Carter v. Wallace & Gale Asbestos Settlement Trust: On Indivisible Injuries

Our Boston mesothelioma injury lawyers understand that many factory workers exposed to asbestos were also heavy smokers, and defendants may try to exploit this fact.

factory.jpgCarter v. Wallace & Gale Asbestos Settlement Trust, an appeal from the Maryland Court of Appeals, ruled on multiple legal issues. Some of them were pertaining to an asbestos litigation settlement trust. This is a common situation, due to the fact that many asbestos installers have gone bankrupt. After a bankruptcy, the court can set up a trust to assume liability for any asbestos-related liability that may arise.

However, one of the more interesting rulings in this case dealt with the issue of a worker who died of lung cancer, who suffered from mesothelioma, but who also smoked at least two packs of cigarettes a day for most of his life.

This case involved the estates of four deceased plaintiffs who all worked in the steel and refinery industry in Baltimore. The plaintiffs died from mesothelioma caused by asbestos exposure.

The companies that employed the workers all had a roofing company install asbestos insulation products in their factories. Asbestos was very commonly used in places like steel mills where there were extremely hot furnaces and molten metal. Asbestos served as a heat insulator to prevent fires.

The defendant spent a considerable about of time and money trying to establish that smoking significantly contributed to the worker’s lung cancer, so that the jury would reduce any verdict by the amount that smoking had contributed to his death. The plaintiffs obviously opposed any attempt to reduce the verdict based upon the decedent’s history of smoking.

The issue was whether there was any way to determine to what extent smoking contributed to the worker’s lung cancer. If a jury can determine that smoking caused a certain portion of the cancer and assign a percentage value and then do the same for the asbestos exposure, they could essentially divide the harm suffered by the plaintiff into two separate injuries.
On the other hand, if there was no way for the jury to determine what percentage of the cancer was caused by smoking as opposed to asbestos exposure, the law would call this an indivisible injury.

The trial judge decided that there was no way for a jury to make such a determination and to ask them to assign a percentage would be engaging in arbitrary guessing games and did not allow evidence of apportionment of fault to come before the jury.
The defendant appealed the judge’s ruling, and the intermediate court of appeals reversed this ruling and found that apportionment of damages was appropriate. The plaintiffs appealed this ruling.

Ultimately, the court of appeals held that apportionment was not appropriate, because it would be impossible for a jury to make the required determination. The court used an analogy that if two people shoot at a third person and kill that person, there would likely be no way to determine which bullet caused what percentage of the victim’s death.

If, on the other hand, two people shoot a third person and one bullet hits his leg and the other hits his arm, but the victim survives, this would be a divisible injury where apportionment would be appropriate.

If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.

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