WEST VIRGINIA RECORD

CHARLESTON – A couple has filed an asbestos-related lawsuit, naming 35 companies – from local businesses to global giants – as defendants.

Larry Smith and Kathy Smith filed the lawsuit Dec. 21 in Kanawha Circuit Court.

In the 12-count suit, filed by attorney John Skaggs of The Calwell Practice in Charleston, the couple says Larry Smith worked at FMC's rayon plant in Nitro from 1966 to1977 before moving to Virginia.

As an employee at the plant, Smith claims he was exposed to asbestos insulation from a steam generating boiler, associated piping, processing corrugating equipment and other sources of breathable asbestos fibers. His job was a plant worker and pipe fitter.

On the job, Smith says he was required to handle asbestos products supplied by defendant corporations, and was required to remove asbestos insulation from piping and other structures. He also claims he frequently was exposed to fibers in asbestos dust generated by use of product by other workers.

Before working at the FMC plant, Smith says he worked at the Union Carbide Institute plant in Institute in 1965 as a general laborer, doing general cleanup in one of the boiler houses. Then, he was employed by a contractor there.

In the fall of 2005, Smith was diagnosed with mesothelioma. He had a surgery scheduled for Dec. 22, according to the suit.

Amount the counts in the suit, Smith claims Union Carbide and FMC both knew asbestos was abnormally dangerous and that the defendants specified use of asbestos products by him and co-workers even though they knew it was dangerous, didn't take precautions to warn the plaintiff of dangers and didn't provide the plaintiff with protective equipment and clothing.

The suit also cites West Virginia Code 23-4-2(c)(2)(i) in a claim for punitive damages.

"The defendant employers acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury in the plaintiff," it states.

Smith also contents that certain defendants were negligent because the manufacturers knew asbestos products were "deleterious, poisonous, toxic, and seriously harmful to the plaintiff's body, lungs, respiratory system, heart, skin, and health."

He claims those companies failed to take precautions to warn the plaintiff of danger; didn't tell of safeguards, such as wearing apparel and protective equipment, respiratory devices; were negligent in packaging, handling of products; and didn't remove products from the market when they knew the dangers. He also contends the defendants implied asbestos products were merchantable when they actually were not.

The suit also cites the 1934 study backed by Metropolitan Life Insurance Company and Johns-Manville Corp. in which Dr. Anthony Lanza of Met Life didn't say asbestos exposure could be fatal.

Smith also says the employer defendants had known of the existence of mesothelioma, its relationship to asbestos exposure and ways to monitor for asbestos since at least 1964.

Smith seeks punitive damages from all of the defendants because their actions were willful, wanton, malicious and in reckless disregard of the safety of himself and others. He says he suffered serious bodily injury, endured great pain and suffering and mental anguish, incurred medical expenses, lost earnings and earning capacity, and was otherwise damaged.

Smith's wife sues for loss of spousal consortium, loss of financial support, loss of general services, companionship and society. She says she will continue to suffer from those losses. Also, she says she has rendered nursing care and other services to husband and will continue to do so.

Smith says the injuries to his lungs are permanent and severe and that his longevity is diminished. Also, he says his physical activities has been curtailed.

In addition to physical pain and suffering, mental anguish and loss of enjoyment of life, Smith says he needs medical and hospital treatment.

However, the suit says he couldn't follow his usual occupation, thus his earning capacity was greatly diminished and he became uninsurable and couldn't not get life or health insurance to protect family from financial hardship in event of his sickness, hospitalization and/or death.

Smith seeks joint and several compensatory damages to be determined by a jury plus interest. He also seeks punitive damages to be determined by a jury. From the employer defendants, he seeks damages to be determined by a jury and punitive damages. His wife also seeks damages for loss of consortium.

The complete list of defendants is A&I Company (a West Virginia company), Adience Company, Airco Inc., Airco Welding Products, American Optical Corporation, Anchor Packing Company, Atlas Industries Inc., A.W. Chesterton Company, Beazer East Inc., Carborundum Corporation, Certainteed Corporation, Crown Cork & Seal Company (USA) Inc., Flowserve FSD Corporation, FMC Corporation, Garlock Inc., Georgia-Pacific Corp., Hercules Incorporated, Industrial Holdings LLC, Industrial Supply Solutions, Metropolitan Life Insurance Company, Minnesota Mining and Manufacturing Company, Nitro Industrial Coverings Inc. (a West Virginia company), Ohio Valley Insulating Company Inc. (a West Virginia company), Owens-Illinois Inc., Persingers Incorporated, Pulmosan Safety Equipment Corporation, Riley Power Inc., Unifrax Corporation, Union Carbide Chemical and Plastics Company Inc., Uniroyal Inc., Viacom, Vimasco Corporation (WV), Wheeler Protective Apparel, Wheelabrator-Frye Inc. and Wheelabrator Technologies Inc.

The Smiths seek a jury trial.

The case has been assigned to a visiting judge.

Kanawha Circuit Court case number: 05-C-2771