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May 10, 2002


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Regional News | Article published Thursday, May 9, 2002
Beryllium victim wins court ruling
Decision reviving Brush suit could aid other Ohio workers


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.

The 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 earlier.

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 beryllium disease.

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 Cook.

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 Wellman Inc."

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.

Yesterday’s decision 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 lawsuits.

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 Elmore.

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.

The 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.

Mr. Carpenter, 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.

More articles on this subject »
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