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Judge: Former Alcoa employee’s lawsuit can proceed

A Rockdale, Texas man suffering from mesothelioma, a rare form of cancer, prevailed in pre-trial motions Friday in Houston in what may turn out to be a landmark ruling favoring the rights of injured workers.

The former Alcoa employee is suing the company. Alcoa had moved for summary dismissal of the former employee's case on the grounds that the company had not specifically intended to harm the man. The man's legal representatives, mesothelioma attorneys Cappolino, Dodd, Krebs, LLP, argued the evidence suggested otherwise.

"There's a provision of the Texas constitution that says you have the right to bring an intentional tort claim against employer, while you're alive," said lead council Valerie Farwell. "This is huge. It opens the door for living Alcoa claimants who might be sick with an asbestos-related disease to have their cases heard before they die."

Alcoa argued that, because it couldn't be proved that the company tried to intentionally harm Farwell's client, there was no claim and moved for summary dismissal on those grounds. Under Texas law, an employee can only sue for intentionally causing harm, not negligence, while they are alive. Only after an employee dies can survivors make a claim, and then only for punitive damages, which are capped in Texas.

If that was true, Farwell contended, then no one has a claim. "No reputable doctor can say he knows for certain a specific individual will get sick if exposed to asbestos, because people are individually susceptible," she said.

Therefore, she said, if Alcoa's interpretation was upheld, a whole class of Texas workers would be denied access to the courts. The judge agreed.

Farwell's client worked at the Alcoa plant in Rockdale for 27 years and was exposed to asbestos-containing materials during most of his career. He developed mesothelioma, a rare cancer that is almost exclusively caused by asbestos and is fatal.

"Alcoa's own documents and testimony establish that it was substantially certain that some of its employees, like our client, would develop asbestos-related diseases if exposed to asbestos," she said.

She also noted that Alcoa had much of this information as early as the 1950s and early 1960s, yet deliberately chose not to inform its employees of the danger. Then she quoted one of Alcoa's senior industrial hygienists: "What purpose would it [telling people of the danger] serve?"

"Mesothiloma victims die fast, usually within 18 months of diagnosis," said Farwell. "They hardly ever get to have their claims heard in court while they are still alive. This is a chance to help one of these victims see justice while they are still alive, rather than die wondering."