Originally created 06/28/01

Workers lose beryllium suit



DENVER - Four Rocky Flats nuclear plant workers with a wasting lung ailment lost a landmark case against beryllium producer Brush Wellman Inc., even though a juror said she thought they'd awarded them a partial victory.

The Jefferson County District Court jury on Tuesday found the Cleveland company not liable for the workers' chronic beryllium disease, despite documents that their lawyers said proved a conspiracy with the federal government to hide the danger of beryllium because the government needed it to make nuclear weapons.

But a juror said afterward that jurors thought they had placed 10 percent of the responsibility on Brush Wellman. Juror Melanie Voiles said she was surprised that there was no second phase of the trial to determine damages.

"I expected a damage phase," Voiles said Tuesday night. She said that after the jurors were instead dismissed, they asked court staff members, "Did we do something wrong?"

Juror Kim Hornecker said he really didn't know whether damages would be awarded.

At the same time, the four aging workers and their wives were moving slowly and silently down the courthouse corridor, some in tears.

Meanwhile, Brush Wellman lawyers were pleased. "We're very grateful to the jury for its obvious attention to the facts," attorney Jeffrey Ubersax said.

The jury laid most of the blame on the companies that ran Rocky Flats. Testimony showed they exposed workers to beryllium dust over decades with sloppy housekeeping, poor ventilation and lack of training.

Voiles said the jury wanted to place the lion's share of blame on the Department of Energy, but it was not a defendant.

Testimony in the 17-day trial showed that breathing even a very small amount of beryllium can cause chronic beryllium disease in from 1 percent to 5 percent of people.

Plaintiffs said that beryllium could be handled safely only in glove boxes, and that the Cleveland company conspired to hide that information. Brush Wellman said it warned customers of the dangers, and Rocky Flats failed to protect its employees.

The verdict was confusing, because the jury found the company innocent of failure to warn of the danger of its product, and innocent of conspiracy. But while finding the company innocent of those things and therefore not liable, the jury found Brush Wellman 9 percent responsible for the workers' disability, and its defunct competitor, Berylco, responsible for 1 percent.

Jurors thought that meant Brush Wellman would pay 10 percent of whatever damages were set in the second phase, Voiles said.

Instead, because the jury found no liability, Judge Frank Plaut ended the trial.

The jury verdict laid 70 percent to 80 percent of the blame, varying with the individual workers, on the companies that operated Rocky Flats and allowed them to breathe dangerous beryllium dust. But Rockwell International and Dow Chemical can't be sued because the law says they have already fulfilled their responsibility by paying workers' compensation.

The jury put some of the blame on workers.

Plaintiffs' attorney Allen Stewart said the plaintiffs did not name the Energy Department in this case because of a strategic decision to pursue the federal claim separately. Workers are also eligible for $150,000 one-time payments to nuclear weapons workers injured on the job.