Civil Procedure
Judge Blasts Law Firm for ‘Grisly Game of Asbestos Litigation’
Posted May 7, 2009 5:24 AM CST
By Debra Cassens Weiss
A Los Angeles judge has blasted an asbestos litigation firm for refiling a Texas case in California where the standards for a defendant to obtain summary judgment are more exacting.
Judge Aurelio Munoz said such tactics are a "waste of the court's time," the National Law Journal reports. Munoz said the Dallas-based firm that filed the case, Waters & Kraus, has played the same "grisly game of asbestos litigation" in at least nine cases.
The case was first filed in Texas on behalf of high school maintenance worker John Washington Jr. He was deposed for less than five hours over four days in July before the case was dismissed and refiled in California. Washington died before any further depositions were taken.
The defendant, industrial manufacturer Crane Co., claims the Texas deposition should not be used in California because the state requires defendants seeking summary judgment to ask specific questions about their products, the story says. Washington never implicated Crane products in the Texas deposition, and defense lawyers did not ask any questions about them because there was no reason, Crane argues in its court papers.
Waters & Kraus managing partner Peter Kraus told The National Law Journal that the judge "got it 180 degrees wrong." Kraus said lawyers file asbestos cases where sick clients don’t have to submit to lengthy depositions. "And if they die, the facts necessary to prove their case die with them," he said.
"The game-playing here is by the defendants, who literally depose these mesothelioma victims to death 35 to 40 hours in order to do discovery dispositions that they routinely do in six to 10 hours in the rest of the country on the same facts and the same legal issues," Krause told the NLJ.
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Comments
B. McLeod
May 7, 2009 7:42 AM CST
Did they take additional depositions after Mr. Washington died? I have always found those to be awkward, particularly in that the reporter cannot join hands and take record, and so has to sit outside the circle. Sometimes, defense counsel will try to elicit information only tangentially relevant to the plaintiff’s general credibility, such as, “Is it hot where you are?” In all instances of post mortem deposition, plaintiff’s counsel should seek a protective order limiting the deposition to a resonable duration, so that the candles do not burn out, and so that the plaintiff is not unnecessarily kept from his rest.
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khazeh
May 7, 2009 1:11 PM CST
Kraus is correct. California law doesn’t require certain questions to be asked at deposition - what it does say is that if a defendant chooses not to ask those questions, AND it doesn’t engage in other discovery, it will probably lose summary judgment. He’s also correct that California lawyers dither around in depositions to rack up billing.
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Kevin
May 8, 2009 8:04 AM CST
B. McLeod you rule.
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SAH
May 8, 2009 8:10 AM CST
B. McLeod…awesome post.
Gotta run, I’ve got another post mortem deposition starting at 11. I hope its over by 5.
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AndytheLawyer
May 8, 2009 8:14 AM CST
If the dead deposition witness speaks through a medium, is ithe testimony hearsay?
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eatthepeeps
May 8, 2009 8:56 AM CST
Depending on the life the client led, he has a 50/50 chance of finding a local lawyer to take the post-mortem depo pro hac vice.
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JME
May 8, 2009 8:58 AM CST
Best discussion thread in weeks. Here in South Dakota, we leave post-mortem depositions to the Sioux, they have a better record at making the dead talk.
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Anon
May 8, 2009 9:03 AM CST
Clever bu not as funny if you have deposed dying meso victims. Had one die a couple hours after the depo ended. Though I defend, I have great sympathy for the plaintiffs and their families. I have been to many asbestos plaintiff depositions all over the country and in those cases there are dozens of defendants named by the plaintiff. They almost never end in 6-10 hours and often the plaintiff’s counsel takes at least that long and sometimes longer. Moving the cases to Calif will lengthen the depos because each defense counsel must ask questions to have a shot at SJ so I do not understand Mr. Kraus’s comments. Plaintiffs’ attys forum shop to Calif because of the SJ standard and because they like the damages awards. I don’t blame them; they view it as being in their clients’ best interests. What does lengthen Calif depos is the habit of the lawyers only taking about a half-day of depo at a time. I have never seen that anywhere else unless dictated by the health of the plaintiff.
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anon
May 8, 2009 10:42 AM CST
Asbestos depos are not fun for anyone. But I have never seen one end in less than 15-20 hours on the record. This is usually because the Plaintiff files against dozens of defendants on a work history that spans decades at many different sites, employers, and products. Oh, and the only witness is the plaintiff. The low level associates sent to these depositions have no interest in running them out for as long as possible. Mostly, defense attorneys are just annoyed that it takes 5 days to learn that the plaintiff had never heard of your client nor worked with their products.
Some of the claims have merit, but only about 1 in 20. The problem is, you don’t know which is which until after 20 or 30 hours of deposition testimony.
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R
May 8, 2009 10:49 AM CST
Anon (post #9) is spot on. That was how it was when I was taking asbestosis depositions as a young lawyer in the ‘80s. We all sat around in a conference room - a dozen defendants or more, each represented by a baby lawyer LITERALLY reading a script of questions - while the coached plaintiff would answer, “Oh yeah, I think I remember seeing your products out where I worked.”
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TxLawyer
May 8, 2009 11:31 AM CST
I find many of the comments here to be exactly right. I practice in Texas, and I’ve done over 700 asbestos depositions over a period of 7 years (and have the frequent flyer miles to prove it). The reason that the depositions run so long is that Plaintiff’s counsel does no discovery or investigation of the claims before suit. Hence, they sue 100’s of defendants. Of the 100 defendants, there may be a true claim against 2-10 depending upon the Plaintiff’s work history.
I, too, have attended depositions of mesothelioma victims who died immediately after the deposition occurred. I feel for those families as well. But I don’t think you can blame the defense counsel who are obliged to attend the deposition—they got sued, they need to find out if the claim against their client(s) is valid or has any juice.
While my old firm (left January this year) certainly wouldn’t gripe about the fees they get to bill for, most of the hours billed to travel to the depo, take the depo, and return are usually wasted effort. It’s all really a very sad game being played for millions of dollars while some really injured people must submit themselves to the rigors of litigation. IMHO, of course.
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