Not negligent: Jury says Mobil did not cause the death of Joyce Myers

David Yates Jul. 25, 2007, 9:28am

The asbestos trial of Joyce Myers et al vs. Mobil Oil ended Wednesday, July 25, 2007, with jurors' dismissing the accusation that Mobil "maliciously" and "negligently" caused Myers' cancerous death.

The trial began two weeks ago, July 10 in Judge Gary Sanderson's 60th Judicial Court, and centered on Myers, who as a child helped her mother with the family laundry, a task that included washing the uniforms her father wore during his 22-year refinery career. From 1943 to 1965, Myers' father insulated pipes with asbestos at the Mobil Oil Refinery in Beaumont. Myers was living in her father's home for about 12 of those years.

In January of 2000, Myers, a former pack-a-day smoker, died from mesothelioma - a type of lung cancer that can be related to asbestos exposure - at the age of 64.

Dallas Defense attorney Gary Elliston told the Record that he and Mobil were very pleased with the judgment and thought the jury "worked very hard" to deliver a "conscientious" judgment.

This is actually the second time this case has been tried. The first trial was in 2003. The plaintiffs received a verdict in their favor but asked for and were granted a new trial.

Lawsuit and trial background

The plaintiffs, Myers' daughter Shirley Melvin and her two siblings, were seeking millions of dollars in damages, blaming Mobil for their mother's death. Provost Umphrey plaintiffs' attorney Bryan Blevins spent the last two weeks attempting to link Myers' cancer to the asbestos she may have handled years before in her father Acie Marshall's "toxic" laundry.

Blevins only had to prove that the Mobil Oil Refining Corp., now Exxon Mobil, was at least partially responsible for Myers' cancer. Hence, Jurors were asked to decide if Mobil's actions to protect refinery workers and their families from asbestos reasonable in light of what the company knew during the 1930s, '40s, '50s and early '60s time period.

And although both sides provided ample expert testimony, jurors were seemingly swayed by the industrial hygienist provided by the defense, whom testified that unless the previous generation's scientists had a "crystal ball" at their disposal, no company, organization, union or government could have predicted the repercussions of asbestos and acted accordingly, saying the time period's scientific literature only focused on limiting asbestos exposure.

Blevins and his clients had argued that the people who make up the Mobil Corporation acted with malice during the 1930s, '40s, '50s and '60s by intentionally concealing information revealing the dangers of asbestos exposure and by failing to enact safety programs to protect workers and their families from mesothelioma.

In response to Blevins' allegations, Dr. William Dyson, an industrial hygienist with more than 40 years of experience, testified that it wasn't until the early 1960s when a case study examining a South African asbestos mining community was published unarguably connecting the mineral to mesothelioma.

Dyson said the mining community worked and lived in horrendous environmental conditions and greatly increased their asbestos exposure by using the mineral to line the town's roads.

He said shortly after the study's release companies began placing stricter regulations on the handling of asbestos products and revised asbestos dust exposure limits from 5 million particles per cubic foot to 2 million.

In addition, testimony given by a retired refinery worker, who worked with Myers' father at Mobil, said although the company lacked specific asbestos safety programs during the '30s, '40s, '50s and '60s insulators, such as Marshall, were always required to wear respirators.

The retired worker likened asbestos to cigarette smoking, saying people just didn't fully understand the dangers of certain products back then.

He went on to say that he "couldn't have worked for a better company," adding that Mobil demonstrated a great deal of concern for its employees during his employment at the plant.

However, Blevins contends Mobil "conveniently" lost documentation during the 1930s through '60s, proving that the company knew about the dangers of asbestos, adding that it took the government's formation of the Occupational Safety & Health Administration in the 1970s to clean up the refineries.

"We don't have a lot of physical evidence to prove what happened...," Blevins said in his opening remarks. "We are going to have to rely on some circumstantial evidence."

According to expert testimony given by an industrial hygienist, until OSHA arrived on the scene, roughly 40 percent of a refinery's insulation was composed of asbestos. He also said there was little information regarding asbestos before 1970, adding that when the "methodology" for researching asbestos improved in the 1970s, Mobil took note and created a data base to store the information.

During the trial, attorneys have referenced the testimony of an OSHA official, R. Davis Layne, given before a U.S. Senate committee on July 31, 2001.

"Since OSHA's inception in 1971, the agency has used its authority for standard-setting, enforcement, and compliance assistance to protect workers from the threat of asbestos," Davis told the Senate. "In fact, there has been more rulemaking activity involving asbestos than any other hazard regulated by OSHA."

Dr. Dyson said that throughout the years there has been a "continuing evolution of thought" on what asbestos exposure should be limited to; and even in 1972, OSHA was still focusing on regulating exposure versus banning the substance all together.

Defense attorney Elliston said in his opening remarks that companies were not fully aware of the dangers of asbestos until the 1970s.

"All of the plaintiffs' claims are based on hindsight," Elliston said, adding that one generation builds on the scientific knowledge of the previous generation, and that it was not till 1965 when the scientific community learned insulators, like Melvin's grandfather, were at risk of developing mesothelioma, let alone their children.

He went on to say that "if you condemn" Mobil for failing to protect workers from asbestos, then "you are going to have to condemn the whole world because no company, government, or union was doing it."

Elliston also said not all mesothelioma is caused by asbestos, especially in women. "80 percent of mesothelioma in women is of an unknown cause."

Asbestos is a natural fire retardant fiber and was used for centuries to insulate homes, offices, ships and equipment, like the pipe used at the Beaumont refinery.

More Background

Shirley Melvin's lawsuit is one part of a massive suit filed in 1994 -- Harold Daniels vs. Pittsburg Corning Corp. et al. The original 1994 suit has been severed roughly 220 times, with pieces of the suit being shipped to Harris County along the way.

With thousands of plaintiffs and dozens of defendants, the suit is so massive that its files occupy about half of the Jefferson County Courthouse's civil records basement vault.

To date, the suit has been amended 141 times, and accuses 68 corporations of mining, manufacturing and distributing asbestos products throughout Jefferson County.

Some of the defendants named include Viacom, Lockheed Martin, Westinghouse Electric and General Electric.

"Defendants were all negligent in failing to adequately warn of the dangers of asbestos exposure," the suit said. "Their failure was a proximate cause of plaintiffs' injuries and damages. Defendants were also negligent in failing to adequately test their products to determine the hazards associated with their products."

The petition also faults Minnesota Mining and Manufacturing Corp. (3M Corporation) and American Optical Corp. for producing defective masks that failed to "provide respiratory protection."

Myers' case with Mobil, Case No. B150-374-BE, represents only one of the plaintiffs against one of the defendants that were severed from the original suit. Since 1994 there have been hundreds of trials, dismissals and settlements between the criss-crossing parties.

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