Court of Appeals Hands Down Decision that Beryllium Sensitization May Be a “Current Disease”

GA — Sept 14, 2007 — In March of last year, a federal judge ruled that beryllium sensitivity constituted no actionable injury under Georgia law, but on April 18, 2007, that decision was overturned by the Eleventh Circuit Court of Appeals in the class action, Parker, et al. v. Brush Wellman, Inc., et al. The Eleventh Circuit Court of Appeals upheld findings that there is a “genuine dispute of material fact surrounding whether beryllium sensitization is a current disease, pain or physical impairment, and a condition that could develop into chronic beryllium disease.”

The plaintiffs in the Parker class action case are current and former workers at a Lockheed Martin Corporation facility in Georgia. In their original complaint, they alleged that they had been exposed to beryllium and “placed at substantially increased risk of catastrophic latent disease, such as chronic beryllium disease (CBD) and cancer.”

According to court documents from the Parker March 2005 trial, plaintiffs were seeking compensation for “sub–clinical, cellular and subcellular damages” for beryllium exposure from the products manufactured at the facility. The district court dismissed their claims and also dismissed the plaintiffs’ claims for increased risk, negligent infliction of emotional distress and medical monitoring.

In response to the district court’s ruling, the plaintiffs filed an amended complaint based on five individuals who had injuries relating to beryllium that were “detected by physical examination and/or laboratory test.” In their amended complaint, plaintiffs challenged the district court’s ruling by arguing that the “district court improperly granted summary judgment to defendants based on the court’s conclusion that beryllium sensitization—a clinically manifest condition—constituted no actionable injury under Georgia law.” Defendants argued that the injuries were based on beryllium sensitization and that “beryllium sensitization was not an actionable injury even when detected by clinical tests.”

Plaintiffs supplied evidence to counter the defendants’ claims with expert testimony by Dr. Maier, an expert on beryllium medicine. Dr. Maier testified in the Parker trial that beryllium sensitization is an “abnormal immune response.” He compared this response to an allergy and “an important precursor to CBD.” The doctor also “indicated that approximately 6–8% per year of sensitized persons develop CBD,” and that “it is likely that the majority of individuals with sensitization will eventually develop CBD.” The doctor compared beryllium sensitization to HIV, and other diseases that can develop into even more serious diseases in the future. He ended testimony by saying “it is clear that beryllium sensitization is a marker of injury to beryllium.”

Defendants provided their own expert doctor, Dr. Repher who opined that beryllium sensitization does not result in any “structural or functional changes” in the body. He also opined that a “sensitized person is merely capable of having a harmful, allergic–type reaction to beryllium in the future.” (Parker v. Brush Wellman, Inc.)

The Eleventh Circuit Court of Appeals concluded that the “... experts disagreed on whether the beryllium sensitization is a current disease or impairment and on the probability that the condition will later develop into CBD. These issues are questions of fact that should be answered by a jury, and summary judgment was therefore improper.” (Parker v. Brush Wellman, Inc.)

The full appeal can be found on the Eleventh Circuit Court of Appeals web site. In order to view the appeal, you will need to obtain a copy of Adobe Acrobat Reader. If you do not already have this software, you may download a free copy at the Adobe Acrobat web site.

What is Beryllium Disease and Beryllium Sensitization?

According to the US Department of Health, about 1–15% of all people occupationally–exposed to beryllium in the air become sensitive to beryllium, an allergic response to beryllium known as beryllium sensitization. Symptoms of the disease include cough, shortness of breath, fatigue, fevers, skin rash, and night sweats. Victims of beryllium sensitization may develop chronic beryllium disease (CBD). The illness is characterized by shortness of breath and chest pain. Sometimes the heart becomes stressed and eventually the patient must limit everyday activities. In severe cases, the right side of the heart may be strained due to increased pressure in the pulmonary artery from lung damage. The average time from first beryllium exposure to the development of CBD symptoms (the latency period) can be a few months or as long as forty years. (National Jewish Medical and Research Center)

Your Beryllium Case

If you have been exposed to beryllium and developed chronic beryllium disease, please feel free to contact the attorneys at Brayton Purcell. We will evaluate your potential case free of charge and advise you about your legal choices. Our law firm has successfully handled cases involving beryllium and other toxic substances for more than 20 years, and we have earned an excellent national reputation in this legal field.