Important Victory for Military Mesothelioma Victim's Widow

Boston mesothelioma lawyers were pleased to hear the action taken by justices with the Virginia Supreme Court regarding the amount owed to the retired seaman's widow.

The reason this case was so closely watched by mesothelioma attorneys is that the victim, who passed away before trial, had sued under general maritime law. He had alleged that he was exposed to asbestos fibers, dust and particles that were in products manufactured by John Crane Inc., as well as nearly two dozen other defendants.

When the plaintiff passed away, the lawsuit was refiled by the widow, as executor of her husband's estate, as a wrongful death action.

The majority of the defendants chose to settle with her, rather than go to trial. But John Crane Inc. fought back.

Before the trial even started, JCI filed a motion in limine that would have excluded all evidence of nonpecuniary damages. These are damages that are outside the scope of monetary damages. In other words, evidence of pain and suffering, loss of consortium, etc., would not be allowed to be heard at trial.

The company's motion was denied by the City of Newport News' Circuit Court.

The jury awarded the widow approximately $6 million, with 50 percent of that to be paid by JCI. That verdict included $2 million for pain and suffering, as well as $2.5 million for the loss of her husband's services and income, another $320,000 for medical expenses and about $8,000 for funeral expenses.

But after the verdict, the company appealed, contending that the widow's own liability theory was based on the fact that her husband had been exposed to the asbestos fibers while on board Navy ships, which were traveling at sea or docked in foreign ports. As such, they contended she would have only been entitled to damages under the Death on the High Seas Act, which is spelled out in 46 U.S.C. Sec. 3031. This act says that when the death of an individual is caused by a wrongful act or default that occurs on the high seas, defined as 3 nautical miles form the U.S. shore, a personal representative of the family may bring civil action against the person or vessel responsible. Part of what that law also says is that this general maritime law limits an award to monetary (or pecuniary) damages.

The case made it all the way to the Virginia Supreme Court, where it vacated the $3 million award that JCI was responsible. However, the widow then asked for a re-order, and the judges agreed to reinstate $2 million of that for her pain and suffering.

Asbestos Firm's Attorney Fraud Claims Fall Flat

Our Boston mesothelioma lawyers have become familiar with a range of under-handed legal tactics used by asbestos defendants.

These involve obvious efforts to delay, skirt the primary issue or deny.

Even when these motives are so obviously transparent, they require the plaintiff's attorney to be dexterous in eliminating such strategies.

The most recent attempt has been the fraud allegations that Garlock Seals Technologies has lobbed against a Texas mesothelioma law firm. The company's claims are in fact so egregious that an organized group of personal injury attorneys are petitioning the judge in the case to allow them to intervene, stating such claims are not based in fact, but rather a calculated strategy as the company moves through the bankruptcy process.

First, it's worth noting that the prevalence of asbestos in a large variety of products often makes it difficult to pinpoint exactly which exposure resulted in illness. That's why plaintiff attorneys will look extensively at a person's work history and background, as it is often the result of some exposure during employment. But this is also why you will often see more than one defendant in these cases. Often, multiple companies may be responsible for exposure.

The personal injury lawyer organization contends that Garlock has made a host of similar claims since it entered bankruptcy proceedings in 2010. Garlock is one of 60 companies to be compelled to establish a bankruptcy trust as a result of mesothelioma litigation.

In the case in question, the plaintiff was a man who had worked at a company that sold asbestos-containing gaskets and other parts back in the 1960s. The plaintiff lawyers allege that the illness was caused by crocidolite, a rare kind of asbestos that is derived solely from Garlock products. However, Garlock claims the plaintiff attorneys were pursuing a similar claim against another company at the same time. It further contends it was roped into larger settlement than it would have paid had it been allowed to separate itself from the other defendants. (In Texas, juries are allowed to allocate a percentage of liabilities to third-parties.)

Mesothelioma Verdict Overturned Upon Appeal for Failure to Vet Witness

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.

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 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.

Mesothelioma Victims Aren't The Only Ones Who Can Sue

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.

Military Veterans at High Risk for Mesothelioma

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.

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.

$3M Asbestos Lawsuit Win in Case Against General Motors

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 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.

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 substantiv.

Careless Asbestos Removal Risks Fatal Illness

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.

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.

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.