David Yates Oct. 31, 2007, 4:42am
When he was alive, William Holmes sued and received a settlement for an asbestos-related disease. Now deceased, Holmes' benefactor is suing on his behalf for a different asbestos-related disease.
Provost Umphrey attorney Bryan Blevins filed the suit on behalf of plaintiff Joy Holmes on Oct. 26 in Jefferson County District Court.
In the suit, Holmes alleges that the A.O. Smith Corp. and 33 other companies knowingly and maliciously manufactured and distributed asbestos-containing products throughout Jefferson County.
Holmes worked as a machinist and insulator for various employers, the suit said.
The suit alleges the defendants in the lawsuit were negligent for failing to adequately test their asbestos-laced products before flooding the market with dangerous goods and for failing to warn the consumer of the dangers of asbestos exposure.
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 Holmes 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."
In the precedent-setting Pustejovsky opinion in 2000, the Texas Supreme Court held that a victim of asbestos may later have a second lawsuit for an asbestos-related cancer if he develops the cancer at a future date. The opinion overrules a long history of Texas cases holding that a person may only bring one lawsuit for an asbestos-related injury, even if he develops a second, catastrophic asbestos-related cancer at a much later date.
"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 Donald Floyd, 172nd District Court, has been assigned to the case.
Case No. E180-656