April 18, 2019
After a brief deliberation, a St. Louis city jury found Ford Motor Company not liable for the death of a shade-tree auto mechanic who allegedly used Ford asbestos-containing brakes and later developed mesothelioma. Plaintiff Mary Kennedy alleged that her twin brother, Robert Hare, used Ford asbestos-containing brake components when performing brake replacements from 1978-1983.
Though he did not appear live to testify, Plaintiff’s evidence of exposure relied exclusively on the testimony of Mr. Steven Levitt, a fellow veteran with whom Mr. Hare performed the automotive work. Mr. Levitt claimed during that time period, he and Mr. Hare performed automotive work for friends and strangers at a rented garage in Florida up to twelve hours a day and seven days a week.The pair would perform one to three brake jobs a day, or more during peak times, which would require that they sand the friction material and blow out brake dust with compressed air. They did not accept money for their services, but the vehicle owners brought their own replacement brake components for the gentlemen to use, of which ten percent were Ford replacement brakes.
Western Auto Supply Company was also involved in the first half of the trial, but the case against it was resolved before the start of the second week. Both it and Ford made it clear to the jury from the start that this case had significant issues of fact as to whether the alleged automotive work even occurred and that it would be the responsibility of the jury to determine the credibility of the evidence. Mr. Levitt was the only witness to offer testimony that the decedent was in Florida performing automotive repair work at the relevant time period.Meanwhile, Plaintiff faced a mounting pile of evidence from Ford that that Mr. Hare had actually lived and worked in the Baltimore, Maryland area during the time Mr. Levitt placed him in Florida. Social Security records, hospital treatment records, and the testimony of multiple witnesses, including Plaintiff herself, all indicating that Mr. Hare was in Baltimore, cast significant doubt on the credibility of Mr. Levitt’s version of events.
In support of her case, Plaintiff first called Dr. Murray Finkelstein, an expert in epidemiology. He testified that all types of asbestos can cause mesothelioma and that asbestos exposure is the only plausible cause of the decedent’s disease in this case. Dr. Gerald Markowitz took the stand next and testified about the evolution of knowledge of the hazards associated with asbestos. Dr. Kenneth Garza, CIH, a certified industrial hygienist, did not offer case-specific testimony, but opined that changing brakes in the manner alleged, with the frequency alleged, would be sufficient to cause disease. Plaintiff’s final expert, pathologist Dr. Brent Staggs, told the jury that asbestos of all fiber types was causative of Mr. Hare’s disease and that using asbestos containing replacement friction material as described would be a substantial contributing factor to the development of that disease.Plaintiff Mary Kennedy testified about how she was there for her once-estranged brother during his time of need to witness his suffering from his disease. She also told the jury of her brother’s family-like friendship with Steven Levitt, who even helped write Mr. Hare’s obituary and plan his funeral.
Ford also presented a strong lineup of experts to support its position that the chrysotile asbestos in the friction material of brake components cannot cause the development of mesothelioma, including epidemiologist Mark Roberts, MD, PhD, toxicologist Bryan Hardin, PhD, ATS, and pathologist Dr. Michael Graham.In addition, Ford relied heavily on the opinions of certified industrial hygienist Jennifer Pierce, PhD, whose explanations and calculations related to asbestos exposure levels seemed to be well received by the jury.Dr. Pierce had conducted an extensive review of the literature, including every epidemiologic study done on asbestos-exposed workers. Offering the jury several compelling statistics, she noted that for workers exposed to chrysotile asbestos throughout their careers, the no-observed-adverse-effect level for mesothelioma was 208-415 fiber/cc years, while a career automobile mechanic is estimated to reach a cumulative exposure level of only 0.69 fiber/cc years, and yet the lifetime exposure level permitted under current OSHA standards is 4.5 fiber/cc years.
Plaintiff’s closing argument offered an explanation for the factual discrepancies: the witnesses in this case live in the real world where memories aren’t perfect.Defendant’s closing reiterated all the inconsistent evidence the jury did hear and referred to the non-existent pieces of the puzzle plaintiff did not present for the jury’s consideration. Ford told jurors that they don’t have to believe Mr. Levitt was a liar, but if they can’t decide whether or not he was telling the truth, then Plaintiff didn’t bring them enough evidence to meet her burden.Ultimately, the jury determined Mary Kennedy did not meet her burden to prove that asbestos-containing Ford brakes caused or contributed to Mr. Hare’s development of mesothelioma and death and found for Defendant Ford on all counts: strict liability, failure to warn, and negligence.
Although St. Louis has seen a surge of talc-related trials in recent years, cases involving occupational, or para-occupational, exposure to asbestos rarely make it to a jury. When they do, asbestos-related personal injury or wrongful death trials in St. Louis City have been a relatively equal mix of findings for plaintiffs and defendants. This is in contrast to neighboring Madison County, Illinois, which has seen only defense verdicts in asbestos cases over the past decade and a half.Although nearby St. Clair County, Illinois has seen a steep influx of asbestos-related filings in recent years, primarily involving allegations of lung cancer, there has yet to be a trial in that venue. Ford Motor Company was represented by McAfee + Taft and Swanson Martin and Bell represented Western Auto Supply Company. Plaintiff was represented by local St. Louis firm SWMW Law.
For more information on this topic, or the asbestos litigation generally, please contact Mandy Williams at (371) 571-4332.