It’s 1962. In Moses Lake, Washington, a ten-year-old boy named Ray Budd splashes water into a bucket of Kaiser-Gypsum joint compound (aka drywall "mud"). Dust fills the air as he mixes the compound into a smooth mud-like texture. Together with his father, Ray applies the mud to the drywall. Later, when it dries, they will sand the hardened mud down to hide the tape lines. More dust will fill the air. They will sweep and vacuum the dust – breathing more of it in during the process. The process will be repeated by Ray and his father, and by workers and do-it-yourself-home-improvers day after day – on construction sites, and in homes – for decades.
The result of the widespread sale and use of products like Kaiser Gypsum’s joint compound has been tragic. The products contain asbestos. Asbestos is lethal; it causes mesothelioma. The disease is brutal, painful, and causes a slow death, as the person’s lungs are filled with fluid. It is excruciating both for the patient and for their loved ones. Many of these deaths could have been avoided. Lawsuits aver that Kaiser Gypsum and similar manufacturing companies knew that asbestos-containing products were deadly for years, if not decades, before the public was ever warned, or the products ever regulated. So, like thousands of other Americans, decades after Ray Budd began working with Kaiser Gypsum’s dry wall compound, he was diagnosed with mesothelioma.
Ray Budd, now 64 years old, lives in Ohio and is terminally ill from mesothelioma. When negotiations with Kaiser Gypsum failed, Budd’s lawyer, Chris Madeksho, brought his lawsuit to Washington State, where Budd’s exposure occurred, to try in state court. Madeksho associated with a local law firm, Weinstein Caggiano. The firm focuses on trying mesothelioma cases. I interviewed Alex Caggiano, named partner and fellow WSAJ EAGLE member. Caggiano, who has only been practicing since 2014, has already had much success at trial. She was part of a team who won an 81-million-dollar mesothelioma verdict pre-COVID. This case, however, was her first jury trial since COVID caused the courts to shut down.
Associating with other attorneys and law firms is something Caggiano and her firm do often. Caggiano says finding the balance necessary to create a successful collaboration can be tricky. She finds that taking a team-first approach is helpful. She says, "Taking on more [work] or sitting back some, depending on what the team needs, helps the work move forward smoothly." In this case, she and Madeksho meshed well by having clearly defined roles. Caggiano’s main focus was on the science. She presented the critical causation witness for three days of testimony and cross-examined the defense causation expert. She also delivered the rebuttal closing. Madeksho was the face of the case providing the plaintiff a voice. He presented and cross-examined all other witnesses, conducted voir dire, and delivered opening and closing statements. Phil Chu, also of Weinstein Caggiano, managed researching and drafting motions during trial, and senior partner Brian Weinstein worked behind the scenes to make sure the team prepared and developed the record properly for appeal.
The trial courtroom was familiar, but the set-up was reconfigured to accommodate COVID-era safety requirements. Socially distanced jurors were in the gallery instead of the jury box. Attorneys wore safety masks throughout the entire trial. Witnesses appeared remotely via video conference. These accommodations were all hurdles the trial team faced while trying to present their case and connect with the jury.
While the setup for the trial was novel and technologically progressive, there was one thing that could not have been more familiar and worn – the defense. From initial negotiations to closing argument, the defenses were predictable – to deny liability, to deflect blame, and to devalue damages.
In closing argument, Madeksho empowered the jury and gave them a road map to a fair verdict. He talked about Budd’s losses carefully, creatively, and with heart. The team had had to be very careful during the entire trial to keep from opening the door to Budd’s past, which included a criminal conviction. During his closing statement, Madeksho could not rely on any simple allusions to a happy and loving family now destroyed by cancer. He had to focus narrowly on Budd’s personal loss. He had to dig deeper and know his client from a different angle to help the jury see him in all of his humanity and to value that humanity. So Madeksho talked about how Budd, who started working at age 10, was finally, after retirement, able to enjoy some fun in his life. How in effect he was able to have the childhood he had missed out on the first go around, because he had started working at such an early age, and how that second childhood – that best part of life – was taken away from him by the defendant when he was diagnosed with mesothelioma at age 62.
Then came the defense closing statement. David Shaw, of Williams Kastner, spent over half of his closing refuting proximate cause using a mix of hard and soft science and bits of history. He walked through the experts’ testimony, denying any scientific association between drywall work and mesothelioma. He recounted a lengthy history of asbestos use from the 1930s forward. He claimed Kaiser had no reason to put a warning on its products because they were in fact not dangerous. It was when he moved on to discuss damages that his closing became particularly callous. In effect, he flat out told the jury, "So what?"
Shaw’s closing was an homage to everything plaintiffs fear jurors think – that jurors will find the corporate defendant more credible, that they will blame plaintiffs for their own injuries through negative attribution, and that they will undervalue the damages through a combination of selfishness and cynicism – as in, "I’m hurt, and no one pays me for my pain." Shaw blamed Budd for failing to avoid exposure. He claimed even if Kaiser had put a warning on its product, Budd would not have heeded it – after all, he had been a smoker for a couple of years.
Then Mr. Shaw went straight for the jurors’ amygdales. He said, "Every day throughout this country millions of men and women undergo surgery … they have terminal illness highlighted by our current situation with COVID. They do it all without compensation. There is no compensation at all. Is Mr. Budd’s situation so different, so different from those who suffer similar disabilities, similar pain, similar restrictions, that an award of that staggering size is justified? I don’t think so."
He went on to ruminate, "we will all die someday."
Caggiano sat watching defense’s closing with a mix of anxiety and anger. By then, nearing the end of trial, she was sick with adrenaline, but when she rose to give her rebuttal closing, she was calm. She was ready to let her belief in her client and her belief in the case do the work. She dismantled the defense in broad strokes, then polarized the case before resting. In doing so, she neutralized any inertia Shaw had created and cleared the path for a judicious verdict. First, she summed up Shaw’s defense by calling it a "throw everything at the wall and see what sticks" defense. She quickly walked through the steps of the defense’s logic, showing it for the misdirection and deflection it was. Next, she compared Budd, a person, to Kaiser Gypsum, a person under the law – "but not a person who can breathe, not a person who can bleed, not a person who can undergo chemotherapy."
Then, she compared the defense’s and Plaintiff’s experts’ contrasting motives. Comparing Kaiser’s expert data – funded by industry in order to keep dangerous products on the market, with Plaintiff’s expert data – funded by the National Institute of Health, whose mission is to protect people’s health. Then she walked through the science again and clarified what the defense had muddied – that poison is deadly, and Kaiser Gypsum’s product was poison.
Lastly, she restored the juror’s ability to do the right thing, the righteous thing, by illuminating the truth inherent in Kaiser’s actions. She told the jurors, "They think you won’t value Ray’s life." And she said, "That’s what they think. That’s what Mr. Shaw just told you. He just told you everyone dies." Then she dismantled that grossly cynical misdirect by clarifying the point: "Everyone does die. But they killed him."
She walked through damages one last time and polarized the case before putting the verdict in the jurors’ hands. The jurors returned a verdict in favor of Ray Budd and found economic damages in an amount of $400,000, and non-economic damages in an amount of $13 million.
Sometimes, a jury trial is the only place an individual flesh and blood human being can hold a corporation accountable for harm. Personal injury lawyers like Alex Caggiano who try wrongful death cases further the cause of justice for all of us and for all of our clients. Caggiano and her team showed that given the opportunity to get [the case] in front of a jury, justice can and will prevail, even in the time of COVID.
Nicole G. Gainey is an EAGLE member who also serves on WSAJ’s Diversity Committee and on the editorial board of the Trial News. She owns her own Seattle law firm, Gainey Law, PLLC, where she focuses on plaintiff’s employment law.
