Mesothelioma trial lawyers from LPK defeated a motion by a ship owner defendant for the dismissal of a case involving a Merchant Marine Engineer who died of mesothelioma due to Asbestos exposure in New York. The plaintiff died during his deposition, a fact that the defendant claimed made it impossible to prove that he was exposed to asbestos onboard their ships. Attorney Holly C. Peterson successfully argued that enough evidence existed against the owner of two merchant vessels to submit the plaintiff's case to a jury. The court found that the documentation in the record constituted overwhelming evidence of the plaintiff's service as a marine engineer onboard the subject ships. Further, the court declined to bar the plaintiff's deposition testimony, although the defendant argued that it was inadmissible.
Although most employers are immune from law suit under state Worker's Compensation laws, federal law, specifically the Jones Act, provides a means for seaman to sue their employer for damages due to negligence as well as exposing workers to vessels that are not seaworthy.
Defendant Victory Real Estate Development, the successor owner of the Jefferson City Victory and the Mount Vernon Victory, argued that because the plaintiff passed away after several days of questioning, but prior to Victory's turn to cross-examine him, the testimony could not be used against the defendant at the trial. The defendant maintained that without this testimony, there was no evidence that they were liable for the plaintiff's
Asbestos exposure in New York. The defendant initially filed this motion seeking to be dismissed from the case prior to the close of the discovery period. The Court agreed with the plaintiff and found the defendant's initial filing premature. Accordingly, the Court refused to hear the matter before the parties had an opportunity to obtain all evidence.
Arguing before Justice Helen Freedman of the New York Supreme Court, Ms. Peterson convinced the Court that the plaintiff's Coast Guard Discharge Slips and other documentation pertaining to the subject ships were enough to prove that the plaintiff, a career Merchant Marine Engineer, served in that capacity onboard those ships. Ms. Peterson further argued in her brief and before the Court that because the plaintiff's deposition was unnecessarily extended due to what she characterized as harassing, repetitive, and irrelevant questioning while the plaintiff was in the final throes of
mesothelioma cancer, defendants should not benefit as a result of the plaintiff's death following several days of testimony. The mere inference of bad faith conduct on the part of defendant, she argued, was sufficient under the law to permit plaintiff's testimony (in which he described his Asbestos exposure onboard these ships in New York) to be read to the jury. Finally, the plaintiff presented the affidavit of a former Coast Guard Officer and Senior Investigating Officer to describe the duties of a marine engineer and the likelihood of his exposure to Asbestos onboard the Jefferson City Victory and the Mount Vernon Victory. Specifically, the plaintiff's expert explained that a marine engineer was necessarily exposed to Asbestos in the engine and boiler rooms of ships; namely, from the boilers, turbines, reduction gears, gaskets, pumps, valves, and valve packing, among others. In an environment such as this, the expert opined, it was virtually impossible for the plaintiff to avoid breathing in Asbestos.
Justice Freedman, who presides over all
Asbestos law suits filed in New York City, agreed with Ms. Peterson and found that the plaintiff presented enough evidence to proceed to trial.
Defense firms frequently file motions for summary judgments, which, if granted, allow their clients to walk away from a law suit. Many times these motions are premature, that is they are filed before the plaintiff has had an opportunity to gather the evidence to which they are entitled. Others involve complex and often novel issues of law, which must be researched, briefed, and argued in open court. The
mesothelioma trial lawyers of LPK strive to hold all parties responsible whom have played a role in a plaintiff's Asbestos exposure.
