Oregon Court of Appeals Upholds $8.75 Million Verdict for Mesothelioma Victim
After an over five-year journey through the Oregon court system, a unanimous Court of Appeals recently upheld an $8.75 million verdict delivered in Multnomah County Oregon in 2016 in favor of Bergman Draper Oslund Udo clients David and Patricia Hoff. David Hoff was a 66-year-old carpenter who in 2015 was diagnosed with mesothelioma the week after he retired. Dave was exposed to asbestos-containing joint compound in the early stages of his career and we filed an action in Multnomah County against Kaiser Gypsum, Georgia Pacific and Kelly Moore amongst others. At trial, two independent witnesses testified that Kaiser Gypsum’s product was one of several brands commonly used by drywallers at the 20 to 30 job sites where the plaintiff worked, including up to hundreds of packages of joint compound depending on the job site. The jury found Kaiser Gypsum was a substantial factor in causing Dave’s mesothelioma, allocated 35% share to Kaiser Gypsum and awarded damages of $8.75 Million. The trial court entered judgment of $2.9 million and Kaiser Gypsum appealed.
Dave passed away a month after the verdict and shortly thereafter Kaiser Gypsum filed for bankruptcy which stayed the appeal. Patty Hoff was appointed to the Kaiser Gypsum creditors committee. That committee negotiated an unprecedented plan of reorganization that restored Kaiser Gypsum to the tort system, allowing present and future victims to prosecute claims in court. This lifted the bankruptcy stay and allowed the Hoff appeal to proceed
Kaiser Gypsum argued on appeal that under the controlling authority of Purcell v. Asbestos Corp., Ltd., 153 Or App 415 (1998), the evidence could not support the jury’s verdict because the Hoffs did not prove that Dave was exposed to Kaiser Gypsum’s product at a specific job site. The Oregon Court of Appeals flatly rejected this interpretation, indicating that while the evidence in Purcell “happened to have been sufficient for the jury to infer that the plaintiff had been exposed at particular sites,” the court did not require that “all plaintiffs must prove their case in that way.” The key, the Court explained, was that the evidence showed exposure to the defendant’s product.
The legacy of this case is one of persistence, patience and determination. The case was tried to a jury in May 2016 and thereafter languished in an appellate void for four years until the Court of Appeals heard oral argument on June 9, 2020. The unanimous decision followed a year and a half later.