New wave of W.Va. asbestos cases thrive

CHARLESTON -- Last April, a single plaintiff filed an asbestos-related lawsuit against 50 different defendants in Kanawha Circuit Court.

While the case is just one of thousands similarly filed in asbestos dockets across the country, it is notable as it reflects the next wave of asbestos lawsuits, a wave that some believe will become even larger than tidal wave of lawsuits in the late 1990s that cost $54 billion in defense costs and judgments, according to a 2002 study by the RAND Institute for Civil Justice.

That same study estimates that the total cost of all asbestos claims could top $200 billion before it begins to slow, with as many as three million new cases being filed over the next 20 years. And West Virginia already is known as a jurisdiction with a large asbestos docket and as a friendly turf for plaintiffs.

The case filed by Wirt County residents Thomas and Thelma McCue alleges Thomas contracted a lethal lung disease working around asbestos for more than three decades as a laborer, maintenance worker and mechanic.

The 50 defendants arise from am emerging trend in asbestos litigation, premises liability cases that focus beyond a worker's employer. These lawsuits target property owners. As the McCue case targets his primary owner, General Plastics, it also lists dozens of other defendants that McCue had contact with over the course of his professional life.

"If a company has ever owned or occupied a building in which asbestos containing material was or is present, the asbestos plaintiffs' bar already may have targeted it as a potential defendant," a 2003 report in The Real Estate Finance Journal stated.

Where asbestos previously centered on hundreds of thousands of plaintiffs targeting a major asbestos manufacturing company, the new shift is single plaintiffs targeting a new slate of defendants whose association with asbestos is far less direct.

In some cases the defendant is discovered first, and then through advertising, plaintiffs are recruited to bring suit.

With more than 80 companies forced into bankruptcy under the weight of billions in asbestos lawsuits, new defendants are critical to the continued payment of lawsuit settlements or jury awards.

"Asbestos litigation now often ensnares defendants who did not make or sell anything that contained asbestos but who merely owned a facility where outside workers installed or encountered asbestos-containing building materials," a 2006 article in Los Angeles Lawyer stated.

Businesses that once never imagined being the target of an asbestos lawsuit are forced to settle claims for fear of a staggering jury verdict, like the 2003 premises liability case in New York, where a single plaintiff, Robert Croteau, was awarded $47 million from a slate of defendants, most of whom were property owners.

The Croteau case is credited for opening a wave of premises liability cases. But while some states have routinely tossed these cases out of court, they have proven fertile ground for plaintiff's attorneys in other states, most notably West Virginia, according to presenters at a recent conference on emerging trends in asbestos litigation.

A duty to safety

West Virginia's plaintiff-friendly juries and the prevalence of large industrial plants that used asbestos make it a state ripe for asbestos lawsuits. It's one of the contributing factors in the state being declared a judicial hellhole by the American Tort Reform Association's annual report.

The ARTA created the ranking of "America's most unfair jurisdictions in which to be sued," which has come out every year since 2002. West Virginia is a fixture on the list, "reclaiming the No. 1 ranking this year for its near perfect storm of anti-business rulings, massive lawsuits and cozy relationships between the personal injury bar, the state attorney general and some in the judiciary," the 2008 report states.

But plaintiff's attorney Anne McGinness Kearse challenged that notion saying, "We're a so-called hellhole but the hellhole is all the problems people are having from working in these plants."

Kearse, of the country's largest plaintiff's firm MotleyRice, was one of two presenters on the subject at the asbestos conference, held in early March at the Four Seasons Hotel in Beverly Hills, Calif. She was part of the groundbreaking premises liability case in against Union Carbide, which found the company failed to maintain safe working conditions at plants throughout West Virginia.

"West Virginia is very industrial," Kearse said, which leads to a large number of plaintiffs, and with premises liability, a growing number of defendants. "That asbestos is still used on these places is reflected in the amount of disease."

As the Real Estate Journal article points out, courts no longer designate between classes of people – invitees, special guests licenses, etc. -- on a given property.

"Today, most courts have abolished such distinctions in favor of a general standard of care that is owed to all lawful entrants: possessors of real property shall exercise reasonable care in maintaining their properties and warning of known hazards," the story stated.

Kearse explained premises liability focuses on exposure to those who came to a place where asbestos was present. This could include everybody from employees, to independent contactors to pizza delivery employees. One case example concerned a welder suing the property owner where he was contracted to work, even though he was exposed from welding blankets he himself brought on site.

"Plaintiffs' lawyers are actively recruiting boiler workers, plumbers and other individuals in building trades because the nature of their work typically brings them to the areas most likely to contain asbestos," the Real Estate Journal article states. "However, it is arguable such tradespeople are in a better position than building owners or tenants to recognize asbestos and avoid exposure."

Such argument is the bottom line in a premises liability case. Who know what and when is what will eventually decide who pays what to whom.

What was known and when it was known

A central aspect of premises liability is determining knowledge of the potential harm from asbestos, according to the presenters at the asbestos conference, specifically what was known about workplace safety over the years.

While defense attorneys often point to 1972, when OSHA issued protocols to be followed regarding asbestos exposure, Kearse said that premises can be challenged in court.

"There's a lot of information out before OHSA," Kearse said, starting with a report in 1937 that talk about safety policies related to asbestos.

"It was known and knowable how dangerous this was to work with," she said. "West Virginia had regulations in place since 1951, but it was rarely followed, if at all."

DuPont, a major plant in West Virginia, was "one of the companies that had early knowledge" of the harmful effects of exposure, Kearse said. One of DuPont's own documents, Kearse said, said "asbestos use is ubiquitous" at their location.

A DuPont report in 1964 documents in detail the safety hazards.

"It's ubiquitous," she said of many of the plants in West Virginia, "it's in the air, and even if you don't have an occupation working with it, you do have a chance at exposure."

Ironically, it is a recent case against DuPont brought in Kentucky that showed the dramatic difference in courts from state to state, even those bordering each other with cases filed against the same company.

In Lee v. DuPont, a Kentucky court said without physical aggression there is no deliberate intent to injure.

"You'd have to punch a guy in the face in Kentucky," Kearse said, in order to have a winnable premises liability case.

Kearse said a premises liability case has to meet five criteria: specific unsafe working conditions, defendant had knowledge of conditions, conditions were a violation of rules and regular industry standards, that the defendant exposed the plaintiff to an unsafe condition and that a serious injury resulted.

Defending a case in West Virginia

Atlanta-based defense attorney Scott Masterson also spoke about premises liability at the Beverly Hills asbestos conference.

"A premises liability case, especially a case in a place like West Virginia, is a pretty big challenge," he said. "But I think they are defensible."

Forming a defense sufficient to successfully trying a premises liability case is a long, expensive proposition, one that Masterson said, requires strength in several different areas.

A defense attorney must learn everything about the premises, including the relationship of the plaintiff to the defendant. What was the "duty" of the premises owner to protect the plaintiff? This involved knowing the premises "from the inside out," Masterson said, including the history of the building, the safety standards and protocols, the job descriptions of every employee and the work procedures for independent contractors.

The defense must ascertain "what the owner knew, when they knew it and should have known it," he said.

Again, the availability of safety information at the time a plaintiff was on the premises is a critical aspect of the case.

"I personally think before the 1960s plaintiffs are going to have a tough time in premises cases," Masterson said.

Finally, Masterson said, "a good expert" is critical.

But beyond the technical information, Masterson said, a human element remains.

"I think it's healthy to think about the motives these employers had for hurting their employees," he said. Property owners lived in the same towns, attended the same churches, were involved in the same civic events as their employees, he said.