State Supreme Court turns down appeals in long-standing asbestos case

By Karen Kidd | Apr 29, 2016

SAN FRANCISCO – Even with 2016 shaping up to be an active year for asbestos litigation in California, the long-running Casey v Kaiser Gypsum Co. will not be heard by the state's Supreme Court.

SAN FRANCISCO – Even with 2016 shaping up to be an active year for asbestos litigation in California, the long-running Casey v. Kaiser Gypsum Co. case will not be heard by the state's Supreme Court.

Both sides of the case filed appeals with the California Supreme Court on April 1, but the high court announced late last month that it would not hear the case. With its refusal, the high court issued a 56-page unpublished filing detailing why the case was turned down. "Unpublished," in this case, means the filing is not to be published in official reports or cited, though legal experts often do anyway.

"Given the facts in this case and our previous discussion of the guideposts prescribed by the high court, we cannot conclude that the trial court’s decision to reduce the punitive damages awards amounted to an abuse of discretion," the court stated. 

With that, it affirmed the judgment of a California appeals court in January. The appeals court ruling itself 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 appeals court also affirmed the lower court's nearly $4 million asbestos verdict, which was later reduced.

The California Supreme Court also ordered each side in the case to pay their own costs in the appeal.

At this point, the only way to keep the case alive is for an appeal to be filed and accepted by the U.S. Supreme Court.

"I suspect that each side preserved federal issues that would enable them to file certiorari petitions in the U.S. Supreme Court," Evan M. Tager, a partner with Mayer Brown in Washington, D.C. who has blogged about the case, said in a Northern California Record interview. "Whether they will is, of course, another question."

Meanwhile, other asbestos decisions have been handed down by California courts since the first of the year.

On March 16, the California 1st Appellate court for Division Five affirmed a lower court jury's finding that BASF Catalysts was not liable in the asbestos-related death of an auto body shop worker.

On March 23, the U.S. District Court for California's Northern District dismissed most of the claims brought in an asbestos suit, stating those claims are barred by the state’s Workers’ Compensation Act's exclusive remedy provision.

Less than a week later, the U.S. District Court for California's Southern District granted summary judgment to defendants Lamons Gasket Co. and Parker-Hannifin Corp. In that case, the court found the plaintiffs didn't sufficiently prove a link between the late Michael Walashek's death and his alleged exposure to defendants’ asbestos-containing products.

Asbestos Litigation Watch lists on its Resource Center page lists six decisions handed down by California courts in asbestos cases since Jan. 1.

The Casey case drew attention because of how the punitive damages were reached. That prompted the public-interest law firm and policy center Washington Legal Foundation to weigh in with an amicus curiae filed with the high court, urging the appeal be heard.

In Casey, 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 believed to be 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 had 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 noneconomic damages to $700,000 and the punitive damages to $3,982,352.50.

After that, both sides appealed.

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