Friable Thoughts

Monday, April 14, 2008

Anti-asbestos drug could prevent harmful effects

There may be a treatment to prevent an asbestos illness. It appears asbestosis creates a protein similar to the one related to gout. The theory is that a treatment for gout that inhibits that protein may work to protect folks from asbestosis. The proposed treatment won't cure an asbestos-related illness but might might prevent someone exposed from getting ill. As with many new drugs, the jury's still out but it might be worth asking about if you worked around asbestos containing materials.

Wednesday, April 09, 2008

Identifying an Asbestos-Containing Product for Summary Judgment

Since most instances of asbestos exposure occurred many years ago, it's almost impossible to test the actual material a plaintiff was exposed to in order to determine if it had asbestos. Thus, it falls to the plaintiff's own testimony and those of co-workers. So, to what extent can a lay witness testify that a product he saw actually had asbestos?

out of the Pennsylvania Court of Common Pleas limits how much a witness in the construction trade can do just that. Here, a plumber testified he believed the pipe insulation he encountered contained asbestos because of the age, appearance and application. However, since he wasn't trained to spot asbestos-containing insulation, that wasn't good enough to raise a triable issue to survive a summary judgment.

Suffice to say, if the plaintiff testified about plumbing products, it probably would have been admissible and survived summary judgment. I suspect it would be simple to retain an expert to review such testimony and render an opinion sufficient to survive a speculation objection at least for summary judgment.

Monday, April 07, 2008

Sophisticated User Defense Applies to Product Liability Claims in California

The California Supreme Court put a possible crimp into the plaintiff's bar with the JOHNSON v. AM. STANDARD, INC., last week, holding that a sophisticated user defense applies to product liability actions. While Johnson is not an asbestos case, the potential application could remove the lowest hanging fruit in asbestos cases. If, for example, insulators are sophisticated users of insulation, then they would have a hard time recovering against an insulation manufacturer or supplier.

Of course, the real test is how lower courts in California will interpret and apply Johnson.
Given that plaintiff's lawyers tend to file cases in venues they find favorable, the lower courts will probably interpret Johnson narrowly until someone files an appeal.

Wednesday, April 02, 2008

Products Still Need to Contain Asbestos... have an asbestos-related product liability claim. Plaintiff's lawyers have pushed a failure to warn theory to make manufacturers liable for another defendant's asbestos-containing products especially if that other defendant's asbestos-containing product is a replacement part. The claim is also popular if someone insulates a defendant's otherwise asbestos free product. However, you still need to show there was some asbestos-containing product used in, on, or next to a product. Something the plaintiff's were unable to show in IANNUCCI v. CLEAVER-BROOKS, INC., out in Pennsylvania. What a strange concept, at least to some plaintiff's lawyers.