April 2017

A tale of two verdicts (1)Frequently as litigators, we are faced with questions about which factors can make or break a trial. The facts of each case and skill of counsel are obvious elements to obtaining a favorable verdict, but outcomes can also be heavily influenced by the venue, pre-trial rulings, voir dire, jury instructions and even the sheer whim of a jury.

Within the last few weeks, two separate verdicts came down in mesothelioma lawsuits. Both cases were heard in state courts, both cases involved a deceased plaintiff, both cases were brought by the same plaintiffs’ firm that specializes in asbestos claims, and both cases had only one defendant remaining at the time of verdict. However, one jury found for the defense, while the other awarded $81.5 million to the plaintiffs. What were the specific facts of each case, and what were the factors that might explain how two similar cases turned out so differently?

New Orleans, Louisiana

Mr. Thomas Hayden died of pleural mesothelioma in March 2016. He served in the Navy aboard the USS Edson in the 1960s, during which time he often worked in the boiler rooms. He later worked as a mechanic for a several decades, working on tractors, and, during this time, he also worked building scaffolding at various industrial facilities throughout South Louisiana. He alleged generally that he had worked with asbestos-containing friction products while working on tractors, and that he was in the vicinity of asbestos-containing products, particularly asbestos insulation, while he constructed scaffolding. Importantly, the plaintiffs in Hayden stipulated that they would not seek any damages for exposure to asbestos related to Mr. Hayden’s time in the Navy. Accordingly, the suit remained in state court.

Of the 72 originally sued defendants, only ExxonMobil, Corp. remained at the time of verdict. About 15 parties were dismissed via summary judgment, one (1) party was bankrupt, and the remaining parties settled or were dismissed voluntarily. Mr. Hayden was never employed directly by Exxon, but rather he allegedly worked as a contractor building scaffolding at an Exxon facility in Baton Rouge, Louisiana. He could not identify whether he worked on the chemical or the refinery side of the Exxon facility. He could not recall if the scaffolding he built was for new construction or maintenance. Nor could he recall handling any asbestos-containing products at Exxon.  Moreover, he could not identify the brand name or manufacturer of any products installed by other crafts. He could not even recall seeing any pipe insulation at Exxon. Finally, his work at Exxon was for a total of approximately one (1) week, sometime between 1982 and 1985.

Counsel for Exxon stressed Mr. Hayden’s inability to recall basic details about his alleged work at the Exxon facility, suggesting to jurors that this lack of memory was because Mr. Hayden never actually worked at Exxon. In closing arguments, counsel for Exxon contrasted the dearth of testimony regarding Mr. Hayden’s alleged work at Exxon with his ability to recall co-workers, supervisors, and products at other worksites. Counsel suggested to the jury that the real reason Exxon was sued was because plaintiff’s counsel gave Mr. Hayden a checklist of refineries and plants to “help” him recall where he had worked.

Although Exxon was the sole remaining defendant, fault allocation according to Louisiana law for a wrongful death claim allows for all potentially liable entities to be listed on the verdict form. Therefore, defendants are able to introduce evidence as to the fault of those entities, and the jury is presented with a relatively comprehensive list of parties when it begins its deliberations. After five (5) weeks of trial, the Hayden jury received a verdict form with 30 potentially liable entities, including the US Navy. Based on the evidence and arguments, the jury returned a defense verdict in Exxon’s favor, finding that exposure to asbestos on Exxon’s premises, if any, was not a substantial contributing factor in Mr. Hayden’s illness and death.

Tacoma, Washington

Mr. Jerry Coogan died of peritoneal mesothelioma in 2015. He served six (6) years in the Army National Guard from the 1960s to early 1970s. He also worked at the Wagstaff Machine Works in Spokane, WA for a little over one (1) year, a facility where Johns-Manville marinite board was fabricated; however, there was no direct evidence that Mr. Coogan worked directly in the area where the marinite was cut. He later started and operated his own excavating business, purchasing it from his grandfather in the mid-to-late 1970s. Also, Mr. Coogan’s hobby was restoring hot rods and classic cars. He alleged that he was exposed to asbestos through his work digging up old asbestos cement pipe, cutting and laying new pipe, working with automotive friction products, including gaskets, brakes and clutches, and through work on boilers in the late 1970s at the Boise Cascade facility in Kettle Falls, Washington.

Trial began with four (4) defendants, including three (3) automotive friction product manufacturers and one (1) asbestos cement pipe supplier. Plaintiffs’ case focused, for over two (2) months, on the liability of both the pipe supplier and the friction products. First, plaintiffs focused on Mr. Coogan’s excavation work, arguing that Mr. Coogan was heavily exposed to both crocidolite and chrysotile asbestos by cutting and installing asbestos cement pipe. Second, plaintiffs focused on Mr. Coogan’s work with gaskets, brakes and clutches, urging the jury to find that Mr. Coogan’s repair work on both his heavy machinery and his hobby cars also exposed him to heavy amounts of chrysotile asbestos.

None of the defendants disputed that Mr. Coogan’s disease was asbestos related.  Each defendant argued, however, that the evidence in this case failed to demonstrate either: (1) that he actually worked with their products; or (2) that any work with their products was sufficient to cause Mr. Coogan’s mesothelioma based on varying issues specific to each defendant. Defendants in the suit also filed a motion in limine to preclude the use of “Reptile Tactics” by plaintiffs’ counsel in voir dire, opening statement, witness examination or in closing. This MIL was denied by the court, with the judge specifically noting that under Washington law “conscience of the community” was a perfectly acceptable argument. Plaintiffs’ counsel embraced “Reptile Tactics” throughout the trial, for example, telling the jury that “hundreds of thousands” of people are dying from asbestos-related diseases each year, and that small-town-folks, like the community of Kettle Falls and Mr. Coogan, were not getting the warnings they should have from any seller of asbestos-containing products. At one point in the trial, plaintiffs’ counsel went further, attacking a defense expert by implying that he did not want to protect children from water-borne toxins and telling the jury that first responders to the World Trade Center terrorist attacks are now contracting asbestosis and other asbestos-related diseases. She told jurors that asbestos is “an epidemic for our country” that affects not only the people who worked with it, but spouses and children who did their laundry, and people in  communities across the county that lived even hundreds of yards away from facilities that manufactured, sold or even used asbestos-containing materials.

Over the course of the trial, the defendants cross-examined plaintiffs’ experts and presented evidence regarding whether Mr. Coogan actually worked with any of their individual products; the scientific evidence concerning whether chrysotile could cause mesothelioma at low doses; whether chrysotile asbestos could cause peritoneal mesothelioma, at all; whether low doses of asbestos, in any form, could cause peritoneal mesothelioma; whether their respective warnings regarding potential hazards of asbestos were timely and sufficient. Three (3) out of the four (4) defendants, however, dropped out over the course of two and a half (2 ½) months, leaving GPC/NAPA as the sole defendant at the time of verdict. Moreover, and of great importance, Washington law apportions fault jointly and severally in asbestos cases, and the only name submitted to the jury on the verdict form was GPC/NAPA. No other potentially liable parties were listed for the jury to consider. After quite literally months of testimony regarding Mr. Coogan’s asbestos-related disease, the jury rendered a verdict in plaintiffs’ favor against the only defendant on the form for $81.5 million.

Take Aways

State-specific laws can be as damaging to a case as a bad set of facts. Would the jury have returned a verdict solely against GPC/NAPA had other parties been listed on the form?  Would the verdict have been the same had plaintiff’s counsel been prohibited from asking the jury to be the conscience of the community? Did the length of the trial have a significant effect on the amount of the verdict?

It is easy to play Monday-morning quarterback and point out rulings we believe the judge got wrong or why the jury may have believed one expert over another. We are continually learning, both through our own experiences, and when possible, from the experiences of others. However, one important lesson to be learned from comparing the verdicts in Hayden and Coogan is that to be effective trial attorneys, we must understand and anticipate the complicated interplay of all of these factors, and must communicate and counsel our clients on both the benefits and risks associated with trial.

lawjUSTICEBWThis month, attorneys working at Guantanamo Bay’s Camp Justice filed a lawsuit against the Department of Defense (Seeger et al v. U.S. Department of Defense et al, U.S. District Court, District of Columbia, No. 17-00639), in which they allege that they have been exposed to dangerously high levels of carcinogens from working in contaminated areas. The four attorneys, who include Army Major Matthew Seeger and three civilian attorneys, represent Walid Bin Attash, a Yemeni man charged with helping to plot the attacks of September 11, 2001.

The attorneys’ complaint alleges that various environmental hazards at the Guantanamo Bay Camp Justice complex have been linked to nine cases of cancer since 2008 among individuals who worked at the camp, and that the U.S. Navy has not properly investigated these conditions. The nine individuals range between the ages of 35 and 52, and their diagnosed illnesses have included lymphoma, colon, brain, and appendix cancer. Camp Justice is located on the site of a former airfield, and includes temporary housing units, as well as offices where the attorneys both live and work while at the camp. This former airfield was at one point allegedly used to dispose of jet fuel.

The complaint alleges that the attorneys first approached authorities with complaints in July, 2015 and requested an investigation into whether conditions at Camp Justice had contributed to several cancer cases among employees who worked at the camp. The suit further alleges that the U.S. Navy conducted a flawed investigation of the alleged environmental hazards, failing to determine what kind of a risk they posed to personnel and further failing to determine appropriate measures to remedy the situation.

The Navy’s preliminary investigation included an industrial hygiene and habitability survey of Camp Justice’s buildings where personnel live and work. The investigation documented the presence of multiple environmental hazards, including poorly-maintained asbestos-containing floor tile, lead-based paint chips, air samples that tested positive for mercury and formaldehyde, and soil samples that tested positive for benzopryene. All of these substances have been found to be carcinogenic. The Navy’s report acknowledged that their environmental and historical investigations were limited, but nevertheless found that there was insufficient evidence to address potential exposures to carcinogens. With that, they deemed the property’s buildings to be habitable. Additionally, following a review of military health records, they concluded that the number and types of cancer cases did not meet the Center for Disease Control’s definition of a “cancer cluster” and therefore did not warrant a formal cancer cluster investigation. These and additional findings were detailed in a risk assessment report published in February, 2016, which ultimately found that the potential cancer risk cannot be determined and identified the need for further sampling in response to the carcinogens documented during the investigation.

While none of the Plaintiffs have been diagnosed with cancer at this time, they allege that they face an increased risk of developing cancer or other serious diseases, and suffer from emotional distress, upper respiratory symptoms and infections, migraine headaches, itching and burning eyes and skin, and a lack of support in their professional duties because team members refuse to travel to Guantanamo Bay due to the potential health risks.

The complaint alleges that when hearings are held at Camp Justice, attorneys and support staff, including plaintiffs, are required to travel to the camp for a week or more at a time, several times throughout the year. They further opine that as their client’s trial approaches, it will become necessary for them to spend weeks at a time at the camp. When these teams must travel to the camp, they receive orders from the Convening Authority, assigning them to specific housing, but the Navy controls housing decisions at the Naval Station and can reject the Convening Authority’s requests for certain housing. Since their complaint was filed in 2015, Plaintiffs have consistently requested alternative housing, but have not been permanently reassigned to different housing units.

Three of the nine cancer patients referred to in the complaint have died, including Navy Lieutenant Commander Bill Kuebler, who was 44 years old when he passed away from cancer in July, 2015, just a few days after plaintiffs’ original complaints were made to superiors. The complaint notes that the cancer cases have occurred among young, otherwise healthy individuals who have worked at Camp Justice. The attorneys who filed the complaint are seeking an injunction that would require the Defense Department to provide accommodations that would protect them from the risks, both known and unknown of living and working at the camp. They request proper testing of the conditions at the camp and that they, in the meantime, be moved to safer housing units.