August 2013

lungs

On July 12, 2013 an Alameda jury returned a defense verdict in the living mesothelioma asbestos case Richard Luros v. Amcord, Inc., Alameda Superior Court Number RG11600370. (Luros complaint pdf download).

The California defense asbestos bar had been watching the case with interest since it was filed in October 2011, as the Plaintiff, Dr. Richard Luros, had for many years prior to his mesothelioma diagnosis served as a medical expert witness in asbestos litigation for plaintiffs represented by the Brayton Purcell LLP law firm. The Brayton Purcell firm represented Plaintiff Luros at trial.

After a month long trial culminating in approximately two days of jury deliberations, the twelve person jury returned a verdict in favor of the remaining trial defendant, Union Carbide. The jury found that Dr. Luros had not been exposed to asbestos from a product associated with the remaining trial defendant, despite Plaintiff’s sworn testimony to that effect. (Luros jury verdict form pdf download). In other words, the case was ultimately won on the issue of credibility –the jury did not believe Dr. Luros’s testimony with respect to how he was exposed to asbestos and by whom he was exposed.

The defense verdict was due, in large part, to the investigation and evidence collected in the nearly two years that elapsed between the filing of the Complaint and the actual trial date (an unusually long amount of time for the defendants to prepare for trial in living mesothelioma cases, which are generally accorded an expedited trial date in California of 120 days). Specifically, the defense verdict appears to have turned on the credibility of the witnesses, and in particular, on the testimony of a number of independent percipient witnesses, which contradicted plaintiff’s testimony.

Of particular concern for defendants, and indicative of the uphill battle asbestos defendants face at trial, despite the “overwhelming” affirmative evidence presented by defendants which tended to demonstrate that Dr. Luros fabricated his testimony, when polled post verdict, five of the jurors – almost half the jury – admitted that their initial vote was in favor of Plaintiff.

Plaintiff’s Evidence in Luros

Plaintiff Dr. Richard Luros filed his Complaint for personal injuries, namely, mesothelioma, on October 18, 2011, against approximately 34 defendants. The named defendants were, for the most part, manufacturers of asbestos-containing joint compound and drywall products, insulation and drywall contractors, and the owners of various hospital premises where Plaintiff alleged asbestos exposure.

At his pre-trial deposition, plaintiff claimed he was exposed to respirable asbestos dust during his residency and through his work as a medical doctor at various hospitals in California. Specifically, plaintiff Luros testified that he worked in the presence of others who applied and sanded joint compound, and other asbestos containing construction products, while he made his rounds as a medical doctor treating patients in various hospitals where new construction and renovation work was performed. He alleged asbestos exposure at virtually every hospital where he worked.

Defendants’ Rebuttal Evidence in Luros

During the pre-trial discovery process, defendants were able to identify and depose various co-workers of Dr. Luros at the hospitals where he alleged asbestos exposure. By the time of trial, defendants had videotaped the testimony of no less than eight percipient rebuttal witnesses, including several of plaintiff’s medical colleagues, nurse administrators, and maintenance/janitorial staff. These rebuttal witnesses disavowed any personal knowledge or recollection of the events described by plaintiff at his deposition – ie, un-segregated work by hospital personnel and/or outside construction contractors with dust generating construction materials in or near areas where medical doctor’s such as Luros, treated their patients. In fact the witnesses testified that such practices would have violated hospital protocol.

In addition to rebuttal evidence in the form of fact witness testimony, Defendants retained construction sequencing experts to demonstrate that plaintiff’s alleged exposure scenario was implausible.

The Take-Away

Tony Miller took Plaintiff Luros’s deposition on behalf of various defendants who were dismissed prior to trial. He states that, defendants were very aware [at the Plaintiff’s deposition] that Luros’s exposure testimony was fabricated, or at the least exaggerated,” and on that basis made a conscious group effort to lock the Plaintiff into concrete positions with respect to when and how he was allegedly exposed to asbestos at his deposition, with an eye towards developing affirmative rebuttal evidence from independent third party witnesses for trial.

Ultimately, the Luros verdict highlights the importance of pre-trial fact investigations to develop evidence which rebuts plaintiff’s product identification and exposure evidence.  Unlike many of the more technical aspects of a defense case, such as a medical or fiber defense, all jurors tend to understand and can effectively assess credibility.  As such, a factual investigation of a plaintiff’s allegations, including, but not limited to, interviews of percipient witnesses, is many times a defendant’s most effective defense in asbestos litigation.

Brent Karren concurs in the above assessments.

“Jury verdict research has shown time and again that asbestos trials are won and lost on the believability of the product identification evidence. This case appears to be a perfect example of how to win a defense verdict in an asbestos trial.”