Heather Isringhausen Gvillo Sep. 17, 2014, 1:49pm

INDIANAPOLIS (Legal Newsline) – An Indiana appeals court has affirmed a lower court’s conclusion that an asbestos decedent was not a credible witness after “misrepresenting” his work history, thus leading expert witnesses to believe he was exposed to a greater amount of asbestos fibers during his employment.

Judge John G. Baker delivered the Sept. 10 opinion in the Court of Appeals of Indiana. Judges James S. Kirsch and Margret G. Robb joined.

The lower court concluded that not only did decedent Larry Ragon fail to prove that he even had an asbestos-related disease, he provided testimony containing multiple inconsistencies that “raised genuine questions about the truth of [his] testimony regarding the nature, extent and duration of the work he actually performed in an environment of airborne asbestos fibers.”

As a result of his flubbed exposure history, the court found that witnesses testifying on the decedent’s behalf were not credible because they formed their opinions based on the misrepresented work history provided by the decedent.

Claimant Mary Ragon, the decedent’s wife, appealed the decision from the Full Workers’ Compensation Board of Indiana.

The decedent was employed by defendant Eli Lilly & Company from 1965 until 1996, where he worked in various departments including the carpenter shop, paint shop, pipe shop, sheet metal shop and even performed work certifying laboratory equipment.

The decedent was later diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and pulmonary fibrosis.

Prior to his death in May, the decedent testified that his respiratory diseases were a result of occupational asbestos exposure. He filed an application for adjustment of claim in December 2010, but it was denied.

The decedent then filed an amended application for adjustment of claim alleging asbestosis after being examined by Dr. David Mares and Dr. Steven Smith, Lilly’s occupational and environmental disease expert.

Both doctors agreed he was disabled, but could not agree on causation or the severity of his condition.

Then Tom Yoder, a former safety director at Lilly with knowledge of the decedent’s former work environment, testified that he “most certainly was not exposed to sufficient quantities of airborne and respirable asbestos fibers” to have developed even very mild asbestosis.

Additionally, Smith argued that the decedent “definitely” did not have pulmonary asbestosis.

As a result, Judge Diana Parsons found that the decedent was not a credible witness because his testimony contained “multiple inconsistencies demonstrating a propensity to misrepresent the facts.”

Parsons explained that plaintiff expert Dr. Robert Daly’s opinion was strictly formed under the impression that the decedent was primarily a pipefitter for Lilly, which is an incomplete occupational history.

Daly’s misunderstanding coupled with Smith’s conclusion that the decedent’s asbestos exposure was not sufficient enough to cause asbestosis was enough evidence to convince the Board to deny the decedent’s claim.

“The plaintiff is an inaccurate historian,” Parsons concluded. “This adversely affects his credibility as a witness.”

On appeal, Baker explained that the plaintiff would have to show that the decedent did actually suffer from an occupational asbestos-related disease.

The appeals court held that the decedent’s exposure is not the issue here; rather, the issue is whether he had shown that his asbestos exposure while working at Lilly had been sufficient enough to cause asbestosis.

“In other words, Lilly’s stipulation that some of its buildings contained asbestos did not relieve Larry of the burden to show that he was suffering from asbestosis,” Baker wrote.

Ragon argues that her husband’s testimony was credible, but the appeals court held that Smith’s testimony appropriately rebutted the decedent’s evidence.

The appeals court stated that Ragon’s argument “amounts to a request to judge the credibility of witnesses and reweigh the medical evidence before the Board.”

“As it was the exclusive province of the Board, as the trier of fact, to weigh the evidence and decide questions of fact, we are not permitted to substitute our judgment as to the weight of the evidence for that of the Board. Therefore, this argument fails,” the court wrote.

As a result, the appeals court affirmed the board’s finding that the decedent is not a credible witnesses and failed to prove he was properly diagnosed with asbestosis.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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