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Trying an asbestos case today is quite different than when
we first began working on asbestos cases back in the mid 1980s.
Changes in Target Defendants
Most front-line defendants of twenty years ago, primary asbestos producers
like Johns-Manville, are bankrupt and gone. Peripheral defendants, many
with low dose products like gaskets, valves and asbestos-reinforced building
materials, are now target defendants. Companies that used asbestos products
in their workplaces are also being targeted in premises liability cases
that place the burden of safe handling and protecting and warning workers
on the end user. In addition, the job sites, job categories and exposure
levels of the plaintiffs have changed. We are seeing more mesothelioma plaintiffs
and more plaintiffs with only sporadic exposure or long term low dose exposure.
Evolution in Juror Attitudes
Juror attitudes about asbestos, lawsuits and corporate knowledge have also
evolved. Most jurors have gotten the message that asbestos is dangerous.
Many come to trial believing that even a single fiber of asbestos can cause
disease. Workers in industrial jobs are much better informed about workplace
hazards in general and bring greater safety-consciousness to the jury room.
Some have high levels of anxiety about exposure to asbestos.
Jurors, however, do not understand sophisticated
medical debates about causation and are not educated about the dose-response
issues involved in asbestos disease. These predispositions give the plaintiffs
an advantage. On the other hand, many jurors are skeptical of plaintiffs
who target peripheral defendants. They want to see unequivocal and concrete
evidence linking the defendant to the specific products that are said to
have caused the plaintiffs’ disease. Jurors are also better informed
about the dangers of cigarette smoking and want to know about plaintiffs’
smoking histories.
Trends in Punitive Damage Awards
The issue of punitive damages remains challenging for defendants, but jurors
appear to be more open to defense arguments than they were in the past.
We have watched this trend progress in a series of asbestos cases tried
in recent years in various venues in Texas and California.
Our Experience
Trial Behavior has more experience consulting on asbestos cases than any
other trial consulting firm in the country. From early 1986 to 1988, we
served as the consultants for the Asbestos Claims Facility, a coordinating
organization that oversaw the joint defense activities for a large number
of asbestos companies. In this capacity, we went to trial approximately
one hundred and fifty times and conducted mock trials on all case-related
issues and defenses. TBC also designed numerous questionnaires, helped select
juries and conducted post-trial interviews with more than one thousand jurors.
We have continued to be involved in many asbestos cases nationally since
then. In the past year alone, we have been involved in eight asbestos cases.
Our experience in trying asbestos cases and
the data we have collected on juror attitudes in venues around the country
have applications in other areas of toxic tort litigation, including chemical
toxins and pesticide exposure, mold remediation, and "sick building
syndrome."
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