Michael and Cindy Burch of California recently filed a lawsuit against CertainTeed Corporation, accusing the company of causing Michael’s malignant mesothelioma and of actively concealing the dangers of their product. The jury hearing the case agreed with the couple and assigned 100% of his actual economic damages to the company, as well as 62% of non-economic damages: the remainder of the non-economic damages were assigned to other companies whose products he had used during his long career as an A/C pipe installer. A series of appeals and counterclaims followed, leading to a decision by the Court of Appeals of California assigning 100% of the responsibility for non-economic damages to CertainTeed. They are required to pay the couple $776,201 in economic damages and $9.25 million in non-economic damages.
Court cites elements required to prove fraudulent concealment
Of note in the Court of Appeals’ decision was the attention that they paid to the question of whether the jury was right in deciding that CertainTeed was guilty of fraudulent concealment in the mesothelioma lawsuit. The court reviewed the required elements of the charge, which are:
- The defendant concealed or suppressed a material fact
- The defendant was under a duty to disclose the fact to the plaintiff
- The defendant intentional concealed or suppressed the fact with the intent to defraud the plaintiff
- The plaintiff was unaware of the fact and would not have acted as he did if he had known
- As a result of the concealment, the plaintiff sustained damage
Long list of activities meant to hide dangers of asbestos
In reviewing the testimony provided at trial, t he court pointed out that there was substantial evidence supporting the jury’s finding of intent to deceive. It was pointed out that as early as the 1960s, the company had learned of the link between asbestos and cancer: internal memos reported on the issue extensively, and testimony from the company’s corporate safety director showed that the company had never discussed safe levels of exposure because the only safe level of exposure to asbestos was zero. Evidence was also provided that the company attempted to have OSHA raise the suggested asbestos exposure limit in order to preserve its business, and to keep the word “cancer” from any legally required warning signs or labels because it would make their product unsellable. Additional evidence was entered that the company’s salespeople were given scripts for discussing health and told not to ad lib.
The evidence in the Burch’s mesothelioma lawsuit showed that, like so many other asbestos companies, CertainTeed chose to put its profits over the health of the people exposed to its products. The decision to attribute 100% of the non-economic damages to them rather than to spread it among other companies was based on a legal principal, but there is no doubt that the company took active measures to keep people from knowing of the dangers posed by its products.
If you or someone you love has been affected by mesothelioma and you need information on where your exposure may have come from, or of other resources available to you, the Patient Advocates at Mesothelioma.net can help. Contact us today at 1-800-692-8608.
