Asbestos

In April 2009, the United States Center for Disease Control and Prevention (CDC) issued a report on mortality related to mesothelioma, a fatal cancer primarily associated with exposure to asbestos. The report indicated the number of malignant mesothelioma deaths is continuing to increase each year despite the ban since 1982 on most uses of asbestos. Given the long latency period for asbestos-related disease, the CDC estimates the number of mesothelioma deaths will continue to rise for a short time before beginning a slow decline.

Wheeler Trigg O'Donnell partner John Fitzpatrick sees a corollary rise in the number of liability lawsuits being filed by plaintiffs' attorneys on behalf of those who have developed malignant mesothelioma.

Considering the number of cases tried, the caliber of clients represented, and the favorable results obtained, it's safe to say that Wheeler Trigg O'Donnell has one of the top national trial teams defending companies against personal injury and product liability tort claims related to asbestos exposure. WTO has been called the go-to trial defense firm in the asbestos world, especially when the situation looks bleak and time is running out.

WTO lawyers had been handling asbestos-related claims for years, when the firm's practice in this area mushroomed with the addition in 2007 of John Fitzpatrick and Rick Nadolink, partners at a Virginia law firm who had built a substantial national asbestos litigation practice representing major corporations like General Electric, Foster Wheeler, and Dana Corporation.

WTO lawyers have spoken at several Defense Research Institute asbestos conferences on topics including: the Navy's state-of-the-art knowledge and why warnings are irrelevant in Navy cases; how to prepare for and defend depositions of corporate representatives; why plaintiffs' post-OSHA failure to warn claims should always fail; and how to defeat plaintiffs' claims that every exposure to asbestos contributed to the development of mesothelioma.

WTO has a comprehensive asbestos trial and coordinating counsel team that is ready to travel anywhere in the country to coordinate litigation and take challenging cases to verdict.

Below is a sample of recent case activity:

  • Dana LLC (November 2013, Philadelphia, PA) – Brought in just three weeks before jury selection, Fitz obtained a defense verdict in a two-week asbestos trial that involved the death of a 59-year-old policeman who alleged exposure to automotive gaskets while being a "shade tree" mechanic. Fitz used two key documents uncovered in discovery to implicate an alternate source of asbestos at the factory where the plaintiff had worked in the early 1970s. The client, the sole remaining defendant in the case after the other defendants had settled, was thrilled when the jury delivered a complete defense verdict following just 15 minutes of deliberations.
  • General Electric (June 2011, Philadelphia, PA) – WTO obtained a favorable settlement in an asbestos exposure case involving a 56-year-old electrician who alleged exposure to asbestos contained in GE products during a lifetime of work in shipyards and power plants. The case against multiple defendants was tried under a reverse bifurcation order – a unique system where a jury first determines damages for the wrongful death claim along with pain and suffering. The defense is not permitted to present any liability defense until Phase 2 starts. After a specific demand of three million dollars in Phase 1, GE settled for less than a quarter-share of the $300,000 Phase 1 jury verdict.
  • General Electric (August – September 2009, Cook County, IL). WTO obtained a defense jury verdict in one of the first asbestos cases heard in Cook County, Illinois, a traditionally plaintiff-friendly jurisdiction, since the Nolen (i.e., post Lipke) decision. The WTO trial team argued that GE was not liable and did not have a duty to warn of the risk of exposure to asbestos-containing insulation that was made by another company and used to insulate six power plant land turbines manufactured by GE. The jury was out approximately 30 minutes following a two-week trial.
  • Leslie Controls (April 2009, Los Angeles, CA). WTO obtained a defense jury verdict for Leslie Controls, the sole remaining defendant at trial after the other original defendants reached pre-trial settlements with the plaintiff. After two weeks of trial, a jury deliberated for less than 20 minutes before deciding that Leslie Controls was not liable for the plaintiff's mesothelioma. The case involved an exposure on a Navy vessel. WTO argued that Leslie Controls had no duty to warn the Navy, and that any exposure that may have caused the mesothelioma came from the external insulation and not the copper-clad gaskets inside Leslie Control's valves.
  • Foster Wheeler (May 2008, Cleveland, OH). WTO represented Foster Wheeler against allegations that exposure to asbestos on and in its boilers installed aboard a Navy ship in the 1960s was the cause of plaintiff's mesothelioma. The three-week trial resulted in a defense-leaning hung jury, and the case was later dismissed without retrial.
  • Foster Wheeler (February 2008, Los Angeles, CA). WTO obtained a judgment from a Los Angeles judge notwithstanding the jury verdict following a three-week trial. A deeply divided jury ultimately found in favor of the plaintiff – who was dying of mesothelioma – after several days of deliberations, and found Foster Wheeler 5% at fault.  During post-trial motions, WTO successfully argued that Foster Wheeler could not be held liable as a matter of law for not warning a sophisticated employer like Exxon Mobil, given that the documents introduced at trial showed Exxon Mobil already had substantial knowledge about the dangers of asbestos, and a lack of additional warnings by Foster Wheeler therefore did not cause plaintiff's disease.
  • Foster Wheeler (March 2008, Iowa City, IA;). While the jury in the case described above was deliberating, Rick Nadolink was in Iowa in the middle of another mesothelioma trial for Foster Wheeler - the first asbestos case tried to verdict in Iowa in over 10 years. Upon finishing in Los Angeles, Fitz immediately flew to Iowa where he and Rick together concluded this case with a 20-minute defense verdict. The case involved another Navy boiler technician with confirmed mesothelioma and alleged exposures to Foster Wheeler marine boilers. WTO obtained a defense verdict after two weeks of trial.
  • Foster Wheeler (June 2007, Boston, MA). WTO won a defense verdict after six weeks of trial in a living mesothelioma case, the first case tried to verdict in Boston in at least 10 years. This case again involved alleged 1960s exposure to Foster Wheeler marine boilers on a Navy warship.  WTO successfully argued to the jury that a warning was not only unnecessary given the Navy's state-of-the-art knowledge of asbestos, but also that a warning would not have changed what the Navy did or ordered the plaintiff to do aboard ship.
  • Foster Wheeler (June 2006, Los Angeles, CA). The same day a settlement was reached during trial of a different case, Fitz was asked to take over the defense of a living mesothelioma case that was simultaneously in jury selection in the same courthouse. After three weeks of trial, he obtained the first defense verdict for Foster Wheeler in California.
  • General Electric (June 2005, Madison County, IL). Fitz obtained the first defense verdict for GE in an asbestos case in the jurisdiction voted the "#1 judicial hellhole" for corporate America. It was the first asbestos case tried to verdict for GE in 15 years. 
Attorneys Representative Clients
  • Dana Corporation - National Trial Counsel
  • Foster Wheeler - National Trial Counsel
  • General Electric - National Trial Counsel
  • Velan - National Trial Counsel