evidence was presented by the plaintiff demonstrating his exposure to asbestos contained in any of the company's products, according to Thomas O'Brien, Foster Wheeler's general counsel. In addition, said O'Brien, the verdict was clearly excessive and should be set aside or reduced on appeal.

The company has established a vigorous claim-handling process to deal with injury claims against the company. Thus far, said the company in a statement, the program has resulted in relatively low case disposition costs and a high percentage of dismissals with no payment.

A surge of asbestos suits has hit the nation, according to a recent New York Times article. American business has called asbestos a top priority and Wall Street has grown uneasy that even profitable companies like Dow Chemical could struggle with claims for years, the article reported.

Despite the fact that U.S. manufacturers ceased using asbestos decades ago, millions of people had been exposed, according to the American Insurance Association. Currently, hundreds of thousands of asbestos-related cases are pending in state and federal courts, and that number is growing at the rate of some 40,000 new cases every year, AIA estimates.

Initially, asbestos-related claims involved workers at asbestos mines and in industrial plants, followed by a second wave of litigation from individuals who had worked with asbestos-containing products and in buildings where asbestos was used in insulation and other construction materials. Because many of the original targets of litigation, such as asbestos manufacturers, had sought bankruptcy protection, plaintiffs began to cast a wider net in search of entities who could be looked to for compensation.

A large percentage of the plaintiffs involved in these new lawsuits do not have, and probably never will have, diseases caused by exposure to asbestos, AIA contends. The statute of limitations, however, has impelled many who were exposed and fear that they may become ill in the future to file suits.

In 1997, the Supreme Court struck down a class-action settlement between asbestos defendants and plaintiffs' lawyers that would have prevented those exposed to asbestos from filing suits unless they became sick. The settlement was unfair to future claimants, who would be forced to abide by its terms even though they had not agreed to it, the court held.

The AIA has joined with the National Association of Manufacturers and other groups, including some plaintiffs' lawyers, to form the Asbestos Alliance. The alliance is advocating legislation that would delay lawsuits from healthy plaintiffs. In addition to liberalizing the statutes of limitations to remove the incentive for premature filings, the legislation would establish objective medical criteria for asbestos-related impairment and eliminate case consolidation and forum shopping.
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Copyright 2002 Gale, Cengage Learning. All rights reserved.

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Date:May 1, 2002
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