Port Authority’s Appeal of Mesothelioma Decision Fails
It’s been more than five years since Bernd Hildebrand died of malignant mesothelioma, but his family is still fighting for justice on his behalf. Mr. Hildebrand had worked for Pan American Airlines at the Pan Am Unit Terminal Building at JFK Airport. During the time that he was employed, the terminal underwent major renovations that exposed him to significant quantities of asbestos. His family filed a wrongful death suit against the building’s owner, the Port Authority of New York and New Jersey, which had argued that they should not be held responsible and sought summary judgment in 2019. They appealed the denial of that motion and this month the Appellate Division of the Supreme Court of New York unanimously affirmed that original court decision.
Family’s Quest for Justice for Mesothelioma Victim Continues
Though malignant pleural mesothelioma claimed Mr. Hildebrand’s life quickly — just two months after he was diagnosed — getting the justice he deserves is taking significantly longer. Though his family successfully proved to the Supreme Court of New York County that they had a case deserving of being heard under common-law negligence claims, the Port Authority continues to argue against their responsibility.
In their initial filing the Port Authority argued that they should not be held liable for Mr. Hildebrand’s mesothelioma because they did not have “the authority to control the activity bringing about the injury,” “namely, the application of asbestos-containing materials” in the airport terminal where he had worked. After the judge determined that there were issues of fact that would need to be determined by a jury and that summary judgment was not warranted, the Port Authority appealed that decision, saying that the evidence provided by Mr. Hildebrand’s co-worker has been inadmissible testimony.
Co-Worker’s Testimony Supported Mesothelioma Claims
The Port Authority had originally argued that they’d had no say over the use of asbestos in the terminal renovations, but a witness who was Pan Am’s project manager had testified that the Port Authority “dictated what had to be done,” and “would make a determination” as to which “material” needed to be “remove[d] or not remove[d].” She also testified as to Mr. Hildebrand’s exposure within the terminal.
The Port Authority then filed an appeal, arguing that the project manager’s testimony was inadmissible hearsay. The Appellate court ruled against this argument too, saying that Hildebrand’s family “may be permitted to demonstrate acceptable excuse for [a] failure to meet the strict requirement of tender in admissible form.” In this case the acceptable excuse was the fact that Mr. Hildebrand had died before being able to testify, as well as the passage of time between the 1970s and today. The family’s quest for compensation for the damages that Mr. Hildebrand suffered will continue to a jury.
If you or someone you love has been diagnosed with malignant mesothelioma, the road to justice can be long. For information on what you can expect as you move forward, contact the Patient Advocates at Mesothelioma.net at 1-800-692-8608.
Written by Terri Oppenheimer
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