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Ruling clears way for Bethlehem Steel workers to sue coke oven makers

For more than two decades, Donald R. Terwilliger worked as a coke oven lid man at Bethlehem Steel in Lackawanna.

The job required him to work on top of the plant's massive coke oven batteries, not far from where the ovens released their emissions.

Years later, Terwilliger would die of lung cancer.

Earlier this month, New York's highest court granted Terwilliger's son and others the right to sue the manufacturers of those ovens.

"It's like working on a giant cigarette," said John N. Lipsitz, the attorney representing Donald J. Terwilliger. "I don't know how many hundreds, maybe thousands, of workers labored over those coke ovens."

In siding with Terwilliger, the State Court of Appeals overturned a lower court ruling tossing out his lawsuit. It also opened the door to more suits accusing Honeywell and others manufacturers of causing worker deaths.

From the start, Terwilliger argued that coke ovens are a product covered by products liability and that Honeywell, and its predecessor Allied Chemical, had a responsibility to alert users of their harmful nature.

"The allegation is that the company knew about the risks and should have warned workers," Lipsitz said.

The court agreed with Terwilliger and gave him the right to move forward with his suit and demand for damages.

Lipsitz said the decision will have broad ramifications and could allow workers from Tonawanda Coke in the Town of Tonawanda and Donner Hanna Coke in Buffalo, both now closed, to sue manufacturers.

Honeywell expressed disappointment with the Court of Appeals decision and suggested it contrasts with similar rulings in federal and state courts across the country.

"For more than 40 years, Honeywell’s predecessor Allied had no control over the operation or maintenance of Bethlehem Steel’s coke oven battery, had no input regarding the owner’s adherence to employee safety protocols or the provision of safety equipment to its employees, and had no access to the owner’s repair records,” the company said in a statement Thursday.

The court, by a vote of 4-2, rejected Honeywell's argument that coke ovens are buildings, not products, and therefore can not expose the company to products liability.

The company, in court papers, claims the coke oven battery at Bethlehem Steel included 76 ovens, was 10 stories high and long enough to cover three football fields.

In making its decision, the court pointed to legal precedents going back more than 150 years.

One of the cases, an 1852 ruling by the court, was about a commercial packaging company that falsely labeled a product containing poison as medicine.

The court also cited a 1923 case against General Electric that centered around 13 men killed by an electrical transformer explosion in Niagara Falls.

"They really looked back to determine their jurisprudence and determine what's a product," Lipsitz said.

The ruling, he said, allows workers with lung cancer caused by exposure to coke oven emissions to seek compensation.

He said a lid man, one of the dirtiest jobs at any steel plant, would work on top of 17 or 18 ovens during an 8-hour shift and spend at least 15 minutes atop each oven.

He said lid men were also exposed to the asbestos contained in the insulation inside coke ovens.

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