Karen Kidd Apr. 3, 2016, 9:19pm

SAN FRANCISCO – The plaintiff and defendant in a long-standing asbestos case filed papers Friday with the state Supreme Court, which has not yet decided whether to hear the appeal, though the Washington Legal Foundation urges the court to do so.

Both sides of Casey v. Kaiser Gypsum Co. are appealing a California appeals court ruling in January and filed answers to petition with the Supreme Court on April 1, according to the high court's website.

The appeals court ruling affirmed a prior judge's decision in the case to exclude an expert and retry for punitive damages before a new jury after the first jury failed to reach a verdict. The ruling also affirmed an almost $4 million asbestos verdict, which was later cut down.

All eyes now are on the state Supreme Court to see if it will hear the case.

"The California Supreme Court has not yet acted on the petitions," Evan M. Tager, a partner with Mayer Brown in Washington, D.C., told the Northern California Record. "It’s hard to say how the court would lean at this point. Each side filed a petition, and the court has sometimes limited the issues that it will consider. So I think that we’d need to wait to see whether it does so before we can venture any predictions about how it might rule."

Meanwhile, the public-interest law firm and policy center Washington Legal Foundation has weighed in with an amicus curiae filed with the high court, urging the appeal be heard.

The amicus curiae summarized the case, paying particular circumstances that led to the punitive damages hearing before a second jury. "Under those circumstances, courts must be especially vigilant in policing procedures employed at punitive-damages-only trials in order, to the extent possible, to eliminate all potential procedural unfairness to defendants," the amicus curiae said. "Granting review in this action and establishing clear guidelines regarding how such trial are to be conducted would go a long way toward achieving that goal."

The case, Casey v. Kaiser Gypsum Co., has a long history as one of thousands of lawsuits filed over the years against manufacturers of products containing asbestos. Patricia and the now late John Casey initially filed suit in the San Francisco County Superior Court against more than 60 companies. It was the conduct of these 60 companies, the Caseys alleged, that caused John Casey’s bystander asbestos exposure from 1962 to 2001 when he worked as a plumber and pipe fitter.

On Jan. 24, 2010, John Casey was diagnosed with mesothelioma, an invariably fatal cancer of the lining of the lungs that is caused only by asbestos exposure. He died less than two years later and his death certificate lists mesothelioma as the cause of his death.

His widow carried on the case until January's trial. By that time, Kaiser Gypsum was the only defendant remaining, many of the other defendants having settled out of court. The jury found for Casey, allocating 3.5 percent of the fault to Kaiser, awarding $1.2 million in economic damages and $20 million in non-economic damages.

The jury stalled on liability for punitive damages, unable to reach a verdict. Despite Kaiser Gypsum's objection, the court ordered a retrial limited to punitive damages. During that retrial, the new jury found Kaiser had acted with malice or oppression and awarded Casey $20 million in punitive damages.

The court then reduced the economic damages to $892,941, the non-economic damages to $700,000 and the punitive damages to $3,982,352.50.

Both parties appealed.

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