If a plaintiff has been diagnosed with malignant mesothelioma, there is very little question his or her deadly form of cancer was caused by exposure to asbestos fibers. The legal issue is therefore not whether plaintiff was exposed to asbestos, but rather when such exposure occurred and what company manufactured the asbestos products to which plaintiff was exposed.
In some cases, the answer to this question is fairly easy such as when the plaintiff worked for a company that mined asbestos minerals or a company that manufactured products from those asbestos minerals. However, these cases are not as common anymore because asbestos is no longer in widespread use. Today, many current plaintiffs were exposed while working in the construction trades or at a factory as these plants were often filled with asbestos-laden products.Turley v. Familian Corp.
In Turley v. Familian Corp., plaintiff was diagnosed with malignant mesothelioma and filed his complaint in which he and his wife (a co-plaintiff) listed around 50 defendants. His main causes of action were that he was exposed to asbestos while on the job at a utility company that used asbestos products, and this also included valve gaskets made from asbestos.
In that case, the defendant moved for summary judgment, arguing plaintiff could not show the exposure to asbestos occurred as a result of exposure to defendant’s products. Plaintiff responded with a declaration from a third-party witness, yet to be deposed. The witness was deposed, and defendant used parts of that testimony in its reply. The court ruled the deposition testimony conclusively negated the declaration testimony with regard to exposure, and thus refused to consider. A California appellate court reversed, finding there was no direct contradiction between the deposition testimony and the declaration, and the fact that defendant wasn’t the only supplier of the products in question didn’t conclusively negate plaintiff’s assertion that defendant was to blame for exposure. The case was remanded for trial.
Types of Products Known to Cause Mesothelioma in Boston Asbestos Lawsuits
As our Boston asbestos exposure attorneys have seen over the years, components such as gaskets used in pipe valves and automotive parts were frequently made of asbestos during much of the last century. Since the parts routinely break down during their normal use, they are likely to give off dust that contains the deadly asbestos fibers making it one of the more dangerous applications for asbestos products as they are never rendered safe like we see with an asbestos ceiling tile for example.
These tiles were dangerous to those working in the factory where they are made, and they were dangerous to the workers installing and cutting them, but once they are in place, until they break down from years of wear or there is a renovation or demolition project, the occupants of the home are not generally at risk from stable asbestos. Since pipe valves are constantly exposed to high pressure, high temperatures, and are being moved, they break down as soon as they are installed.
Discovery Issues in Boston Asbestos Lawsuits
There were thousands of pages of discovery filed and served as there often is in large-scale litigation, and there was an issue as a compressor station in which plaintiff worked, use pipe gaskets, but there was not enough concrete evidence they were manufactured by one of the 50 defendants according to that party. When the party moved for summary judgement, an evidentiary hearing was held, and the motion for summary judgement was eventually granted.
A motion for summary judgement is governed by Rule 56 of the federal rules. Pursuant to the this rule, if there are no facts in dispute, there is nothing for the jury to decide so a judge can make a legal decision and grant a motion for summary judgment. They can be brought by either party, but are more frequently brought by a defendant trying to have the case dismissed.
In the Turley case, the judge granted defendant’s motion for summary judgement and dismissed the claim against that defendant. This is a major issue a discussed-above in that the question is not whether asbestos caused the malignant mesothelioma, but which company made the particular offending products. This would be much easier to determine if asbestos mesothelioma more rapidly than it does so the diagnosis would be closer in time to the exposure. With malignant mesothelioma, a diagnosis is not typically made until the cancer is in an advanced stage and this is usually around 20 to 50 years after initial exposure with the average being around 40 years.
The appellate court found there was some question as to whether or not the evidence supported a conclusion defendant did not make the asbestos pipe valves which were alleged to have caused plaintiff to develop malignant mesothelioma. This means it was a question for the jury to make such a determination so the decision was reversed and remanded for further proceedings consistent with the court’s opinion.
The reason some courts will reverse a granting of summary judgement is that there is a preference for cases to be decided on the merits by a finder of fact instead of being dismissed by dispositive motions. This is not to say that most cases dismissed on summary judgement will be reversed on appeal, but there should be a clear-cut record showing there is genuine dispute as to a material fact, which is the state and federal standard for granting a motion for summary judgement.
Complex Mesothelioma Litigation
When representing a client who has been personally diagnosed with malignant mesothelioma in Boston, there are of lot of other complex issues that may come into play in addition to ones mentioned. These cases are far from an ordinary personal injury case, and the best thing a plaintiff can do is to speak with an experienced Boston mesothelioma lawyer.
There is also a possibility workers’ compensation issues may arise as many of the mesothelioma cases we see were the result of occupational exposure so it is best to speak with an asbestos injury attorney who has experience with both types of cases.
In the event there was occupational exposure during service in the military, the government takes the position they are not responsible for any negligence, but there is a mechanism for obtaining compensation from the Department of Veterans Affairs (VA) possibly in addition to any civil mesothelioma defendants that manufactured and distributed the toxic material responsible for plaintiff’s illness. These are all issues that can be discussed with plaintiff’s potential attorney during a free initial consultation. Plaintiffs should also not be concerned about the cost of legal representation since there is no fee unless plaintiffs are successful.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Turley v. Familian Corp., December 20, 2017, California Court of Appeal
More Blog Entries:
Montana Settles Asbestos Claims for $25M, Feb. 19, 2017, Boston Mesothelioma Lawyer Blog