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Mesothelioma Plaintiff Suffers Setback, But Receives New Trial

October 6, 2016

West Palm Beach, FL: The appeal in a recent Asbestos lawsuit did not go the way the plaintiff might have hoped, although there is another avenue available for the asbestos mesothelioma victim. While a verdict for one of two plaintiffs was required to be entered by an appeals court, a new trial has been ordered for the other.

Mesothelioma Plaintiff Suffers Setback, But Receives New TrialThe case is Crane et al. v. DeLisle et al., Case Numbers 4D13-4351 and 4D14-146, in the District Court of Appeal of the State of Florida, Fourth District. CovanceCovance

The plaintiff, Richard DeLisle, claimed in his asbestos mesothelioma lawsuit that his lethal condition was caused from exposure to asbestos while working around gaskets made by co-defendant Crane Co., and from his smoking habit ingesting smoke from Kent cigarettes in the early-to-mid 1950s. It was alleged that filters in Kent cigarettes manufactured at that time may have contained asbestos.

A lower court awarded $8 million to the plaintiff. However, last month an appeals court in Florida overturned that verdict, largely due to the allowance by the lower court of expert witnesses who failed to meet the standards for rigorous evidence.

One of the witnesses in the asbestos claims trial was identified as Dr. James Dahlgren, a medical doctor with a specialty in occupational and environmental medicine. Dr. Dahlgren testified at trial that chrysotile-variety asbestos from the Crane gaskets contributed to DeLisle's illness.

While the witness satisfied the lower court, the appellate court had problems with him. “There was no data presented at the hearing showing that chrysotile asbestos in low levels is associated with mesothelioma. Indeed, the other experts testifying for DeLisle all rejected such an association. Dr. Dahlgren’s testimony was more of the nature of ipse dixit, i.e., that it should be reliable merely because he is an expert. This is insufficient to satisfy Daubert,” the appeals court said.

The appellate court also took exception to the admission of testimony given by industrial hygienist Dr. James Rasmuson, who opined that smoking Kent cigarettes would have put meaningful amounts of crocidolite-variety asbestos in DeLisle's system. The appellate court held that the testimony of Rasmuson and that of another expert witness, Dr. James Crapo, was impermissible because the trial court didn’t have enough information to approve or disapprove both witnesses.

Rasmuson, for his part, “did not know whether the methodology underlying [the study he cited] was an accepted methodology, nor did he know whether the published study was peer-reviewed, which it was not,” the appeals court said.

Asbestos mesothelioma is a condition affecting the lining of the lungs and other internal organs that is almost exclusively associated with exposure to asbestos. The incubation period can last upwards of three decades following exposure, before asbestos cancer finally emerges. In the case of Mesothelioma, there is no cure. Patients can have varying periods of survivability while battling asbestosis and mesothelioma, but the prognosis is always negative. Mesothelioma is usually viewed as a death sentence. It’s only a matter of time.

While the appellate court ordered that a verdict be entered for Crane, a new trial was ordered for defendant R.J. Reynolds Tobacco Co., the tobacco giant and manufacturer of Kent cigarettes in the 1950s.