Ethics, Opinions and Discovery Abuse
in Asbestos Litigation
Cutting-Edge Issues in Asbestos Litigation - Perrin Conference
Anne McGinness Kearse, Motley Rice LLC
PLAINTIFFS
COUNSEL
DEFENSE
COUNSEL
ADVOCATES
ACADEMICS
JUDGES
IN HOUSE
COUNSEL
EXPERTS
CARRIERS
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Asbestos Litigation – Another High Stake
Game of Poker?
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What we are dealing with:
 Latency – may be up to 10-60 years from the first exposure;
 Multiplicity of products manufactured
 Large number of users of ACP
 Different types of exposures
 Number of premises where exposures occurred
 A pool of defendants reported to be over 8500
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Mastering the Art of Discovery Abuse
Although the courts in mass tort actions usually control discovery
so as to avoid excessive delay or “foot-dragging,” some defense
counsel have mastered that art. They delay producing relevant
documents, particularly those relating to corporate succession or
asset purchase agreements until just before trial. Some defendants
wait until the last minute before trial to settle, hoping to get a better
deal and possibly to increase billable hours. These practices
always pose challenges to judges managing asbestos cases.
Judge Helen Freidman. Selected Ethical Issues in Asbestos Litigation 2008
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What is Transparency?
Transparency implies:
• Openness
• Communication
• Accountability
Webster’s defines
transparency as:
Honest and Open:
Not secretive
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What is Transparency? It’s about . . . .
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Being open and honest and not secretive
What products they sold that contained asbestos;
Where they sold it;
What they knew about the hazards associated with it;
And what they did when they found out about the
hazards;
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Wrong decisions
 What can happen if
bad choices are
made?
 You maybe lead
down the wrong
road to sanctions or
ethical violations.
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What types of discovery abuse do we see?
 Providing false information that the company did not sell a product to the
site;
 Providing false information that the product did not contain asbestos;
 Relying on a corporate representative with no knowledge who provides
inaccurate and incomplete answers to legitimate discovery requests;
 Coaching of corporate representatives
 Spoliation of evidence
 Non disclosure of litigation driven science
 Improper removal to Federal Court
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Discovery abuse can result in:
Fines and costs
The striking of witnesses
Affirmative defenses and medical defenses may be struck
May not be able to argue their product did not contain asbestos
Irrebuttable presumption that the Plaintiff was exposed to companies product
Instruction to jury to presume that the records destroyed would have been
harmful to the company
 Full disclosure to the Jury of improper attempts to manipulate science
 Allow the matters raised in sanctions hearings be presented in trial for claims
for punitives
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What is GOOD for the GOOSE is
GOOD for the GANDER.
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Deposition of Ralph Wyatt – a very
prepared witness:
Q. Mr. Wyatt, what is your understanding of why you are here
today for your deposition
A. I am supposed to tell what happened at the Grizzly
Manufacturing Company as far as asbestos breakdown and use of
asbestos.
Wyatt worked 34 years at the Paulding Ohio plant where they made
brake lining and clutch facings. Grizzly Manufacturing first owned
the plant then in the 1950’s it was purchased by Maremont Corp.
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Deposition of Ralph Wyatt – a very
prepared witness:
He testified they got all their asbestos from Thetford Mines in Quebec, Canada, Vermont
Asbestos Corp, He testified that there was only one type of asbestos used for brakelinging.
Q. Are you familiar with different types of commercial asbestos fiber?
A. Only the one that we use is the only one, the only one I know anything about.
Q. Does that mean that you believe or understand that there is only one type of asbestos fiber
or are there others?
A. There is only one we used for brake lining.
Q. What was that?
A. Chrystal White is the type.
A. Chrystal White – is that what you said? Yeah
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Deposition of Ralph Wyatt – a very
prepared witness:
Q.
Chrystal White asbestos.
A.
Had its name on the bag.
Q. Do you recall the grade that
was being used?
A.
Q.
A.
How did the bags arrive?
In hundred pound bags.
Q. Can you tell me anything else about
the bags? Any other writing on there?
A.
A 5R, 6R, and 7R
Q. Do you know what that
means?
A. The only thing that I know is it
was the length of the fiber.
It had the grade of the asbestos.
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Deposition of Ralph Wyatt – a very
prepared witness:
Q. Do you know what the lengths of the
fibers you were dealing with were?
A. Not specifically the length. They were
considered a short fiber.
A. In the industry, the brake line
industry, everything that was used
was considered short fiber. But the
length of those fibers could vary.
Q.
Q. What is your definition of a short
fiber?
A.
Short, about a half inch, thereabouts.
Q. If the fiber was longer than a half
inch, would that be considered a long
fiber?
Okay
A. But basically they were
somewhere in the neighborhood of
a half inch.
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Some Key Decisions
Cincinnati Bd. of Educ. v. Armstrong World Indus., Inc., 1992 WL 314206 (Ohio Ct. App. Oct. 28, 1992)
Skepnek v. Mynatt, 8 S.W.3d 377 (Tex. App. El Paso 1999)
Hutcheson v. Shell Wood River Refining Co. et al., 99-L 450 (Ill. 3rd Jud. Cir. Ct. Madison Cnty., May 20, 2000)
Garzee v. John Crane, Inc., 01-L-201 (Ill. 10th Jud. Cir. Ct. Peoria Cnty., Feb. 17, 2004)
Chamberlain v. John Crane, Inc., 03-L-202 (Ill. 11th Jud. Cir. Ct. McLean Cnty., Nov. 8, 2005)
R.T. Vanderbilt Co. v. Franklin, 290 S.W.3d 654 (Ky. Ct. App. 2009)
Williams v. BASF Catalysts LLC, 2012 WL 6204182 (D.N.J. Dec. 12, 2012)
Morvant v. Asbestos Corp. Ltd., 2013 WL 5960817 (E.D. La. Nov. 6, 2013)
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Truth
When in doubt tell the truth.
- Mark Twain
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It’s not what say that
matters, it’s what you do.
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Cheers!
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Get your facts first, and then
you can distort them as much
as you please.
- Mark Twain
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“if you tell the truth
You don’t have to
remember anything.”
- Mark Twain
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