Asbestos Trial Opening Statement

Actual Transcript — An Opening Statement in Asbestos Litigation

Chris K. et al. v. Asbestos Defendants et al. ,
San Francisco Superior Court

JANUARY 7, 1999 — In a courtroom, a Plaintiff's Opening Statement is an important opportunity to introduce the jury to the case and its issues. The Opening Statement is when the jury first learns of the facts of the case, and what the Plaintiff seeks to prove during his or her "day in court." The challenge to the trial attorney is to emphasize important facts, accurately sign–post what the evidence will show, painting a broad, clear picture of the entire case.

Machinist using asbestos-containing packaging to repack a pumpOn the first day of his trial in January of 1999, Plaintiff Chris K. (whose name has been changed to respect his and his family's privacy) was dying of terminal mesothelioma caused by his occupational exposure to asbestos while a mechanical journeyman at Mare Island Naval Shipyard on San Francisco Bay. Mr. K. and his wife brought suit against a manufacturer and distributor of the asbestos–containing gasket and packing materials that led to his fatal disease. Gil Purcell of Brayton Purcell LLP delivered the following Opening Statement on the Plaintiffs' behalf (the headings are included for the reader's convenience.) We thought it would be of interest to see the actual transcript of an opening statement given at the trial of a living mesothelioma victim:


MR. PURCELL: Thank you, your honor, may it please the court, counsel, ladies and gentlemen of the jury, good morning. Over the next few moments it's going to be my privilege to share with you what the evidence will be as we present it to you.

Again, my name is Gil Purcell and my colleague is Tim Hamilton. We represent the Plaintiffs—Mr. and Mrs. K.— against two defendants, John Crane Company and Power Engineering Company. Basically, this case involves the issue of their participation in his disease.


Mr. K. is dying of a disease called mesothelioma. It is caused by occupational exposure to asbestos dust. And he's not going to be somebody who can be cured from it because of the nature of the disease. The issue here is to what level did these defendants' products contribute causally, as his honor just told you, to the mesothelioma. And the evidence is going to show you, Ladies and Gentlemen, that they contributed.

They are not the only contributors to the mesothelioma because the evidence is going to show that where Mr. K. had his exposure there were many sources of asbestos dust. But it includes products manufactured by John Crane Company and products supplied by Power Engineering Company. At the conclusion of the case you'll be given a verdict form where you can record your percentage of participation, and that will then be your verdict.

If I do this correctly this morning, the idea here is over the next few days when you will hear from the witnesses, you will have more of an overview of what the evidence is going to be.

Unfortunately, with various witnesses that come from out of state, all around the state, scheduling is a big headache for both sides. What we're going to do this morning is go through what the evidence is going to be. As you hear it, you will know where to place it in the overall framework.

We think we're going to be done with our case by the 20th of January. The 18th is a holiday. In those 17 days, we think we can get our case to you folks. When we are done with our evidence and witnesses, the Defendants will have their case to bring forward, their witnesses.

At the conclusion of that process, the judge will read you all the jury instructions, not just the few he read right now. And you'll be given a verdict form, and 12 of you will retire to deliberate guided by those instructions and the evidence you just heard.

In terms of an introduction this morning before we got started, I wrote down some very basic facts so we can orient ourselves as to who are the parties. Let's start right there.


As Judge Freeman mentioned to you, there are two Plaintiffs, Chris K. and Edith K. You will learn that Mr. K. is 80 years old today. They've been married for 55 years, and they have 2 children. They live up by Trinity Lake.

You will also learn that Mr. K., after having a few odd jobs, which are not really pertinent to our proceedings, he worked, except for a short stint in the Navy, from 1940 to 1972 at Mare Island Naval Shipyard, which is up in Vallejo.

And Mare Island Naval Shipyard is a place where a lot of ships—all types of vessels, destroyers in the earlier years— were home ported there, submarines, nuclear submarines. And there was a whole group of tradesmen out there who would be involved in construction and overhaul of these types of ships and vessels as they call them.

And Mr. K. started there in the '40s as what's called a machinist. And a machinist is somebody who predominantly tinkers with various parts of equipment that make up the ships. What we're going to focus on is his work predominantly with valves and pumps, which as a machinist he would be responsible for overhauling and fitting. He also worked on turbines and other pieces of equipment.

In 1952, he became what was called a planner/estimator, which was a step up for him. And he worked in that capacity from 1952 to 1972. And in that position, he spent less time actually aboard ships doing repair work, but he on occasion would go down there. As he described it, about half and half. In an eight–hour day, he would spend four hours in the office and four hours on board vessels, figure out what they were doing in terms of planning the estimation and cost for the overhaul and getting the repair work done on these vessels. That's basically his occupational history.


The defendants in the case, as I've identified, are John Crane Company and Power Engineering Company. And as indicated, John Crane is a manufacturer of asbestos products that machinists use. And Power Engineering is a supplier of asbestos–containing gasket products that machinists use. Those are the very bedrock facts to orient us to the issues we're now going to talk about, testimony, who's who.

Having introduced the Ks., let me introduce the John Crane Company. When I'm done, I believe [the defense attorney representing defendant John Crane Company] will go through some of this in more detail. Basically, the John Crane Company, as they're now known, started way back— I think it's 1917, approximately—in the Chicago area. They're presently located in the suburb of Chicago called Morton Grove, Illinois, kind of out by the airport. They changed their name to John Crane Company. There was a John Crane ages and ages ago, for the most part they were known as the Crane Packing Company. It's just been a name change. It's all the same company. They are a manufacturer of industrial sealant products and gaskets. Industrial sealants are basically washer–type things that help valves and pumps do their job. Industrial application sealants is the focus of the John Crane Packing Company.

What is important for our purposes is that from about 1933 through 1985 they made a variety of valve packings that contained asbestos. And depending upon the particular model 187–i or 6am or different model numbers, they would contain between 5 and 80 percent asbestos as an ingredient in the packing material.

What you will come to learn about packing, it comes in several forms. One of the forms it comes in is on a spool, and it looks like rope and it has different diameters. And it has black graphite in it and asbestos as a core. And it comes round and comes square. Some of it's braided. Some of it has a wire running through it.

What machinists would use it to do is what's called pack— use packing to pack. You'd stick it in a valve or pump to seal some aspect of a valve or pump. And over time that sealant would wear out and become pitted and needed to be changed out.

When you needed a valve—or whatever kind of pump might be involved—"packed," the machinist is the type of tradesmen that you would have overhaul or refurbish the valve or the pump. Pull out the old packing, put in the new.

That's basically what Mr. K. did predominantly. Hands–on when he was—early on as an apprentice in the '40s. In '43 he became what's called a journeyman machinist which means you've done all your time, you get your Journeyman's book, you're educated, you know how to do the job. And then he proceeded to do it until about 1950 when he went into the Navy for a year.

After that Navy service, he goes back to Mare Island in 1952 as a planner and estimator, still involved with machinists, but a little more senior position. To help illustrate this product, I know [the attorney representing defendant John Crane] has a little tiny valve. One of the diagrams—you'll see plenty of these—I think this is a cross–section that may help orient us.


I apologize that we don't have all of our equipment working, but we will. A lot of this information, ladies and gentlemen, isn't really much disputed in the evidence. If you have a pipe and there's hot steam going through it, like on a ship or submarine, hot water or anything that's pumped around to make a ship work, there's points where you need to have control of the medium flowing through the pipe. That's what valves do. Pumps help push stuff through the pipes. At every place you have a valve you have to have a handle or some type of control device that a worker can adjust to control that medium that's flowing through the pipe.

Cross-section diagram of a typical packing valve.This is sort of a cross–section, where if this was the top part of the pipe, if you cut this in half, you see what's called a valve shaft. There would be a handle up here. There's all kinds of valves and pumps. This is a basic, simple layout of it. And the cross–section shows where the packing would be located. It helps illustrate what the function of it is.

If you look real close, you can see where this valve stem is going to control some kind of a gate. Literally, as you screw it down, it drops a piece of metal and constricts the flow. You can actually turn it all the way off. This shaft or valve stem, there's the point where it goes right into the pipe. And at that little gap with the high pressure steam and the other mediums, if you didn't have some kind of sealant like a washer, like a garden hose really, it would leak.

Packing is this rope–like material that in this gland, you wrap around or have different rings. This happens to have five separate rings. You stuff it in around the stem and you pack it in there. And then there's bolts, and there's—this nut which butts up against the packing. That's on the cross–section.

Stuffing box detail of a pump.Now, as heat goes through here and steam, over time this packing loses its resilience. New packing has a tendency to be a little pliable. When you mash on it, it can fill areas and cracks so that steam doesn't shoot out, like a pinhole leak. Over time, this packing becomes brittle, and you may start seeing, like even on a railroad or on a ship, a little steam escaping. And what a tradesman machinist might do, when you see steam, you can come up on this with a wrench, and kind of crank down on this nut and crush it a little more. You're always tinkering with different valves. There's hundreds of valves on a ship, and you're always working on them like that.

There comes a point where you've cranked down on these nuts as far as you can crank. It's metal to metal. And you still have a pinhole leak of steam or some other medium or a drip out of a pump. And at that point in time, you have to bite the bullet. You have to isolate the valve, peel back the insulation on the pipe, take it off of the system, and go repack it.

And how a machinists like Mr. K.—we will hear from one this afternoon—Mr. H., is a fellow that worked out at Mare Island with Mr. K. They would take this and undo these bolts, take this nut off, and then you'd get in there with something that's called a packing hook, it's like a long corkscrew. You'd screw that into it, and you'd pull out the old packing. And then you'd clean out any residue in the nut in the gland area, cut a length of new packing, wrap it around, put the thing back on. You've unpacked and packed a valve. That's really what a machinist would do out at Mare Island.

John Crane made this packing stuff, and it would have from 5 to 80 percent pure asbestos in it as an ingredient in the packing. Power Engineering was not a manufacturer of asbestos products, but they were a distributor. And as his honor mentioned a moment ago in the few instructions he read to you, a distributor in products liability law is as responsible in the chain of distribution as a manufacturer. You'll be instructed on that later.

What they distributed—that's at issue in this case— beginning in 1965 is something called Flexitallic gasket, which is asbestos–containing. They have sales beginning in 1967 at Mare Island Shipyard. Sometimes you will hear it referred to as "MINSY"—Mare Island Naval Shipyard.

Flexitallic gasket is a gasket that goes between two pipes in a flange where if you have a length of pipe—say a pipe this long—and I need to put it next to another pipe this long—I have some way to join the two pipes together. So there will be flanges or big fatter areas where I can put bolts. And I don't want to have metal to metal because I'll have a leak. That's where you put a gasket, something that you can smush down—squish. And as you tighten the nuts and the bolts, you get it so it won't leak. Well, Flexitallic is a company. They made the gasket, and they sold it to Power Engineering. If you wanted a gasket, you bought it from Power Engineering Company. Those gaskets, Flexitallic gaskets, contained asbestos.

I'm not going to go into detail right now. They are sort of an interesting gasket manufacturer. Some gaskets are a cork or pure material. Flexitallic had metal on each side and the squishable material, the asbestos stuff in the middle. So that when you had to change out a pipe, you wouldn't have any trouble getting the old gasket off. Sometimes it would stick to the flange. You would have to scrape it. And it was a long job. Flexitallic, you had metal to metal and then the gasket material in between so it made it easier to change out the pipes, basically, when you needed to change a flange.


I've mentioned asbestos. Let me focus on what we're going to learn about asbestos. Asbestos is a mineral rock that is mined out of the ground and processed. And it is in its usable form a fiber, on a microscopic level. It's a mineral that grows in fibrous strains or veins. And it has some physical characteristics that make it very usable from a product standpoint because it brings an awful lot of good features to a product. One thing you will learn about it, it's incredibly small, microscopic, invisible, even at high concentrations, it's very light, but very durable and strong.

You will hear testimony—and I don't think this is much disputed—it's used as a binder, like straw in mud with adobe bricks, literally the same kind of concept. You add asbestos to a product because you wanted it to be a binder to hold stuff together. It's not that it's fireproof or doesn't burn. It's in the packings to help hold the graphite and the other materials in the packing, hold it together and make it stronger. In fact, if you make a comparison, a little asbestos fiber is stronger than steel. That's how durable and strong these little fibers are.

Now, there are different kinds of asbestos rocks that we're going to hear a little bit about. Basically, just so we are oriented, there's two main families of asbestos. There's something called serpentine, and then there's a family called the amphibole. And this is how geologists basically divvy up the family of asbestos.

Serpentine asbestos is—if you look at it under a microscope, it looks, on a certain level of magnification, curlicued. The fibers bend and curve around and literally— that's where they get the name. They look like serpents.

The predominant type of serpentine asbestos is something called chrysotile. And as it is, chrysotile asbestos is the type of asbestos that's in these products from these companies. That's what they used. There's some other asbestos they used, but by far the majority in their products is this chrysotile type.

If you have a whole bunch of it, a big pile, millions and millions of fibers, it has a tendency to look white. Sometimes it is called white asbestos. That's its bulky color. You're never going to see it in terms of it floating in the air. It is invisible. Very, very small microscopic fibers.

The amphiboles, when you look at them under the same level of magnification, have a tendency to look more spear–like or straight. Now, the chrysotile is comprised, if you look at it in higher magnification, of straight sections that grow as a vein in rock. Kind of like your finger. At one level my finger looks bent. Here the evidence will show you that it's actually made up of short, straight bones that make up that curve. That's how a chrysotile serpentine fiber is really structured at higher magnification.

Amphibole grows straight as a crystal, and they stay straight. Predominant types of amphibole fibers are amosite and something called crocidolite. There are three or four other types, but they didn't find much use in industry and they're really insignificant for our purposes. Nobody used anthophyllite much as an ingredient in any type of products that were manufactured.

Amosite asbestos, if you have a whole bunch of it in a pile, it will look brown in bulk. Crocidolite, which is mined in South Africa, if you have a bunch of it, it looks blue. Mostly chrysotile comes from Canada, Quebec, Thetford Mines, the white type. By far and away, the most used type of asbestos in industry is chrysotile.


Now, when you're around asbestos, it doesn't hurt you unless it gets in you. It's not toxic like radiation or anything like that. You would have to inhale it. Some workers would get it in their saliva and they will swallow it. The evidence will be that it has got to get in you before it will hurt you.

When it does get in you, your body has a bunch of defense mechanisms, which I'll talk about in a moment, to help prevent you from having any pathologic response. It literally starts with the hairs in your nostrils and down your trachea. When you first breathe in, there's something called the mucociliary escalator. And that brings up things that you inhale. These are very large compared to the small asbestos fibers, but it brings it up. You either swallow it or spit it out. It keeps things from getting down into the deep parts of your lungs. Asbestos, when you inhale it and it does get into the deep parts of your lungs, like when you have an occupational exposure to a lot of it, when your face is in a valve nut and you're pulling out rigid old packing, there's inhalation of the dust. As it gets down, way down in your lungs, it can cause responses or pathologic responses, which means diseases without any perceptible trauma. It's not as if you feel it when it first hurts you. You will think nothing of it. That's important because one of the bugaboos, if you will, about asbestos disease is there is a very long latency period between your first exposure and when you're ever going to have a clinical or symptomatic disease.

With mesothelioma, on average, it crops up and you start having symptoms about 20 to 40 years after you had your first exposure or even 50 years later. That's right in the time period, if a fellow is going to get mesothelioma, if he happens to be someone who's going to respond to this exposure.

And, in fact, in Mr. K.'s case, his first exposure is 1940. When he gets mesothelioma, it's 57 years later. It's right on the money when it would crop up. No one's going to dispute that. That's not disputed in the evidence.

In terms of asbestos disease, however, it is important to know and you will hear about the evidence, there is something called individual susceptibility. Not everyone who even has heavy exposures to asbestos dust is ever going to get a disease. Fellows working side by side, breathing the same air for multiple years, having the same exposure, one fellow can develop mesothelioma and die from it and another fellow never has anything they can find wrong with him related to asbestos. Workers have individual susceptibilities.

But if you are someone who is a responder and your susceptibility and your biologic makeup is such that you're going to have a reaction like cancer, mesothelioma, there's no way to look back in your history and disregard exposure that causally relates to mesothelioma.

The evidence is going to show you, ladies and gentlemen, that doctors all conclude that every occupational exposure to asbestos in someone who develops the disease contributes causally to the lung fiber burden and the production of that disease.

And that's why we have to look at all of Mr. K.'s exposure occupationally in the evidence. And that's why these companies' products, with others, have contributed causally to his circumstances today.


We have talked about mesothelioma, and let me try and explain a little bit about this disease. First of all, there's no debate that it's caused by asbestos. You can be a three–pack–a–day smoker, you're never going to get mesothelioma. You're not going to get mesothelioma from cigarettes. Now, it's entirely irrelevant in this case because the evidence will show you despite the era he grew up in, Mr. K. is a never smoker—never smoked cigarettes at all. But the point I make and the evidence I'll show you, cigarettes don't cause it; asbestos does.

What is it? Let me first try and orient us to some of the notions before I tell you some of the interesting features of mesothelioma. You will learn a little bit about the lung anatomy. I have a lung model which we're going to have doctors use to explain these diseases. This is an anatomic model of our lungs. They sit in our chest cavity. If you take off part of this front lobe, you will see that on a microscopic level, our lungs are made up of tissue, a collection of air sacs and small blood vessels, called capillaries, where gas exchange takes place.

Our lungs sit in an organ called the pleura, which is a very thin coating that surrounds the lung. So literally on this model, the pleura would be the shiny coating. On this lung model, it's that thin, and it encases the entire lung. Let me explain to you what the function is.

Mesothelioma is cancer of the pleura. The pleura is made up of things called mesothelial cells. Mesothelioma means cancer of those mesothelial cells. If you will allow my diagram to represent the lungs, again it's very thin. It's almost like saran wrap. And it has two surfaces. There's a bunch of medical terms you will hear about. The inner surface is the visceral pleura and the outer is the parietal pleura. The point is that this has a very, very thin membrane with a little bit of fluid, a little tiny bit of fluid.

And the function of the pleura, among other things, when we breathe in and we breathe out, no matter how heavy a breath you take, you don't feel any internal sensation of motion, even though your lungs are expanding and contracting inside the chest wall. So that when you breathe in, your lung is sliding along your chest wall as it gets bigger. And it slides back when you breathe out. And you don't feel anything in there normally. No sensation of motion. That's because of the pleura. It facilitates this motion with no perceptible sensation to the person. That's very important when I talk about how mesothelioma is so painful as a disease.

And by the way, this pleura goes all the way around both lungs everywhere. Asbestos—when you breathe in, asbestos fibers, little tiny microscopic fibers—there's two ways predominantly that it gets to the pleura to do its damage. It either goes through direct migration, weaving its way through the meat of your lung or it stretches through what they call the lymphatic system.

The lymphatics are a system in your body—there's actually a fluid called lymph and goes through these areas called nodes, which are lymph nodes which are intersections of this lymphatic system. When you breathe in asbestos, it can get into that system and clear directly to this pleura. There's basically two ways it gets out there to the periphery of the lung. In the deep parts of your lung, if we were to enlarge that—and here's another drawing that helps orient us a little bit. This is a drawing from your back, looking at someone from their back and it has the two lungs. And it sort of superimposes your rib cage as it goes into the spinal column. Just like in the front, the pleura, again, is the shiny stuff between the bone and your lung completely encasing the lungs, both of them.

If you look at a little piece of lung tissue, as has been biopsied in Mr. K. and you look at it microscopically, you literally took a little piece of this on the edge and you blew it up, what you'd find is a collection of air sacs at the end of these airways that are surrounded by blood vessels that wrap over each of the air sacs. And if you cross–sectioned that, you'd literally come to a point where you have an air sac over on this side of a tissue and a capillary or blood on the other side of the tissue.

And in a normal, healthy working lung, you'd breath in air that has oxygen in it. It gets down to this area of what's called gas exchange or the working parts of your lungs. That Oxygen, O2, then, what they call, "diffuses" across this tissue into the blood and then is pumped by the heart to nourish the rest of your body.

At the same time the old deoxygenated blood, where you've already spent the oxygen, comes back by the alveolar sac and carbon dioxide diffuses across the other direction and you breathe out. You keep doing this. That's how you deliver, through this diffusion, oxygen molecules to your muscles and organs that you need to respirate or produce energy and live.

Asbestos gets in here at this level and interferes with this exchange, and that includes right on the periphery of the lung where the pleura is. And asbestos gets breathed in. And either through lymphatics or direct migration of the fiber, you've got a lot of exposure for a long period of time. It reaches this region of the lungs. It bypasses your body's defense mechanisms.

At that point these fibers, as they call it, translocate to the pleura or come through the lymphatics, and asbestos causes genetic errors in the mesothelioma cells in some people. You will learn that cancer is a genetic error that is replicated and causes uncontrolled cell growth and division. And as it grows, it can be large enough to be observable as a tumor and it can then compromise the function of other organs in your body and lead to your death.

Asbestos does that. All types of asbestos cause cancer. All types of asbestos cause mesothelioma in those that are going to respond and get mesothelioma.

And the important point in terms of the evidence you're going to hear about this is, this cancer is something that can't be cured. There's no way for doctors to get in there and remove it. There's no way to get in there and check its growth. You can take some palliative steps.

If you get a diagnosis of mesothelioma from working around asbestos, you're going to die from it. Typically, it's about 14 to 18 months that you have after you've been diagnosed. In Mr. K.'s case you're going to hear Dr. David who tried to administer radiation to his tumor. His mesothelioma is on the left side. He's surprised that Mr. K. is still alive. Mr. K. is passed the 18–month typical period for presentation of this kind of disease.

Now, let's learn a little bit about the mesothelioma in terms of what the evidence will show. And just to distinguish, if you smoke cigarettes and you've heard about lung cancer, technically mesothelioma is not lung cancer, as I've explained. It's a cancer of the pleura. Cigarette–related cancer from smoking—has nothing to do with this case—it typically forms inside the lung in the tissue and may grow outward to the periphery. Mesothelioma starts in the pleura and then can invade adjacent lung tissue and involve the tissue, but it does not start inside the lung. And in Mr. K.'s case, it starts on the left side. And it has grown up the edge of his lung, the periphery. And what you will learn about mesothelioma as it grows, it makes room for itself, the tumor. And it causes what's called pleural effusions which are collections of liquid, which shouldn't be there. And it continues to grow in an insidious fashion. Oftentimes the only thing doctors can do is put a chest tube in there and drain the fluid, which is what they did for a while with Mr. K. He's had as much as one and a half liters of this fluid taken out of his lung because of the mesothelioma. It doesn't help cure it, but it will relieve some of the pain.

The evidence will show you, ladies and gentlemen, that mesothelioma is one of the most painful diseases you can have. There's a reason for it. It's because where this interaction exists between the pleura and the lung there are a number of nerve endings in the healthy functioning pleura. In someone who doesn't have pleurisy or some other problem, every time you will breathe you don't "feel" it inside—you don't irritate those nerve endings. In mesothelioma, every time you breathe, which you need to do to live, obviously, you irritate those nerve endings. It gets more and more as the tumor grows.

Mr. K. today is in a great deal of pain. He takes an awful lot of vicodin for pain to try to manage the pain. There's really nothing doctors can do to cure his pain.

So what we have heard about mesothelioma—the disease involved in this case—is that it's caused by asbestos and it has an incredibly long latency period.

No one's going dispute his occupational exposure back to the '40s is what is causally related to his mesothelioma in the '90s. It may follow brief, low intensity exposures. Let me explain what I mean by that. There's a concept called dose–response. And if you're going to get what's called asbestosis, which is a nonmalignant fibrotic problem in your lungs, that's going to take an awful high dose over many years to develop. And there's a reason for it. Asbestosis is the scarring that asbestos causes in this region of the lung where tissue is built up, and this gas exchange is interfered with.

So guys are short of breath and they can't get their breath. Sometimes they're given supplemental oxygen so that in the areas in your lung that still can exchange gas, they are exchanging a higher concentration of oxygen in the air rather than just room air. Asbestos can cause tissue to form here as a scar response. Over many, many years this scar response can build up, and you can develop asbestosis where you are short of breath from a fibrotic scarring problem, not cancer. Asbestosis who are going to have a scar response in their particular circumstance, you have to multiple—there are hundreds of millions of these alveolar sacs in your lungs—many of which are going to be scarred over before you can sense a feeling of shortness of breath.

Mesothelioma is very different. Very low intensity exposure where there is asbestos that gets through lymphatics or direct migration into your pleura can cause mesothelioma. You will hear from an epidemiologist who has studied this for his life, a fellow named Dr. Alan Smith. He is a Ph.D., Epidemiologist over at U.C. Berkeley at the school of Public Health. He's written on the subject, talked about Chrysotile as a cause of mesothelioma. He will explain that they've even found high incidence of mesothelioma in neighborhoods that are literally down–wind from a mine or someplace where asbestos is used. They have no occupational exposure. They never worked with the stuff. The concentration in the air floating down to the neighborhood caused an increased number of mesotheliomas over what would otherwise be expected. So that mesothelioma can be caused by low, brief exposures to asbestos.

Now, in Mr. K.'s case, he had an occupational exposure over many years. And his dose–response is such that all of his exposures contribute causally to the disease he now has. The evidence will show you that there is no way to go back and disregard the contribution causally of some of the exposures and focus on only the others. They all contribute to the fiber burden in the pleura and the lungs and the production of disease. I mentioned epidemiology. Neighborhoods with increased incidence. You will hear from Dr. Smith on that.

You will also hear that all types of asbestos cause mesothelioma, although there is some evidence that suggests that the crocidolite type of amphibole asbestos is a little more potent as a mesothelial carcinogen. But there won't be much evidence, if any, I don't believe, of any exposure to crocidolite in Mr. K.'s circumstance. Most of his exposure comes from two types of products. One is valve packing as a machinist; the other is from insulation or lagging.

Let me explain what that is. If you have a hot pipe that runs a long way and you got some kind of boiler or turbine and you got—you've got to move this steam or hot water a great distance along the ship, if you didn't put insulation around the pipes, you would lose some of the heat. It would dissipate as it went.

You have guys called insulators or laggers who would take these half rounds of thick insulation—this insulation, by the way, has about 10, 12 percent asbestos in it, chrysotile— as a binding ingredient of the magnesium and other products. They would put it around the pipes. Or there would be sometimes cloth or it would be painted. It just made the pipe look fatter, really. What it's doing is insulating the material in the pipe so it doesn't get cold— lose its heat. That means as it comes along you're going to have insulation on this—you're going to have insulation here on the pipe where the valve is, where a flange is. So a pipe comes along, it's got insulation on it. Here's the valve. And if you've got to repack that valve, you've got to get access to that valve. You've got to isolate it, shut off the pipes on each side and remove it to go repack it. So machinists would have to peel this back to a certain point, not to a whole bunch but some to get access. And it would vary.

And you will hear evidence that this was dusty, that they could see the dust from this product, which again is about 10, 12 percent, some of it higher, asbestos–containing material. There's no doubt that Mr. K. breathed asbestos from that product. John Crane never made that product. Other companies did who aren't here. And Power Engineering never distributed that product. But the two companies that are here contribute to the exposure in this machinist. This case and evidence is about their participation.

You're not going to hear from us any evidence to suggest that they are a hundred percent responsible or even 50/50. They are a contributor. On the evidence you'll be presented you will determine what percentage they contributed.

As Judge Freeman mentioned to you, it's no defense that there are other contributors that aren't here. And as they are a cause, there can be more than one cause. You're not going to be asked to determine on the evidence "the" cause of this mesothelioma. You're going to be asked to evaluate what is "a" cause, a contributing concurrent cause. The evidence will show you that there are many causes. The question is the level of percentage they should participate in the damages that are found. That's the exercise. All occupational exposures contribute. That's the epidemiology.

I've already told you it's fatal, no cure, incredibly painful, fourteen to eighteen months to death. The evidence will show you that as it relates to mesothelioma because of this dose–response phenomena, medical science has not established any safe level of exposure below which there is not risk of developing mesothelioma. If your particular body and makeup is such that you're going to respond to the asbestos you're exposed to.

We know Mr. K. is a responder. He has the disease, and it's undisputed that it's mesothelioma. It's undisputed that it's caused by asbestos. It's undisputed that it's caused by his working with these products at Mare Island.


Let me just talk a little bit about Mr. K. who you will meet tomorrow. Basically, Mr. K., the evidence will show you, never was in the hospital until all this got started. He's a guy who is just one of those guys that just isn't sick. His father died when he was 94. Mother died when she was 89. Two brothers, one baby of the family 65, another fellow that is 73 and a sister who's 83, all in good health.

In about 1995, '96, he started noticing some shortness of breath. You will hear about how active a fellow he was in his retirement after leaving Mare Island. They thought he had pneumonia. They treated him for pneumonia. That didn't work. Something else was wrong. What they then did was in April of '97, he went into Kaiser Hospital and they performed some procedures on him. You will learn all about what those procedures are. Basically, they're trying to assess what was going on in his left side.

They drained a bunch of fluid that was collected. Then that didn't cure things. They had a CT scan, by the way, taken of him, which is, by the way, the image of what's going on in your lungs without having to get in there with a knife and cut on somebody with surgery. He had a Bronchoscopy where they just take a little tool, go in and see if they can tell something about the tissue, something about what was going on in there.

Finally, in April of '97 they had to go in for surgery. They did what's called a thoracotomy and pleural biopsy. That means they open him up and they go in there and they get a little piece of the involved area. Maybe—this is from the back side so this is the left. And they get a little piece of his lung and they analyze it and they make the diagnosis that he has mesothelioma. Based on that procedure, they insert a chest tube to try and drain the fluid. He's hospitalized for about three weeks.

When they realize its mesothelioma, the importance of that diagnosis, the evidence will show you is that they realized then that there's nothing they can really do. Doctors hope it's not mesothelioma. They look very hard to see if it's something other than that. Because if it's something other than that, maybe they can treat it. They concluded it was mesothelioma, due to a concentration of asbestos in his chest.

There's evidence that all of us have some asbestos in our lungs. That doesn't mean that an occupational exposure doesn't add on top of it that—like it did in Mr. K. He had elevated asbestos in his lung from his exposure like you would expect. He was discharged in May of '97. The surgeon removed the chest tube; it was so awkward. Since May of '97, he's been at home predominantly. Level of activities is far different than it used to be.

And he does his best. He's on extreme medication to try and check the pain somewhat. But there are days where it's just not something that you can check. His tumor is growing. Most recent evidence I have. Actually forced its way to where it's broken two adjacent ribs. Nothing— despite radiation treatment that Dr. David tried to do, there's no way you can stop this. And Mr. K. and his wife recognize their terminal circumstances.

The law recognizes the effect of the loss of a spouse of 55 years on the surviving spouse. Nothing wrong with that. The evidence will show you, as his honor will describe for you, that loss isn't disregarded in the law. And you'll be asked to evaluate the impact on her life living with Mr. K. in his present circumstances.

I thank you for your attention. I would ask that you be equally attentive to my colleagues when they present what they think the evidence is going to show. We want a fair process. We want to submit to you the evidence you need to make a fair decision and verdict that this case deserves. I have no doubt we're going to do that.

Judge Freeman: let's take a short recess. Come back at 5 after. It's a quarter past right now.