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Article published Friday, December 20, 2002
Beryllium victims sick at heart
Courts have sided with Brush Wellman in worker
lawsuits
(THE BLADE)
Gary Renwand, Sr., left,
uses an oxygen tank 24 hours a day because of his long
exposure to beryllium dust at Brush Wellman’s Elmore plant.
Gary, Jr., also has the disease.
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By KELLY LECKER
BLADE STAFF
WRITER
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 Wellman’s plant in
Elmore.
The younger Renwand has beryllium disease, too. He
gets short of breath when it’s humid, but so far he’s feeling OK. He
worked for Brush Wellman more than 20 years.
"I see my father
and what he’s 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 haven’t 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. Renwand’s 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.
"That’s probably what I’m
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 don’t think one person or even a three-judge panel
should decide the fate of all these people," he said. "They didn’t
hear everything. They just hear from Brush Wellman attorneys what
Brush Wellman told them: That everything’s OK out there."
Mr.
Carpenter of Brush said he couldn’t 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.
"I’m not going to drop my case. I’m 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."
That’s 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 Brush’s favor too.
In a statement released this week,
John J. Pallam, vice president, general counsel, said, "It’s very
gratifying to have the courts recognize the work we’ve 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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