An Erie County, New York court has issued a decision on damages in a default action where damages and liability were uncontested following a two-day bench trial in an asbestos case involving Joseph Muir, a 58-year-old man living with mesothelioma. Defendant Hedman Resources, Ltd. was the only remaining defendant. Hedman had been served with the summons and complaint pursuant to alternative service granted by the court two years earlier. Hedman never appeared in the action and was in default at the time of the trial. Hedman’s carriers are involved in ongoing coverage litigation and Hedman is no longer in business.
The court heard trial testimony and deposition testimony from various witnesses, including Mr. Muir, his wife of 36 years, his parents and plaintiff’s expert Dr. Mark Utell. The court determined that Mr. Muir was diagnosed with mesothelioma in July 2014. During the summers of 1976 and 1977, he was employed by Durez Plastics in North Tonawanda. Between 1970 and 1977, Hedman sold raw asbestos fiber to Durez. During his two-year employment at Durez, Mr. Muir handled and tested molding compound which contained Hedman asbestos fiber. The plaintiff, whose father worked at the same Durez plant from 1959-1888, also claimed he was exposed to the Hedman fiber through his father’s work clothes, which were brought home. For a six-year period in the 1970s, the plaintiff’s father handled and dumped the raw asbestos fiber as a mixer operator. Mr. Muir brought his work clothes home, which were laundered by the plaintiff’s mother, who described shaking out the clothing in close proximity to the plaintiff. The plaintiff entered into evidence the prior deposition testimony of Gyan Rajhans, an industrial hygienist, who, from 1968-2000, was employed by the Ontario Ministry of Labour and periodically traveled to the Hedman plants in Canada. According to the court, the testimony indicates that Mr. Rajhans warned Hedman of the potential hazards of asbestos in 1969, and that “Hedman did not heed these prior warnings.”
The court awarded $1.75 million for past pain and suffering and $500,000 for further pain and suffering. Before his illness, Mr. Muir was employed full-time, earning approximately $200,000. The court awarded $2,795,103 for future lost wages and various amounts for medical expenses.