Jerry Kudenov, et al. vs. Carborundum Grinding Wheel Company, et al
Case Background
On November 21, 2023, Plaintiff Jerry Kudenov and Kathryn Kudenovfiled a Mesothelioma lawsuit in the California State, Superior Court of Los Angeles County (Case number: 23STCV28807). Judge Laura A. Seigle presided over the case.
Cause
Jerry Kudenov experienced extensive asbestos exposure from the mid-1950s to 2017 through various sources. He was exposed to asbestos-containing automotive and construction products while helping his father, William Kudenov Jr. As a student and research scientist at universities like UC San Diego and University of Alaska Anchorage, Kudenov regularly used asbestos-containing lab equipment. Additionally, he used Johnson & Johnson’s talc-based Baby Powder from the 1970s to 1990s, which allegedly contained asbestos. By the mid-1970s, Johnson & Johnson knew that their talc sources in Italy and Vermont were contaminated with chrysotile and amphibole asbestos.
Multiple independent entities, including the FDA, found asbestos in Johnson & Johnson’s finished talc products. The company used insufficient testing methods to detect asbestos, despite recommendations for more precise techniques. They failed to disclose the asbestos hazards on their product labels, instead claiming the powder was “Clinically Proven” safe. The defendants manufactured, sold, and distributed these asbestos-containing products without adequate warnings about the health risks. They allegedly knew about the dangers of asbestos exposure since at least 1932 but failed to inform consumers and workers.
Injuries
On March 17, 2023, Jerry Kudenov was diagnosed with mesothelioma, a life-threatening and likely terminal cancer caused by asbestos exposure. Mesothelioma is a progressive lung disease resulting from cumulative inhalation of asbestos fibers over time without noticeable trauma. Kudenov’s injuries left him unable to fulfill his normal responsibilities as a spouse. While the exact nature of his asbestos-related illness is not specified in all parts of the complaint, the diagnosis of mesothelioma is clearly stated.
Damages
The plaintiffs sought general damages, special damages, medical expenses, lost income, punitive damages, and other relief as determined by the court in a Mesothelioma lawsuit.
Key Arguments and Proceedings
Legal representation
- Plaintiff(s): Jerry Kudenov | Kathryn Kudenov
- Counsel for Plaintiff: Venus Burns | Josiah Parker | Brandon DuPree | Benno Ashrafi
- Defendant(s):Baxter Healthcare Corporation | Baxter International Inc. | Carborundum Grinding Wheel Company | CSC Scientific Company Inc. | DAP Inc. aka La Mirada Products Co. Inc. | DAP Products Inc. | Fisher Scientific Company L.L.C. | Henkel Corporation | Honeywell International Inc. fka individually and as successor in interest to Allied Signal Inc. | Industrial Holdings Corporation fka, Janssen Pharmaceuticals Inc. | Johnson & Johnson, | Johnson & Johnson Consumer Inc. | Johnson & Johnson Holdco NA Inc. | Johnson & Johnson International | Kaiser Gypsum Company Inc. | Kelly-Moore Paint Company Inc. | Kenvue Inc. | Kewaunee Scientific Corporation | LLT Management LLC | LTL Management LLC | Manorcare Health Services Inc. | Plastics Engineering Company dba Plenco | The Regents of the University of California | Thomas Scientific LLC | Union Carbide Corporation | University of Southern California | University of the Pacific | Vanderbilt Minerals LLC fka R.T. Vanderbilt Co. | VWR International LLC.
- Counsel for Defendants: Seana Azad| Alexander G. Calfo | Joseph Duffy | Patrick Foley | Joseph Leo Greenslade | Gabriel A. Jackson | Bradley P. Kaplan | Natalie G. Lashinsky | Zachary H. Lodmer | Stephen Matthew Nichols | Ross M. Petty | Michael Pietrykowski | Ana Teresa Reeg | Lisa Marie Rickenbacher, | Julia E. Romano | John E. Rosenthal | Michael Eric Sandgren | Alex G. Taheri | Edward Richard Ulloa | Lindsay Weiss | Lance Wilson
Key Arguments or Remarks by Counsel
Mr. DuPree was the case managing attorney and responsible for calling the Kudenov’s son as a damages witness. This played a crucial role in winning the legal case. He points out, “We began with my initial visit with Jerry and Kathy in Alaska. Then I took their depositions in North Carolina, where they moved to get Jerry treatment at Duke Medical Center. And then the actual trial was in California. So, in a way, we’ve traveled the world together and won this verdict 365 days to the day we first met.”
“They claimed that chrysotile asbestos doesn’t cause peritoneal mesothelioma. They also attacked our client’s credibility, blaming manufacturers and the universities for our client’s mesothelioma diagnosis,” points out Ms. Burns. “But they had assurances in their catalogs about the safety and quality of the products they sold. They knew asbestos was dangerous, yet failed to warn its consumers about the dangers.”
Ms. Burns emphasizes, “We are happy we presented our case so the jury could see through Thomas Scientific’s inconsistencies and unscrupulous business practices. This case was a true team effort on behalf of a very deserving couple.”
Claims
The plaintiffs brought several claims against the defendants in a Mesothelioma lawsuit, including:
Negligence: The defendants failed to safely design, manufacture, and sell their asbestos-containing products. They did not adequately test the products, investigate hazards, provide warnings, or recall dangerous items.
Strict Liability: The asbestos-containing products were defective and unreasonably dangerous when used as intended. The defendants failed to warn of known risks.
Breach of Express and Implied Warranties: The defendants warranted their products were safe and fit for intended use, but the presence of harmful asbestos fibers breached these warranties.
Fraudulent Concealment: The defendants allegedly knew about asbestos dangers but intentionally concealed this information from consumers and workers. They made false representations about the safety of their products and the adequacy of their testing methods.
Conspiracy: The defendants, referred to as “Concealment Defendants,” conspired with industry groups like the Cosmetic, Toiletry & Fragrance Association (CTFA) to block regulation and conceal the dangers of asbestos in talc products.
Premises Owner/Contractor Liability: Some defendants owned or controlled asbestos-contaminated premises, creating hazardous conditions for workers and visitors, including Kudenov.
Defense
Thomas Scientific, Inc. and other defendants filed comprehensive answers to the complaint by Jerry and Kathryn Kudenov, denying all allegations and asserting numerous affirmative defenses. The defendants argued that the court lacked personal jurisdiction and that the complaint did not present enough facts to support a cause of action. They contended that applicable statutes of limitations barred the complaint and that the plaintiffs had unreasonably delayed filing the action.
The defendants asserted that they did not own, control, or exercise authority over the premises where the plaintiffs claimed exposure occurred. They maintained that any injuries were caused by the plaintiffs’ own negligence, failure to mitigate damages, or assumption of risk. The companies also argued that other parties or non-parties were responsible for any alleged damages.
The defendants sought protection under several legal doctrines and statutes, such as the sophisticated user doctrine, workers’ compensation laws, and limits on punitive damages. They contended they were not liable for the acts of their subsidiaries and that other entities had assumed any liability related to the plaintiffs’ claims. The companies maintained that they conformed to industry standards and the state of medical and scientific knowledge at the time.
Additionally, the defendants argued that the plaintiffs lacked standing to sue, that the venue was improper, and raised defenses related to product alterations, lack of privity, and failure to provide timely notice of alleged breaches of warranty. Some defendants, like Kaiser, claimed protection under bankruptcy proceedings and government contractor immunity.
The companies reserved the right to raise additional defenses as facts emerged during discovery. They requested that the plaintiffs take nothing from their complaint, that judgment be entered in the defendants’ favor, and that they be awarded costs of the suit. All defendants demanded a jury trial.
Jury Verdict
On September 19, 2024, the jury reached a verdict in Jerry Kudenov’s mesothelioma claim, awarding him a total of $11,179,000 in damages. This amount included $1,179,000 in economic damages, $4,000,000 in past noneconomic damages, and $6,000,000 in future noneconomic damages. For Kathryn Kudenov, Jerry’s wife, the jury awarded $5,000,000 in total damages for loss of consortium, split evenly between past and future noneconomic damages at $2,500,000 each. In total, the Kudenovs were awarded $16,179,000 in a Mesothelioma lawsuit.
The jury apportioned fault among several parties: 50% to Thomas Scientific, Inc., 11% to Van Waters & Rogers, 10% to Fisher Scientific, 10% to American Scientific (a/k/a Scientific Products), and 19% to manufacturers of asbestos-containing products listed in Thomas Scientific, Inc.’s catalogs. No fault was assigned to Jerry Kudenov or other named parties.
Court Documents:
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