| Article published Thursday, May 9, 2002|
Beryllium victim wins court ruling
Decision reviving Brush suit could aid other Ohio
By JAMES DREW
COLUMBUS - The Ohio Supreme Court
yesterday gave new life to a lawsuit that a chronic beryllium
disease victim filed against Brush Wellman.
The 4-3 decision
also could have a major impact on workers with occupational diseases
who have sued or plan to sue their employers in Ohio.
Supreme Court overturned a state appeals court ruling that said the
statute of limitations had run out in 1997 when David Norgard and
his wife, Theresa, filed an intentional tort lawsuit against Brush,
a Cleveland-based firm.
Mr. Norgard, who worked at Brush’s
plant near Elmore and was diagnosed with the debilitating lung
disease in 1992, claimed that the state’s two-year statute of
limitations on civil lawsuits started to tick in October, 1995, not
when he was diagnosed with the disease three years
Mr. Norgard said it was in 1995 that he discovered
"facts" from an Arizona attorney supporting allegations that Brush
intentionally withheld information about the causes of chronic
A one-vote majority of the state Supreme
Court agreed with Mr. Norgard.
"By applying the ... rule as
we do, we take away the advantage of employers who conceal harmful
information until it is too late for their employees to use it,"
wrote Justice Francis Sweeney, a Democrat.
Others in the
majority were Democrat Alice Robie Resnick and Republicans Andy
Douglas and Paul Pfeifer. The dissenters were three Republicans:
Chief Justice Thomas Moyer, Evelyn Stratton, and Deborah
A Brush spokesman said the company "vehemently
disagrees" with the court’s 4-3 decision.
"This ruling is
limited to a statute of limitations interpretation," said Patrick
Carpenter, Brush’s director of corporate communications. "The court
was not asked nor did it rule on any issues of fact regarding
occupational exposure to beryllium or alleged ‘wrongdoing’ by Brush
Beryllium is a lightweight metal used in the
defense, automotive, and electronics industries. Beryllium dust can
cause an incurable, fatal lung disease. Brush Wellman processes
beryllium, long used in nuclear weapons.
means the Norgards’ lawsuit against Brush will move forward in
Cuyahoga County, where the company is based.
The couple, who
live in Manitou Beach, Mich., are seeking compensatory and punitive
damages in excess of $25,000.
"Hopefully, the decision has
set a precedent and opened up some doors for a lot of injured
workers across the state," Mr. Norgard said yesterday. "That is even
more exciting than my own case."
Attorneys representing the
Norgards are handling about 30 intentional tort lawsuits against
Brush in Ohio.
Mr. Carpenter said it was unclear if
yesterday’s Supreme Court decision would trigger more lawsuits
against Brush and other Ohio manufacturers, but he referred to it as
"more slop for the trial lawyers."
Justice Cook accused the
four justices in the majority - frequent targets of business
interests - of creating a new rule for intentional tort
She said case law is clear that the statute of
limitations clock starts to tick when employees are aware of their
injury and its likely cause - not when they realize they have a
right to sue.
She said for Mr. Norgard, the clock expired in
1994 - two years after he knew he suffered from chronic beryllium
disease and it was likely caused by working at the Brush plant near
Mr. Norgard sued Brush in 1997, alleging that the
company intentionally had exposed him to conditions at the Elmore
plant that led to his getting chronic beryllium disease.
Supreme Court’s decision makes it clear that the two-year statute of
limitations starts when workers discover their injury and the
"wrongful conduct of the employer," said Louise Roselle, a
Cincinnati attorney representing the Norgards.
the Brush spokesman, said the company will ask a Cuyahoga County
judge to dismiss the Norgards’ lawsuit.
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 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.
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