Mesothelioma Victim Awarded $15.25M

Family of Mesothelioma Victim Awarded $15.25M by Los Angeles County Jury

Jury Finds that Kelly-Moore and Kaiser Gypsum
Acted with Malice, But Judge Disallows Punitive Damages

LOS ANGELES — September 7, 2006 — A Los Angeles County jury yesterday awarded $15.25 million in compensatory damages to the family of a laborer who developed malignant mesothelioma after working with asbestos-containing products over three decades.

Kelly-Moore Paint Company, Inc. and Kaiser Gypsum Company, Inc. were each assessed 30-percent liability for 74-year-old Salvatore “Sam” Silvestro’s terminal illness. The award included $250,000 for medical expenses and lost benefits and $15.0 million for loss of care, comfort and society. The jury also found that Kelly-Moore and Kaiser Gypsum acted with malice in their failure to notify and warn consumers of the cancer risk associated with their products. The jury, however, was not permitted to consider punitive damages.

The $15.25 million verdict represents one of the largest-ever asbestos awards in Los Angeles County. It is the second significant verdict in LA County for a Waters & Kraus client this summer, coming on the heels of a $12.6 million award made in late June to the family of a mesothelioma victim with intermittent exposure to asbestos.

The Silvestro case was originally dismissed in 2003 when an LA County judge ruled that Mr. Silvestro’s deposition — which was videotaped in Texas during the final weeks of his life — precluded the opportunity for several defendants to participate. The 2nd District, California Court of Appeals overturned the decision on appeal in 2005.

Sam Silvestro worked as a cement mason and laborer on residential and commercial construction projects in the San Francisco area from 1946 to 1977. During a six-year period in the 1960s, he also worked as a boilermaker on more than 100 commercial and naval vessels. He also remodeled homes, including his own, and businesses during this period, using a variety of drywall and cement products manufactured by the defendants.

Mr. Silvestro was diagnosed with malignant mesothelioma in June 2001. He died five months later. His product identification testimony was made via video deposition. During the trial, his widow and daughter also recounted to the jury his use of Kaiser Gypsum’s joint compound during their own home remodeling project in the 1960s.

The defense argued that Mr. Silvestro’s illness was likely caused by exposure to amosite asbestos, a type of asbestos fiber that is used in insulation and fireproofing products, such as the insulation that Mr. Silvestro used and was exposed to during his six-year tenure as a boilermaker. Defense witnesses explained that Kelly-Moore’s and Kaiser Gypsum’s drywall products contained chrysotile asbestos, which is considered a less potent carcinogen than amosite asbestos. According to defense experts, chrysotile asbestos is less “friable” than other types of asbestos, meaning it is less likely to be inhaled.

Gary M. Paul, Waters & Kraus’ lead attorney for the case, argued that the deadly effects of Mr. Silvestro’s long-term, daily exposure to chrysotile asbestos could not be overlooked. He contended that even if amosite asbestos were the more toxic carcinogen, Mr. Silvestro worked with it for just six years, versus more than 30 years’ of daily exposure to the chrysotile asbestos contained in the defendants’ products. After 14 days of testimony and three days of deliberation, the jury agreed.

“The jury recognized that the tremendous loss suffered by the Silvestros could have been prevented, but Kelly-Moore and Kaiser Gypsum put the profitability of their corporations before the safety of their products,” said Mike Armitage, managing partner of Waters & Kraus’ Los Angeles office.

Mr. Paul continued, “It’s been a long, difficult wait for the Silvestro family over the last five years, but justice has been served. Like so many mesothelioma victims, Sam Silvestro was a decent, loving family man who worked hard every day of his life. He and his family deserved better than a death sentence for all his years of hard, honest labor.”

An appeal filed by Kaiser Gypsum is currently pending.

About Waters & Kraus, LLP

Waters & Kraus, LLP, is a plaintiffs’ firm concentrating on complex product liability and personal injury/wrongful death cases. The firm’s diverse practice includes toxic tort litigation, pharmaceutical product liability, malpractice and negligence, and consumer product liability, as well as qui tam (whistle-blower), employment and labor, insurance and commercial litigation. With offices in California and Texas, Waters & Kraus has litigated cases in jurisdictions across the United States on behalf of individuals from all 50 states, as well as foreign governments.

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