Kent Gravelle

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• Criminal Defense

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• Asbestos

• Employment Law

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• Joyce L. Cundy

• Kent Gravelle

• Vincent P. Martin

• Cynthia Miller

• Jamie Vicha

• Kathleen Hauser

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Bloomington, MN 55431
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Recent Punitive Damages Developments in Minnesota Asbestos Litigation

by Kent B. Gravelle, Esq.

Plaintiffs’ firms have been bringing motions to amend their complaints to claim punitive damages against certain defendants.

This is a development that should be monitored because if a jury is allowed to consider punitive damages, the loss for an insurer could go up exponentially whether the case actually goes to the jury or even if the case is settled prior to trial.

The first recent motion to amend for punitives was brought on June 11, 2008 against a plumbing and heating supplier.  Plaintiffs’ counsel stated that the vice president of the supplier testified that he became aware in the early 1960’s of the hazards of asbestos in products they distributed and that the president of the supplier stated that they did not provide any asbestos warnings to their customers.  Plaintiffs’ counsel further argued that the supplier was aware of alternatives to asbestos products dating back to the late 1950’s.

The supplier argued that one of the officers testified that there was an effort by the supplier in the 1960’s to replace asbestos-containing products with non-asbestos products and that they continued to offer asbestos-containing products because they were specifically “called for ‘by the counties’ at that time.”  The supplier further argued that the supplier did not manufacture any products and did not receive any warnings about asbestos from the actual product manufacturers.  The supplier also cited Gray v. Badger Min. Corp., 676 N.W.2d 268, 274 (Minn.2004), stating that a “supplier is only liable for failing to warn of a dangerous material if the supplier knows the product is unreasonably dangerous, and ‘has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition.”

In a July 2, 2008 opinion, the judge denied Plaintiffs’ motion to amend, holding that the Plaintiffs “failed in its burden of proving to the court by clear and convincing evidence that the Defendant who sold their products, failed with a deliberate disregard to the rights and safety of the plaintiff.” [emphasis added] The Court explained that failure to warn because of general knowledge learned from the media does not rise to a deliberate disregard for the safety of others.

The second recent motion to amend for punitives was brought on June 17, 2008 against a joint compound manufacturer.  Plaintiffs’ counsel argued that the jury should be allowed to consider punitive damages because Defendants “were constructively aware of the hazards of asbestos since the late 1920’s and continued selling asbestos products into the late 1970s without any warnings to its customers, thereby acting in deliberate disregard for the rights and safety of others pursuant to Minnesota Statute §549.20.”  Plaintiffs stated that warnings were not placed on the products until required by OSHA in 1972 and that the manufacturer’s corporate representative testified that he could have created an asbestos-free substitute as early as 1965 or 1967.  Plaintiffs then stated that the manufacturer was penalized by OSHA in 1979 for failing to place warning labels on its asbestos products.

The defendant argued that it was unaware of the dangers of asbestos “until around 1972, when federal and New York state regulations began requiring placement of a warning label on certain products containing asbestos” and that that was the reason for not removing asbestos from its products until 1977.  It also argued that the OSHA labeling violations did not occur with regard to joint compound, to which the plaintiff was allegedly exposed.  Finally, the defendant argued that the plaintiffs had not shown, pursuant to Minnesota Statute §549.20, “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights and safety of others.”

On August 30, 2008, the judge again held that “there is no showing that Defendant had actual knowledge of its hazards and then proceeded to clearly and deliberately disregard the rights and safety of others.”  The judge emphasized that plaintiffs had not met the clear and convincing evidence standard which is a higher standard of proof than the typical “preponderance of the evidence” standard.

Conclusion

While it is clear that these cases have laid down precedent with regard to the high standard a plaintiff must meet in order to bring a punitive damages claim in an asbestos lawsuit, it should be remembered that asbestos defense counsel should be vigilant before and during their clients’ depositions with regard to these issues.

Kent Gravelle is an attorney with Cundy & Martin, LLC. Mr. Gravelle’s practice is centered on business defense. Kent is also experienced with matters involving asbestos litigation, employment law, insurance law, and collections. Mr. Gravelle is licensed to practice in all state and federal courts in Minnesota and North Dakota.