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January 30, 2002

 



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Regional News | Article published January 30, 2002
Brush worker asks relief from time limit
Ohio top court gets plea to let beryllium suit continue

By JAMES DREW
BLADE COLUMBUS BUREAU CHIEF


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.

"Brush was 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. Norgard’s attorneys.

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 beryllium disease.

Too late, replied Brush’s attorneys.

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 attorneys said.

"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 representing Brush.

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 beryllium disease.

Mr. Norgard says that when he and his wife filed their lawsuit against Brush in October, 1997, they made the two-year deadline.

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 year.

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 Norgards.

"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.

But Brush’s attorneys counter that if the Norgards win, Ohio companies will face lawsuits that could be filed decades after an occupational illness is discovered.

"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 said.

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.

"The 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."

Mr. Norgard said workers with chronic beryllium disease face a "Catch-22" situation.

"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.

Instead of 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.

"It has been hell. When you get into the courts, you find out it doesn’t happen overnight. It drags on for years," he said.

In 1999, 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 dust.

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" of Brush.

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 fatal disease.

"[The Norgards] went about it in a very careful and logical manner," she said.


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