For workers who have fallen ill due to on-the-job asbestos exposure, time is of the essence. Although mesothelioma, caused by breathing asbestos fibers, may not surface until many years later, it’s a terminal cancer that progresses rapidly. It may be possible for workers and/or their families to file claims for workers’ compensation (including death benefits) from an employer, as well as a product liability lawsuit against the makers of the products that caused exposure.

oldboilerroomHowever, our Sarasota work injury attorneys recognize these cases have to be handled swiftly and carefully. If at all possible, testimony from the worker should be derived as soon as possible. Otherwise, the opportunity might be lost and both cases compromised. A first-hand account of how exposure occurred can be a powerful piece of evidence.

But as a case before the Ohio Supreme Court recently showed, courts are reticent to allow plaintiff testimony in one case to be used in another, unless defendants in both have virtually the same goal. In Burkhart v. H.J. Heinz Co., the widowed plaintiff asserted this was the case in both a workers’ compensation action and a simultaneously occurring product liability lawsuit. The state high court rejected this reasoning, effectively ruining her chances of pursuing the workers’ compensation action.

According to court records, plaintiff’s husband worked for a ketchup-bottling manufacturer for 40 years before retiring in 1986. He was a maintenance employee, and spent most of his time in the boiler room, where he was routinely exposed to pipe insulation containing asbestos.

In the fall of 2005, he was diagnosed with mesothelioma. He filed a product liability action against several asbestos manufacturers. Prior to his May 2007 death, he submitted to a deposition that offered his sworn testimony. It would become a key piece of evidence for two reasons: First, he noted the products with which he came into contact at work, and also indicated his bosses instructed him to save any asbestos that had fallen off the pipes and reinstall it, putting him at particular hazard. Secondly, he died before trial. This would be the only opportunity defense counsel would have to cross-examine him.

After his death, his wife filed an additional action, seeking workers’ compensation death benefits, asserting her husband was exposed to the toxic material at work, it was an occupational disease and she was thus entitled to collect benefits.

In some cases, employers might agree and simply pay benefits. However, the company disputed her claim, and a hearing officer sided with the firm, ruling the widow failed to prove workplace exposure caused his death.

The widow appealed, attaching transcripts and video of the deposition from the product liability lawsuit in which her husband indicated he was repeatedly exposed to asbestos while on the job. He indicated specifics of where he was, where the asbestos was contained, how frequently he came in contact with it. However, the trial court struck the deposition from the record, ruling it was hearsay because defendant had no opportunity to cross-examine the deceased worker.

Widow appealed this finding, indicating the company was essentially a predecessor-in-interest to the product liability case, meaning her husband’s former employer and the asbestos manufacturers had virtually the same goal in litigation, and therefore, there was no need for the employer to cross-examine.

The appellate court reversed, but the state high court reinstated the trial court’s finding. The high court reasoned there were differing interests between defendants in the two cases. In the workers’ compensation case, employer needed to show the toxic exposure didn’t occur at work. In the product liability action, defendants were less concerned whether exposure occurred at decedent’s work, and more concerned with the exact products that caused exposure.

This distinction meant the deposition from the product liability case could not be used as evidence in the workers’ compensation action.

Contact the Sarasota work injury attorneys at Chalik & Chalik by calling (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Burkhart v. H.J. Heinz Co., Sept. 3, 2014, Ohio Supreme Court

More Blog Entries:

Workers’ Compensation vs. Uninsured Motorist Coverage – Navigating the Benefits, Sept. 9, 2014, Sarasota Work Injury Lawyer Blog