Widow's $2.8 million mesothelioma award in jeopardy

MANSFIELD – A Madison Township woman who won a $2.86 million jury award in a lawsuit over her husband's death from lung cancer has been told that verdict has been reversed.

The case must go back to court for retrial.

Michael Galliher worked at Borg Warner — later known as Artesian Plumbing and as Crane Plumbing — a Mansfield-based sink and toilet manufacturing company, for 36 years.

In 2010, he was diagnosed with mesothelioma, a form of lung cancer caused by asbestos. He died at Feb. 3, 2011, at the age of 62.

His widow, Darcel Galliher, brought a wrongful death lawsuit in 2012 alleging that a New York mining company, R.T. Vanderbilt, made and sold industrial talc powder that contains asbestos to the Mansfield-based plant, without properly warning the company that people working around the substance would face risks to their health.

The lawsuit, filed in New Castle County, Delaware, initially named a long list of defendants including Crane Plumbing LLC, Trane US Inc., Certaineed Corp., Pneumo Abex LLC and others, along with R.T. Vanderbilt, which is incorporated in Delaware.

All companies but R.T. Vanderbilt were dismissed as defendants.

The lawsuit alleged R.T. Vanderbilt provided Borg Warner with a dangerous product when less risky alternatives existed; failed to test its products to determine level of risk; and did not properly warn Mansfield factory personnel about the dangers of inhaling or ingesting the product, or provide recommendations for working with it safely.

Vanderbilt denied causing Galliher's illness. The company claimed Borg Warner/Artesian was at fault for failing to provide a safe work environment, and that Galliher might have become ill through his own actions.

A jury found the mining company to be 100 percent at fault. Darcel Galliher was awarded damages totaling $2,864,583.

But the award has not been paid. R.T. Vanderbilt appealed.

In a ruling released July 26, the Delaware Supreme Court reversed the verdict — saying legal errors occurred at the trial, and that the lawsuit must be reheard.

The ruling said the New Castle County judge should have instructed jurors on Borg Warner's responsibilities under Ohio law as an employer to provide a safe working environment. The trial judge had rejected Vanderbilt's proposed instruction as too long.

"That refusal left the jurors with no legal compass with which to guide its determination on the critical issue of Borg Warner's share of the fault," Pratik Shah, an attorney for Vanderbilt, told Supreme Court judges at an appeals hearing earlier this year. "The jury was left to guess," he said.

The Delaware Supreme Court also agreed with the mining company's contention that the judge should have called a mistrial, after hearsay testimony surfaced at trial after having been ruled inadmissible.

Justices said the most inflammatory comments were made by a plaintiff's witness, Dr. Barry Castleman. Under cross-examination by the mining company, Castleman, who'd written a book on asbestos, testified that a former Vanderbilt worker had said the company had spent $16 million opposing federal regulations and working for reports that were favorable to the company. Castleman used the phrase "buying senators and lobbying the government."

"Dr. Castleman's statement about Vanderbilt engaging in bribery is especially egregious and requires a new trial," the recent ruling said.

Darcel Galliher declined Tuesday to say whether she intends to go back to court for a second trial.

As of press time, attorneys for both sides had not responded to requests for comment.

Borg Warner became Artesian Industries in the mid- to late 1970s. It later was known as Crane Plumbing.

Galliher worked at Borg Warner or its successors from 1966 to 1968, and 1970 to 2005, primarily in the cast shop filling ceramic molds.

After Crane Plumbing closed, he took a job with Auto Zone, working there for 14 years. He was a U.S. Army veteran and a member of Hillside First Church of God.

According to trial testimony, Borg Warner used Vanderbilt-made NYTAL industrial talc until the late 1970s, to dust molds for ceramics manufactured in the cast shop.

The Delaware Supreme Court ruling recapped some testimony concerning use of talc at the plant.

One former Borg Warner employee testified that when he left the cast shop at the end of the work day, his arms and clothes would be white from the dust. The same employee also testified the company did not require its employees to wear masks in the cast shop until the mid- to late 1980s, the ruling said.

By 1984, the type of talc used in the cast shop was Montana Treasure Talc, which both parties agreed did not contain fibers that would have contributed to mesothelioma.

However, NYTAL was used in the facility again from the mid-1980s until 1992 to make glaze in an area near Galliher's work area, the ruling said.

During the appeals hearing, Vanderbilt's attorney had argued Borg Warner contributed to dangerous conditions through a "lackadaisical" practice of not requiring workers to wear masks in areas where the talc was used.

"In this workplace, it was basically Talc City, and no one wore masks," a Supreme Court justice commented.

The Galligher estate's attorney, William Kohlburn, argued there was considerable testimony given during the trial that Borg Warner made safety masks available to employees, if they wished to use them.

lmartz@gannett.com

419-521-7229

Twitter: @MNJmartz