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March 2017

Gordon & Rees Team Obtains Total Defense Verdict for Brake Equipment Manufacturer in Products Liability Case

Gordon & Rees partners James A. Lowery (Dallas) and Robert A. Rich (Oakland), with associate Brian Roth (Chicago), obtained a total defense verdict after a hard-fought trial for their client, Hennessy Industries, Inc., in Madison County, Illinois.

In this living mesothelioma case, the 65-year-old plaintiff testified to working with and around an AMMCO brake arcing machine at various locations throughout his career as an automotive shop instructor.  The plaintiff testified to using the machine more than 700 times on asbestos-containing brakes at one location alone from 1976 to 1985.  As a result of the exposure, the plaintiff alleged that he developed peritoneal and pleural mesothelioma, which was diagnosed in 2013.  The plaintiff had been living with the disease for four years at the time of trial.  Hennessy was the only remaining defendant at trial.  The plaintiffs called Dr. Arnold Brody (cell biologist), Dr. Arthur Frank (occupational medicine), Dr. Gregory Kalemkerian (treating oncologist), Dr. William Longo (materials scientist), and Dr. Karen Tabak (economist).

Hennessy maintained that it was not negligent and did not fail to warn.  Hennessy offered evidence that once it learned of the potential hazards of overexposure to asbestos once OSHA was enacted in 1972, it acted immediately and responsibly in testing its grinder; re-engineering a more efficient dust collection system (even though the old system met OSHA’s standards) and offering it as a retrofit; and warned on its grinder, on its dust collection system, in its instructions and manuals, and through its 175-person salesforce.  Hennessy called experts Dennis Bridge (industrial hygienist) and Dr. Michael Graham (pathologist).

At the beginning of trial, Judge Stephen A. Stobbs granted Hennessy’s motion for application of Michigan law on damages issues, but ruled that Illinois law governed liability issues.  Judge Stobbs’s ruling on the choice-of-law should prove critical in future cases in the nation’s busiest asbestos docket.  The result of the ruling in this case, however, was that Hennessy was precluded under Illinois law from offering evidence of alternative causation/exposures, but that Michigan’s non-economic damages caps and punitive damages bar would apply unless the plaintiffs obtained a gross negligence finding against Hennessy.

In opening statement, the plaintiffs’ counsel told the jury, the plaintiffs would be asking for $10 million.  In closing argument, they asked for $10 million, plus $6—representing one dollar for each act of Hennessy’s alleged gross negligence.

After less than three hours of deliberation, the jury unanimously concluded that Hennessy was not at fault for negligence, answering the first question on the verdict form as follows: “QUESTION NO. 1: Was Hennessy Industries negligent?  Answer: No.”  All 12 jurors signed the verdict form.

James A. Lowery
Robert A. Rich
Brian Roth