CVN screenshot of defense attorney Todd Suddleson delivering his closing argument
Phoenix - An Arizona state court jury has delivered a defense verdict in favor of CertainTeed Corp. in an asbestos lawsuit, finding that the building materials company is not responsible for the death of a pipefitter whose family claimed he developed cancer after years of inhaling dust generated by sawing asbestos cement pipes.
The jury returned the verdict on February 1 after roughly three hours of deliberation following a trial that began on January 9. They rejected allegations from Francisco Herrera’s wife and three adult children that CertainTeed knew their asbestos-containing cement pipes posed a health risk but failed to adequately warn workers.
Attorneys for the Herrera family asked jurors to award approximately $5 million in compensatory damages and unspecified punitive damages, but CertainTeed successfully argued that jurors did not have sufficient evidence to identify CertainTeed’s pipes as the primary cause of Herrera’s mesothelioma.
The full trial was webcast live and recorded gavel-to-gavel by Courtroom View Network.
Herrera began working for municipal contractor SunAir Co. in 1977 on public water systems. His attorneys claimed that he routinely cut asbestos cement pipes with a saw and inhaled large quantities of asbestos dust. However Herrera died before he could give a deposition, so his family’s attorneys relied on testimony from former co-workers who CertainTeed’s attorneys argued had vague recollections about Herrera’s activities.
“If you take CertainTeed’s argument to its logical conclusion is that [those co-workers] don’t remember what they worked with every day,“ Susannah Chester-Schindler of Waters Kraus & Paul told jurors during her closing argument. “Simply because they can’t swear that they used it with Frank Herrera on a specific day at a specific intersection at a specific time.”
She maintained that CertainTeed had substantial evidence about the dangers of asbestos by the 1970’s, but CertainTeed’s attorneys placed the blame on SunAir not training its employees to work safely with asbestos cement pipes.
Todd Suddleson of DeHay & Elliston LLP told jurors during his closing argument that CertainTeed explicitly warned customers not to cut asbestos cement pipes with power saws and to take steps to minimize the production of airborne asbestos dust.
Suddleson also argued that Herrera worked with asbestos cement pipes from other companies besides CertainTeed, but his co-workers couldn’t testify about which pipes they saw him cutting.
“All they’ve shown is some co-workers that say CertainTeed was one of the pipe that they used,” he said. “They never said how often, they never said where, they never said when, they never said, ‘I saw Frank Herrera touching a piece of CertainTeed pipe.”
Suddleson repeatedly emphasized that jurors never got the chance to hear from Herrera himself, a circumstance that can often present a significant obstacle for plaintiffs in asbestos lawsuits involving deceased individuals.
Chester-Schindler told jurors that by the time Herrera’s family filed their lawsuit, that he was too ill to give a deposition.
“I didn’t depose him because he was dying of cancer,” she said. “I’m an attorney, that’s how I make money, but even I have a line.”
Both sides were represented by pro hac vice counsel from Texas-based firms, with CertainTeed also represented by Valerie Ross from Schiff Hardin LLP’s Washington, D.C. office.
A CertainTeed spokesperson told CVN the company does not comment on litigation. Attorneys for the Herrera family did not respond to a request for comment.
The full trial is available to subscribers as part of CVN's one-of-a-kind trial video archive, which also includes gavel-to-gavel video of many other asbestos, product liability and mass tort trials.
The case is Francisco Herrera v. CertainTeed Corp., case number CV2014-09632, in the Superior Court of Arizona in Maricopa County. Judge Dawn Bergin presided.
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