DuPont asbestos trial nearing conclusion

David Yates Mar. 20, 2008, 8:50am

With possibly millions of dollars on the line, DuPont's attorneys produced additional evidence on Wednesday, March 19, in a video deposition of one of its former safety engineers who said he worked with the chemical company to develop safety programs as early as the 1950s.

Wrapping up its fifth week, the trial in Judge Floyd's 172nd Judicial District Court focuses on plaintiff Willis Whisnant Jr., a former B.F. Shaw pipe fitter who worked at DuPont back in 1966 as an independent contractor. His family claims he was exposed to enough asbestos fibers to contract mesothelioma, a lung condition that took his life in 1999 at age 72.

Kenneth Keuper, a former safety program supervisor who worked at DuPont from the mid 1950s through the late 1970s, testified via video deposition that at times pipe fitters and insulators working with asbestos would kick up so much dust that the hazardous substance would fill a room.

He also testified that he would shut down the work area once it became so thick with dust that "you could not see to the other side of the room."

Keuper went on to testify that asbestos health hazards were still somewhat a mystery during the '50s and '60s, but that didn't stop him from researching the substance and working with DuPont to implement safety programs.

He testified that in his experience, DuPont also always put safety first and required all independent contractors to follow strict safety protocols.

After Whisnant's death, his family joined an ongoing class-action suit against DuPont and several other oil and chemical companies, which was first filed in the Jefferson County District Court on June 4, 1998. The class members claim DuPont negligently and maliciously exposed workers to asbestos when the company knew asbestos dust and fibers created health hazards.

Whisnant's suit against DuPont was severed from the original case.
According to medical testimony, Whisnant's chest was riddled with bone-eating tumors, a condition the plaintiffs are attempting to link to Whisnant's stint at DuPont.

In his opening remarks, plaintiff's attorney Glen Morgan said DuPont's asbestos policies during the '60s, '50s and '40s were so malicious that the company's "right to exist should be taken away."
Morgan is a partner in the Reaud, Morgan & Quinn law firm.

The plaintiffs maintain that DuPont knew about the dangers of asbestos as early as 1940, but chose to conceal their findings and focus on a defense to protect the company from lawsuits rather than implement policies that would save the lives of its workers.

DuPont's attorneys, which include Larry Cotton of Cotton & Schmidt in Fort Worth and Sandra Clark of Beaumont's Mehaffy Weber, argue that its 1940s studies only focused on people who were "heavily" exposed to asbestos on a daily basis, like miners for example, not chemical plant workers.

DuPont also argues that the chemical company took steps to protect its employees from asbestos before OSHA implemented asbestos guidelines in 1972.

Previously, jurors heard excerpts of depositions given by several former DuPont workers who worked with Whisnant during the late '60s.
The workers testified that they never saw Whisnant wearing a respirator - a device designed to filter asbestos dust.

DuPont contends that its safety policies during the '60s and '70s required employees working around "extreme" dust to wear respirators.

However an industrial hygienist, hired by the plaintiffs, testified that workers were not capable of determining when they were working in "extreme" dusty conditions.

On March 3, Clark filed a motion for mistrial on the grounds that plaintiffs' expert Dr. Gary K. Friedman displayed and discussed a document to the jury that was not only inadmissible, but had not been produced or disclosed to DuPont.

Clark wrote that the extent of the document's prejudice was "enhanced by the way the document was used."

"The document in question was an X-ray report form 1986 from a radiologist from the Manske Sheffield group," the motion to dismiss states. "Dr. Friedman stated with dramatic flair when he compared the document to a 'smoking' gun. A veritable CSI moment in the trial."

Clark wrote that Reaud Morgan & Quinn had been in possession of the X-ray since 1986 and that it was part of a screening program conducted for clients and potential clients.

"The X-ray was of Mr. Whisnant and was stated to be 'clear,'" Clark wrote.

Clark stated that this was significant because Whisnant worked at Neches Butane as a pipefitter for 19 years before he ever set foot on a DuPont premises.

"Dr. Friedman testified that that exposure would have been a cause of Mr. Whisnant's injury," the motion states.

However, when referring to the X-ray, Dr. Friedman said it was objective evidence that the Neches Butane exposure was "not as significant as might be thought by the evidence previously presented in his testimony," Clark wrote.

She wrote that there were hundreds of pages of medical reports and records produced in the case, and yet there is no affidavit for any Manske Sheffield or Southeast Texas Imaging records. The plaintiffs should not have used an inadmissible record, Clark wrote, and called it "clearly an attempt to ambush DuPont."

Dr. Friedman had submitted a 41 page report for the case and listed medical materials that had been furnished by the plaintiffs and some studies he had found for himself, the motion states, and there was no mention of a report from Southeast Texas Imaging or Manske Sheffield.

His report mentions imaging studies and a 1986 X-ray, but he does not report anything significant about it or point out that the X-ray was "clear" or that such a finding would impact his opinion about latency, Clark wrote.

"Dr. Friedman with almost glee told the jury he had done the equivalent of pulling a rabbit out of a hat," the motion to dismiss states. "What he did was pull an inadmissible document out of the archives of Reaud Morgan & Quinn where it had been sitting for 22 years, and in a dramatic five minutes of a two day court appearance tried his best to eviscerate a potential defense.

"This genie cannot be put back in the bottle. This is gamesmanship at its worst by the witness and opposing counsel. What he did was so surprising that there was no effective way to refute the allegations without ever having seen the document or without ever being informed that Friedman relied not on the X-ray, but the inadmissible report by a different doctor."

The motion to dismiss was denied.

Case No. E159-183-Q

Marilyn Tennissen contributed to this story.

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