COLUMBUS - The Ohio Supreme Court yesterday agreed to review a decision that certified a class-action lawsuit that would cover up to 7,000 contract workers who may have been exposed to unsafe levels of toxic beryllium dust at Brush Wellman's plant near Elmore.
The 4-3 decision could foreshadow a victory for Brush. The four justices voting to hear the company's appeal are Chief Justice Thomas Moyer, Maureen O'Connor, Evelyn Stratton, and Deborah Cook - all Republicans.
Dissenting were Democrats Alice Robie Resnick and Francis Sweeney and Republican Paul Pfeifer - the three who usually side with trial lawyers and union interests.
In February, 2000, seven current and retired construction workers filed the lawsuit on behalf of themselves and 4,000 to 7,000 Toledo-area building trade employees who worked at Brush from its opening in 1953 through 1999.
The workers alleged that Brush knowingly exposed thousands of contract workers to unsafe levels of beryllium. The lawsuit states that the firm did not adequately warn workers about the hazards of the metal or provide them with necessary safety devices.
The suit wants Brush to pay for blood tests so contract workers can determine whether they have contracted beryllium disease, an incurable, sometimes-fatal lung illness caused by the metal's dust. Brush has provided blood tests for its own employees, identifying numerous affected workers.
So far, at least eight contract workers tested by their employer have been diagnosed as having beryllium disease, said Jack Wilson, a plaintiff and Toledo attorney who is director of special projects for the Northwestern Ohio Building & Construction Trades Council.
The suit seeks periodic medical monitoring, including physicals, blood tests, and follow-up exams. Attorneys say ongoing testing is important because workers may develop beryllium disease 40 years after their last exposures to beryllium dust.
Attorneys file a class-action suit when it would be impractical to file thousands of individual complaints. A handful of named plaintiffs represent the larger group and everyone in the class benefits if the lawsuit succeeds.
In February, 2002, Judge Leo M. Spellacy of Cuyahoga County Common Pleas Court refused to certify the lawsuit as a class action.
But by a 2-1 vote in October, a state appeals court based in Cleveland reversed Judge Spellacy's decision, certifying the suit as a class action and sending it back to him for hearings. The appeals court said the workers' request was not solely for money for medical monitoring.
Brush appealed to the state Supreme Court, saying the suit should not be a class action because the contract workers had different jobs with different potential exposures to beryllium. Brush attorneys also said the contract workers' employers knew about beryllium and were responsible for their safety.
Attorneys for the contract workers said the appeals court made the proper decision, and had urged the Supreme Court to not hear Brush's appeal. But they came up one vote short yesterday.
Terence Goodman, a Cincinnati attorney representing the contract workers, said if the supreme court agrees that the suit should be certified as a class action, it would open the door for a court-supervised fund with money from Brush to “provide huge medical and health benefits” to thousands of workers in Ohio.
Patrick Carpenter, Brush's director of corporate communications, said: “We are pleased to have the opportunity to argue this case before the state's highest court. This is a jurisdiction that we requested, and we believe we will effectively argue our case and are confident our position will be affirmed.”
In 1999, The Blade published a six-part series documenting a 50-year pattern of misconduct by the federal government and the beryllium industry, including Brush Wellman - wrongdoing that caused the injuries and deaths of dozens of workers.
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