Pandemic Weaponized by Asbestos Companies to Delay/Deny Justice

For asbestos cancer patients who seek legal redress against asbestos companies, time is of the essence.

An unexpected cancer diagnosis has produced an avalanche of out-of-pocket costs. For those who were working, a vital income stream has been cut off. Even in states where preference is given to patients with life-threatening cancer, it takes at least nine months from the time a case is filed until it goes to trial. In other states it can take two or more years.

In most cases, the patient is the best, and often the only, source of evidence of exposure from defendants’ asbestos products. If the patient is unable to testify at trial or a trial preservation deposition, the case is substantially weakened and may be dismissed.

In most states, if the patient does not survive until completion of trial, damages for the physical pain and mental anguish he or she experienced, often the largest component of damages in the case, are not recoverable.

For asbestos cancer patients who seek legal redress against asbestos companies, delay is their worst enemy. For asbestos companies, delay is often their most powerful weapon.

It comes as little surprise that asbestos company lawyers have “weaponized” the COVID-19 pandemic to seek strategic advantages in asbestos cancer cases. The tactics we have encountered include:

• Refusing to accept service of process by mail, knowing that process servers will have difficulty effectuating personal service at corporate offices that are closed;

• Interfering with trial preservation depositions by such means as: a) asserting that the deposition, even when taken via videoconference, is violative of stay at home orders and inadmissible, b) attempting to prevent us from being physically present with the patient even when wearing a mask and observing appropriate distancing, and c) bringing a motion that halts the deposition before completion, knowing it will take weeks or months for a court to issue a ruling;

• Resisting efforts by courts to conduct jury trials with appropriate distancing by such means as: a) asserting that prospective jurors wearing masks during in-person jury selection is violative of an asbestos company’s constitutional due process rights, and b) asserting that jury selection conducted via videoconference likewise violates the company’s due process rights;

Fortunately, when brought to the attention of trial and appellate court judges, these tactics have been mostly met with blistering disapproval.

However, the reality is that extended closures, backlogged cases, a flood of new cases, and comprehensive health and safety protocols will drastically limit the capabilities of courts for the foreseeable future. Delays are inevitable. So too are asbestos company lawyers’ efforts to extend and capitalize on these delays in every way imaginable.

We will confront this new “pandemic reality” by aggressively prosecuting our clients’ claims, exposing and combating defense tactics, and preventing systematic delays from denying justice to our clients.