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A New Jersey jury awarded more than $30 million to the family of a man who died of the asbestos disease mesothelioma even though he only worked for a few summers at a General Motors auto parts plant in the 1970s.

The family of Mark Buttitta argued that his primary exposure to the aggressive lung cancer came from his father's lifelong employment at the same plant – that "take home" asbestos fibers on the father's work clothes caused his death.

The verdict, which included no punitive damages, is the largest mesothelioma award in the state of New Jersey and the largest personal verdict for attorney Moshe Maimon of Levy Phillips & Konigsberg in New York.

Several defendants settled either prior to or during the trial, leaving just two GM suppliers – Michigan-based BorgWarner and Canadian company Asbestos Corp. Ltd. – on the hook for the verdict.

David Peterson from corporate public relations at BorgWarner would not comment other than to say the company "does not believe the evidence supports the verdict and we will appeal."

Exposed at home

Mark Buttitta grew up in Bloomfield, N.J. His father was a lifelong employee at the nearby General Motors warehouse, working as a parts picker who handled brakes and clutches made with asbestos.

During college in the early 1970s, Buttitta worked summers at the warehouse, as did his brother.

In 2001, Buttitta was diagnosed with mesothelioma. He died just before Christmas in 2002 at the age of 49. Buttitta filed suit prior to his death, alleging that asbestos-containing materials found in products at the General Motors warehouse caused his cancer.

One issue was resolved prior to trial: although neither Buttitta's father nor his brother have developed mesothelioma, the defense wasn't allowed to introduce this evidence.

The parties were not in dispute about the type of illness Buttitta had, Maimon said, so the judge ruled the health status of other family members was irrelevant and therefore inadmissible.

"The questions really were: whose asbestos was responsible for [Buttitta's] death and did we prove that he had been exposed to the defendant's products?" Maimon explained.

The case itself proved to be a puzzle requiring historical detective work to determine the source of the asbestos that Buttitta had been exposed to.

Maimon had to figure out the suppliers for the brake lines for the GM warehouse as well as the company that supplied the asbestos fiber that went into those brakes – a difficult task, complicated by the fact that the business transactions occurred more than 30 years ago.

The plaintiffs' team received a lucky break when they found the deposition of a former manager at General Motors in the clutch division, who testified that during the 1960s and 1970s, BorgWarner was virtually GM's exclusive clutch supplier.

As Maimon pieced together the puzzle, defendants began to settle.

General Motors settled before trial, and during trial Honeywell International Inc., which had a subsidiary that supplied replacement brakes to GM at the time, also settled. All amounts are confidential.

At trial, the remaining defendants – BorgWarner, a manufacturer of automobile clutch products, and Asbestos Corporation Ltd., a Canadian-based supplier of raw asbestos – did not present a defense.

Asbestos Corp. was a difficult litigant from the outset, making jurisdictional arguments to get out of the case. But once the court refused to dismiss them, the company wouldn't produce documents or answer interrogatories, Maimon said, resulting in multiple hearings, appeals and sanctions.

Because they failed to comply with the discovery orders, the judge ordered Asbestos Corp.'s defense stricken, and they were only allowed to make opening and closing arguments concerning damages.

BorgWarner, on the other hand, had the option of presenting a defense and declined to do so. Instead, Maimon said their opening argument presented "the proposition that their products were safe and did not cause any type of disease, including mesothelioma." At closing, they argued the plaintiff's attorneys had failed to prove that Buttitta was ever exposed to any of their products, he added.

"It was an interesting strategic move," Maimon said, noting that the defendants had plenty of witnesses lined up to testify and that he had spent the entire President's Day weekend in preparation.

'Expert intensive'

The plaintiff's case was "expert intensive," Maimon said, with experts ranging from an economist to various scientists who explained asbestos and mesothelioma to the jury.

A materials analyst testified about his work testing brakes to determine how much asbestos is released from a box of brakes simply by opening it, while a number of medical experts testified about the extent and type of asbestos found in Buttitta's lungs and lymph nodes.

"We presented the whole picture of how you determine what caused the disease, how much and what type of asbestos [Buttitta] was exposed to and how it traveled through his body," Maimon said.

Maimon also used an economist to explain Buttitta's loss of earnings as a rising advertising executive.

After three weeks of trial, the jury deliberated for about an hour on a Thursday afternoon before being sent home. A snowstorm closed the courthouse on Friday and when they returned after the weekend, the six person jury deliberated for another three hours before returning a verdict for the plaintiff.

Damages were as follows: $8 million for pain and suffering, $2 million for loss of consortium, $9,281,660 for lost earnings and $2,030,544 for loss of services. In addition, each of Buttitta's three daughters was awarded $3 million for parental loss for a total of more than $30.3 million.

Plaintiff's attorneys: Moshe Maimon of Levy Phillips & Konigsberg in New York; Richard Catenacci of Connell Foley in Livingston, N.J. and Donald MacLaughlin in Ridgewood, N.J.

Defense attorneys: Janet E. Golup of Goldfein & Joseph in Philadelphia for Asbestos Corp. Ltd.; Nora J. Grimbergen of Hoagland Longo Moran Dunst & Doukas in New Brunswick, N.J. and Hunter McGeary in Pittsburgh for BorgWarner.

The case: Buttitta v. Asbestos Corp. Ltd.; Feb. 25, 2008; New Jersey Superior Court, Judge Brian R. Martinotti.

Questions or comments can be directed to the writer at: Correy.stephenson@lawyersusaonline.com