Foley & Mansfield’s Northern California Trial Teams Limits New Jersey Asbestos Damage Demand

In Kaenzig v. Whittaker Clark & Daniels (New Brunswick, NJ), Foley & Mansfield’s Northern California trial team succeeded in limiting a multi-million dollar damage demand sought by the plaintiffs in this recently decided mesothelioma TALC exposure case. On November 1, 2013, plaintiffs Steven and Linda Kaenzig were awarded damages of $1.4 MM for Mr. Kaenzig’s peritoneal mesothelioma and $200,000 for Mrs. Kaenzig’s Loss of Consortium claim.

Douglas G. Wah, Esq. of Foley Mansfield’s Northern California office represented defendant Whittaker, Clark and Daniels, Inc., with Nora Grimbergen, Esq. of Hoagland, Longo of New Brunswick, NJ, assisting. Wah, a skilled trial attorney who has successfully tried a significant number of asbestos cases to verdict in his 30+ years of practice, was contacted about this case a mere four days before trial started. Nonetheless, Wah put together a case that resulted in a positive result for his client.

The Honorable Vincent J. LeBlon of New Brunswick, New Jersey, presided, while Moshe Maimon, Esq. and Leah Kagan, Esq. of Levy, Philips & Konigsberg, New York, NY represented the Kaenzigs. Mr. Maimon is well known for obtaining the largest asbestos compensation verdict in New Jersey history – a $30.3 million dollar award in the Mark Buttitta v. Asbestos Corp., et al. action. The verdict was upheld by the State’s Appellate Court.

A number of interesting facts emerged during the trial regarding the plaintiff’s exposure. Stephen Kaenzig, 47 years old, was diagnosed with peritoneal mesothelioma in 2012 and underwent a radical pleurectomy immediately followed by a program of aggressive chemotherapy.

His exposure was the traditional, para-occupational ‘take home’ exposure from his father’s work clothes. The plaintiff’s father worked with talc at the Shulton/Old Spice plant from 1967 to 1975. Both Kaenzig and his father testified that when the plaintiff was a child, the two would regularly wrestle on the floor upon his father’s return home from work. Plaintiff also believed he was exposed to the Whittaker, Clark & Daniels talc when his mother washed the family’s clothes – including his father’s work clothes – as he often played in the laundry room when she performed this task. There was additional testimony that Kaenzig’s parents used Shulton talcum powder products brought home from the plant when plaintiff was diapered as an infant.

Ironically, the plaintiff was and is employed as an insulator, although he claimed no asbestos exposure from this line of work. He stated that he started insulating in the 1990s which, by that time, all asbestos had been removed from the jobsites where he was working prior to his arrival.

Testifying for the plaintiffs, geologist Sean Fitzgerald told the jury that the three sites where the defendant mined talc were contaminated with actinolite, anthophylite and tremolite – all asbestos contaminants. Occupational medicine expert Dr. Jacqueline Moline in turn testified that the contaminated Whittaker talc was the significant and only factor causing the plaintiff’s mesothelioma. Further, she told the jury that plaintiff’s long-term prognosis was not good, despite his healthy appearance in court. (Mr. Kaenzig appeared in good shape physically, which is unusual for a living mesothelioma plaintiff.) Dr. Moline described the pain and suffering that the plaintiff would likely experience as his condition worsened and eventually result in his death.

The last witnesses for the plaintiffs were Mr. Kaenzig’s wife Linda and several of his four children, who range in age from 12 to 22. As expected, this testimony was highly emotional and heart rendering, causing several of the female jurors to cry during the testimony.

Only two witnesses were called by defendant Whittaker, Clark & Daniels; epidemiologist Dr. Kenneth Mundt and pathologist Dr. Michael Graham. Dr. Mundt testified that cosmetic talc – the type used by the defendant – cannot cause mesothelioma. Dr. Graham confirmed plaintiff’s disease as peritoneal mesothelioma, but added that there were no markers of exposure to asbestos. Dr. Graham stated that even if the talc had been contaminated with chrysotile asbestos, that particular fiber does not cause mesothelioma. He testified that the plaintiff’s peritoneal mesothelioma was idiopathic, i.e. a cause could not be determined.

After a jury deliberation of nearly three days, Mr. Kaenzig was awarded $1.4 million dollars in damages and his wife Linda was awarded $200,000 dollars for Loss of Consortium.  The verdict was 5 to 1 in favor of plaintiff.

While disappointed with the verdict overall, defendant Whittaker, Clark & Daniels was nonetheless satisfied with the jurors’ good judgment and the reasonable monetary award given the plaintiff.

For additional information on this and other asbestos or toxic tort matters, please contact Foley & Mansfield’s Douglas Wah at dwah@foleymansfield.com.

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