Tobacco Company’s Defense Tactic Fails Against Mesothelioma Patient

Smoking a Cigarette

I recently discussed some litigation tactics used by asbestos defendants. Not all tactics are as sinister as delaying the deposition of a severely ill plaintiff. But if successful, seemingly harmless strategies can still give defendants important advantages.

Removing a lawsuit from state to federal court is one example of a seemingly harmless tactic. And that’s exactly what Lorilland Tobacco Company, a manufacturer of asbestos-containing cigarette filters, recently tried to do in a California asbestos lawsuit.

Couscouris v. Hatch Grinding Wheels, Inc.

In December 2011, Dimitris Couscouris and his wife, Magdalena, sued nine defendants, including Lorilland, in California state court. They allege that Couscouris, who was diagnosed with mesothelioma, was exposed to asbestos at work.

In May, Lorilland tried to remove the case to federal court. (In certain cases, a defendant can have a lawsuit filed in state court removed to federal court if the defendants are citizens of other states. This is known as diversity jurisdiction. Lorilland argued it applied in this case.)

However, two defendants — Yeager Enterprises Corporation and Metalclad Insulation Corporation — were California companies. Ordinarily, that would mean there was no diversity jurisdiction and the case would stay in state court.

But Lorilland argued that the Yeager and Metalclad were fraudulently joined to the lawsuit. In other words, Lorilland believed the plaintiff only included the California companies to keep the case in state court.

According to the tobacco company, Couscouris had no evidence of ever being exposed to products made or distributed by the California companies.

But the federal court disagreed and sent the case back to state court.

Metalclad had not even had a chance to respond to the plaintiff’s discovery requests. So the court was unwilling to rule out the possibility that the plaintiff would obtain evidence that the California defendants exposed him to asbestos.

Lorilland wasn’t ready to give up. In July, it again tried to remove the case to federal court. It maintained there was no evidence linking Metalclad to the plaintiff’s asbestos exposure.

The federal court again remanded the case to state court. It ruled that Lorilland waived its right to removal by continuing to file court papers and setting a hearing in state court after claiming the case was removable.

Defendants Reasons for Removing a Case

There are several reasons a defendant would want to remove an asbestos case to federal court. For instance, the plaintiff’s attorneys may be more familiar with state court rules or how a particular state judge runs his or her court.

A defendant who is relatively unfamiliar with that state court may hope to eliminate the plaintiff’s advantage by removing the case to federal court. Or perhaps the defense’s legal team has simply had more experience and success in federal court.

Sometimes removal is just another tactic to slow a case down. It potentially forces plaintiffs to spend time and money fighting removal instead of gathering important evidence during discovery.

Delay may have motivated Lorilland to try federal court. The tactic also may have something to do with the case being in California state court.

California has a reputation for being a plaintiff-friendly state. And Lorilland is no stranger to unfavorable verdicts in California. Just last year, a California Superior Court jury awarded another couple $1.4 million over injuries from asbestos-laced cigarette filters.

But it’s important to remember that state courts aren’t necessarily more favorable to plaintiffs in all cases. Plaintiffs can get favorable (or unfavorable) results in both types of courts. So it’s best to consult an experienced¬†mesothelioma attorney about where to file your claim.


Karen Marshall has more than 17 years of legal experience and is an attorney with The Peterson Firm. She has been contributing to The Mesothelioma Center since 2011 and writes about asbestos-related legal issues and blogs for Asbestos.com.

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