Industrial Sales Engineer Exposed to Asbestos Many Decades Ago Wins $8.02M Verdict
Jury Finds Foster-Wheeler Liable for Defective Product Design and Negligence
LOS ANGELES – February 2, 2009 – An LA jury handed down an $8.02 million verdict late last week to a 62-year-old retired sales engineer with a deadly asbestos-related cancer. In reaching its decision, the jury found global conglomerate Foster Wheeler responsible for defective product design and negligence in its failure to warn of the potential harmful effects of its asbestos-containing products.
John Michael “Mike” Nolen was diagnosed with mesothelioma – a cancer known to be caused only by asbestos exposure – in March 2008. Mr. Nolen testified to the jury how he worked two summers in the mid-1960s at Kaiser Steel to help pay his way through college. His job was primarily as a “broom man,” doing odd jobs that included sweeping up after the pipe fitters, steam fitters and insulators as they repaired and maintained steamlines in Kaiser’s cooling towers and waste heat generation facility. Dozens of asbestos-containing gaskets and insulation were removed, cut, filed and installed daily, which generated copious amounts of asbestos dust that workers regularly breathed.
After graduating with a chemistry degree from Cal Poly Pomona in late 1968, Mr. Nolen worked for Aerojet where he was again exposed to asbestos while wearing asbestos-containing gloves to remove solid propellant molds from industrial curing ovens. The most significant occupational exposure to asbestos occurred during Mr. Nolen’s tenure at Nalco chemical from 1976 to 1979. As a sales engineer, he visited dozens of industrial customers’ sites to analyze and tested Nalco’s boiler and cooling water treatment devices and also oversaw annual inspections. Despite not being directly responsible for replacing or installing asbestos-containing components, he nevertheless spent countless hours in close proximity to asbestos insulation, gaskets, and packing material – unprotected and totally unaware of the dangers of asbestos. In his testimony before the jury, Mr. Nolen sharply recalled the brand names of many of the asbestos-containing products he encoutered, many of which were specified by Foster Wheeler in the manufacture of their products.
The defense countered Mr. Nolen’s product identification by arguing that even if he did recall the brand, he could not have known when those products were manufactured. (In the late 1970s, widespread use of asbestos ended as the government enacted stronger workplace regulation to protect workers.) The defense also tried to discredit Mr. Nolen by challenging his recollection that Foster Wheeler products were used at one of his customers’ facilities.
“We know from experience that the defense will say just about anyting to discredit victims suffering with this deadly disease,” noted WK founder Peter Kraus, “but rarely can they follow up their assertions with hard evidence. Juries tend to see right through it, and we are grateful they did so in this case.”
The Nolens, too, say they are grateful for the jury’s decision. Though his strength has been sapped by his terminal cancer, Mr. Nolen came to court every day, accompanied by Sarah, his wife of 40 years. The Nolens recounted for the jury the strength of their relationship and their capacity to triumph over tragedy, citing catastrophic injuries Mrs. Nolen suffered in a car accident in 1998. Mr. Nolen immediately sold his business to care for her around the clock. Although she still suffers some signs of her brain injury, Mrs. Nolen can walk and talk – which her physcians initially thought unlikely – a credit to the couple’s love and perseverance. She told the jury how excruciating it is to now see her husband suffering and in pain, and knowing that no amount of love or medical intervention will change the outcome.
“The Nolens are good people who are in this fight for Mike’s life, body, heart and soul,” said Aaron DeLuca, of DeLuca and Nemeroff, LLP, whose firm served as co-counsel in the case. “We are privileged to have stood with them to see justice prevail.”
About Waters Kraus & Paul
Waters Kraus & Paul is the West Coast practice of Waters & Kraus, LLP – a nationally recognized plaintiffs’ firm concentrating on complex product liability and personal injury/wrongful death cases, particularly asbestos-mesothelioma. In addition to toxic tort litigation, the firm’s diverse practice includes pharmaceutical product liability, negligence, elder financial abuse, and consumer product liability, as well as qui tam (whistle-blower) and commercial litigation. With offices in California, Texas, and Maryland, Waters & Kraus has litigated cases in jurisdictions across the United States on behalf of individuals from all 50 states, as well as foreign governments.