Asbestos suit against 58 defendants cites 'Pustejovsky' decision

Marilyn Tennissen Jan. 6, 2009, 6:16am

The wife of a local refinery worker already received a settlement for a non-malignant illness allegedly caused by her husband's asbestos exposure. Now a new suit has been filed on her behalf after she died from an asbestos-related malignancy.

Denise Clements filed the suit on behalf of decedent Lola Thomas on Dec. 29, 2008, in Jefferson County District Court, and names nearly 60 companies as defendants.

The suit alleges Thomas was exposed through her husband's employment as a mechanic and laborer where he was required to work with and around asbestos containing materials.

Mr. Thomas's exposure "caused him to indirectly expose his wife, Lola Thomas, in which she suffered from asbestos-related diseases and other industrial dust diseases caused by breathing the asbestos-containing products," the suit alleges.

The plaintiff is now seeking damages pursuant to Pustejovsky v. Rapid-American Corp., the 2000 Texas Supreme Court ruling that a victim may file an additional suit for asbestos-related cancer if he develops a second illness from the same cause at a later date.

The 58 defendants in Clements' suit include A.O. Smith Corp., A.W. Chesterton Co., American Optical Corp., Bechtel Corp., Westinghouse, Chevron, Exxon Mobil, Fluor Maintenance, Foster Wheeler, GE, Georgia Pacific, Ingersoll Rand, Kelly-Moore Paint, Lockheed Martin, 3M, Uniroyal Goodrich Tire Co., Union Carbide and Zurn Industries.

The complaint states that Thomas already sued or settled claims for non-malignant asbestos-related disease with one or more defendants.

"Decedent died from a different, malignant asbestos-related injury for which the decedent's family seeks compensation," the complaint states. "No amount of due diligence would have allowed the decedent to recover for her malignant asbestos-related injury when her original suit for non-malignant asbestos related disease was brought."

Clements states the companies were negligent by failing to warn of the dangers of asbestos exposure and by failing to adequately test their products to determine the hazards associated with them, according to the lawsuit.

The companies failed to provide a safe place to work, allowed dangerous conditions to exist on their premises, failed to warn people of the hazardous conditions on the premises and failed to warn people that asbestos particles could cause an asbestos-related lung disease, Clements alleges.

They also failed to provide protective breathing apparatuses that could have protected their workers from inhalation of asbestos fibers, failed to provide adequate ventilation, failed to utilize alternative products that were safer, ordered the removal of asbestos in an unreasonable manner and failed to place warning labels on the containers of asbestos products, according to the complaint.

The companies failed to warn their workers of the dangers related to asbestos exposure, failed to warn workers with regard to the proper handling of asbestos, failed to adopt and enforce a safety plan or method of handling asbestos products, failed to implement engineering or other practice controls to control the release of asbestos in the air and failed to follow various governmental regulation, the suit states.

Because of Thomas's disease, the suit claims Thomas suffered physical pain, mental anguish, disfigurement and physical impairment and incurred medical expenses.

Clements incurred funeral expenses, according to the complaint

Clements is seeking unspecified exemplary and actual damages, plus pre- and post-judgment interest, costs and other relief to which she may be entitled.

They are represented by Bryan O. Blevins Jr. and Aaryn K. Giblin of Provost and Umphrey in Beaumont.

The case has been assigned to Judge Gary Sanderson of the 60th District Court.

Case No. B182-947

Correspondent Kelly Holleran contributed to this story.

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