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Asbestos claimant not allowed to enter new evidence after mistrial

By Heather Isringhausen Gvillo | Jun 23, 2014

SEATTLE (Legal Newsline) - After an asbestos case ended in a mistrial, a woman alleging her husband developed mesothelioma from "hot tops" in a steel mill was denied reconsideration of an excluded study from the first trial for failing to provide any new evidence.

"Absent new evidence, the event of a mistrial is not an opportunity for the parties to relitigate deficiencies in their cases identified during the first proceedings," Judge James L. Robart wrote in the May 19 opinion.

After the case against On Marine Services Co. LLC ended in a mistrial the first time, plaintiff Joanne K. Lipson moved to include an industry study by titled "Silicosis and Asbestos Hazards Associated with the Manufacture and Use of Profax," before the second trial commences in the United States District Court for the Western District of Washington at Seattle.

She argues the new evidence eliminates the two foundational deficiencies identified by the court in its prior ruling.

Lipson claims her husband developed mesothelioma from asbestos exposure while working at a steel mill.

On Marine Services manufactured a product called "hot tops," which were used at the mill to insulate ingot molds into which molten steel was poured.

Lipson raises the issue in this case whether quantities of asbestos in the hot tops survived the heating associated with steelmaking, therefore contributing to her husband's injury.

On Marine Services argues the asbestos degraded and detoxified when exposed to high heat.

In response, Lipson provided expert testimony from Susan Raterman, who opined that "significant quantities of asbestos" in the hot tops survived the steelmaking process.

Raterman relied in part on the Washbourne Report to support her opinion, which tested levels of asbestos in hot tops and related items.

Robart wrote that the court previously excluded expert testimony based on the report because it fails to provide details regarding referenced experiments, including whether its measurements were taken after the hot tops were heated. Also, the products tested contained crocidolite asbestos, whereas the On Marine Services hot tops contained amosite asbestos fibers.

Relying on alleged "new evidence," Lipson seeks reconsideration.

Robart explained that when deciding whether or not to permit expert testimony, "the court is concerned not with the correctness of the expert's conclusions, but the soundness of the methodology."

In this case, he wrote that not only is Lipson's request for reconsideration untimely, it also fails on the merits.

Lipson argued that evidence that was not previously available is enough to satisfy reconsideration. Under this argument, she identifies five sources of evidence:

-Deposition testimony by Foseco International Ltd's corporate representative that the experiments involved ash left over from the steelmaking process. Foseco is where the experiments were conducted;

-Deposition testimony by On Marine Service's corporate representative and salesman that the two products were similar;

-Deposition testimony by On Marine Service's expert regarding the temperature of molten steel during the steelmaking process and the temperatures at which amosite and crocidolite degrade;

-Two studies showing the respective temperatures at which amosite and crocidolite degrade; and

-The Supplemental Report and Supplemental Deposition of Lipson's expert Dr. William Longo explaining that the two products' compositions are substantially similar.

Robart concluded that the first two sources are not new evidence. The two deposition testimonies were considered the first time the report was excluded.

As for the remaining sources, Robart explains that evidence is not considered new when it was in the party's possession at the time of trial or could have been discovered with "reasonable diligence."

Information regarding the temperatures of molten steel and the temperatures at which asbestos fibers degrade are "certainly something which plaintiff could have discovered with reasonable diligence," he added.

"There is no reason for plaintiff to rely on recent deposition testimony by defendant's expert for facts that could easily be otherwise verified," Robart wrote.

Additionally, Lipson failed to show that Longo's opinion regarding the similarities between the On Marine Services hot tops and the hot tops in the report is new evidence and could not have been previously discovered.

Robart also explained that the report's parameters of the 'laboratory experiments' have remained largely undefined.

"Absent such information," he wrote, "there is no indication that the results of those experiments can reliably be extrapolated to bear on the circumstances at issue in this case."

Examining Lipson's failure to present sound, newly discovered evidence, Robart concluded that she is not entitled to reconsideration of the court's previous order.

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

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