Legislation & Litigation

Mesothelioma Patients Shouldn’t Sacrifice Health for Justice

Written By:
May 18, 2012
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Written By: Karen Marshall,
May 18, 2012

In case you’ve missed our blog recently, we’ve been talking about marine veteran John Johnson’s asbestos case.

Johnson died hours after collapsing during his deposition. His family, doctor and lawyers believe that defense attorneys deliberately dragged out the process hoping he  would die before the case ended.

This sad story exposes some ugly truths about the asbestos case process. But it doesn’t have to be that way.

Rules to Protect Plaintiffs

Johnson had finished being deposed. But the defendants told the court they needed more time to depose him.

Although he could hardly speak, Johnson mustered strength to appear for a few more days. How did the asbestos defendants use this time they claimed to need so much? They reportedly spent it repeating questions they had already asked earlier.

We’ve mentioned a few things that might have reduced or prevented Johnson’s suffering during discovery. These things include:

  • Denying the defendants’ request for more time and holding them to the original deposition schedule;
  • Taking a break from the deposition until his doctor cleared him to continue;
  • Having the defendants submit any additional questions in writing; and
  • Moving the deposition from the hotel conference room to Johnson’s home or somewhere he would have access to medical care.

Given the state of Johnson’s health, none of these options sound unreasonable. The question is whether court rules would allow them. Most discovery rules are flexible enough to avoid endangering an asbestos plaintiff’s health even further.

Limiting Deposition Time

A few weeks after Johnson died, California lawmakers introduced Assembly Bill No. 1875 to limit the amount of time available for depositions. In general, the legislation would limit depositions to seven hours per day.

But depositions for witnesses who are ill or older than 65 would be limited to no more than seven hours over two or more days.

A law like this could have protected Johnson. His deposition started in December. The trial date was scheduled for March. I suspect the 27 defense attorneys who attended the deposition were more than capable of adequately deposing Johnson and preparing for trial during that time.

A seven-hour limit wouldn’t have posed a real problem for them.

Last week the legislature moved A.B. No. 1875 to the “inactive file.” Its future isn’t clear, but let’s hope it or a similar rule is adopted before someone else the same injustice as Johnson.

Protect Yourself

So how else can you get justice without suffering abuses like Johnson experienced? Remember way back when we started this blog, I talked about forming a care team. Your attorney is part of that team along with your health care providers.

Here are some tips on getting your team to work for you:

  • Ask your attorney what to expect. How long should you plan to be deposed? Where will you be deposed? Who is going to depose you? Find out the worst case scenario.
  • Share the information with your doctor. Find out early if you can handle the deposition schedule and conditions without interfering with your health care.
  • Work with your attorney and doctor to find out what you can reasonably handle. How can you be more comfortable during the deposition? How many days and hours can you be deposed without taking a break.
  • Have your attorney communicate your needs to the defendants and the court as necessary. If accommodations need to be more for your health, demand them.
  • Most of all, put your health first. Monitor you health. If the deposition becomes more than you can take, tell your attorney and doctor. Have them push for the accommodations you need.

Next week: more practical tips for dealing with defense tactics.

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