USX Petition for Mesothelioma Case Appeal Denied
Utah Court of Appeal Denies US Steel’s Petition for Appeal in Mesothelioma Case
On December 8, 2008, the Utah Court of Appeals denied United States Steel Corp’s Petition for Permission to Appeal an Interlocutory Order. United States Steel Corp (USX) was petitioning the appellate court to be allowed to appeal the Utah Third District Court’s denial of their Motion for Summary Judgment in Vickie Warren v. United States Steel Corp, et al. USX brought their original Motion for Summary Judgment on the grounds that they had no legal duty to the plaintiff, Vickie Warren, in her take-home asbestos exposure case. Their Petition for Permission to Appeal was based on the same position.
Basis for USX’s Claim of No Legal Duty in Take–Home Exposure Asbestos Case
Ms. Warren suffers from peritoneal mesothelioma, a deadly form of cancer that is caused by exposure to asbestos. Her take–home, or secondary, asbestos exposure came from her taking care of her father’s laundry as part of her chores while she lived in the family home for the first 22 years of her life. USX based its claim of “no legal duty” to Ms. Warren on the following alleged facts:
- Ms. Warren’s father, Leon Stubbs, an employee of USX, did not work directly with asbestos or asbestos–containing products.
- Mr. Stubbs had been offered and refused to use an onsite laundry facility that USX claims to have provided.
- Ms. Warren was exposed before the 1972 OSHA regulations regarding take–home exposure went into effect.
In the original decision denying USX’s Motion for Summary Judgment, Judge Glenn K. Iwasaki of the Utah Third District Court, found that disputes remained regarding exposure, laundry and USX’s knowledge of the dangers of asbestos. The judge based his decision on the Utah case law including the standard established by AMS Salt Industries v. Magnesium Corporation of America (942 P.2d 315 (Utah 1997)).
Brayton Purcell’s Attorney, Bronson Bills, Filed Opposition to USX’s Petition
In late November 2008, Bronson Bills, the asbestos attorney representing Ms. Warren, filed an Opposition to USX Petition for Permission to Appeal an Interlocutory Order. In his Opposition, Mr. Bills pointed out that although Mr. Stubbs as a train operator/engineer did not directly work with asbestos, he worked in areas where asbestos was present and where asbestos work was performed. This fact was born out by deposition testimony of two of Mr. Stubbs’ co–workers who testified to seeing dust present on his clothing and of his working in areas where asbestos–containing products were being used.
In refuting USX’s claim of offering shower and laundry facilities to Ms. Warren’s father, the Opposition noted that, to date, USX has not provided any evidence to back up those claims.
Although USX claims innocence in knowing that take–home asbestos posed a health risk prior to OSHA‘s 1972 regulations, the purported showers and laundry facilities provided to some of its employees would seem to indicate otherwise. As pointed out in the Opposition, if showers and laundry facilities were provided, then USX would appear to have knowledge of the dangers of take–home asbestos exposure prior to the 1972 OSHA regulations.
On December 8, 2008, Utah Appellate Judge Carolyn B. McHugh issued an Order Denying Permission to Appeal. The appellate court’s denial of USX’s petition is significant as allowing USX to pursue an interlocutory appeal would have caused a delay in obtaining a trial date in this case. In October 2007, Ms. Warren’s case was deemed an exigent case by the district court based on her diagnosis of peritoneal mesothelioma. With the denial of USX’s Petition, trial will now occur after dispositive motions are heard, it is estimated in approximately two months.