Mark V. Mclean, Michael Fitch, Lisa Sherman, and James Archie Bennett as Personal Representatives for the Estate of Leonard C. Smith, III, v. Bird & Son, Inc., et al.

Date: July 7, 2016
Court: Tenth Judicial Circuit Court of Florida

FLORIDA, July 7, 2016 – Hawkins Parnell Thackston & Young LLP (HPTY), a national litigation firm, secured a defense verdict in Highland County, Florida for CertainTeed, a leading building products company.

The decedent, Leonard Smith III, originally filed a personal injury action in 2009 upon being diagnosed with peritoneal mesothelioma. After Mr. Smith passed away that same year, a wrongful death action was filed by four personal representatives on behalf of his estate on behalf of his wife and two children.

Mr. Smith, who was deposed prior to his death, alleged that as a teenager he cut couplings on CertainTeed’s asbestos cement irrigation piping in a trench located on property adjoining his family’s orchards, over a two week period during 1969 or 1970, in Sebring, Florida.

Mr. Smith also testified that the some of the pipe he worked with had been reinstalled on property owned by his family. Witnesses were discovered who assisted in locating the reinstalled pipe, which CertainTeed excavated, and it was identified as another manufacturer’s product. CertainTeed also learned during discovery that additional sections of the pipe that Mr. Smith had identified as piping he dug-up as a teenager, had been stored on the property of his business for approximately 40 years. However, that pipe was removed and destroyed during the pendency of the litigation by one of the Personal Representatives of the Estate, who was also a Plaintiff and current President of the deceased’s company. Defendant filed and prevailed on a spoliation motion that resulted in an “adverse inference” instruction to the jury.

In addition to the product identification defense presented during trial, CertainTeed also vigorously challenged causation due to the decedent’s medical records revealing that he had been exposed to heavy doses of radiation to his lower abdomen as a result of childhood cancer. Mr. Smith had several medical conditions throughout his life that the defense contended related back to the radiation therapy.

After a two and a half week jury trial before Judge Peter Estrada, the jury deliberated less than two hours before returning a defense verdict for the defendant.

CertainTeed was represented by Albert H. Parnell and Frances Lopez of HPTY, Kevin A. Ashley of Peterson & Myers PA, and CertainTeed's national coordinating counsel, Jeffrey D. Skinner of Schiff Hardin LLP.

Plaintiffs’ counsel was Nathan D. Finch and T. David Hoyle of Motley Rice in Washington, DC and Mount Pleasant, SC, respectively. 

Testifying on behalf of the defendant were Dr. Denis Miller, Allan Feingold and Kyle Dotson.  Plaintiffs' experts included Dr. Laura Welch, Dr. Steven Compton and Frederick Raffa.

Attorneys