Toxic Tort and Tobacco Injuries

Contamination by the Marathon Battery Company

at Cold Spring, New York

The Marathon Battery Company manufactured nickel-cadmium batteries for military contracts near Foundry Cove in the village of Cold Spring, New York from 1952 through 1979. For many years, the waste water from the production process was discharged into the Hudson River. The effluent traveled through the Cold Spring sewer system and into a bypass system emptying directly into East Foundry Cove which earned it the distinction of being called "the most cadmium polluted site in the world".

In 1971, New York State officials detected high cadmium levels in East Foundry Cove in violation of the federal Clean Water Act of 1970. The state filed a civil lawsuit against Marathon Battery Company demanding that it pay for the removal of all pollutants and clean up of the site. The company continued to operate and illegally discharged contaminants into the waste water even after the state filed its lawsuit. In 1979, the company closed the plant and relocated. That same year, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S. Code §103 et. seq., to address the cleanup of the nation's hazardous waste sites, including the Marathon Battery Company site.

Shortly after the plant closed, residents living on a street adjacent to the facility began to be diagnosed with unusual physical symptoms and cancers which were ultimately linked to the cadmium contamination. In 1990, Baumeister & Samuels was retained by many of the residents whose homes were closest to the plant. A lawsuit was filed on behalf of these residents and their children against the then-owners of the site, Gould/APU in the state supreme court alleging negligence and strict liability claims arising out of injuries suffered by the residents which were found to have been caused by toxic air and water improperly released from the plant. In 1997, the owners of the site settled the litigation for several million dollars.

Asbestos Litigation

Mitch Baumeister is considered one of the ground breaking pioneers in asbestos litigation that has resulted in the payment of compensation to millions of people injured by this deadly product.

In the late 19th and early 20th century, asbestos was widely used as building materials since it was discovered to act as a fire retardant and had high electrical resistence. By the late 1920s, medical professionals were beginning to associate lung injuries and diseases to exposure to asbestos. During the Second World War, the use of asbestos flourished, and was used in the building of fleets of U.S. ships and as part of the brake system of thousands of vehicles. The late seventies saw thousands of lawsuits being filed throughout the country by workers who were diagnosed with injuries running from asbestosis to mesothelioma as a result of their exposure to the product. These cases were being routinely dismissed by courts when plaintiffs were unable to conclusively link their injuries to the conduct of a manufacturer.

In 1980, Mitch Baumeister lead a team of trial lawyers who filed lawsuits against the world’s largest asbestos manufacturers including Johns-Manville Corporation and Lake Asbestos of Quebec on behalf of thousands of workers from the Philadelphia, Brooklyn and Baltimore shipyards who were diagnosed with lung related diseases as a result of their exposure to the product. The defendants in these lawsuits hired dozens of talented, renowned trial lawyers and spent millions of dollars in a vigorous defense against the claims of the injured workers, claiming that their injuries were the result of smoking or their exposure to other carcinogens.

During the discovery phase of these cases, documents began to surface which suggested that the world’s largest manufacturers had engaged in a decades-long coverup of the hazards of asbestos. In 1982, Johns-Manville filed for Chapter 11 bankruptcy protection in an effort to stay the litigation proceeding against it despite the fact that it was financially healthy, and was listed on the Forbes 500 list. In 1982, Mitch Baumeister met with Charles Roemer, a former attorney who lived in New Jersey, to discuss with him documents that had been discovered in the litigation which suggested that the dangers of asbestos were well known more than forty years earlier. At that time, Mr. Roemer was already in his eighties and in frail health. Upon learning of the history of the industry practice from Mr. Roemer, Mitch asked him to sit for a deposition on behalf of the plaintiffs to discuss his knowledge about the industry practices. Anticipating that the defendants would strongly object to any deposition of Mr. Roemer and concerned about his frail health and advanced age, Mitch asked him to prepare an affidavit stating the facts which formed the basis of his knowledge.

In his affidavit, Mr. Roemer stated that somewhere around 1942 or 1943, his cousin, who was a physician, had found that workers at the Union Asbestos & Rubber Company’s plant in Paterson, New Jersey had begun to develop signs of asbestos disease. Upon learning of these illnesses, Mr. Roemer immediately informed the plant manager (who would later die as a result of mesothelioma) and the assistant plant manager, who set up a meeting between themselves and Mr. Roemer and Vandiver Brown and Lewis Brown, the then-president of Johns-Manville at their corporate headquarters in New York City. At the meeting, Mr. Roemer and the plant representatives asked the Johns-Manville executives whether their physical examination program had turned up similar findings and if so, what the company was doing about these findings. Vandiver Brown admitted that the company’s examination program had produced x-ray evidence of asbestos disease among workers exposed to the product, and that Johns-Manville did nothing with the information and chose not to tell the workers of the findings due to company concern that they would stop working and file claims against the company. He went on to tell Mr. Roemer and the plant representatives that it was Johns-Manville’s policy to let the identified workers work until they quit as a result of their asbestos-related diseases or died.

Mitch Baumeister was finally successful in obtaining Mr. Roemer’s videotaped deposition testimony in 1984. In what was to become a litigation shattering exchange, Mitch asked Mr. Roemer if he recalled the meeting he attended with Johns-Manville executives. Mr. Roemer stated that he did, and vividly recalled his question to the company’s president in which he stated “Mr. Brown do you mean to tell me you would let them work until they dropped dead?” to which Mr. Brown replied “Yes, we save a lot of money that way.” When Mitch asked Mr. Roemer if he could recall what time of day the meeting with the Johns-Manville executives had taken place, Mr. Roemer stated that it was held before noon stating, “I remember that distinctly, because I had lunch with them in their board room after the meeting.” Mitch responded by asking Mr. Roemer why he remembered the lunch so vividly and Mr. Roemer stated “It was the first time in my life that I had lobster for lunch”.

The litigation against Johns-Manville and other asbestos manufacturers and producers changed dramatically after Mr. Roemer’s deposition. Many identify asbestos litigation as the longest running mass tort in history sparking administrative structures within which to compensate victims. Following Mr. Roemer’s testimony, plaintiffs no longer had to battle over a manufacturers’ liability to the thousands of victims injured by their corporate greed. Instead, the litigation shifted to discovery debates centered over exposure and which companies’ product injured which plaintiff in order to apportion liability for the payment of compensatory damages. Today, thousands of lawyers market themselves as asbestos specialists, while the overwhelming majority of them are unaware of the work done by those who spent decades laying the predicate needed to force manufacturers and producers of dangerous products to be answerable for their corporate decisions.

Cippollone v. Liggett Group, Inc., et al.

Rose Cipollone was 58 years old and dying of lung cancer when she retained Marc Edell in 1983 to file a civil lawsuit against the country’s three largest cigarette manufacturers. Smoking more than a pack a day since she was 16 years old, she died a year later after the cancer spread and was determined to be inoperable. Prior to taking on the tobacco industry in what was to become a landmark legal case that changed the rights of thousands of individuals harmed by the carcinogenic effects of tobacco, Marc defended the largest manufacturers of asbestos in litigation filed throughout the country.

For more than five years, Marc served as the lead trial lawyer in the litigation against the defendants. He and his team combed through national archives, researched hundreds of pages of medical reports and thousands of pages of medical research. They issued subpoena after subpoena against the defendants and their trade associations uncovering memos and reports which established an industry wide conspiracy to hide the dangers of smoking from the public, including a 1972 memo from the Tobacco Institute which described the industry strategy to create a doubt about charges related to health dangers from smoking that had been in place since the 1950s.

After a four month trial in 1988 in the United States District Court in Newark, New Jersey before Judge H. Lee Sorkin, the jury returned a verdict against the defendants on behalf of Rose Cippollone’s surviving family members. The case was appealed to the Third Circuit Court of Appeals which reversed part of the jury’s decision and threw out the damage award. In 1992, Marc argued the case before the United States Supreme Court which held that the Federal Cigarette Labeling & Advertising Act did not preempt smokers’ rights to seek damage against the manufacturers, including industry conspiracy claims.