| Article published January 30, 2002|
worker asks relief from time limit
Ohio top court gets plea to let beryllium suit
By JAMES DREW
COLUMBUS - In 1992, David Norgard was
diagnosed with chronic beryllium disease - 11 years after he first
developed symptoms. That happened shortly after he began working at
the Brush Wellman plant near Elmore.
Mr. Norgard joined a
support group of Brush employees with the debilitating lung disease,
caused by inhaling the metal’s dust. In January, 1993, he and his
wife, Theresa, became the group’s facilitators.
not receptive nor supportive of the research that the support group
was performing," recalled Mr. Norgard, in a 2000 affidavit. "Several
times I was told by Brush to stop snooping around and stop talking
to regulatory agencies and members of Congress."
In 1995, Mr.
Norgard read a brief article in The Blade that referred to James
Heckbert, an attorney from Tuscon, Ariz., who had filed lawsuits on
behalf of Brush employees.
It was from Mr. Heckbert that Mr.
Norgard learned that "for decades Brush Wellman withheld from its
employees information about the causes of beryllium-related diseases
and the acceptable levels of beryllium to which an employee could be
exposed without harm," according to state court records filed by Mr.
In 1997, Mr. Norgard sued Brush,
alleging that the company intentionally had exposed him to
conditions at the Elmore plant that led to his getting chronic
Too late, replied Brush’s
The statute of limitations ran out on the Norgards
in 1994 - two years after Mr. Norgard was diagnosed with chronic
beryllium disease and knew or should have known its cause, Brush’s
"Norgard had reason to suspect that he had a
beryllium-exposure related disease in 1992 - when, by his own
admission, he was diagnosed with [chronic beryllium disease] and
began to investigate the possible causes," wrote attorney Jeffrey
Sutton of the firm Jones, Day, Reavis & Pogue, which is
But Mr. Norgard, 46, and his attorneys
say the statute of limitations didn’t start ticking until he learned
from Mr. Heckbert about "facts" supporting allegations that Brush
intentionally had withheld information about the causes of chronic
Mr. Norgard says that when he and his wife
filed their lawsuit against Brush in October, 1997, they made the
A Cuyahoga County judge and a state
appeals court have sided with Brush, but the Norgards have asked the
Ohio Supreme Court to overturn the decisions and allow their lawsuit
to move forward. They are seeking compensatory and punitive damages
in excess of $25,000.
The seven-member Supreme Court will
hear the case today in Columbus. A decision is expected later this
The outcome could have enormous consequences for
workers with occupational illnesses, said Louise Roselle, an
attorney with Waite, Schneider, Bayless & Chesley, the firm
representing the Norgards.
The firm is handling about 30
intentional tort lawsuits against Brush in Ohio, she said, and the
Ohio Academy of Trial Lawyers has filed a brief in support of the
"If this decision is allowed to stand, Ohio
employees who learn they have work-related injuries or occupational
diseases will be forced to file intentional tort claims immediately
- whether in addition to or in lieu of workers’ compensation claims
- simply to preserve their right to litigate," wrote attorney Paul
DeMarco, who is representing the Norgards.
attorneys counter that if the Norgards win, Ohio companies will face
lawsuits that could be filed decades after an occupational illness
"There would be no limit on how long this kind
of investigation could be drawn out," wrote Mr. Sutton. "In this
case, Mr. Norgard says that it took him five years. In another case,
it could easily be 15."
The Ohio Manufacturers’ Association
has not filed a brief in support of Brush, but the trade group is
"opposed to any broadening of the tort law," spokesman Randy Leffler
The Ohio Supreme Court has ruled that in certain
situations people do not have to become aware of their injuries
before the two-year statute of limitations has expired. Examples
include medical malpractice, workers exposed to asbestos or toxic
chlorine gas, and children who have been abused sexually but who
suppressed memory of the incidents.
But the Ohio Supreme
Court has made it clear that the clock starts ticking when a worker
discovers his or her injury, wrote Judge Timothy McMonagle of the
Cleveland-based state appeals court.
Attorneys for the
Norgards say the two-year statute of limitations clock shouldn’t
start ticking until an employee uncovers facts showing that a
company intentionally harmed him or her.
Mrs. Norgard, who
lives in Manitou Beach, Mich., with her husband, said at the time
they sued Brush in 1997, they were "just beginning to have an
understanding" about chronic beryllium disease.
information you need to file this kind of suit is not readily
available," Mrs. Norgard said. "A lot of the documents were
classified. It takes a heroic effort to even get an elementary
understanding of the disease or Brush Wellman."
said workers with chronic beryllium disease face a "Catch-22"
"In speaking to people who filed suits right away,
generally those cases were thrown out for lack of evidence because
they were not able to find evidence," he said.
suing Brush immediately after being diagnosed with chronic beryllium
disease in 1992, Mr. Norgard and his wife started a detailed
investigation that led to a lawsuit filed four years ago.
has been hell. When you get into the courts, you find out it doesn’t
happen overnight. It drags on for years," he said.
The Blade published a six-part series documenting a 50-year pattern
of misconduct by the federal government and the beryllium industry -
wrongdoing that caused the injuries and deaths of dozens of workers.
Among the findings: Government and industry officials knowingly
allowed workers to be exposed to unsafe levels of beryllium
Reached for comment about Mr. Norgard’s allegations
that Brush intentionally exposed him to conditions that led to his
disease, a spokesman for Brush’s parent company said that is not the
issue the Supreme Court will consider today.
"The case is
about statute of limitations on a tort claim," said Patrick
Carpenter, director of corporate communications for Cleveland-based
Brush Engineered Materials Inc. "Brush is confident about the
strength of its case."
Mrs. Norgard said her husband "still
is having some problems with depression and lung functioning," but
he is working as a home repairman and remains an "unpaid employee"
Ms. Roselle, one of the attorneys representing the
Norgards, said Mr. Norgard is an example of a "very loyal employee"
who began to ask questions with his wife after contracting an often
"[The Norgards] went about it in a very
careful and logical manner," she said.