The standards of proof in mesothelioma illness cases vary depending on the type of claim, the identity of the defendant, and the jurisdiction. For example, workers’ compensation claims are held to a different standard of proof. Likewise, plaintiffs suing the military or any company contracting with the military might face some unique challenges that wouldn’t exist if the company were a private corporation. And the standards recognized in one state aren’t necessarily identical to those of every other.
In Virginia, recently, the standard of proof in asbestos litigation shifted with the 2013 state supreme court decision of Ford Motor Co. v. Boomer. A jury had awarded the retired state trooper $282,700 for mesothelioma that he asserted was the result of exposure to asbestos during his attendance at required vehicle inspections where he came into close contact with brake dust that contained the toxin. He had also sustained some exposure to the substance while working for about a year in a U.S. Navy shipyard as a pipefitter, but he did not make that part of his case.
On appeal, the Virginia Supreme Court held it was not enough to prove exposure
to asbestos by the defendant was a “substantial cause” of
the plaintiff’s illness. Instead, the court ruled, the plaintiff
needed to show exposure to the defendant’s product alone was sufficient
to have caused the harm.
When plaintiffs have suffered a lifetime of potential exposures, determining which were causative can pose unique challenges. It’s particularly tough when you’re dealing with varying standards across the board.
Asbestos injury lawyers must be well-versed in these standards and in exactly what the court expects in order for that burden of proof to be attained.
According to court records, the decedent became ill with mesothelioma after assisting friends, family members, and neighbors in their repairs of automobiles over the course of 50 years. After he developed lung cancer, he and his wife filed suit against a company that manufactured asbestos-laden brakes, which he often used.
However, the defendant argued the plaintiff had also been exposed to the toxic material while serving several decades in the U.S. Navy. Thus, he could not prove the brakes he was working with proximately caused him to contract the disease any more than his work in the military.
The district court denied a defense motion for summary judgment on these grounds. While the case was pending, the Boomer decision was reached.
Based on this, the defense moved for a reconsideration of its earlier motion for summary judgment, arguing the plaintiff failed to satisfy the new standard articulated in the latest decision. The plaintiff opposed the motion but never sought leave to file a new declaration (to supplement or correct certain previously made discovery disclosures), nor did he seek permission to conduct additional discovery in response to the motion.
Instead, the legal team argued summary judgement was not justified because the Boomer decision didn’t change state law. The court pointed out to the plaintiff’s counsel that he was putting himself “in a very difficult box” with his legal strategy. Still, he pressed on with it.
As such, in light of the new ruling, the court granted summary judgment to the defendant.
This decision was later upheld upon appeal.
The case illustrates why it’s so imperative for plaintiffs’ attorneys to be informed of current standards and to be prepared to adapt to changing standards.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C.
Wannall v. Honeywell Inc., Dec. 30, 2014, U.S. Court of Appeals for the District of Columbia
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The Ferraro Law Firm Secures A $37 Million Jury Award, Sept. 25, 2014, Mesothelioma Lawyer Blog