Critical Thoughts on Depositions of Asbestos Plaintiffs

We recently ran across a blog entry regarding the death of an asbestos/mesothieloma plaintiff whose lawyers and doctors contend that a 25-hour deposition sought by the defendants killed him. The blog quotes this disturbing L.A. Times column by Michael Hiltzik, entitled, “Mesothelioma victims deserve better than wasteful legal maneuvers.”  Here’s the relevant portion of Hilztik’s piece:

Here’s the horrific question now: Did asbestos industry lawyers deliberately drive Johnson to his death by putting him through a brutal series of depositions so their clients would save money?

That’s what his family, his doctor and his lawyers assert. Despite affidavits from his doctor stating that 12 hours of depositions over a few weeks would be about as much as the 69-year-old’s health could stand, a Los Angeles Superior Court judge allowed the companies he was suing a total of 25 hours.

Johnson put off returning to the hospital so he could appear at every session, including the last, on Jan. 23. His face contorted in pain, he gasped out answers to questions from the last of the dozens of defense attorneys in attendance. Less than 40 minutes later, he collapsed.

The very next day he died at Hoag Memorial Hospital in Newport Beach. With him died his family’s claims for pain and suffering, mental anguish and bodily disfigurement, reducing their potential recovery in or out of court by as much as 70%, in the assessment of his attorney, Roger Worthington. What’s left are chiefly claims for medical bills and lost wages and for his wife’s loss of his companionship.

Johnson’s family, his lawyers, and his doctor have no doubt that the defense lawyers stretched out the legal process through what the family contends in court were “delay tactics and stalling,” in the expectation that he would die before he reached the finish line.

This is a very serious allegation, and the column in question, in suggesting that the conduct of the defense attorneys may have played a role in the death of the plaintiff, did not provide a full context of mesothieloma products liability cases and the litigation thereof. The column – which notes that California allows 20 hour depositions in asbestos cases – suggests that the default rules in federal court (7 hours) may have been more appropriate.  However, the default rule is exactly that – a default – which can and should be modified when necessary.  A civil case involving a single plaintiff, a single defendant, and a single trauma merits less discovery – and shorter depositions – than one in which a plaintiff’s entire career history must be explored in detail.  To offer context, we must explore why asbestos depositions merit more time than those in other, simpler cases.

First and foremost, a typical asbestos plaintiff sues dozens and dozens and dozens of product manufacturers.  (Hiltzik does note that the plaintiff in question initially sued 65 companies in his products liability suit, a number which was later reduced to 44 defendants). Sometimes, these plaintiffs also sue outside contractors who would have worked at plants where they, the plaintiffs, once worked.  All of these defendants are different – - they are makers of entirely different products, and on many occasions, their products are similar enough to where questioning is needed to distinguish which products a plaintiff actually worked with or near.  It goes without saying that each defendant in a case is entitled to explore the allegations against it in any lawsuit brought by a plaintiff.  However, this task is made very difficult in asbestos cases because of the nature of the claims being made.

It is critical to note that asbestos plaintiffs often claim that they were exposed to asbestos over the course of a multi-decade career.  It is not unusual for a plaintiff to allege that he was exposed to products over a 40 or 50 year career during the span of his life.  (Hitzlik reports that the plaintiff worked “as a carpenter, auto mechanic and plumber from 1961 until 1990.”). Because each work site during a plaintiff’s career is the potential exposure site, those sites must be explored in detail.  Further, because many of these plaintiffs typically worked at manufacturing or energy production plants, even if they worked for a single corporation during a long span of time, they often worked at many different plants and facilities owned and operated by their former employers, and each plant or facility may house or contain very different products. This information is critical to defendants because it may be that at a particular time at a particular location their products were unavailable or non-asbestos containing. Obviously, when there are 20 to 30 to 40 defendants, and each defendant has a different set of questions to ask about a different set of products, a deposition will be lengthy.  First, the counsel taking lead on the deposition will survey the plaintiff’s entire career to determine where he alleges he was exposed to asbestos.  That lead counsel will typically ask specific questions about the products his client manufacturers and leave to the other lawyers the task of asking about their own client’s products.  Once the lead lawyer completes his examination, the other lawyers take their turn.  Cutting off the deposition at seven hours would leave many lawyers without the opportunity to ask any questions whatsoever despite the fact that their clients have been sued.

So what are the potential remedies if a plaintiff is too ill to be deposed? Typically, the plaintiff himself is the only individual who can testify with some level of certainty as to where he worked and when.  It’s hard to find witnesses who can testify about products used at a facility decades and decades ago. So, how would defense counsel learn that information if not directly from the plaintiff? Plaintiff’s counsel could alleviate this issue by being more specific in the complaint and discovery responses drafted on behalf of their clients.  Unfortunately, many state court – and even federal court – complaints in asbestos cases simply list each defendant and then generally allege that at some point during the plaintiff’s career and/or life he was exposed to products manufactured by those defendants.  The complaints rarely  allege which products manufactured by those defendants the plaintiff worked with or near, nor do they generally list the specific time frames or locations where a particular defendant’s products are at issue.  This leaves the defendants without much information to investigate the claims against it. Further, the plaintiff’s written discovery responses are typically unhelpful, as well.  Again, written discovery may allege the type of product manufactured by a corporate defendant which the plaintiff worked with or near – a valve, a boiler, a gasket, a sealant, or something of that variety – but it still typically does not provide any more specific information than that (including the years that the plaintiff would have worked around that type of product). As another way to shorten the need for a lengthy deposition, plaintiff’s counsel could sue fewer defendants – perhaps they could sue the defendants whose products they know may have been at issue rather than those they simply suspect do.

It may be that the plaintiff does not know the particular model or brand of the products they worked with or near; but many asbestos plaintiffs’ firms have done a bit of research into these issues and typically represent clients who worked at the same locations.  It seems as if plaintiff’s firms prosecuting mesothieloma asbestos cases either have to high a volume or to enumerate a specific products at issue or maintain a philosophy of suing everyone and then the defendants prove their way out.  Either way, the only way that a defendant can learn whether its products were at issue is to ask the plaintiff directly.

So, as noted above, there are many, many reasons why asbestos depositions last longer than more traditional ones. Perhaps, Plaintiff’s counsel in these cases could provide a bit more information about the allegations in their complaints earlier in the process to obviate the need for extensive questioning, but if present trends continue, that certainly seems unlikely.

(Hat Tip: Max Kennerly).

Asbestos Exposure, Summary Judgment and Replacement Parts

Just this past Monday, in Massachusetts, that state’s appellate court released an asbestos causation opinion. In most states, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant’s product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant’s product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Whether or not the plaintiff had established these three elements was the issue in Morin v. AutoZone Northeast, Inc., — N.E.2d —, 2011 WL 834160 (Mass. Ct. App. March 14, 2011).

From 1952 to 1991, Geraldina Medeiros and her husband Anthony Medeiros ran Bedford Fruit Company. Fifteen years later, Ms. Madeiros died of malignant mesothelioma. Her daughter, as the administratrix of her estate, sued approximately forty (yes, that’s 40) defendants, mostly brake manufacturers which the plaintiff asserted had exposed the decedent to asbestos fibers in the course and scope of her work around the delivery truck and trailer. Although some defendants settled with the estate, many defendants moved for summary judgment on the issue of causation. After the motions were granted, the plaintiff appealed the ruling as to three defendants: AutoZone Northeast, Inc., Great Dane Trailers, Inc., and Orleans Auto Supply, Inc.

As the Court of Appeals pointed out, the main issue before it was that of causation:
Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease, the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure.

So, the crux of any asbestos suit is this: the level of exposure to asbestos in a particular product, and the duration of the exposure. The Court of Appeals affirmed summary judgment for Great Dane Trailers, but reversed as to Orleans and AutoZone.

The case itself is pretty straightforward in terms of its analysis, but it highlights one of the hot topics in asbestos litigation right now. (Yes, apparently there are still “hot” topics in asbestos law, after more than thirty years!) The decedent’s exposure to asbestos brake pads and linings from these three defendants occurred during brake jobs where the asbestos-containing parts were replaced. What liability does an original manufacturer have for replacement parts? If we assume that the manufacturer knew that the brake parts on the truck and the trailer used to transport fruit would have to be changed, and would likely be replaced with parts containing asbestos, what liability does that manufacturer have? Watch this issue to be raised again and again in your state.

No Duty To Warn Of The Hazards of Cleaning Hazard-Protecting Equipment

This past December, the Court of Appeals of Washington reversed a trial court’s denial of several respirator manufacturers’ motion for summary judgment on plaintiff’s claim that they failed to warn him of the dangers of asbestos exposure while cleaning respirators designed to protect against asbestos. Macias v. Mine Safety Appliances Co., 244 P.3d 978 (Wash. Ct. App. 2010).
Mine Safety Appliances Company, American Optical Corporation, and North Safety Products USA (collectively “respirator manufacturers”) manufactured respirators that could protect against a variety of contaminants dependent upon the contaminant-specific filter cartridge selected by the user. The plaintiff worked as a tool keeper at a Seattle shipyard, and as part of his duties, he was responsible for cleaning respirators after they were returned by shipyard workers at the end of their shifts. After working in the shipyard for over twenty-five years and handling hundreds of dirty respirators on a daily basis, the plaintiff was diagnosed with mesothelioma and commenced this action against the respirator manufacturers.

The plaintiff alleged that the manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure. In response, the respirator manufacturers argued that they had no duty to warn of the dangers associated with asbestos in another company’s product. In support of their argument, the manufacturers cited the Washington Supreme Court’s decision in Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), holding that the duty to warn is “limited to those in the chain of distribution of the hazardous product.”

The Court agreed with the respirator manufacturers and held that they did not have a duty to warn, neither under a negligence or strict liability theory, because the manufacturers did not manufacture, sell, or supply the asbestos and did not control the type of contaminants used at the shipyard. While the plaintiff argued that the court should consider the purpose of the product in its duty to warn analysis, the Court rejected the notion that a product manufacturer should have a duty to warn of the dangers of a hazardous substance when its product is designed for the purpose of protecting against those very hazards.

Even though the manufacturers should have expected, as pointed out in the concurring opinion, that those who perform the necessary cleaning of the respirators would be exposed to the hazardous substances which had been absorbed, the plaintiff should have also expected that he would have been exposed to asbestos as he was cleaning the respirators of the substance against which it was designed to protect. Manufacturers should not be expected to warn against every conceivable hazard created by others’ products especially when the purpose of the manufactured product is to protect against those hazards.

While we here at Abnormal Use have been known to venture into the outdoors with the UV-protection afforded by a decent pair of polarized sunglasses, we wouldn’t expect Costa Del Mar to warn us of the dangers of the sun exposure we undoubtedly will receive to the rest of our faces when we neglect to wear sun screen. Even though this opinion did not expressly create a duty on behalf of the consumer, consumers must recognize that there comes a point with the use of any product at which the manufacturer’s duty to warn must end and the user’s common sense must take over.