Asbestos Exposure: Proving your Case When There are Multiple Defendants

According to a 2004 decision of the Louisiana Court of Appeals, the survivors of a New Orleans longshoreman will not be able to recover damages from corporate defendants Buck Kreihs and Dixie Machine. The Plaintiff, Mr. Vodanovich, worked as a longshoreman from 1948 to 1986. Part of his job was to load and unload asbestos cargo at several wharves along the Mississippi. It was at this job that he sometimes worked alongside the defendants employees who performed maintenance on the same ships.

Vodanovich was diagnosed with malignant mesothelioma in 2001. He died in 2002. Prior to his death he brought a lawsuit against Buck Kreihs and Dixie Machine. The defendants were granted summary judgment in 2003 when a trial court found that there was no issue of material fact as to whether or not the defendant’s actions led to the plaintiff’s exposure to asbestos and caused his death. On appeal, the Fourth Circuit Court of Appeals agreed with the trial court and affirmed the defendants’ summary judgment motion.

Summary judgment is proper when the pleadings, depositions, answers, admissions, and affidavits on file in a case show no issues of material fact to be decided by a jury. As such the moving party is entitled to judgment as a matter of law. Summary judgment effectively dismisses the case of a party that, according to the court, will not be able to prove their burden if the case to go to trial.

In an asbestos case it is the responsibility of the plaintiff to show that it is more likely than not that he was exposed to asbestos from the defendant’s products. If the injury resulted from multiple causes (the plaintiff was exposed to asbestos from many different sources) the defendant’s conduct must be a cause in fact of the injury. According to the Louisiana Court of Appeals in Quick v. Murphy Oil Co., this requires that the defendant’s conduct was a substantial factor in the harm.
In another case, the Louisiana Supreme Court clarified what cause in fact/substantial factor means when they found that negligent conduct would be a substantial factor if the harm would not have occurred without the defendant’s conduct.

If, as in this case, there are multiple defendants, and the plaintiff’s injury did not manifest for a long time (e.g. the person is diagnosed years after asbestos exposure), that does not change the fact that the plaintiff must still prove that the defendant’s products contributed to their injury. The bottom line is that the plaintiff must prove he had significant exposure to asbestos that came from the defendant or he will not be successful.

Proving exposure can be very difficult. Here, the court found that the mere fact that the plaintiff loaded and unloaded ships at various wharves in New Orleans, and the defendants employees repaired vessels at various wharves in the same city, was insufficient because the plaintiff could not identify the specific details of the defendant’s activities that related to asbestos exposure. Even in the plaintiff’s testimony he was unable to point to any specific instances where the defendant’s activities caused him to be exposed to asbestos fibers.

If you or a loved one has been diagnosed with mesothelioma and you believe you may have contracted the disease while at work it is important that you and your attorney carefully consider the question of whether to bring a claim and who to bring the claim/s against. If you have been exposed to asbestos from multiple sources you must be able to pinpoint the instances of exposure and how they related to the defendant’s activity in order to satisfy the substantial factor standard outlined above. This may require your attorney to conduct an intense factual investigation, employing one or more expert witnesses as necessary. Representation by a top notch attorney with much mesothelioma/asbestos case experience can mean the difference between a win and a dismissal before the case goes to trial.