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A Mississippi jury has awarded $15 million to a 71 year-old oil industry worker who developed asbestosis after years of handling bags of product containing 99 percent asbestos.

In opening statements, lead plaintiff’s attorney Greg Jones of Franklin, Cardwell & Jones in Houston asked the jury, “What is the value of a breath?”

Plaintiff Troy Lofton, who testified at trial with tubes in his nose and ears and holding an oxygen bottle that assists his breathing 24 hours a day, alleged that ConocoPhillips manufactured a dangerous product while knowing of its dangers.

The case is only the third to go to trial of over 700 pending cases involving oilfield workers who developed lung cancer, asbestosis or mesothelioma after handling products made by ConocoPhillips or its subsidiaries.

Among the evidence at trial was a handwritten document indicating that the company had weighed the cost of personal injury lawsuits against the profits of continuing to sell asbestos.

Jones requested punitive damages, but the jury declined to award them.

Alex Cosculluela, lead defense counsel for ConocoPhillips, declined to comment.

Brian Cain, a spokesperson for the defendant, said that the company is “disappointed with the verdict and plans to appeal any resulting judgment.”

Mud additive

The plaintiff, whose parents were sharecroppers, began his lifelong work in the oil and gas industry at age 25 in 1964, around the same time a subsidiary of Phillips 66 (which later merged into ConocoPhillips) began selling Flosal, a mud additive that assisted in oil and gas drilling.

During the twenty years the product was on the market, the plaintiff was responsible for ripping open 50-pound bags and pouring the contents by hand into mud hoppers, thereby inhaling the dust.

At trial, Jones emphasized that the company continued to sell and market the product to customers without warning them of dangers it knew about.

For example, the company told oilfield employers who purchased Flosal that the dust levels didn’t exceed OSHA ceilings and therefore they did not have to provide medical exams, keep medical records or perform dust monitoring.

The plaintiff, on the other hand, testified that he “looked like a snowman” every time he handled the product.

According to Jones, company documents dating back to the 1960s revealed that the mixing conditions were “so dusty it was difficult to see and breathe.”

The company avoided testing the product for 11 years, and even after tests established that asbestos dust was produced in workers’ breathing zones, it continued to sell the product for another 10 years, Jones said.

He argued that a warning label added in 1968 was insufficient.

“They never put anything on the bag that said asbestos could cause cancer. It was basically an innocuous warning saying, ‘Don’t breathe this,’” Jones charged. “They continued to tell their customers that the product was non-toxic and essentially dust-free, all of which was false.”

Company documents exposed internal debate over the warnings.

Jones introduced a company memo showing a handwritten mathematical formula weighing the cost of personal injury lawsuits against the profits of selling the product.

Although the defense dismissed it as a “scrap of paper,” it was one of many internal memos questioning whether the warnings were sufficient, Jones said.

One live witness

Only one live witness testified for the defense – an expert who opined that it was unlikely the plaintiff had asbestosis even though he admitted he had not reviewed the plaintiff’s extensive work history with asbestos, and ultimately acknowledged that Lofton was a “pulmonary cripple.”

Jones also pointed out that the expert stopped seeing patients in 2000 to devote his full attention to serving as an exclusively defense-side expert, from which he has made over $6 million.

According to Jones, in its closing the defense told the jury that it “took courage” for the expert to give his opinion that the plaintiff did not suffer from asbestosis.

Jones countered in his closing: “It didn’t take any courage; all it took was money.”

Perhaps most damaging to the defense was not putting a corporate representative on the stand.

Jones’ co-counsel Ron Franklin hammered this point home during his portion of closing arguments: “Not one human being, not one executive, not anybody from ConocoPhillips who they can put on the witness stand to tell you this product was safe. Not one person.”

He told the jury the case was “your opportunity to change a man’s life and speak for generations of workers nobody cared about.”

After four hours of deliberations, the jury awarded $200,000 in economic damages and $15 million for pain and suffering, loss of enjoyment, emotional distress and fear of cancer.

The next trial over Flosal is scheduled for trial in June in Jefferson County, Miss.

Plaintiff’s attorneys: Greg Jones and Ron Franklin of Franklin, Cardwell & Jones in Houston; and J. Robert Sullivan of Sullivan & Sullivan in Laurel, Miss.

Defense attorneys: Alex Cosculluela and Jeff Trotter of Adams & Reese in Houston.

The case: Lofton v. Phillips 66 Co.; April 7, 2010; Jones County Circuit Court, Mississippi, 2d Judicial District; Judge Billy Joe Landrum.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com

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