Smoker sues again for different asbestos disease

David Yates Oct. 11, 2007, 3:23am

Bryan Blevins

Although senior citizen Buster Flanigan boasts a 100-plus pack-year smoking history, Trinity Clinic physician Dr. Richard Kronenberg says Flanigan's lung cancer was caused by asbestos exposure.

Trinity Clinic was paid by Provost Umphrey attorney Bryan Blevins to review Flanigan's medical history.

Flanigan has already sued and received a settlement for his asbestos-related disease, but is now suing for a "different malignant asbestos-related injury."

Flanigan's lawsuit, filed with against the Jefferson County District Court on Oct. 9, claims the A.O. Smith Corp. and 47 other corporations knowingly and maliciously manufactured and distributed asbestos-containing products throughout Jefferson County.

The plaintiff's original petition says the 48 defendants entangled in his lawsuit were negligent for failing to adequately test their asbestos-laced products before flooding the market with dangerous goods and warn the consumer of the dangers of asbestos exposure.

After reviewing Flanigan's medical history, Dr. Kronenberg wrote, "The records indicate Mr. Flanigan had a significant occupational exposure to asbestos. Specifically, he worked as a longshoreman in cargo holds at refineries and chemical plants from 1960 to 1962. From 1964 to 1967, he was on active duty with the U. S. Navy. From 1969 to 1974, he worked aboard tugboats and was exposed extensively to asbestos insulation.

"This exposure is of sufficient magnitude and latency to account for any of the asbestos related diseases. He was a cigarette smoker of over 100 pack years and was still smoking one pack of cigarettes daily as of December 2006. Pulmonary function studies from January 13 of an unknown year showed severe restrictive disease. Repeat pulmonary function studies from Jan. 26, 2006 showed both severe obstructive and restrictive disease with reduced diffusion.

"In approximately February 2006, Mr. Flanigan was evaluated for shortness of breath. A chest x-ray was done which revealed a mass in his right lower lobe. A bronchoscopy was performed but was non-diagnostic A fine needle aspiration biopsy of this mass was positive for non-small cell lung cancer. Mr. Flanigan was evaluated extensively at the MD. Anderson Cancer Center and eventually he was started on radiation therapy. As of August 2006, he had developed metastatic disease to his thoracic and lumbar spine.

"Based on my review of the records you supplied, I conclude with a reasonable degree of medical probability that Mr. Flanigan was diagnosed with an asbestos related lung cancer caused by his exposure to asbestos. Thank you for the opportunity to review these records."

Some of the defendants listed in the suit include aerospace giant Lockheed Martin, Viacom and iron supplier Zurn Industries.

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

Although Flanigan has already sued and received a claim, the suit says, "Plaintiff now seeks damages against defendants not released in the previous actions pursuant to Pustejovsky v. Rapid-American Corp."

"The court must apply a separate accrual rule in these cases because a single action rule would forbid a second suit and in doing so force the asbestos plaintiff to file premature litigation on speculative claims, which the court in Pustejovsky notes is neither efficient or desirable," the suit said.

The plaintiff is suing for exemplary damages, plus physical pain and suffering in the past and future, mental anguish in the past and future, lost wages, loss of earning capacity, disfigurement in the past and future, physical impairment in the past and future, and past and future medical expenses.

Judge Bob Wortham, 58th District Court, has been assigned to the case.

Case No. A180-492

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