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New York Construction Worker’s Mesothelioma Lawsuit Clears Legal Hurdle

When Louis Decanio died of malignant mesothelioma in February of 2016, the source of his illness was clear: he had worked as part of a clean-up crew in New York City from 1958 to 1966, and had been responsible for removing boiler parts after they had been disassembled. He had a clear memory that the boilers were manufactured by Kohler Co., and upon learning that those parts were contaminated with asbestos, he and his wife filed a lawsuit seeking compensation for his illness. Though Mr. Decanio has died, the lawsuit continues. Kohler argued that the case should be dismissed based upon a previous decision in another mesothelioma lawsuit. Recently their motion for summary judgment was heard by Judge Manuel Mendez of the New York Asbestos Litigation Court, who denied their motion, explaining that the case that they referenced was not relevant to Mr. Decanio’s situation.

Carting away asbestos parts led to mesothelioma

In a deposition that Mr. Decanio gave before his mesothelioma death, he detailed how he had been exposed to Kohler’s asbestos-contaminated boiler parts. He described the frayed gaskets that he would load into carts and take away, as well as the fact that he was often on site when they boilers were being disassembled. In response, Kohler’s attorneys argued that the removal of parts after dismantling was not a foreseeable use of the product and that therefore the company owed no duty of care to anybody who was carrying parts away. Mr. Decanio’s attorney countered that there is an expectation that boilers would eventually be replaced or updated, and that removing parts would be within the scope of foreseeable use.

The difference between salvage and replacement work

Beyond that initial argument against Kohler’s liability, the attorneys then went on to cite a previously-decided mesothelioma lawsuit in which the court had determined that a company was not responsible for the plaintiff’s illness, but Judge Mendez pointed out that the case had involved salvage workers.  The judge wrote “that salvage workers who would rip, cut and smash pieces out of products that might contain asbestos have performed such work in a way beyond the scope of foreseeable use or misuse of these products,” and that though “rough and careless disassembly ” was not within the foreseeable use of the product, disassembly by  someone skilled in the process and removal of those products was. The judge denied the motion for summary judgment and Mrs. Decanio will be able to pursue justice on behalf of her late husband.

People who have been affected by malignant mesothelioma face numerous challenges, but there are many resources available to support them along the way. For information on how the Patient Advocates at Mesothelioma.net can help you, contact us today at 1-800-692-8608.

 

 

Terri Oppenheimer

Terri Oppenheimer is an experienced blog writer, editor, and proofreader. She graduated from the College of William and Mary with a degree in English. She specializes in providing content for websites and finds tremendous enjoyment in the things she learns while doing her research. Her specific areas of expertise include health, medical research, and law.

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