A new round of mesothelioma lawsuits in Massachusetts and surrounding states against fertilizer manufacturers may have gained new traction with a recent decision by the Superior Court of New Jersey Appellate Division reviving an asbestos wrongful death lawsuit.
In Brandecker v. E.B. Mill Supply Co. et al, plaintiff filed on behalf of the victim, a former cabinet maker from New Jersey who reportedly used two bags of defendant fertilizer company’s spreader fertilizer twice annually on his personal lawn in New Jersey. He did so from 1967 to 1980. In the lawsuit, filed in 2012, he alleged this exposure contributed to his development of mesothelioma, a latent but deadly cancer caused by exposure to airborne asbestos fibers. He asserted the Turf Builder product manufactured by defendants contained vermiculite ore, a substance that contained asbestos.
He had also alleged his exposure to the fibers in other settings – primarily at work – also contributed to his developing the terminal disease. He entered into confidential settlement agreements with other defendants, but the claim against the fertilizer company was still pending in 2014 when the trial court granted defense motion for summary judgment. (Plaintiff died in 2012 from mesothelioma; his estate representative carried on as plaintiff, adding the wrongful death claim.)
Now, that summary judgment has been reversed, meaning the wrongful death claim can continue.
Fertilizer and Asbestos
The connection between fertilizer use and asbestos exposure isn’t as well-established as other claims involving asbestos in vehicle and building construction materials, but it is nonetheless established to some degree.
For example, Zonolite, a product of the W.R. Grace Corporation (one of the largest asbestos producers in the U.S. prior to 1990) mined and processed its products in a community called Libby Montana. This is where most of the nation’s supply of chrysotile (commonly known as “white” asbestos) came from. Zonolite was made from a mineral called vermiculite, commonly used as a soil conditioner. Vermiculite is typically found near asbestos deposits and is often contaminated with a type of asbestos called tremolite – a highly- toxic form of asbestos.
Libby, Montana crops up an awful lot in discussions of asbestos contamination because the town was a prime source of asbestos mining in the U.S., and its residents and workers have reported extremely high rates of asbestos-related cancer. This was underscored in a 2007 study published in the journal Environmental Health Perspectives, which reported rates of asbestos-related occupational respiratory disease rates among workers who mined, milled and processed the Libby vermiculite were “significantly” more likely to die from asbestosis and mesothelioma. This study also noted that the vermiculite mined at this location is used in a wide range of construction products, including attic insulation, finishes, fireproofing, plaster, concerete mixes for swimming pools, packing materials, pesticides, seed encapsulants, potting mixes, soil conditioners – and fertilizers.
It is also from this same place that defendant fertilizer manufacturer in the Brandecker case mined the vermiculite used in its products, according to court records.
Fertilizer Asbestos Wrongful Death Claims Revived
Plaintiff alleged liability against fertilizer manufacturer for breach of warranties, marketing of an ultra-hazardous product, breach of non-delegable duty to warn and civil conspiracy. The complaint also included a loss of consortium claim filed by decedent’s wife.
As reported by the New Jersey Law Journal, defendant Scotts produced asbestos-laden vermiculite for its fertilizer from a Libby mine between 1966 and 1980. Attorneys for the plaintiff had asked defendant manufacturer for samples of the product made with vermiculite from Libby. The company responded that while it did still have a sample of the product containing the vermiculite, it could not ascertain when that sample was produced or where the vermiculite originated.
Plaintiff presented expert witness testimony from four witnesses that attested to the fact that all or most of the fertilizer products made by the company during the time frame in question contained asbestos. This testimony was either partially or totally excluded by the trial judge, who granted summary judgment favoring defendant. That was in January 2014.
Then, plaintiff’s counsel got a surprise: Defendant was given notice that it had discovered 26 samples of fertilizer from prior to 1980 made with vermiculite ore obtained from the mine in Montana. However, that notice was served in reference to another asbestos lawsuit, not the one plaintiff had filed. Defendant indicated it had discovered the samples in 2014 and provided them to an expert, without giving notice to other parties or the court. The expert later testified those samples were lost or destroyed.
When plaintiff counsel in the Brandecker case received word, they filed a motion to vacate the summary judgment dismissal and requested the case be restored to the active docket. They asserted the samples were newly-discovered evidence and that defendant’s answers to discovery and failure to disclose the samples were effectively a misrepresentation. Trial court decided that while defendant did have a duty to turn over the samples, per state discovery rules, plaintiff’s motion to vacate dismissal was denied on procedural grounds. Plaintiff appealed.
Appellate court judges ruled plaintiff met the conditions for vacating a final judgment, specifically because of the newly-discovered evidence – which, they held, would likely:
- Alter the judgment or orders;
- Could not have, by due diligence, have been discovered by plaintiffs in time to move for a new trial.
The appellate panel ruled this new evidence most likely would have changed the result of the outcome of this case. Further, this evidence wasn’t merely cumulative and the plaintiff couldn’t have obtained it otherwise simply with an exercise of due diligence.
The appellate court’s ruling found a misapplication of the lower court’s discretion based on the new evidence. It’s been left to the discretion of the trial court to ascertain whether plaintiffs should be allowed additional time to file motions addressing discovery violations.
In a similar case out of Los Angeles, Fraser v. Scotts, the defendant fertilizer won a favorable verdict in a state court in Los Angeles. In that case too, the defense stated it had no old samples to offer. Now, that case too is being appealed.
Challenges With Decades-Old Evidence in Mesothelioma Cases
So many Boston mesothelioma lawsuits are rife with unique challenges that stem from decades-old evidence and witness testimony that is lost, damaged or faded. That does not mean cases cannot be established or that such claims aren’t viable, but it does mean that there are unique challenge that require a legal team with extensive experience and dedication.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Brandecker v. E.B. Mill Supply Co. et al, Feb. 26, 2018, Superior Court of New Jersey, Appellate Division
More Blog Entries:
New Bill Introduced to Keep Asbestos Out of Children’s Makeup, Feb. 12, 2018, Boston Mesothelioma Lawyer Blog