$208.8 Million Mesothelioma Verdict Vacated for a New Trial After the Judge Struck the Punitive Award

Bobby Evans spent more than two decades at the Los Angeles Department of Water and Power, and one of his regular jobs was cutting asbestos cement water pipe manufactured by CertainTeed, often with an abrasive power saw. The cutting released asbestos dust that settled into his clothes, and every evening he brought it home. His wife Rhoda laundered those clothes for years. She never worked around asbestos herself, but decades later, at age 71, she was diagnosed with mesothelioma, the signature cancer of asbestos exposure.

Because mesothelioma patients rarely have long to live, California gives their cases trial preference, and this one moved fast: trial began less than seven months after the complaint was filed. The case, captioned Evans v. A.W. Chesterton Co. and docketed as BC418867, was tried before Judge Conrad Aragon at the Stanley Mosk Courthouse in the spring of 2010, with Courtroom View Network broadcasting the proceedings. William Levin and Laurel Simes, whose firm was then known as Levin Simes Kaiser & Gornick and continues today as Levin Simes, tried the case for the Evans family along with colleague T. Scott Hames. The DWP stayed in as a defendant but had quietly hedged before trial, striking a sliding-scale settlement that fixed what it would pay depending on how much fault the jury assigned it.

The trial turned on what CertainTeed knew. Levin argued in closing that the company sold a product containing a carcinogen without a warning even though it knew safer alternatives existed, and that it understood the danger its pipe dust posed not just to workers but to the family members who handled their clothes. In late April 2010 the jury agreed, awarding $8,821,015 in compensatory damages and allocating fault 70 percent to CertainTeed and 30 percent to the DWP. Then it added $200 million in punitive damages against CertainTeed alone, bringing the total to $208,821,015, widely described at the time as the largest verdict ever returned for a single mesothelioma plaintiff in California. Appellate observers immediately flagged the 22.7 to 1 ratio of punitive to compensatory damages and predicted the award would not survive review.

They were right, and quickly. On July 21, 2010, the trial court granted CertainTeed's post-trial motions, holding that the $200 million punitive award was unconstitutional, that punitive damages in the case could not exceed the compensatory award, and that a new trial was required. The headline number, in other words, lasted less than three months. The dispute then moved to the California Court of Appeal, Second District, which affirmed the new-trial order in September 2012 (Evans v. CertainTeed Corp., B227075). It held that the jury's failure to assign any fault to Johns Manville cast doubt on the whole damages assessment, so the compensatory award fell along with the punitive one, and it called the punitive question premature. Rhoda Evans died after the appeal was argued. What her family ultimately recovered was never publicly reported, a common ending for asbestos cases that resolve after appellate rulings.

Evans is best read as two records at once: a jury's verdict that a company which knowingly sold carcinogenic pipe owed one of the largest sums ever demanded of an asbestos defendant in California, and a court system that refused to let that sum stand. Both parts are the story, and Levin Simes still points to the verdict itself as the high-water mark of its asbestos trial practice.