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December 20, 2002


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Other | Article published Friday, December 20, 2002
Beryllium victims sick at heart
Courts have sided with Brush Wellman in worker lawsuits
Gary Renwand, Sr., left, uses an oxygen tank 24 hours a day because of his long exposure to beryllium dust at Brush Wellmanís Elmore plant. Gary, Jr., also has the disease.
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ELMORE - Gary Renwand, Jr., watches his father steal breaths from a portable oxygen machine he takes everywhere he goes.

He sees him go in and out of the hospital, battling heart and lung problems stemming from a disease he got from 35 years of working around beryllium dust at Brush Wellmanís plant in Elmore.

The younger Renwand has beryllium disease, too. He gets short of breath when itís humid, but so far heís feeling OK. He worked for Brush Wellman more than 20 years.

"I see my father and what heís going through every day. Is that going to be me someday?" he asked.

Mr. Renwand wants Brush Wellman to pay for putting him and others at risk for developing a potentially deadly disease, and for the fear he faces now. He maintained that the company not only knew about the risks, but ignored them while putting production ahead of safety.

The courts havenít seen it that way.

The 8th District Court of Appeals in Cleveland recently agreed with Cuyahoga Common Pleas Judge Harry Hanna that Brush should not be made to pay for Mr. Renwandís illness. The panel ruled that Brush told workers about beryllium disease, tried to protect them, and kept them informed about the disease and how many people had it.

The ruling was a big blow to this defendant, but it could also have major consequences for other Ohio victims who sued Brush Wellman.

Louise Roselle, a Cincinnati attorney who represents Mr. Renwand and about 20 other beryllium victims, said the ruling will apply to many of the other cases. Some other victims said they worried about the effect the ruling would have on their cases, and one said he got a letter from his attorney, who also sounded discouraged.

Mr. Renwand was devastated.

"Whether I won a million dollars or 10 dollars, I just wanted the truth to come out," he said. "I just hope somebody else takes up the fight. I carried it as far as I could carry it, fought as much as I could. But they have me over a barrel now."

Mr. Renwand said he plans to appeal to the Ohio Supreme Court. He stayed on with Brush after he was diagnosed and was working outside the plant in a program for beryllium victims. The company ordered those people back to the plant, citing financial reasons. Mr. Renwand decided this week to take a one-year buyout instead.

He also faces another major decision: If the case is not dismissed by the end of next year, Mr. Renwand will lose any chance at $150,000 plus medical expenses that the federal government is offering to workers who got beryllium disease. If he dismisses the case now, he might still be eligible, according to the director of the Department of Labor program.

"Thatís probably what Iím going to come down to taking," Mr. Renwand said.

Brush Wellman has 41 pending cases involving beryllium health and safety, compared to 76 at the end of last year. Only one new case was filed this year. The company said it hopes to work toward resolving the caseload.

"We believe the precedent has been set to allow us to put the cases behind us," Brush spokesman Patrick Carpenter said. "Brush did not do the things that were alleged by the plaintiffs."

Mr. Renwand filed suit against Brush Nov. 24, 1999, just over a month after he was diagnosed with chronic beryllium disease. His father was diagnosed in 1993.

Beryllium disease is an incurable, sometimes fatal lung illness that can result from inhaling beryllium dust. Beryllium is a lightweight metal that is used in the automotive, electronics, and defense industries.

In 1999, The Blade published a six-part series documenting a 50-year pattern of misconduct by the federal government and the beryllium industry, including Brush-Wellman - wrongdoing that caused 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.

The younger Renwand argued that the company intentionally exposed him to harmful working conditions, knowing he would get beryllium disease.

The appeals court said it was "undisputed" that Brush Wellman did not consistently keep beryllium dust under the level recommended by the Occupational Safety and Health Administration.

Still, the judges said Brush gave employees information about chronic beryllium disease. The ruling also stated that Brush tested the air, shared the results with employees, and kept workers updated on how many workers had the disease. The ruling repeatedly stated that Brush took reasonable measures to protect employees from the illness, so the judges could not say the company intentionally harmed Mr. Renwand. The court called the disease "a fact of life of industrial employment and a known risk which later blossomed into reality."

Mr. Renwand said the lawsuit should have gone to a jury. Brush was granted summary judgment, meaning the case was decided by a Common Pleas judge.

"I donít think one person or even a three-judge panel should decide the fate of all these people," he said. "They didnít hear everything. They just hear from Brush Wellman attorneys what Brush Wellman told them: That everythingís OK out there."

Mr. Carpenter of Brush said he couldnít comment on a specific case, but did say "judges and juries in several different states have consistently ruled for Brush Wellman."

Mr. Renwand and other workers have contended that Brush misled workers about the disease. Company records showed that the elder Mr. Renwand was repeatedly exposed to levels of beryllium five times the federal limit.

A settlement conference is scheduled for today between Brush and some of the people who sued the company. Some of the plaintiffs said they still planned to go on with their cases.

"Iím not going to drop my case. Iím not going to drop it at all," said Dave Norgard of Manitou Beach, Mich., who sued Brush after he developed beryllium disease. "I think that the ruling is going to hurt me. There was a time when it would surprise me, but not anymore."

Thatís because Brush Wellman has consistently had rulings in its favor in cases where workers or contractors have gotten beryllium disease and sued, arguing that the company was responsible. The most recent case was in November, when a California jury ruled for the company and said that Brush did not disregard the safety of its employees. Other rulings in Colorado and Arizona have been in Brushís favor too.

In a statement released this week, John J. Pallam, vice president, general counsel, said, "Itís very gratifying to have the courts recognize the work weíve done in vigorously trying to protect our employees and the workers of our customers - everything from the advisories we distribute, to the product warning labels, to the independent research we fund."

Peter Turcic, director of the program for the U.S. Department of Labor, said victims whose cases are pending could still be eligible for the money if they dismiss their cases by dates outlined in the program. If they pursue their cases, the aid will be lost.

The rules are complicated, but if a victim loses a case, then dismisses it by the set date, he might still be eligible. Mr. Turcic urged beryllium victims to consult their attorney to find out for sure.

So far, there have been 333 claims for aid involving 292 workers from four Brush Wellman plants. The program gives money to sick workers or their survivors. Of the cases that have been finalized, 14 of 200 were denied. Nearly $20 million was paid out.

In Ohio, nearly $59 million has been paid in 503 cases. More than 2,300 have applied for the aid, which is meant for Cold War-era nuclear workers who were exposed to radiation, silica, or beryllium. Nationwide, the program has had 37,000 applicants.

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