Citing Failures by Mesothelioma Victim’s Attorney, Judge Grants Hearing for New Trial
When a person is diagnosed with malignant mesothelioma, they are faced with many decisions, including whether to pursue justice from those responsible for their fatal illness and who to turn to for help should they choose to do so. In a recent case, a victim’s survivors filed a motion to have their motion for a new trial reconsidered after a judge denied their initial request. An appeals court judge agreed that they were entitled to the consideration based on her conclusion that their attorney’s errors had denied them a fair hearing.
Woman’s Mesothelioma Blamed on Second-Hand Asbestos Exposure
Emily Everett was diagnosed with malignant peritoneal mesothelioma in 2018, and quickly assessed that her asbestos exposure had come from fibers carried home on the work clothing of her ex-husband, who had worked as a journeyman welder and boilermaker at various plants and locations. She filed suit against several defendants, and after her death in 2019 her children continued pursuing a wrongful death claim.
During the course of the mesothelioma lawsuit there were multiple motions for summary judgment filed, depositions held, and settlements agreed to. Among the named defendants was Foster Wheeler, which argued that the case against them should be dismissed based on the plaintiffs not having provided any proof of specific causation. This motion was granted, and the Everetts then filed a motion for a new trial based on additional information. The judge denied their motion and they appealed that decision, as well as several other decisions that had been made
Appeals Court Agrees with Mesothelioma Victim’s Survivors
Judge Paula A. Brown of the Court of Appeal of Louisiana, Fourth Circuit, denied several of the mesothelioma victim’s survivors’ requests, but she also rejected the trial judge’s denial of their motion for a new trial without a contradictory hearing. She wrote in part, “It is quite clear from the record that throughout the proceedings, the Everetts’ counsel failed to grasp that Foster Wheeler pointed out the lack of evidence of specific causation in its motion for summary judgment, or that he was required to address this issue at the summary judgment phase.”
Calling this failure “fatal” to their case, the judge noted that “when a trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered.” She also said that it is likely that the report contained in the new information, which included a “clearer picture of Mr. Everett’s work history and potential exposure to asbestos,” would create a genuine issue of material fact as to causation. Mrs. Everett’s survivors will be able to have their new trial.
If you or someone you love has been diagnosed with malignant mesothelioma and you are seeking justice on their behalf, it is important that you work with attentive and knowledgeable counsel. For information on how the Patient Advocates at Mesothelioma.net can help, contact us today at 1-800-692-8608.FREE Mesothelioma Packet