While it’s generally accepted that exposure to asbestos causes mesothelioma, asbestos and lung cancer, what’s usually in dispute is the level of exposure necessary to result in illness. Specifically, the question arises to what extent exposure to a defendant’s certain product caused or contributed to plaintiff’s or decedent’s illness and/or death.
It’s also important to note these standards are somewhat fluid and prone to change as the medical understanding and legal theory on this complex issue evolves.
We saw this recently in the case of Wannall v. Honeywell, Inc. before the U.S. Court of Appeal for District of Columbia Circuit.
Here, as litigants were preparing for trial, the Virginia Supreme Court handed down a ruling directly affecting the case. The ruling indicate the court would no longer recognize the “substantial cause” standard, which was previously recognized as the controlling standard in the region. Instead, the court expected plaintiffs to demonstrate exposure to defendant’s product alone was sufficient in order to have caused harm.
In light of this shift, defense moved to strike plaintiff’s expert witness testimony, and because plaintiff failed to seek leave to file a new declaration by their expert or take any additional discovery in light of the new decision, the district court granted the motion, which included a request for summary judgment in favor of defense. The federal appeals court later affirmed.
This was a case in which decedent developed mesothelioma after years of helping family and friends perform automobile repairs. In so doing, he used brake shoes, manufactured by defendant, which contained asbestos.
However, defense argued decedent had also been exposed to the toxic fibers while serving in the U.S. Navy, which he did for decades. It’s well-established that asbestos was used in ship-building and ship repairs by the U.S. Navy. Defense argued this was more likely the cause of decedent’s illness, and moved to strike the expert witness testimony indicating the brake shoes were the “substantial cause.” The trial court initially refused.
While both sides were gearing up for trial, the Virginia Supreme Court weighed in on Ford Motor Company v. Boomer. In the court’s decision, which did away with the “substantial cause” standard.
Plaintiff argued this should not change the court’s position on his expert witness because the new ruling was not an alteration of state law.
But our Rock Hill wrongful death lawyers understand the primary problem appears to be plaintiff never filed a motion to supplement or correct his expert witness’ testimony so that it met the new standard of proof. Instead, plaintiff continued to argue Virginia law had not been changed and additional depositions/proof were not necessary.
The trial judge questioned this strategy at the time, noting counsel was placing himself “in a very difficult box.”
Later, supplemental findings of the expert were submitted, but the court found they were not timely and were in fact harmful, as they would have required either re-opening discovery and delaying trial or denying defendant the opportunity to cross-examine the expert witness for new opinions prior to trial.
Because this would have been unfair, the court would not accept them, and thus, summary judgment was granted to defense, and that finding was later affirmed.
This case shows why plaintiff lawyers must be highly knowledgeable and always prepared – even halfway through a case – to shift positions and initiate new strategy.
Contact our South Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Wannall v. Honeywell, Inc., Dec. 30, 2014, U.S. Court of Appeal for District of Columbia Circuit
More Blog Entries:
Izell v. Union Carbide – Appellate Court Upholds $24M Mesothelioma Award, Dec. 21, 2014, Rock Hill Injury Lawyer Blog