Buffalo jury awards lab chemist $2.5M against Ford

A six-person jury in Buffalo has awarded $2.5 million to a former laboratory chemist who developed mesothelioma as a result of testing asbestos-containing ingredients in a machine manufactured by Ford Motor Co.

For years, James Ginter used the FAST (Friction Assessment Screening Test) machine, manufactured and sold by Ford, to test friction materials for use in brakes.

As a result, he was exposed to respirable asbestos, explained his attorney, Keith R. Vona of Lipsitz & Ponterio in Buffalo.

Ford sold, manufactured and distributed the FAST machine but failed to warn users of the harmful effects of working with asbestos, Vona said, although the company knew of those dangers in the early 1970s.

Ginter followed the instructions in Ford’s 40-page product manual, which involved cutting materials to fit into the machine and then running them through a test cycle to evaluate their properties. These actions repeatedly exposed him to asbestos-containing dust.

Jurors responded with a $2.5 million award.

Brian P. Crosby, a partner at Gibson McAskill & Crosby in Buffalo, who represented Ford, did not return a call requesting comment.

Brake materials

Ginter began working as a chemist at a Durez Plastics plant in North Tonawanda in 1979.

“One of his jobs was working on a project to develop a new friction particle used as a resin binder in brake materials,” Vona explained.

To test various particles, Ginter used a FAST machine. He would take material and file or hacksaw it into smaller pieces so that it fit into the machine. The machine would then abrade the material for a 90-minute period to test its properties.

The hacksawing, filing and abrasion during the test period all resulted in visible dust in Ginter’s work area and ultimately caused his mesothelioma, which was diagnosed in 2009, Vona said.

Ginter testified at trial about his work and his use of the FAST machine, as well as his medical condition. In the two years since his diagnosis, he has already had surgery to remove one of his lungs and part of his diaphragm, he told jurors.

Two experts testified for the plaintiff, a pathologist and an occupational pulmonologist.

“We tried to keep it as simple as we could,” Vona said.

According to Vona, the defense tried to muddy the waters for jurors, blaming Ginter’s mesothelioma on exposure to other forms of asbestos and relying on epidemiologic studies stating there is no increased risk of the disease from working with brake materials.

They also argued that the asbestos materials in the machine were converted to forsterite during the 90-minute testing process, which is not asbestos, Vona said, and therefore, couldn’t have contributed to Ginter’s disease.

“Our biggest challenge was getting over the epidemiology defense,” Vona said. “It’s well-crafted and well-constructed, and there are well-credentialed experts who come in and testify in support.”

To rebut the defense argument, Vona emphasized in summation that “all asbestos is dangerous.”

Ford’s other defense was that it did not make the FAST machine, Vona said. The defense tried to argue that while the company developed a prototype, it never manufactured or sold the machine.

“It was a poor choice on their part,” Vona opined. “The argument really was not compelling.”

A moment of drama

Other defendants were named in the original complaint as sources of Ginter’s asbestos exposure, but some were dismissed from the case prior to trial and others reached confidential settlements, Vona said.

The trial lasted almost two and a half weeks, but jurors deliberated just four hours before reaching their decision.

The jury asked several questions, and “while I try not read into juror questions, I felt better once they started asking apportionment questions,” Vona said.

Jurors apportioned 15 percent of the fault to Ford and the remainder to a number of other parties. Vona said he suggested to jurors they apportion 20 percent of fault to Ford.

The $2.5 million award will be reduced accordingly, as it does not include punitive damages.

After the trial, Vona spoke with a few of the jurors, who noted the length of the trial and reported they enjoyed a moment of drama during the proceedings.

While Vona’s co-counsel, Lipsitz & Ponterio partner Michael A. Ponterio, was cross-examining one of the defense experts, the witness “got really fired up,” Vona said. “He lost it and started yelling, grabbed a document out of Mike’s hand and wouldn’t give it back.”

Judge John P. Lane had to yell at the witness, Vona said, and the whole incident “definitely didn’t help [the defense].”

“I have never seen anything like that,” he added.

Plaintiff’s attorneys: Keith R. Vona and Michael A. Ponterio of Lipsitz & Ponterio in Buffalo.

Defense attorneys: Brian P. Crosby and C. Christopher Bridge of Gibson McAskill & Crosby in Buffalo.

The case: Ginter v. Ford; July 13; Erie County Supreme Court; Judge John P. Lane.