In Rost v. Ford Motor Company, plaintiff originally filed a mesothelioma lawsuit against the various companies that manufactured asbestos products. Claimant alleged these companies manufactured the asbestos to which he had been exposed that ultimately caused him to develop malignant mesothelioma. He filed his original complaint in October 2009.
Prior to trial, plaintiff settled his claims against all other asbestos makers except for the automaker named in the lawsuit. At this point, the case was set for trial, along with two other mesothelioma lawsuits. While it does not happen all the time, judges in certain cases, particularly those involving toxic torts or products liability, have the power to combine cases in the interest of judicial economy.
The defendant objected to the consolidation of the cases, as they felt it prejudiced their defense. This is one of the more complex aspects of these kind of negligence lawsuits. It is for this reason that if you have been diagnosed with mesothelioma in Boston, you should make sure to speak with an attorney who regularly handles these types of cases and has the experience to handle your claims properly. These are far more complex that many other types of cases.
When defendant objected to the consolidation, the judge overruled the objection, and the cases were set to be tried together.
Just prior to trial, the court issued a warning to the attorneys that an expert would not be allowed to testify as to what is referred to as the “each and every breath” argument. This is an argument that the jury may consider each and every breath the plaintiff took as substantial evidence that a defendant’s products caused plaintiff to develop mesothelioma.
The plaintiff testified that after high school in the 1950s, he worked at garage that serviced mostly vehicles the defendant produced. There was no argument that all cars made by defendant during those years had brakes and clutches with as much as 60 percent chrysotile asbestos, which is one of the most dangerous forms of the already deadly substance.
The plaintiff then called two expert witnesses. The first discussed the dangers of certain types of asbestos, and the second talked about the level of exposure necessary to develop mesothelioma. They testified that for asbestosis, which is caused by a scarring of the lung tissue, it takes more exposure. However, in the case of malignant mesothelioma, he testified that it takes much less exposure.
There was then testimony about how many different times plaintiff was exposed to asbestos. The plaintiff’s counsel then asked the expert if even one of these days of exposure to asbestos would be enough to cause mesothelioma. He answered in the affirmative.
At this point, defendant moved to dismiss the lawsuit on grounds that the plaintiff had essentially violated the each and every breath rule by having their expert testify that even one day of asbestos exposure could be enough to cause mesothelioma. The trial judge found that this was not the same as the each and every breath argument and denied defendant’s motion to dismiss. On appeal, both courts affirmed trial judge’s decision.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Rost v. Ford Motor Company, November 22, 2016, Supreme Court of Pennsylvania
More Blog Entries:
New Effort to Strengthen Asbestos Litigation, June 28, 2016, Boston Mesothelioma Lawyer Blog