In my last post, I mentioned how, as a young lawyer, I was approached by a firm to represent clients in cases involving asbestos claims. You may recall that I’ve been providing you with some of my history, so that you can see the background that led to my considering to take on the Castillo case a few years later – a case that was both challenging and important. (The Castillos asked me to represent them against DuPont, in a toxic fungicide case that caused severe birth defects.)
I had agreed to work on behalf of clients who were seeking restitution for exposure to asbestos. The first case I tried was in 1991, representing a man named Joe Zabka. Joe was a pipefitter who was dying from lung cancer, a condition he developed as a result of smoking and working with a pipe-covering product manufactured by Owens Corning.
I drove to Joe’s house in Hollywood, Florida, where I met with him and his wife of 48 years. He was a very nice and decent working-class guy who was in a union in the neighboring city of Fort Lauderdale. Joe was living on oxygen and was barely able to walk. He was in pretty bad shape. I liked the guy and felt bad for his situation, so I said I’d take his case to trial.
When I met Joe for the first time, I had no idea that no one else was trying lung cancer cases caused by asbestos, because of the tobacco defense. This defense is based on the premise that smokers are much more likely to develop lung cancer from their smoking than from other factors, such as working with asbestos.
Perhaps it was my inexperience in this area, but I wasn’t deterred.
I happen to believe that being naïve isn’t such a bad thing—it simply means that you’re the type of person who tends to reject the conventional wisdom that something is a problem. I also knew that a 1985 Surgeon General’s report showed a synergy between smoke and asbestos.
According to this report, if you work with asbestos but don’t smoke, you’re five times more likely to develop lung cancer than someone who doesn’t smoke and doesn’t work with asbestos. If you don’t work with asbestos but do smoke, you’re 10 times more likely to get lung cancer. If you both work with asbestos and smoke, you’re 50 times more likely to develop lung cancer. In other words, a smoker who works with asbestos increases his chances to develop cancer fivefold! Joe made it clear in his video deposition before trial that he didn’t want to be compensated for smoking because he chose to do that for pleasure. He didn’t choose to breathe asbestos for pleasure, however. Sadly, no one—in particular the defendant, Owens Corning—had warned Joe about the dangers of asbestos.
By the time the case went to trial in 1991, Joe had died. He gave a very good video deposition before his death, which we used at trial. We won the case for a little over $1 million, in large part because we made it clear that Joe’s damages should be reduced by 20% to account for his smoking. The final payout was $850,000. I believe the jury had a lot of respect for this decision. I won my very first asbestos trial with no assistance from anyone.
After the trial, I received a call from Eric Johnson, the head of the local union. He asked if we could meet for lunch.
“Sure,” I said, not realizing the connection.
We met at the City Club, located in my office building. “The reason I wanted to meet you is because Joe Zabka was my best friend,” Eric said. “I wanted to personally thank you for taking care of Joe and his family. It means a lot to me and the fellas in the union.”
I was stunned yet grateful for his acknowledgment. I had just done my job, but it felt good to hear someone tell me what a good job I did. As we finished our lunch, Eric turned to me and asked, “Can you represent people in other states?”
“Yeah, sure I can. Why?” In actuality, at the time I could file a case in Florida as long as one defendant was located in the state.
“I know the business agent for Local 537 in Boston and another guy in Chicago. If you’re interested, I’ll set you up with these guys.”
“I appreciate the vote of confidence,” I said. “Thank you, Mr. Johnson.”
Within weeks of that lunch, I was hopping on planes and meeting with these guys. They were in charge of their whole unions—thousands of people and potential clients. After we met, they started recommending me as their go-to lawyer, and as a result, 99% of their cases came my way.
Eighteen months later, I had gone from representing 100 people to representing 4,000. Before I knew it, I was making serious money, and realized I would never have to worry about my income again. I had gone from the outhouse to the palace overnight.
“You’re one lucky son of bitch,” I thought. Not only was I doing good for other people, I was also reaping the rewards—big-time.
Life was good.
Which leads me to the Castillo family. I’ll return to that story in my next post.
You can find a lot more about my background, and the story of this case, in my book, Blindsided, from which this blog post is adapted.
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