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Tuesday, October 15, 2019

Defendants limited in ways to fight Newport News asbestos suits, ATRA claims

By Jon Campisi | Nov 11, 2015


NEWPORT NEWS, Va. (Legal Newsline) – Rulings in the Newport News, Va., asbestos docket are handcuffing defendants that attempt to fight lawsuits, a national legal reform group feels.

In asbestos cases playing out before judges in Newport News, plaintiffs routinely call an industrial hygienist to testify about controls and protections that are necessary to protect an industrial worker from harm.

“As such, evidence of an employer’s knowledge of hazards, along with what safety procedures the employer did (or did not) observe, is relevant to a number of issues in the litigation,” reads a report from the American Tort Reform Association condemning the jurisdiction as a “Judicial Hellhole.”

And one of those issues is causation.

Defendants, however, are not allowed to offer such evidence while plaintiffs experts are immune from cross-examination concerning the knowledge of employers – i.e. the U.S. Navy or a shipyard - about the hazards of asbestos-containing products being used and their failure to implement safety procedures, ATRA says.

ATRA’s annual report pegs what it feels are the least fair jurisdictions in the country as “Judicial Hellholes.” This year, it issued a mid-year report to add Newport News to that list.

In an op-ed he wrote for the Newport News Daily Press, Robert Hatten, a plaintiffs attorney who brings most of the asbestos cases in that city, states that the refusal of all judges to permit evidence of an employer’s knowledge or negligence in failing to warn their workers about the dangers of asbestos is not improper.

Virginia laws and federal statutes prohibit negligence lawsuits against employers for work-related injuries, and maritime law prohibits the “sophisticated purchaser defense,” Hatten wrote.

Asbestos cases in Newport News are litigated under maritime law, not Virginia state law, a decision of the United States Supreme Court.

“In plain English, the law requires manufacturers of deadly asbestos products to directly warn workers with a warning label on the product. If the manufacturer fails to warn, the law does not allow the manufacturer to blame the employer,” Hatten stated.

ATRA also singled out the jurisdiction’s prohibition on a “dose reconstruction” defense.

The term refers to a process of recreating a plaintiff’s exposure history to a product based upon existing evidence.

Because development of disease is often attributed to dose and not simply the product itself (think Aspirin, which could be harmless in small doses, but dangerous in large ones), defendants in asbestos cases seek to explore dose as it relates to the litigants’ asbestos-related diseases.

In Newport News, however, judges, rely upon Virginia common law that prohibits accident reconstruction evidence and disallow defendants’ dose reconstruction evidence in asbestos cases, according to ATRA.

Defense experts in Newport News also cannot express opinions of a numerical threshold of exposure below which mesothelioma does not occur, even though such opinions come from peer-reviewed scientific literature that is often used in asbestos trials in other jurisdictions, ATRA’s report states.

“In the face of such evidentiary limitations, a defendant can mount no effective counter to the plaintiff’s causation theory,” the report says.

ATRA claims that the prohibition on dose reconstruction evidence is not equally applied to plaintiffs, who are allowed to offer evidence of “work practice simulations,” which involve videotaped testing of a given product manipulated in various ways, the report states.

ATRA claims that this is basically dose reconstruction testimony going by a different name.

This issue of dose reconstruction and another issue concerning a lower-than-typical causation standard threshold are handled at the judicial level, and in Newport News it’s often the same judges who are presiding over those matters.

According to ATRA, out of five Newport News judges, it is often the same two judges who have presided over asbestos cases.

They are Judge David Pugh and former Judge Aundria Foster.

ATRA provided Legal Newsline with a number of pretrial orders from asbestos cases in which Pugh, a majority of the times, Foster on one occasion, and one other jurist ruled against defendants, often for the same reasons.

In most of these cases, the judges granted the plaintiffs’ motions to strike the “sophisticated user defense,” limit testimony of industrial hygiene and medical experts, and prohibit dose reconstruction testimony.

ATRA maintains that it is simply unfair to prohibit dose reconstruction evidence from the defense while permitting plaintiffs to offer evidence of “workplace simulations,” often through a materials science expert named William Longo.

Longo’s studies typically show results that are said to be representative exposure levels that an individual may experience in a given activity, according to ATRA’s report on Newport News.

Longo is then allowed to offer testimony in court regarding the volume of air one breathes in a given period of time and explain to jurors how many asbestos fibers a person may experience throughout the span of a career.

“To any reasonable observer,” the ATRA states in its report, “this appears to be dose reconstruction testimony.”

Furthermore, ATRA claims that defense experts in Newport News asbestos cases are not allowed to introduce numerical evidence comparing the potency or toxicity of different asbestos fibers.

Because of the limitations, ATRA claims attorneys representing asbestos defendants cannot mount an effective defense that counters plaintiffs’ causation theories.

Hatton wrote in his op-ed that this isn’t the case.

“(L)ocal judges routinely permit defense experts to testify that low exposure to the defendant’s product was not a significant cause of the plaintiff’s mesothelioma,” he wrote.

“The juries have never believed their testimony because it is contradicted by well accepted science that low exposures do cause mesothelioma.”

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