NY Appeals Court to Determine Whether Mesothelioma Case Can Move Forward
When Mason South joined a group of other Merchant Marines suing Texaco back in the 1990s, he had no idea that he would be diagnosed with malignant mesothelioma nearly 25 years later. The plaintiffs had sued the company in federal court over damages they suffered from exposure to asbestos and second-hand smoke on merchant ships, and he had joined because at that point he had been diagnosed with a pulmonary injury. But when a settlement was reached in that case, all of the litigants had to sign a release acknowledging that they understood “that the long term effects of exposure to asbestos … may result in obtaining a new and different diagnosis from the diagnosis as of the date of this release.” When he was diagnosed with mesothelioma in 2014 he moved forward to file a claim against the company again, and his wife continued the case after his death in 2015. Texaco is arguing that they should not have to face the lawsuit, but several courts have already said that the case can move forward. Now the New York Court of Appeals will make a final decision.
Court of Appeals Hears Arguments
The New York Court of Appeals listened to both sides’ arguments regarding the case, with Texaco’s attorneys arguing that the release that South signed specifically indicated that he was “giving up the right to bring an action against [Texaco] in the future for any new or different diagnosis,” and therefore precludes his ability to pursue his mesothelioma claim against them. For their part, South’s family is arguing that the Federal Employers’ Liability Act (FELA) nullifies the settlement release and allows him to file his mesothelioma claim. South’s attorneys argue that FELA prohibits contracts that would exempt a company from liability before an injury has been detected or diagnosed, as was the case with South. It was more than ten years after the initial settlement that his mesothelioma symptoms began to arise.
Release Did Not Specify Mesothelioma: Used Boilerplate Language
In addition to arguing that FELA generally precludes exempting an injury that has not yet been detected, the family also argues that the release did not specify mesothelioma, or even cancer. Because the language that is used is a boilerplate release, the family believes that it does not apply. Several courts have already agreed with the family, including the Manhattan Supreme Court and the Appellate Division. The Court of Appeals is expected to make its decision in February.
If you or someone you love has been exposed to asbestos, it puts you at risk for numerous diseases. For information on what the future may hold, contact the Patient Advocates at Mesothelioma.net at 1-800-692-8608.
Written by Terri Oppenheimer
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