Tempers flare as DuPont asbestos trial enters fourth week

By David Yates | Mar 6, 2008

Defense attorney Larry Cotten

Tempers began to flare last week as the possible billion-dollar asbestos trial of Willis Whisnat Jr. et al vs. DuPont De Nemours wrapped up its third week of testimony on Friday, March 7.

The trial, going on in Judge Donald Floyd's 172nd Judicial District Court, focuses on Whisnat, a pipefitter who smoked throughout his adult life and worked at DuPont's Sabine Works facility in Beaumont. Working back in 1968 as an independent contractor, he was allegedly exposed to enough asbestos fibers to contract mesothelioma - a cancerous lung condition.

The cancer claimed Whisnat's life sometime in the late '90s. He was around the age of 72 when he died.

This week, jurors heard excerpts of depositions given by several former DuPont workers who worked with Whisnat during the late '60s. The workers testified that they never saw Whisnat 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, passionately testified that workers were not capable of determining when they were working in "extreme" dusty conditions.

During his testimony, the plaintiffs' expert began shouting at DuPont defense attorney Larry Cotten.

Cotten asked if the man was upset with him. The plaintiff's expert responded by saying, "I'm upset with (DuPont) for not implementing (adequate asbestos safety) programs."

Cotten is an attorney for the Fort Worth law firm Cotten and Schmidt.

The trial to date

The trial began Thursday, Feb. 21 and is expected to conclude sometime in mid March.

According to expert testimony offered by Dr. Edwin Holstein, DuPont was well aware asbestos in the work place was killing its workers in the early 1960s, but did nothing until the government stepped in.

After Whisnat'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.

According to medical testimony, Whisnat's chest was riddled with bone-eating tumors, a condition the plaintiffs are attempting to link to Whisnat's seven-year 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 and represents the family of the late Willis Whisnat .

Asbestos, a naturally occurring mineral, is an excellent fire retardant and was wildey used by industrial companies, like DuPont, in the early decades of the 20th century to insulate pipes, according to the Occupational Safety and Health Administration.

"The Defendant (DuPont) knew of the toxicity of asbestos prior to the first exposure of Decedent (Whisnat) to the defective and unreasonably dangerous material on its premises," Morgan wrote in Whisnat's suit.

Morgan continues by writing, "Plaintiffs will not seek an amount in excess of $4,100,000,000, excluding pre- and post-judgment interest and costs of court, as compensation for Plaintiffs' damages."

If Morgan has his way and DuPont is forced out of existence, more than 60,000 people would lose their jobs, according to employment figures on DuPont's Web site. However, Morgan did say during opening remarks that he would not ask jurors to award his clients billions of dollars.

Morgan continued by comparing the chemical company to killers on trial who deserve, in his opinion, to be executed. "There are some corporations whose rights … to exist should be taken away."

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 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 was a consumer not a producer of asbestos-containing products, placing product liability on the seller - and took steps to protect its employees from asbestos before OSHA implemented asbestos guidelines in 1972.

In addition, DuPont contends Whisnat was an independent contractor, not a DuPont employee, and therefore Whisnat's employer, B.F. Shaw, was directly responsible for his safety. And even though he was not a DuPont employee, the company still protected Whisnat from asbestos by requiring pipe workers to wear respirators.

DuPont protected its other workers by barricading asbestos-laced pipe worksites.

The plaintiffs, however, argue that asbestos fibers can drift beyond the barricade, which only consisted of yellow caution tape.

Dr. Holstein testified that an asbestos fiber is thousands of times smaller than a human hair and can float in the air for hours.

Case No. E159-183-Q

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