Defending the Wire and Cable Asbestos Cases

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1 Defending the Wire and Cable Asbestos Cases Ollie M. Harton Hawkins Parnell Thackston & Young LLP 303 Peachtree St NE Atlanta, GA William J. Donovan Burns White LLC 106 Isabella St 4 Northshore Ctr Pittsburgh, PA Julie E. Goodman, Ph.D. Gradient 20 University Rd Cambridge, MA 02138

2 Ollie M. Harton is a partner at Hawkins Parnell Thackston & Young LLP, based in Atlanta. Ollie Harton has tried toxic tort cases from Boston to Miami to Los Angeles and Portland. He has managed thousands of cases for multiple clients across the nation, serving as national counsel, regional counsel, and local counsel. In 2014, Ollie tried several cases for clients across the country which resulted in either the dismissal of the client during trial or defense verdicts. All of these claims were wrongful death, toxic tort cases where the plaintiffs were seeking millions of dollars. William J. Donovan is a partner at Burns White LLC focusing his practice in products liability, toxic tort, insurance defense litigation and work before the Pennsylvania Public Utility Commission. Additionally, he serves as National Coordinating Counsel for multiple clients in asbestos litigation. Julie E. Goodman, Ph.D., DABT, is an expert in the toxicology, epidemiology and risk assessment of chemicals in the environment and in consumer products. She directs Gradient Corporation s epidemiology practice and is an adjunct faculty member of epidemiology at the Harvard School of Public Health. Dr. Goodman has published two comprehensive weight-of-evidence reviews, several commentaries and a book chapter on bisphenol A (BPA). She has also testified before a number of state legislative committees regarding potential BPA restrictions.

3 Defending the Wire and Cable Asbestos Cases Table of Contents I. The Big Picture A. Developing and Implementing the Litigation Strategy II. Hard Questions III. Trial Decision IV. Wire and Cable Testing V. Factual Plaintiff Depositions Getting the Truth VI. Conclusion Defending the Wire and Cable Asbestos Cases Harton et al. 883

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5 Defending the Wire and Cable Asbestos Cases Wire and cable defendants and sellers of electrical products are being pursued in asbestos litigation with greater frequency now than ever in the past. Additional tests of electrical products have been done by the various plaintiffs testing experts to try and assist making viable claims against various electrical products. As the electrical products become more of a focus of plaintiffs claims, properly defending these cases becomes more difficult. The purpose of this break-out session is to discuss areas of interest for anyone representing an electrical component manufacturer. I. The Big Picture A. Developing and Implementing the Litigation Strategy The biggest decision to make is when to settle the case and when not to settle. To effectively settle or try a case, preparation is needed. But every company will have a different story and need individual attention to properly assess which cases to try and which cases to settle. This trial versus settlement strategy will focus on the ability of a defendant to know what they made, when they made it, where they made it, what was used in it, and how it was manufactured. If a defendant can answer these questions and prove compliance with UL, National Electric Codes, CAS, mil spec and other standards, this will reduce settlement values and improve your chances at trial. This requires someone who has knowledge of these facts from the corporation. Finding this individual is difficult. Employees do not remain with companies for 30 or 40 years. People travel from job site to job site, and company to company. You should ask, can you educate someone based upon records that they have, prior testimony, and discovery responses to make this presentation in depositions or trial? Companies have 30(b) (6) responsibilities to make knowledgeable individuals available for depositions. Educating a corporate witness is mandatory. As the litigation has moved forward, more and more of the plaintiffs are taking videotaped depositions of all of the corporate representatives seeking their soundbites that they can play in their case-in-chief. Demands for 30(b)(6) witness depositions are routinely made in the litigation by most plaintiffs lawyers. Anyone who wants to try and reduce settlement amounts or try cases will have to have a corporate representative. Spend the time to find or make yours. With a good corporate story and with a good corporate witness, you can effectively change settlement amounts and trial strategy in these cases. Without these, it would be very difficult to properly try a case or get to trial. II. Hard Questions I have seen power point presentations that have been put together by plaintiffs lawyers where they have 20 or 30 questions that they use during their videotape evidentiary depositions of your corporate representative. They ask the when did you stop beating your wife questions. I have included four of these types of questions every defendant will have to answer. To effectively be able to move forward in the litigation to better settlement values and fewer cases, these questions have to be answered. The questions are: 1. When did Python wire and cable become aware of the hazards of asbestos? 2. Did Python ever put labels on the products to warn any users of the presence of asbestos in its wire and cable? Defending the Wire and Cable Asbestos Cases Harton et al. 885

6 3. Did Python ever perform any tests to determine if there was fiber release from its asbestos-containing products? 4. If Python never performed tests to quantify any potential risk of exposure to asbestos to the end user, how could the company know that its products were safe for Mr. Reed to use? These are the hard questions that must be answered by the corporate representative. These are the hard questions that they will receive from plaintiffs counsel, and properly prepared, these questions can be handled. III. Trial Decision Do you feel lucky? Can you handle the truth? The only people that want to try the case are the lawyers. No client wants the risk of a trial. But sometimes there are cases that have to be tried. Time needs to be spent with the clients to let them understand the risks of trial and the risks of settlement. Properly informed, we? think clients will be willing to attempt to try a case and be able to accept the potential for adverse verdicts in an individual case if the overall litigation strategy will lead to fewer cases and lower settlements. Having to answer and handle fewer claims and getting more dismissals or lower settlements is what everyone wants. IV. Wire and Cable Testing Over the last 20 years, there have been numerous tests of asbestos-containing wire and cable for fiber release. The first test was performed by Dr. Argento, and follow-up tests were done by Drs. LaBauff, Mueller, Millett and Charlie Blake. There were approximately 10 or 12 tests done in the 1990 through 2006 timeframe that are all in the range of fibers per cc. Both Dr. Millett and Dr. LaBauff tested asbestos-containing wire for different plaintiffs firms. Their test results are in the same range as all of the other test results performed by industrial hygienists for the defendants. In the 21 st century, there have been additional tests performed by MAS. On four occasions in 2008, 2010, 2012, and 2013, Dr. Longo tested various types of asbestos-containing wire and cable. These tests involved cutting, striping and pulling wire and cable. In all four of his tests, Dr. Longo found no asbestos fibers. Dr. Longo has been deposed regarding his tests of asbestos-containing wire and cable on at least two occasions. In those depositions, Dr. Longo has testified that there is no significant fiber release from cutting, striping and pulling asbestos-containing wire. This is caused by the encapsulation and impregnation of asbestos fibers into the normal commercial available wires. The reason for the lack of asbestos fibers found his tests was the lacquer impregnated coating inhibits the release of air-borne asbestos fibers. In the 21 st century, the low to no levels of exposure created by using asbestos-containing wire and cable is a fact that all testifying experts have agreed is true. This type of data is useful in deposing many experts on the medical side on the plaintiffs case. If a product does not release asbestos fibers, how can that product cause any asbestos-related disease? V. Factual Plaintiff Depositions Getting the Truth One area of benefit in defending a wire and cable defendant is the truth in how these products are used. Unlike other products and tests that have been done, there is no sanding, grinding, filing, beveling, mixing, blowing out, or sawing of wire and cable. At a basic factual level, electricians rarely cut and strip the wire and cable. Proving the impregnation and encapsulation of wire and cable is relatively easy. Everyone understands that if the wire and cable is not absolutely, totally saturated and encapsulated, electrical hazards like 886 Asbestos Medicine November 2014

7 electrocution exist. Since wire and cable is intended to last for decades, and tests of old wire have shown no fiber release, the impregnation and encapsulation is true. Though jurors may not understand fibers per cc, structures per cc, fiber cc years, or EPA, OSHA, and NIOSH regulations, they will understand that every piece of wire or cable that was ever installed had a totally encapsulated outer jacket and people rarely ever cut or striped. These facts, and others, should be developed in every deposition of anyone suing a wire and cable manufacturer. The story goes one of two ways. Either the person agrees with the statements that were made or the person admits they never really worked as an electrician. VI. Conclusion Defending wire and cable cases and companies who made wire and cable with asbestos has been a portion of my job for over 20 years. Trying these cases all over the country has been one of the benefits of representing a wire and cable manufacturer. With proper preparation of the fact witness and corporate witnesses, fitting in the industrial hygiene and medical testimony allows lawyers to effectively represent wire and cable manufacturers and defend their products. Defending the Wire and Cable Asbestos Cases Harton et al. 887

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