Asbestos case grabs industry's attention

By Bill Dolan, NorthWest Indiana Times

A weekend settlement of an asbestos lawsuit has made a retired steelworker a millionaire for the rest of his short life.

U.S. Steel agreed reluctantly Sunday to a pay 70-year-old Roby Whittington of Gary a fraction of the original $250 million verdict a jury returned last week in the Illinois 3rd Circuit Court in Edwardsville. The company said it agreed to pay less than $50 million rather than face a lengthy appeal.

"Yesterday was the best day of the rest of his life," Randall Bono, an East Alton, Ill., lawyer representing Whittington, said Monday. "Now, every day is going to get worse," he said of his client, who has been diagnosed with mesothelioma, a terminal lung disease. U.S. Steel spokesman Mike Dixon said the deal left his corporation feeling as if justice was denied.

"We believed we could have won on appeal, but we didn't want lengthy litigation that distracts us from our focus of making steel."

He said the case should have been handled as a workman's compensation matter, where restitution for work-related illnesses and injuries are limited.

Instead, it became a lawsuit in a venue near St. Louis, more than 240 miles from here, which has been denounced by the U.S. Chamber of Commerce.

"Trial lawyers can drag any company with perceived deep pockets into the plaintiff-friendly district of Madison County and come out instant billionaires," said Thomas J. Donohue, president and chief executive officer of the U.S. Chamber of Commerce.

Bono, Whittington's lawyer, said U.S. Steel has only itself to blame for its troubles. He said he proved to a jury that U.S. Steel knew of the risks its employees took in handling a multitude of asbestos products, but it has played ignorant or delayed trials until plaintiffs have become too sick or died.

"They practice a scorched-earth policy, and this time they got burned big time," Bono said.

It is unclear if this verdict and subsequent settlement will affect future asbestos litigation involving the mill.

U.S. Steel has been subject to a total of 34,000 lawsuits in the last 12 years that have been administratively dismissed or are inactive due to the failure of claimants to present any medical evidence to support their claim, Dixon said. He said the company paid out $700,000 to settle 1,700 claims last year.

Whittington began at Gary Works in 1950, left to join the Army in 1953 and returned two years later. He retired in 1981.

"He would have to clean up after the insulators, clean up after the refractory masons who rebuilt furnaces; he did pump work where he had to replace asbestos gaskets and had to clean up all the various asbestos products used at U.S. Steel, including (asbestos) pipe covering," Bono said.

He developed the disease in November 2001.

"This is a horrible disease. He is in a wheelchair whenever he has to go for long distances. He is still able to walk 50 to 60 feet without a wheelchair. He is not totally disabled, but that is the process he is going through," Bono said.

Bono said there was no dispute over Whittington's exposure to asbestos at the mill nor that it led to his illness. U.S. Steel contended it was unaware of the danger.

"We proved they knew an awful lot, and they did nothing to protect Roby or any other workers," Bono said.

Dixon noted the $250 million verdict, which a jury handed down Friday after 10 days of trial, came on the heals of an even larger blow to corporate America. In the same courtroom, Judge Nicholas Byron handed down a $10.1 billion verdict in a class-action tobacco case against cigarette maker Philip Morris.

The U.S. Chamber's Institute for Legal Reform claims Edwardsville "is the epicenter of class action filings in America." More are filed in that county on a per capita basis than anywhere else in the United States, Donohue said, because trial lawyers believe their chances for victory there are enhanced.

Bono said the chamber's complaints don't apply in the U.S. Steel case.

"(U.S. Steel's lawyers) never challenged the venue in this case. We filed it here, because (we) had Illinois defendants in the case.

"This was an individual, not a class action lawsuit. This was a jury verdict. They came up with this amount entirely on their own. Certainly this jury was sending a message loud and clear to U.S. Steel as well as every other employer in the country that it is not OK to poison your employee. They wanted to get people's attention, and that is what they did." Michael Schick, director of communications for the U.S. Chamber's Institute for Legal Reform, said such verdicts, particularly in asbestos cases, are weighing heavily on sectors of the economy.

"Over the last year, 60 companies have gone bankrupt because of asbestos litigation," Schick said. "It has put about 16,000 people out of work. Then you have a secondary impact in small-town companies across America that provided services or goods to those businesses. They have to close down, too. It is an amazing domino effect that most people don't look at."

The chamber's position is that the truly injured do deserve compensation.

"That is why Congress has turned its attention to this. The judiciary committee is intense in finding some kind of resolution by bringing all the interested parties to the table," Schick said. "We are finally seeing some movement. The Supreme Court has said this is an elephantine mess that needs a legislative solution."

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