Articles Posted in Mesothelioma Case

In mesothelioma litigation, the question of which court has jurisdiction can be a complex one.

Our Boston mesothelioma lawyers know that in most injury or product liability cases, it’s not that difficult because the injury or illness inflicted appears immediately after the exposure in question. Plaintiff attorneys can definitively prove which party caused the damage, where the damage occurred and to what extent.

In mesothelioma cases, these questions are complicated by the fact that the injurious exposure happened a long time ago. The typical time elapse from exposure to diagnosis is 30 to 40 years. In the course of those decades, companies move, go out of business, merge with other firms and declare bankruptcy.

The other thing that can complicate these matters is that asbestos exposure is rarely a single event. Of course, no amount of exposure is safe and it’s entirely possible that someone who inhaled those fibers just one time could become sickened. However, in most cases, mesothelioma results from exposure that lasted many months or years or was the result of negligence on behalf of multiple companies.

So the question of jurisdiction can be a complex one, and sorting through all the facts can be an arduous task – one that should not be trusted to a run-of-the-mill injury lawyer with few resources and even less experience.

While in theory all courts are balanced and fair, some procedural differences can vary and ultimately make one court potentially more favorable to either the defense or the plaintiff. As such, it’s very important that you hire a mesothelioma attorney with extensive experience – one who knows which options are most amenable to your circumstances and how to make a successful legal argument in your case.

Unfortunately for an out-of-state plaintiff attempting to have his case heard in an Illinois court, that state’s high court has rejected his attempt.

The plaintiff, a Mississippi resident, filed suit in St. Clair County, Illinois back in 2009, alleging asbestos exposure that resulted in respiratory problems stemming from his time working at the Illinois Central Railroad Co. Although the firm was based in Illinois, the exposure reportedly happened in Mississippi.

The Illinois Supreme Court ruled that the in balancing all relevant factors, rehearing of the case should occur in the plaintiff’s home state of Mississippi, not Illinois.

The court took into consideration the fact that the plaintiff had been party to another complaint in Mississippi three years earlier in which his and 85 other asbestos-related claims were dismissed. It was only after that point that the plaintiff filed suit in Illinois, a point that the court contends makes it clear that he was essentially shopping for a favorable verdict.

However, in an impassioned dissent, Justice Charles Freeman wrote that the plaintiff’s choice of forum is entitled to deference, and that the defendant failed to show that any factors would strongly favor a Mississippi forum over an Illinois forum for the case.
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A developer renovating a nursing home in a Chicago suburb was ordered to bring work to an abrupt halt, after city officials accused the company of improperly and illegally removing asbestos from the site.

Our Boston mesothelioma lawyers know that while asbestos is not nearly as widely used as it once was, its presence in scores of older structures continues to pose a serious risk to today’s generation of workers and consumers. The reason why is precisely because of the kind of negligence alleged here.

When asbestos is not properly handled and removed from a site, the airborne dust fibers can be breathed by workers – especially if they are not wearing the kind of protective gear required for this type of work. Asbestos exposure is the direct cause of mesothelioma, a terminal form of cancer that lies dormant for decades. By the time the disease is diagnosable, patients usually only have a few months to a few years to live.

Companies know the dangers of working with this material. Companies knew it decades ago. And today just as back then, many have failed to take precautionary measures that would serve to protect workers. Many companies have been forced to undergo bankruptcy, and establish asbestos illness trusts, for this very reason.

And yet, companies continue to engage workers in unsafe practices. Now as then, it all comes down to money. Proper asbestos removal projects are expensive. They are time-consuming. They can be tedious.

It’s much easier for the firm to just rip out the dry asbestos, pile it into some trash bags and haul it off to a dump site.

But even removal projects that only span the course of a few days could have deadly consequences to workers years down the road because no amount of exposure to asbestos is safe.

In this case, the developers were working on a project to renovate the nursing home into a commercial space. (Interestingly, the nursing home had been shuttered due to safety issues, as elderly and mentally ill patients were being housed alongside convicted felons.)

But the project was abruptly stopped when the city filed a lawsuit against the company and the general contractor, alleging eight counts of environmental violations relating to illegal removal of asbestos. The city is seeking some $400,000 in damages from the firms.

The city maintains that the companies’ actions resulted not only in a threat to the safety of workers, but also the safety of the public at large.

Health and environment inspectors with the city and state observed workers wearing respirators that were made of paper and regular work clothes for asbestos removal projects. Additionally, the workers, who were responsible for the removal of mastic, tile and pipe insulation – all containing asbestos – were working with asbestos in confined spaces and weren’t following the proper wetting procedures that are called for in order to safely remove the material.

As such, a judge approved an injunction against the companies to stop work immediately. In order to continue, the defendants will have to submit a plan that will show how they intend to carry out the safe removal of asbestos. For each day that violations continue, the companies will face additional fines.
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In a disappointing decision reached earlier this month, the Massachusetts Appeals Court upheld a lower court’s earlier ruling that two asbestos defendants are not responsible for the mesothelioma allegedly incurred as a result of contact with the businesses’ products.

Our Boston mesothelioma lawyers know how vitally important it is to identify the proper defendants in these cases and further to develop a strong link between the plaintiff’s illness and the defendants’ products.

We understand this is often no easy task, as hundreds of thousands of products used routinely in the U.S. – everything from insulation to gaskets – contained the deadly fiber. Pinpointing the exact source or lion’s share of responsibility can be difficult, often leading firms to file claims against multiple companies. Given that these cases are complex, delving deep into historical, scientific and medical records, they can not be trusted to a novice legal team. If you have mesothelioma, you almost undoubtedly have a good shot at recovering damages, but you must wisely choose a lawyer with proven experience.

In this case, Whiting v. CBS Corporation and Crane Co., the plaintiff was the widow of a Massachusetts shipyard worker who had died of mesothelioma several years ago. Her claim was that his illness was the result of exposure to asbestos contained in the valves and turbines manufactured by two different companies. These products in and of themselves reportedly didn’t contain asbestos, but they were regularly used in packing, insulation and gaskets that did contain asbestos. These products were used in ship construction, which is where the plaintiff’s husband had worked.

While at one of the firms, the court found, the turbines that it shipped to the Navy didn’t contain asbestos. Rather, the fiber was later added by Navy workers in the form of insulation. (The Navy has sovereign immunity in these cases.)

With regard to the other company, responsible for supplying the Navy with valves used in boiler rooms, it was asserted that while it was known for selling products containing asbestos, it didn’t actually make them. The court also found that there was no direct evidence presented showing the company’s products were actually received by the Navy already containing asbestos. Further, it appears there were at least seven different manufacturers whose valves were also used aboard those ships, which would serve to significantly lower the responsibility this company might singularly hold for the worker’s illness, if any.

In the appellate court’s determination, the wording used against the plaintiff was rather harsh. One line refers to the “theory the plaintiff is shopping.” Another calls the plaintiff’s position “extreme” in that she sought damages from one company for the wrongdoing of another. Basically, the court found that the plaintiff was looking for a scapegoat, and homed in on these two defendants for relief, without properly weighing the evidence.

We understand that plaintiffs in these cases aren’t simply looking for a pay day. They want justice. They want those responsible to be held accountable for their immense loss. But in order to get that, the facts of each case must be thoroughly investigated by a legal team with extensive experience in these matters.
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A decision by the Virginia Supreme Court regarding the statute of limitations on personal injury or wrongful death claims related to asbestos highlights the fact that these cases need to be promptly filed.

Our Boston mesothelioma lawyers know that some people diagnosed with asbestosis – a chronic disease with a shorter latency period – won’t make the effort to meet with a lawyer. Instead, they wait until they have been diagnosed with mesothelioma to file a lawsuit. This could be a mistake that might jeopardize the viability of your claim, based on statute of limitations issues.

The Massachusetts statute of limitations on mesothelioma and asbestos injury claims is actually more lenient than in Virginia – it’s either three years from the diagnosis, or three years from death if the claim is for wrongful death. In Virginia, it’s two years from diagnosis or two years from death.

That seems a fairly straightforward rule. However, things might get complicated when mesothelioma sufferers were previously diagnosed with an earlier, less serious asbestos-related illness. Normally in personal injury cases, the clock on the statute of limitations would start at the time of the incident. But the legislators and judges have recognized that mesothelioma and other asbestos-related illnesses are different because of the long latency period between the time of exposure and the time the sickness is actually manifested and diagnosed.

In these instances where a person had an earlier asbestos-related diagnosis and then is only later diagnosed with mesothelioma, the question is when does the clock begin ticking: When you were first diagnosed with an asbestos-related ailment, and therefore learned that harm had befallen you as a result of the exposure? Or is there potential for each cause of action to be considered separate?

The Virginia Supreme Court unfortunately ruled in Kiser v. A.W. Chesterton Co. that the statute of limitations clock starts at that first diagnosis, per Virginia Code 8.01-249(4).

The court conceded that this almost inevitably would lead to mesothelioma sufferers being unable to file a personal injury claim. But they said this discrepancy was something the General Assembly would need to address – not the courts.

The case stemmed from a claim filed by the widow of a man who had been exposed to asbestos while working in a factory in Virginia between 1957 and 1985. In 1988, he was diagnosed with nonmalignant pleural thickening and asbestosis. At that time, he filed a lawsuit against a number of distributors, manufacturers and sellers of asbestos products for his employment-related asbestos exposure and subsequent medical condition.

Then in late 2008, he was diagnosed with mesothelioma and he died the following spring. His widow filed a wrongful death suit a year-and-a-half later against different defendants. The defendants then filed motions to have the case dismissed on the theory that the two-year statute of limitations clock started upon receiving his first diagnosis.

The court concurred.

One dissenting justice however wrote that there is no statutory or common law rule in the state that requires each diagnosis to be considered all part of a singular cause of action.
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A former employee of General Motors has been awarded $3 million by a New York jury, which found the worker’s mesothelioma was a direct result of exposure to asbestos contained in the products the company manufactured.

Our New England mesothelioma attorneys know that the auto industry was one of the largest offenders in terms of exposing its workers to asbestos fibers, which are the only known cause of mesothelioma, a terminal cancer. The span between exposure and diagnosis is often decades, which means we are just now beginning to see cases filed on behalf of auto industry employees who worked for companies like GM in the 1940s through 1980s.

This case, according to local news reports, stems from a now-deceased worker’s employment at GM between 1964 and 1979. His job was to repair valves that were manufactured by a firm called Crane Co. His duties required him, at least in part, to remove asbestos from the gaskets. Doing this released asbestos dust. As you probably know, asbestos when left undisturbed may not pose any significant risk. However, when it becomes friable and airborne, the fibers are inhaled in the lungs and form scar tissue that can develop into ailments like asbestos or pleural mesothelioma.

This plaintiff had been retired for several years when he was diagnosed in late 2010 with mesothelioma. He was 77 years-old when he died a year later.

A lawsuit was filed on his behalf by his wife and adult daughter, who is disabled.

During the course of the trial, the issue of “safe asbestos exposure” was weighed after being presented by the defense. Of course, this is a common tactic sometimes employed by asbestos defendants. Because they can’t get around the fact that they exposed workers to the substance, knowing it was dangerous, they attempt to argue that the amount of asbestos was so small as to be too insignificant to manifest itself in the form of cancer. Of course, this is not true. Many medical doctors and researchers have debunked the theory of a “safe exposure amount.”

The jury concurred, and awarded the widow and her daughter $3 million in damages, a portion from GM, a portion from Crane Co. Other entities settled with the pair out-of-court.

GM is one of many companies that used asbestos well into the late 1980s, knowing that it was dangerous and without providing any type of warning to employees or consumers. Many of the asbestos cases against the company stem from its clutch facings and brake linings. Some of those who worked for the company and may have been exposed to asbestos include:

• Appliance repairers and installers;
• Auto mechanics;
• Engineers;
• Factory workers;
• Machinists;
• Warehouse workers;
• Railroad brakemen.

The company does have an asbestos trust that was established following its 2009 bankruptcy, which was partially the result of nearly $640 million in liability for asbestos claims. (It’s worth noting, however, that the industry was already struggling at that point.)

Even when a company has an asbestos trust, plaintiffs can still choose to file a claim on their own. It’s usually a longer process, but if successful, the payout tends to be more substantive.
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A bill that will likely prohibit mesothelioma patients from filing civil lawsuits and obtaining compensation has passed the Ohio Senate.

Boston mesothelioma attorneys are concerned not only for what this means for Ohio sufferers of this awful disease – but for the precedent it may set for lawmakers in other states. So far, similar measures have been discussed also in Texas, West Virginia, Louisiana and Oklahoma.

Those who support the Ohio bill, which passed 19-14 in the state senate earlier this month, say that it will prevent the duplication of asbestos lawsuits and make it nearly impossible for plaintiffs to “double dip.”

It has to do with the fact that most mesothelioma plaintiffs pursue damages from multiple defendants in the course of seeking justice. What this law purports to do is to hold defendants accountable only for their share of damages. In theory, this may appeal to a basic sense of fairness.

But in doing so, it sets the bar to an almost impossible high for plaintiffs – even going so far as to have them facing criminal perjury charges if they don’t comply. Essentially, it requires that anyone who files an asbestos or mesothelioma claim will have to at that time list all similar claims listed by them or on their behalf. Not only that, but they will have to spell out the evidence used in each of those cases.

Plus, if a defendant in one of these cases has reason to believe that certain information was withheld or that the plaintiff is not suing another entity when they could be, the defendant can petition the judge to delay the trial.

The fact is, these defendants are already notorious for delaying trials. They know that plaintiffs don’t have much time, and they shamelessly use this fact to their advantage.

Plaintiffs who don’t comply with this new law would potentially face perjury charges. Let us remind you, these plaintiffs are people who have been diagnosed with an aggressive terminal illness caused by the negligence of others, who did so for a profit – and these state lawmakers have been convinced that threatening dying patients with felony charges for failing to properly file was the best way to ensure justice?

Compounding matters in Ohio is the fact that just 10 years ago, state leaders had already passed a different measure that made it more difficult for mesothelioma patients to sue. It required that they demonstrate “a substantial impairment of health” beyond what could be documented on an X-ray. That resulted in approximately 90 percent of the approximately 40,000 pending cases at the time to be dismissed outright.

Clearly, this bill is not about reducing fraud or fighting fair. This is about protecting the interests of these defendants – at the expense of those they have knowingly harmed with their actions.

The bill must be sent back to the state House of Representatives to approve minor tweaking done by the Senate, at which point it will be forwarded to the governor’s office for approval. He could veto the law, but there has been no indication that he plans to do so.
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Last month marked Veteran’s Day, which is a time to thank those who have dedicated their services – and sometimes so much more – to the safety and betterment of this country.

Our Boston mesothelioma lawyers know many of our military members – active and retired – have sacrificed much in order to protect us. Often, this includes their lives and their long-term health.

The rank-and-file know that when they join, there is a possibility that they could be put in harm’s way. However, this does not include the anticipation of a mesothelioma diagnosis, as a result of exposure to asbestos while serving. Mesothelioma doesn’t kill as fast as combat but it’s no less deadly.

The U.S. Department of Veteran Affairs estimates there are more than 22 million veterans in this country. It is among this population that we tend to see many mesothelioma diagnoses, particularly among those who served in the 1970s and earlier.

These brave men and women likely went years without realizing they had been placed at risk. That’s because mesothelioma, which is a rare and fatal form of cancer that affects the lining of major organs, lies silent in the body for decades. At this point, there is no way to detect or treat it until it is in the advanced, aggressive stages. By the time a person is diagnosed and begins receiving treatment, the disease is likely to be quickly fatal.

We most often hear about this cancer affecting members of the U.S. Navy due to the wealth of asbestos material used in ship products. The problem was usually worsened by the fact that as the ships began to age, the asbestos materials became more brittle and friable – and therefore much more dangerous.

It’s true that of the total number of military mesothelioma sufferers, one-third are from the Navy. But the fact is, there is no branch of the military that has been untouched by this crisis.

The most common areas or products where military members would have come in contact with airborne asbestos materials include (but are not limited to):

• Boiler rooms;
• Engine rooms;
• Mess halls;
• Shipyards;
• Navigation rooms;
• Flooring;
• Motors;
• Compressors;
• Condensers;
• Ship Machinery;
• Wall insulation;
• Weapons and ammunition storage rooms.

Veterans who served decades ago are just now beginning to experience symptoms related to this exposure. The primary symptoms generally include chest pain, shortness of breath, wheezing or coughing, fluid build-up in the lungs, and swelling of the abdomen.

It’s important for veterans experience any combination of these symptoms to see a physician right away and be tested for mesothelioma.

We do know that the illness has garnered more attention from the government in recent years, as the Department of Defense awarded funding to five different mesothelioma researchers in both 2008 and 2009.

Still, receiving compensation for veterans and their families for a mesothelioma diagnosis is by no means a given, which is why these individuals need to seek the advice of an experienced mesothelioma attorney as soon as possible after diagnosis.
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A great number of our Boston mesothelioma attorneys‘ clients are those who have actually been diagnosed with the disease or surviving spouses and/or children.

However, it’s worth noting that these are not the only parties that may be entitled to financial compensation from companies which were careless and negligent in their manufacturing and distribution of asbestos products.

In Michigan State University, et al v. Abestos Settlement Trust, recently decided by the U.S. Court of Appeals for the Eleventh Circuit, a number of universities and colleges took action against a trust established through the bankruptcy of Celotex Corporation. This was a company that distributed roofing and building products for residential and commercial use.

It was a Delaware-based firm founded back in 1994, and Carey Canada, which was a wholly-owned Celotex subsidiary, used to mine, mill and process asbestos fiber for use in the products distributed by Celotex.

In late 1990, both companies filed for a Chapter 11 reorganization bankruptcy, partially as a result of increasing asbestos and mesothelioma litigation. As a result, they did what many companies in this situation do, which is to fund an asbestos litigation trust. The purpose of the trust is to process, liquidate and pay out all asbestos personal injury claims that arise as a result of exposure to the company’s products. It’s a measure that allows the company to continue operating, which allows it to continue to fulfill its obligation to future victims of its negligence.

After the establishment of this trust, several higher education institutions sought relief from the trust, as a number of their campus structures had been built with the cancer-causing material. The cost of renovation was going to be quite expensive. The colleges included: Michigan State University, The University of Cincinnati, Rochester Institute of Technology, Claremont McKenna College, Prince George’s College and Fairfield University.

Initially, the trust denied the colleges’ claims, on the basis that it did not satisfy the legal prerequisites for payment. Basically, these were not personal injury victims.

However, the colleges didn’t give up. They filed an adversary proceeding through the bankruptcy court, seeking declaratory relief. The case dragged on for a number of years, but it wasn’t until another court ruling – Asbestos Settlement Trust v. City of New York (In re Celotax Corp.) that the Trust changed its stance and agreed to pay the colleges. That ruling indicated that property owners who had suffered property damage as a result of asbestos negligence could seek relief from the Trust.
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Our Boston mesothelioma lawyers have learned that asbestos case defendants will stop at nothing to avoid paying what is rightfully owed to a dying former employee or widowed spouse.

This means they often continue fighting, even after a verdict in the worker’s favor. In fact, litigation often continues even after a victim dies.

If they do win upon appeal, it’s often due to some legal technicality. The fact is, mesothelioma cases are quite complex because they tend to involve historical facts and events that took place decades ago, in addition to modern-day, detailed-medical testimony. What this means is that you need to find an experienced law firm with the dedicated resources to build and present such complex cases to a jury.

It was a legal technicality that recently sank the case of a Washington man who had been awarded $9 million from two dryer felt companies that produced asbestos-laden products he encountered daily in his line of work in a paper mill between 1968 and 1984.

For many years after he left that job, neither he nor his wife suspected anything was amiss. Then, in November of 2006, that former paper mill employee received crushing news: a mesothelioma diagnosis. The aggressive cancer is caused by airborne exposure to asbestos. It lies dormant for years, but is typically fatal shortly after diagnosis.

This man and his wife filed suit against the two dryer felt manufacturers – Scapa Dryer Fabrics, Inc. and AstenJohnson, Inc.

During the course of the trial, the U.S. District Court judge allowed a doctor to testify as an expert witness for the plaintiff. However, prior to doing so, the judge did not require what is called a Daubert hearing, as required in accordance with Daubert v. Merrell Dow Pharm., Inc. (1993). This case established a precedent holding that in order for a witness to deliver what is considered “expert scientific testimony,” a hearing must be held. This is referred to as Rule 702. According to the standards, the judge is the gatekeeper of the information, ensuring that the testimony truly is derived from scientific expertise. Further, there has to be a clear relevance and reliability as to the testimony the expert provides.

The idea is to prevent irrelevant or non-scientific evidence to be presented in a way that gives it more weight before a jury.

This is the standard law in federal court and in Massachusetts court, although a similar but different standard, known as the Frye Standard, is applied to state courts in California, Florida, Maryland, New York, Illinois, New Jersey, Washington and Pennsylvania.

The defendants in this case appealed to the Ninth Circuit Court on the basis of several reasons, one of which being that a Daubert hearing was not held for this particular witness.

The panel of appellate judges ruled in favor of the defendants, ruling that the jury was allowed to hear the doctor’s “unfiltered” testimony.

As a result, the appellate court ruled that the verdict must be overturned.
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Plaintiffs in the Rodarmel v. Pneumo case had alleged that numerous companies conspired to suppress important information regarding the health hazards of asbestos.

Now, a split panel of justices with the Illinois Fourth district Appellate Court has reversed a lower court’s nearly-$18 million verdict, which had sided with those plaintiffs.

Boston mesothelioma attorneys understand that the plaintiff may appeal to the state’s high court.

The appellate court ruled there was not sufficient evidence presented to prove that Pneumo-Abex, Honeywell International and other companies engaged in a conspiracy to hide the dangerous health effects of asbestos exposure from both workers and consumers.

A district court had ruled otherwise, and the fact that the appellate court was so divided on this issue shows that this was not a clear-cut victory for the defendants.

The original case stems from a lawsuit filed by a female former employee of a company that manufactured products made with asbestos. She worked there for two years in the late 1960s. During that time, she inhaled asbestos fibers that were manufactured by Honeywell, Abex and others.

Decades later, she was diagnosed with pleural mesothelioma, and sought damages as a result.

Her lawsuit contends that corporate administrators at these companies all conspired to falsely assert that asbestos exposure was safe when they knew, in fact, it was not. She boosted her claims with evidence that Abex and eight other companies worked to conceal the results of an industry-funded study that showed the devastating effects of asbestos on mice; namely, that rampant cancers and malignant tumors were discovered after exposure.

Two years after the chief researcher of that study died, the laboratory sent the final report to Johns-Manville, one of the companies that was a primary supplier of asbestos to Abex (and one of nine companies that had funded the study).

But rather than acting on that study by pulling asbestos from its products, these companies instead had the study published – without any reference to the cancer.

This evidence resulted in a 2010 county court verdict to the plaintiff for $17.8 million, split between Honeywell and Abex.

The two companies appealed that decision, alleging there had been multiple legal deficiencies.

The justices for the majority ended up overturning the original decision on the basis that the lower court had erred in failing to grant a number of motions filed by the defense. The dissenting justices disagreed, issuing a five-page opinion to this effect.

The appellate justices based their decision on earlier case law established in McClure v. Owens, which found that in order for a plaintiff to prove that an agreement and subsequent act resulted in consequences worthy of legal action, they would need to prove that the act was done both knowingly and intentionally.

Still, the justices contended that the plaintiff in the current case presented more evidence than in McClure, but apparently not enough to meet that legal threshold.

This case further underscores the need for mesothelioma victims to turn to attorneys who have proven their skill and success in the courtroom.
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