Causation standard in Newport News asbestos cases draws attention to court

By Jon Campisi | Nov 5, 2015


NEWPORT NEWS, Va. (Legal Newsline) - When the American Tort Reform Association named the court system in Newport News, Va., a full-fledged “Judicial Hellhole,” it highlighted a number of factors that contributed to its decision.

One thing the legal reform advocacy group, which publishes its report every year in December but declared Newport News a “Judicial Hellhole” over the summer, took issue with was what it deems an extremely low causation standard employed in the jurisdiction.

In Newport News, asbestos cases are tried under maritime law, not Virginia state law.

And as such, the causation standard differs from the standard used in other tort cases.

“Newport News plaintiffs enjoy the highest win rate at trial in the nation because of a confluence of laws that favor plaintiffs and one-sided rulings by Newport News judges,” Mark Behrens, a defense attorney with the Washington D.C.-based law firm Shook Hardy & Bacon, said about the city’s Circuit Court.

Behrens took care to point out that the jurisdiction wasn’t named a “hellhole” because asbestos cases are tried under maritime law as opposed to state law; you can’t fault judges for following the law, he said.

And it was the U.S. Supreme Court that determined such cases would be brought in Newport News under maritime law because of the fact that many of the alleged injuries were shipyard- or United States Navy-related.

But the judges can be faulted for applying the law in a one-sided manner that seems to favor plaintiffs, Behrens said.

In Newport News, judges instruct the juries that “any exposure” to asbestos is good enough to establish causation, Behrens said.

This is not consistent with other maritime courts, Behrens says.

“In other maritime law jurisdictions the exposure has to be meaningful,” Behrens said. “In Newport News, the judges instruct the jury that ‘substantial’ is simply an exposure that is not imaginary.”

Virginia state law, the defense attorney says, has a very high standard on causation, whereas maritime law has a much lesser standard.

What this means is it is much easier for plaintiffs to be able to recover at trial when litigation is initiated under maritime law, Behrens said.

In Newport News, “they lower the bar so there is basically no bar at all in allowing the plaintiff to make a case on causation if they can identify any exposure,” Behrens said. “The standard really becomes standard-less.”

Behrens said he is unsure of other jurisdictions that instruct the jury that “substantial exposure” simply means “non-imaginary.”

Because of all this, there is more flexibility by the trial courts in Newport News, at least until the Supreme Court or Congress does something to reverse the judges, according to Behrens.

Not everyone shares ATRA’s negative view of Newport News.

Robert Hatten, a plaintiffs’ attorney who is a major asbestos player in the jurisdiction, says that the ATRA’s report is without merit, calling it a propaganda piece that is designed to represent special interest groups.

In a lengthy statement provided to Legal Newsline, Hatten - of the firm Patten, Wornom, Hatten & Diamondstein - claims that the language of the substantial contributing factor standard about which ATRA’s report complains originated in the federal asbestos cases in the Eastern District of Virginia.

Even defendants in Newport News have offered the exact same instruction, he said.

“This is not a ‘reduced’ causation standard,” Hatten wrote in his statement. “It is the normal causation standard employed by almost every jurisdiction in the United States, except Virginia.”

Hatten goes on to state that none of the asbestos company defendants, “with their well-paid armies of lawyers,” have ever appealed most of the rulings they now challenge in the “Hellhole” report.

“Instead they blame plaintiffs lawyers and the local Newport News Judges, who are simply following well established federal and state precedent,” Hatten wrote.

“The most casual reading of the pre-trial briefs on the evidentiary issues that ATRA complains about would demonstrate that there is ample legal support and precedent for the various rulings that ATRA does not like. In any event, their remedy is a proper appeal; not slander.”

In an op-ed he wrote earlier this year for the Newport News Daily Press, Hatten, whose firm handles most of the asbestos litigation in that jurisdiction, said the “substantial contributing factor” causation standard that the ATRA says is unfair is actually dictated by the U.S. Supreme Court.

Hatten also wrote that despite ATRA’s assertions, judges in Newport News routinely permit defense experts to testify that low exposure to a defendant’s product was not a significant cause of a plaintiff’s mesothelioma.

Juries, Hatten wrote, simply “never believed their testimony because it is contradicted by well accepted science that low exposures do cause mesothelioma.

“This is a credibility problem for asbestos defendants, not a judicial problem,” Hatten wrote.

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