Recent Legal Cases
The Wall Street Journal recently featured a fascinating story about an asbestos victim. Bill McQueen, unlike other mesothelioma patients that we often hear about, was not a shipbuilder or construction worker. He was an Air Force surgeon. Dr. McQueen had sought medical care, when his chest pain persisted. He had thought it was perhaps a flareup of an old rib fracture. However, is doctor ultimately told him that he was suffering from mesothelioma, an incurable and fatal cancer that was encasing his left lung.
Dr. McQueen represents a different type of plaintiff in the asbestos litigation. Rather than targeting one or two defendants, asbestos claims are now involving dozens of corporate defendants. Research based on asbestos filing in Philadelphia reveals that almost 50% of the mesothelioma claims from 2006 through 2010 related plaintiffs’ exposure due to do-it-yourself type of construction or auto mechanic projects. In contrast, those type of plaintiffs were only about 3% of similar claims in the prior decade (1991- 2001).
The mesothelioma was so far advanced for Dr. McQueen, when his wife began to search for an asbestos-injury attorney. In 2011, waking up from a coma, Dr. McQueen found an attorney at his bedside. The process of understanding how Dr. McQueen was exposed to asbestos began with digging through photos of an old family farm. Some of those photos showed rusty paint cans, cement bags, and insulation, all of which Dr. McQueen had worked with decades before. As a result, Dr. McQueen and his wife named over two dozen corporate defendants.
What is also interesting to see from this WSJ article is the comments. Some found the McQueens’ search for justice “disgusting,” while others viewed the claim as a sort of fishing expedition. A scant few seemed to recognize that this was the family’s attempt to hold negligent companies accountable.
Dr. McQueen passed away in his home this past March. Trial is set for this November, while several defendants have settled with the family already.
Last month, a Los Angeles Superior Court jury returned its verdict awarding $26.6 million to Michael Sutherland, a former drywaller, diagnosed with mesothelioma, a cancer caused by asbestos. and his wife Suszi.
As a drywaller in northern San Diego County from 1967, Mike was still attending Madison High School. Then, through 1993, he often took extended surfing trips to Hawaii and Mexico. As a contractor, he made a living for numerous residential and commercial jobs during the construction “boom” in the 1970s. During this period, cancer-causing asbestos was a common ingredient in popular construction products. Such products include joint compound, fire-rated drywall, caulk, stucco, roofing mastic and asbestos cement pipe.
“With all the trades working on top of each other trying to finish one job and move on to the next, it was always dusty,” Mike recalled, “It wasn’t until I became a lead maintenance mechanic at UC San Diego and attended a class on job safety in 2003 that I learned that so many of the materials used on the jobs back then contained asbestos.”
The Sutherlands’ case (LASC case # BC486980) was filed on June 20, 2012. Over 30 defendants were named in the case. They had settled most of the defendants before trial. However, Stucco manufacturer, Highland Stucco and Lime Products, Inc., refused to settle. Thus, Highland was the only defendant at trial, claiming that other companies and even Mr. Sutherland himself were responsible for his exposure to asbestos. Disagreeing with Highland, the jury ultimately found the company responsible for its role in subjecting Mr. Sutherland and other members of the public to its dangerous products.
A good indicator of the future of asbestos lawsuits is what have seen so far in the past few years. According to one report, “Mesothelioma Trends in the United States: An Update Based on Surveillance, Epidemiology, and End Results Program Data for 1973 through 2003.” by Bertram Price and Adam Ware, (Am. J. of Epidemiol 2004; 159:107-112), mesothelioma diagnoses are reaching new highs. According to NERA Economic Consulting, there was a 75% increase in the average dollar amount for resolved claims in 2010. That number was more than double than then in 2009 and 2010. A large factor is that there were more malignancies resolved as opposed to non-malignancies. In general, however, the number of new cases remains stable, at about 52,000 new case per year.
Interestingly, there were less dismissed and resolved claims in 2011. This may be because the larger defendants have gone through the bulk of their non-malignant claims.
The U.S. Supreme Court has rejected a legal theory that would have given asbestos injury attorneys a new industry to attack with lawsuits.
SCOTUS ruled this past Wednesday in favor of companies involved with the design and manufacture of locomotives and their parts. The estate of the late George Corson, a welder and machinist for a railroad carrier, had sued Railroad Friction Products Corp. and Viad Corp. in Philadelphia, alleging injury from exposure to asbestos in trains and train parts distributed by the companies.
The estate’s design-defect and failure-to-warn claims were preempted by the federal Locomotive Inspection Act, the court held in a 6-3 decision authored by Justice Clarence Thomas. The decision was in line with one made by the court 85 years ago in Napier v. Atlantic Coast Line.
“(P)etitioners contend that the LIA’s preemptive scope does not extend to state common-law claims, as opposed to state legislation or regulation,” Thomas wrote.
“Napier, however, held that the LIA ‘occup(ied) the entire field of regulating locomotive equipment’ to the exclusion of state regulation. That categorical conclusion admits of no exception for state common-law duties and standards of care.”
The decision affirmed a ruling by the U.S. Court of Appeals for the Third Circuit. It had been removed from a state court to Philadelphia federal court.
Dissenting were justices Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer. Sotomayor’s dissenting opinion said that the plaintiffs’ claim for failure to warn was not preempted, though it agreed the defective design claim was.
The federal government and the American Association for Justice were among the groups supporting the plaintiffs’ lawsuit.
“Because the right to a legal remedy for wrongful injury is a fundamental right under the Constitution, courts may not preempt such a cause of action and leave injured persons without remedy unless Congress specifically intended that result,” the AAJ’s amicus brief said.
“The mere silence of Congress in a statute not directed at railroads rather than manufacturers falls short.”
Complaints against 50 other companies were dismissed.
The Associated Press reports the Mississippi Supreme Court ruled that Owens Corning has no claim against tobacco companies over asbestos-related lung injuries. Owens Corning was trying to recover billions of dollars paid out in asbestos settlement cases by arguing the tobacco industry shared some of the blame for the health problems.
The New York Times reports a federal appeals court ordered the judge overseeing five important asbestos-related bankruptcy proceedings to withdraw from three of the cases because of the appearance of bias. In a 2-to-1 decision, a panel of the United States Court of Appeals for the Third Circuit in Philadelphia ordered Alfred M. Wolin, a federal district judge in Newark, to end his role in the bankruptcy hearings involving W. R. Grace, Owens Corning and U.S. Gypsum because his handling of the cases had the appearance of bias.
The Dallas Fort Worth Star-Telegram presented a heart moving story of another asbestos victim in Sunday’s May 2 paper. The paper further reports school maintenance workers may be at increased risk for developing diseases related to prolonged exposure to asbestos.
Reading the story, your heart has to go out to this custodian worker:
As Randall Blevins was recovering from surgery, doctors told his wife that the patches indicated exposure to significant amounts of asbestos. Presumably, they said, the right lung was the same.
That was May 2002, 25 years after Blevins began working as a heating and air-conditioning technician for the Fort Worth school district. He fixed boilers and repaired pipes — products often encased in asbestos.
Blevins, 50, believes that his lung disease stemmed from his work for the district because he knows of no other contact with asbestos dust.
From 1977, when he was hired, until about 1982, when the district stepped up its precautions, he handled asbestos without thinking. Blevins said he and the district’s other boiler-room workers hit it with their wrenches and ripped it off pipes with their bare hands while crawling under buildings. Each time, the white shards cascaded into their hair, eyes, noses and mouths.
“We would handle asbestos like it was nothing,” said Blevins, who lives in Southlake. “Might have on only paper masks.”
Blevins said he appears to be the only one in his maintenance team who has been diagnosed with asbestos-related symptoms. But asbestos illnesses typically don’t show up until decades later, and Blevins’ illness gives some of his co-workers pause.
“I look at him and think, ‘That could be me,’ ” said Arthur Cox, the district’s heating and air-conditioning foreman.
A Texas judge has rejected requests by companies being sued for asbestos poisoning to create a separate docket dealing only with cases in which plaintiffs are sick. The companies wanted to delay all other cases until the victim developed asbestos-related sicknesses. Lawyers for the plaintiffs said the delays would deny their clients constitutional access to the courts and a trial by jury.
This was reported by the Star-Telgram quoting a portion of Judge Davidson’s findings: “At some point in the future, the number of cases filed which could qualify for assignment to an unimpaired docket could result in a denial of right to court access to other cases in which impairment is agreed to exist. It cannot be said that this is the case at this time for cases filed since Sept. 1, 2003.”
It was also reported more than 600,000 asbestos-related lawsuits have been filed nationwide, many by people who have not developed symptoms of asbestos-related illness. About a third of those were filed in Texas.
An Illinois circuit judge facing scrutiny from pro-business and pro-industry groups handed over his docket, asking that his county’s asbestos lawsuits be handled by another judge, according to a recent article in the Belleville News-Democrat.
Nicholas Byron ruled the Madison County Circuit Court that handles the country’s largest asbestos docket for about 10 years. In 2003 alone, he presided over 953 such cases. As a result, Madison County is notorious for its plaintiff-friendly reputation.