Emerging sources of new plaintiffs defined at asbestos litigation conference

By The Madison County Record | Mar 13, 2009



LOS ANGELES – Emerging trends in asbestos litigation are producing new pools of plaintiffs from new waters sparsely fished by attorneys until recent years.

While the fevered pitch of asbestos litigation around the turn of the century is a relic of the past -- mass cases produced billions in settlements annually and bankrupted nearly 100 major companies -- a new breed is on the rise.

Such was the theme of this week's conference at the posh Four Seasons Hotel in Beverly Hills that focused on the latest trends in asbestos litigation. Much of the three-day seminar centered on new plaintiffs -- housewives, contract workers and those still being exposed internationally.

Plaintiff firms, many built entirely on asbestos litigation, continue to adapt, as evidenced by lawsuits discussed. The presentations were mostly civil exchanges -- though occasionally snarky -- from both sides of the bar offering strategies and case knowledge that may shape future success or failure in court.

One such pool of new plaintiffs falls under the term "take home liability," namely those exposed to asbestos from the dust on clothes of workers brought home from work.

"The housewife is the number one occupation listed for those now contracting mesothelioma," West Virginia plaintiff attorney Anne Kearse said.

Examples of recent cases include a woman in Tennessee who died at the age of 24 after being exposed to asbestos from her father's work clothes. The woman was born premature and spent three months in the hospital where her father would come and hold her every day on his way home from work, Chicago defense attorney Jonathon Lively said.

Other cases include housewives doing their husband's laundry or kids exposed while wrestling with their father or hugging their father still in his work clothes.

"Do we now need to set how many hugs it takes to constitute liability," one lawyer quipped from the back of the room.

"Three," a plaintiff attorney said in response.

But the lawsuits are no joking matter, the presenters explained, both for those suffering from mesothelioma and for the companies facing bankruptcy over continued lawsuits.

Potential liability could soon extend to babysitters, school teachers and neighbors who could have been exposed by someone who worked around asbestos, according to the presenters, and defendants can now include any business, "even mom and pop stores," a presenter said.

"Does the employer owe a duty of care to the injured party who they may or may not have ever known, nor ever employed?" John Canoni of New York asked.

But Texas plaintiff attorney Shepard Hoffman said the legal nuances were not the critical issue.

"This is some dry (expletive)," he said of the detailed case law. "Juries don't give money because of anything we're talking about in household exposure cases… Juries want to find a way to help out a family," he said.

Another emerging source of new plaintiffs comes from premises liability cases, which have been routinely tossed out of some courts, like Kentucky, while proven fertile in others, most notably West Virginia, according to presenters at the conference.

Premises liability, explained Kearse, stems from the property owners' "duty to provide a reasonably safe place to work."

Whereas take home liability focuses on exposure from sources that left the plant, premise liability focuses on exposure to those who came into plant beyond employees. This could include everybody from independent contactors to pizza delivery employees. One case example concerned a welder suing the place he was contracted to work, even though he was exposed from welding blankets he himself brought on site.

A central aspect of premises liability is determining knowledge, according to the presenters, specifically what was known about workplace safety over the years. While defense attorneys often point to 1972, when OSHA issued protocols to be followed regarding asbestos exposure, Kearse said that premises can be challenged in court.

"There's a lot of information out before OSHA," Kearse said, starting with a report in 1937 that talks about safety policies related to asbestos.

"It was known and knowable how dangerous this was to work with," she said. "West Virginia had regulations in place since 1951, but it was rarely followed, if at all."

Kearse said a premises liability case had to meet five criteria: specific unsafe working conditions, defendant had knowledge of conditions, conditions were a violation of rules and regular industry standards, that the defendant exposed the plaintiff to an unsafe condition and that a serious injury resulted.

While defense attorneys argued that premises liability and take home liability cases could extend the potential of future lawsuits nearly without limit, plaintiffs said the deadly disease spoke for itself as to the nature of liability.

"I'm from West Virginia, a so-called judicial hellhole," Kearse said. "But the hellhole is all the problems people have because of this disease."

Even more plaintiffs are expected to arise beyond the shores of the American legal system, according to those monitoring the global growth of asbestos litigation. Illinois defense attorney Kirk Hartley presented on the rise of cases globally, especially in countries that have failed to curtail the use of asbestos as the United States did back in the 1970s.

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