From: James Drew, The Blade, Toledo, Ohio
Published November 18, 2004 12:00 AM

Judge Rules Against Elmore, Ohio, Workers in Toxic Beryllium Dust Case

Nov. 18—COLUMBUS, Ohio — In a victory for Brush Wellman, the Ohio Supreme Court ruled yesterday that up to 7,000 contract workers who may have been exposed to unsafe levels of toxic beryllium dust at the company's plant near Elmore cannot file a class-action lawsuit against the firm.





The workers' lawsuit cannot be certified as a class action because the proposed members are not "cohesive," Republican Justice Maureen O'Connor wrote for the 5-2 majority.





The ruling overturned a lower-court decision.





Chronic beryllium disease is an incurable, sometimes fatal lung illness caused by the metal's dust.





In February, 2000, seven current and retired union construction workers filed the lawsuit against Brush on behalf of themselves and 4,000 to 7,000 Toledo-area building-trade employees who worked at Brush from its opening in 1953 through 1999. The suit sought a medical monitoring program and punitive damages.





"Individual questions identified by the trial court include whether Brush Wellman owed a duty, whether there was a breach of that duty, whether the statute-of-limitations defense applies, and questions of contributory negligence," wrote Justice O'Connor, a former lieutenant governor under Gov. Bob Taft.





Attorneys file a class-action suit when filing thousands of individual complaints would be impractical. A handful of named plaintiffs represents the larger group and, theoretically, everyone in the class benefits if the lawsuit succeeds.





In her dissent, Justice Alice Robie Resnick, a Democrat from Ottawa Hills, wrote that the majority had interpreted civil rules narrowly to prevent a class-action lawsuit.





Justice Resnick wrote that it is "astonishing" that Justice O'Connor and her allies cited two federal cases involving asbestos-related claims and cigarette smokers suing tobacco companies to support their argument that the contract workers at Brush are not "cohesive" and should not be certified as a class.





"The proposed class is relatively small, not large, and certainly not unwieldy. This case does not involve multiple or even successive defendants, but only one defendant.





"This is not a situation where the risk of contracting various diseases must be traced to any number of different toxic substances. The representatives of the proposed class allege that its class members are at risk of contracting only one particular kind of industrial disease as a result of being exposed to one particular kind of toxic substance while working at a single manufacturing plant," Justice Resnick wrote.





In the decision, the Republican-controlled high court said a lawsuit seeking a medical-monitoring program can be certified as a class action if a court is asked to supervise and participate.





The court ruled, however, that although attorneys for the contract workers said they wanted a court-supervised fund with money from Brush to determine if workers had contracted chronic beryllium disease, the court record didn't show any evidence of a request.





Attorney Jeffrey Ubersax, representing Brush, urged the high court on Dec. 16, 2003, to overturn the 2002 decision by a Cleveland-based appeals court that certified the lawsuit as a class action.





Mr. Ubersax said the contract workers had different jobs with different potential exposures to beryllium. He also said the workers' request was solely for "money" — punitive damages instead of injunctive relief — and can't be evaluated as part of a class-action lawsuit.





Patrick Carpenter, a Brush spokesman, said yesterday that the company is pleased with the Supreme Court decision, which upheld the 2002 ruling of Judge Leo Spellacy of Cuyahoga County Common Pleas Court.





"Brush Wellman has consistently held and successfully argued that the plaintiffs in this case did not adequately establish the right to a class action," Mr. Carpenter said.





Andrew Lipton, a Toledo attorney representing the contract workers, said the Supreme Court set an Ohio rule for class-action lawsuits that attorneys didn't have a chance to debate.





"I lose on the grounds of not meeting a standard that did not exist. <0x2026> This is clearly not a pro-worker approach or analysis," he said.





Mr. Lipton said the 4,000 to 7,000 workers who had been in the class-action lawsuit will have to decide whether to file individual lawsuits against Brush to seek a medical monitoring program to determine if they have contracted chronic beryllium disease.





Those lawsuits could be filed in Cuyahoga County, where Brush's headquarters are, or in Ottawa County, where the Elmore plant is, Mr. Lipton said.





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© 2004, The Blade, Toledo, Ohio. Distributed by Knight Ridder/Tribune Business News


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