Third-Party Witness Leads to the Dismissal in a Toxic Tort Wrongful Death Lawsuit
November 2011
Third-Party Witness Leads to the Dismissal in a Toxic Tort Wrongful Death Lawsuit
Overview:
Michelle MacDonald of Gray•Duffy’s Encino office successfully employed a strategy to obtain the testimony of a key witness, whose testimony established the lack of liability of the firm’s client, leading to a dismissal.
Discussion
Laura Sandoval et al v Mitsubishi Cement et al
The decedent, Alberto Sandoval, worked as a chief cement mixer for Ameron International for more than 30 years when he contracted interstitial pulmonary fibrosis in 2008 and died within six months.
On February 16, 2010, the decedent’s wife, Laura Sandoval, filed a wrongful death complaint alleging that exposure to certain toxic substances during his employment had resulted in his death. With respect to the insured, the plaintiffs claimed that Martin Brass Foundry supplied a metal “fish insert,” which when melted, ground or handled, potentially gave off inhalants which could cause interstitial pulmonary fibrosis.
The insured’s product had been identified to the plaintiffs as a possible causative factor by the decedent’s former supervisor, Jim Swanson. Gray•Duffy noticed and deposed Mr. Swanson and determined that the brass fish inserts were only used at the door station of the factory where Mr. Sandoval rarely worked. It was also determined that the fish inserts were not typically melted or ground at the door station. Although he occasionally saw it being done by other employees, he never saw Mr. Sandoval do it nor be in the vicinity while it was being done. He also testified that he had never seen Mr. Sandoval actually handle or install a fish insert. He only identified the product as a possible cause because he had seen Mr. Sandoval help coworkers at the door station where fish inserts were installed.
Based on this testimony, the plaintiff’s counsel offered an immediate dismissal in exchange for a waiver of costs before the deposition of Mr. Swanson concluded. The offer has subsequently been accepted by the two participating insurance carriers including, Scottsdale Insurance Company and Gray•Duffy is in the process of securing the conformed dismissal from the plaintiff.
Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.
