May 17 (Westlaw Journals) - A man who won a $12.5 million verdict for his mesothelioma diagnosis disputes a defendant's argument that it was entitled to a trial in federal, rather than state, court because the exposure may have happened on federal property.

Defendant Lone Star Industries says the trial court wrongly denied removal of the case to a federal court, even though the tortious activity allegedly took place in a federal enclave.

Plaintiff Charles Cundiff was a machinist mate from 1962 to 1966 aboard the USS Kitty Hawk.  He said he inhaled massive amounts of asbestos particles while repairing and replacing valves and pumps in the ship’s engine rooms.

Cundiff was allegedly exposed to Lone Star’s asbestos-containing product when the Kitty Hawk underwent a nine-month overhaul at the Puget Sound Naval Shipyard in Bremerton, Wash.

He developed mesothelioma in 2008, and he and his wife later sued several companies in the Los Angeles Superior Court.

The case went to verdict against Lone Star, the parent company of Pioneer Sand & Gravel, a supplier of insulating cement; John Crane Inc., maker of packing and gaskets; and insulation contractor M. Slayen & Associates.

The jury’s May 6, 2009, verdict assessed 19 percent liability to Lone Star, 5 percent liability to John Crane and no liability to Slayen (see Asbestos LR, Vol. 31, Iss. 16).

The panel awarded Cundiff $506,000 in economic damages, $10 million for pain and suffering and $1.5 million for loss of consortium.

Lone Star’s case

Lone Star asked the 2nd District Court of Appeal to overturn the judgment.  In an August 2010 brief, the company said the plaintiffs made a “tactical move” to avoid having the case moved to federal court by stipulating that they “were seeking no liability or damages based on exposure to asbestos on a federal enclave” (see Westlaw Journal Asbestos, Vol. 32, Iss. 23).

The trial court’s error in ruling that the Puget Sound facility was not a federal enclave requires reversal of the judgment, Lone Star argues.

A U.S. military base may be safely assumed to be “a federal enclave subject to the exclusive jurisdiction of the United States,” the defendant says, quoting In re Welding Products, No. 1:03-CV-1700, 2005 WL 147801 (N.D. Ohio Jan. 13, 2005).

The Cundiffs’ reply

The plaintiffs disputed Lone Star’s argument in a March 30 appeals court brief.  The defendant must prove that they waived their claims against Lone Star based on the federal-enclave disclaimer, the Cundiffs say.

“Attempting to avoid its burden of proof, defendant Lone Star states it can be assumed a federal military installation is a federal enclave. … Not so.  Numerous cases have required proof that a military installation is a federal enclave or have found that a military installation was not an enclave,” they say.

The plaintiffs also argue that a Navy ship is not a federal enclave.

“There was no federal enclave exposure in this case, and thus no waiver by plaintiffs,” the Cundiffs say.

Charles was not exposed on land at the shipyard, but while on board the Kitty Hawk, the brief says.

Thus, the judgment of the trial court should be affirmed, the Cundiffs say.

Cundiff et al. v. John Crane Inc. et al., No. B218420, respondents' brief filed (Cal. Ct. App., 2d Dist. Mar. 30, 2011).

(Reporting by Ken Bradley, Westlaw Journal Asbestos)