Judge’s Dissent Highlights Asbestos Company’s Knowledge of Mesothelioma Risk

79-year-old mesothelioma victim Willie McNeal Jr. prevailed in his lawsuit against talc manufacturer Whittaker Clark & Daniels, but the company was successful in having a $3 million punitive damages award vacated. One member of the California appeals court sharply rejected the reasoning offered by his colleagues, noting the talc company’s clear attempt to conceal the presence of asbestos in their product.

Veteran Maintains $4.8 Million Mesothelioma Award but Loses $3 Million in Punitive Damages

The jury awarded the mesothelioma victim $4.8 million to compensate him for the damages that he suffered as a result of asbestos in Whittaker’s talc and from other sources. They also assigned the company $3 million in punitive damages based on a letter the company’s executive vice president, Frederick F. Roesch, wrote to the U.S. Food and Drug Administration in 1976. That letter failed to note the presence of asbestos in the company’s talc despite the company’s knowledge of the risk posed by the carcinogenic material.

The jury found the company’s failure to reveal the presence of asbestos to be evidence of deliberate malice, but when the company filed an appeal of this additional charge, the California appeals court hearing the case vacated the order. They agreed with the company’s attorneys that deliberate malice was traditionally appropriate in cases of direct exposure but not when it came from within a product.

Judge Rebukes Company and Colleagues in Mesothelioma Case

In his response to the appeals court vacating the punitive damages awarded to the mesothelioma victim, Justice John Shepard Wiley Jr. called the talc company’s arguments feeble. He argued that the failure of the company to reveal the presence of asbestos despite knowing its dangers merited the punishment.

“The reasonable inference is Roesch left out the bad fact to yield to an instinct as old as human nature: deny, deny, deny. Here is a bad fact. Cover it up. … No one contends there is some safe level of asbestos. A ‘trace’ of a toxin is a major problem. Whittaker’s letter could have said it found only a little asbestos, which would have been like a manufacturer saying its cornflakes contain only a little cyanide or the cake flour has just a bit of anthrax.”