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$725,000 settlement for widow of machinist who developed hard metal lung disease.

Case Type: Legal Malpractice
Case Name and Court: Confidential
Plaintiff Attorneys: John P. Blumberg and Ave Buchwald of Blumberg Law Corporation, Long Beach
Raphael Metzger and Gregory Coolidge of Metzger Law Group, Long Beach
Result: Settlement of $725,000.00

FACTS: Decedent had worked in steel manufacturing for many years before starting his own business where he developed and patented devices for cleansing of oil in industrial machines. He died at age 61 of interstitial lung disease. A law firm represented the decedent's wife in a third-party action for wrongful death due to exposure to toxic substances in the workplace. As part of the law firm's investigation, they submitted lung tissue slides to a pathologist for analysis because there was a suspicion that the lung disease was caused by either hard metals. Before the final report was received from the pathologist, the complaint was filed to preserve the statute of limitations. However, the complaint named only asbestos manufacturers as defendants, alleging that the cause of death was asbestos and that the doe defendants were asbestos manufacturers. After the expiration of the statute of limitations, the final pathology report was received, confirming that the cause of death was hard metals, not asbestos. When the law firm then added hard metal manufacturers as doe defendants, they demurred, arguing that the complaint specifically limited the doe defendants to asbestos manufacturers. The court granted the demurrers, reasoning that the complaint's specific description of doe defendants as asbestos manufacturers precluded plaintiffs from identifying them as hard metal manufacturers after the expiration of the statute of limitations. The order of dismissal was filed, but the law firm failed to timely file a notice of appeal from it.

The Blumberg Law Corporation filed a legal malpractice case against the law firm and sought the assistance of the Metzger Law Group regarding the underlying toxic tort case.

PER PLAINTIFF: The case presented three distinct challenges: First, the underlying case that the death was due to years of exposure to toxic hard metals (i.e., cobalt from drill bits used to drill steel) had to be established. The company had been sold and the records proving the type of drill bits and its manufacturers had long-since been destroyed. Second, negligence in pleading the original complaint had to be proven. Third, assuming that law firm was not negligent, it had to be proven that the trial court erred in granting the demurrers and dismissing the case and that the dismissal would have been reversed by the Court of Appeal.

The standard of care requires that when a complaint is drafted, it must be broad enough to include all possible theories of liability and classes of defendants. In this case, it would have been simple to generally allege that the death was from exposure to various materials including but not limited to asbestos and hard metals; that the defendants were involved in the manufacture and sale of the dangerous products, and that the defendants did not warn users of the danger. Law firm was particularly negligent because they knew of the possibility that the death was from hard metal exposure. If the complaint had been properly pleaded, any statute of limitations demurrer would have been overruled. Even assuming that the trial court erred in sustaining the statute of limitations demurrers and defendants had not committed legal malpractice up to that point, their failure to timely file the notice of appeal likewise caused the loss of the cause of actions against the hard metals defendants.

Plaintiff was able to find former employees from the decedent's former employer who verified that cobalt drill bits were used, that decedent was exposed to the dust and fumes, and the identity of the manufacturers. The pathologist originally retained by law firm to analyze the cause of death verified his opinions regarding the hard metal exposure. The manufacturers are still in business and a judgment against them would have been collectible.

PER DEFENDANTS: It was not negligent to file the complaint alleging asbestos as the cause of death and the trial court erred in dismissing the amended complaint. Moreover, because appellate rules regarding a dismissal versus a judgment are complex, the average lawyer would not be expected to discern the difference. Also, the absence of definitive proof of the identity of the underlying hard metal manufacturers, and their products and warnings made it unlikely that a jury would have returned a verdict in plaintiffs' favor. The decedent was 61 years old when he died; his father had died before age 70; he had never earned more than $55,000 per year, and planned to retire at age 65. Although he had invented patented oil-cleaning devices, there were no buyers of the business or the patents after his death, indicating that neither had significant economic value. The worker's compensation payments would have been an offset to damages in the third-party case.

SPECIAL DAMAGES: Decedent was an inventor and entrepreneur whose devices had been purchased by major corporations, including Boeing, Rocketdyne, Canon and others. His salary of $55,000 was the result of his reinvestment of money back into the business. If he had lived, the business would have had a value exceeding $1 million. He had been in negotiations for the sale of the business which would have included his remaining as a consultant at a significantly higher annual salary.

NEGOTIATIONS: Ralph Williams of ARC mediated the case on September 6, 2005. The initial demand was $1.7 million. The law firm was not insured and claimed that a seven-figure judgment would result in bankruptcy. When the demand was lowered to $1 million, the law firm offered $250,000. On November 23, 2005, the trial judge spent the entire day facilitating negotiations, resulting in a cash settlement of $725,000.

Note:
This summary was largely prepared by John Blumberg of the Blumberg Law Corporation who handled the legal malpractice case.

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