ST. LOUIS – The U.S. District Court for the Eastern District of Missouri has rejected the lawsuit of plaintiffs seeking damages for a relative who died from an asbestos-related disease, saying the issue had already been decided in an earlier hearing.

An attempt by plaintiffs Diane MacCormack, Nancy Broudy and Karen Loftus to save the case by changing a diagnosis from the disease asbestosis to mesothelioma didn’t save the second lawsuit, the court said, because conditions alleged the same issues.

The three women continued legal action against Ingersoll-Rand, an Ireland-based industrial manufacturing company, and the Adel Wiggins Group, as representatives for their father, Berj Hovsepian. Hovsepian filed a lawsuit Dec. 15, 2015, after being diagnosed with malignant mesothelioma in September of that year. The suit sought damages, alleging Hovsepian's mesothelioma had been caused by asbestos exposure related to his years as a civilian marine machinist for the U.S. Navy in Boston from 1958-64 and other periods of employment.

Hovsepian died on Sept. 16, 2016, and his daughters took over legal action on his behalf.

On Jan. 10, the defendants filed a motion for summary judgment based on the doctrine of “collateral estoppel.”

The defendant’s motion sought to have the plaintiffs’ claims for mesothelioma injuries dismissed as a result of an earlier court judgment in Massachusetts in 2009 in which a similar summary judgment had been granted -- based on a diagnosis of asbestosis.

Bart Baumstark, a St. Louis-based attorney with the O'Brien Law Firm who is experienced in asbestos-related cases, said the two conditions are different. Asbestosis is a noncancerous but serious lung disease, whereas mesothelioma is a lethal cancer of the surrounding tissue of the lung.

“These are separate injuries that are both caused by asbestos inhalation,” he told the St. Louis Record.

Collateral estoppel is defined as “issue preclusion” meaning that if an important issue has been decided, a party can't relitigate on the same issues. The courts will defer to the earlier decision in any future litigation.

“It’s designed to prevent parties from litigating the same issue again and again in the interest of judicial economy,” Baumstark said.

What makes the case somewhat unusual is that the 2009 request for summary judgment made in Massachusetts by the defendants had been unopposed by attorneys for the plaintiffs.

“The (original) lawsuit was filed in Massachusetts,” Baumstark said. “For whatever reason motions for summary judgment filed by defendants went unanswered by the plaintiff, and if you do not answer a motion for summary judgment you are going to lose it -- that simple. The Massachusetts court granted the summary judgment.”  

The decisions looked unfortunate for two reasons, Baumstark noted.

“First, it is very fair to question whether summary judgment motions that went unanswered and were granted in an earlier case should serve as the foundation for summary judgment in a new case for a different injury (mesothelioma),” he said. “If no reply is filed, the question of whether a decision was truly made on the merits of the first case is raised.”

Baumstark said figuratively it comes down to losing a case because a prior case was lost presumably by different lawyers who apparently didn’t show up to play the game.

It takes a lot of exposure to asbestos to cause asbestosis, he added. The same is not true for mesothelioma, a disease that can occur following brief, relatively isolated exposure to asbestos.   

“Asbestosis generally develops after greater exposure to asbestos fibers than mesothelioma,” Baumstark said. “It’s at least conceivable that exposures to asbestos that would be considered significant by a court  in the development of mesothelioma would be considered less significant in an asbestosis case.”

Texas-based attorney Bryan Blevins with the law firm of Provost Umphrey said, overall, the number of asbestos-related lawsuits has declined in recent years.

“Nationally, there are drastically fewer (asbestos) lawsuits being filed than 10 years ago,” he said. “Part of the reason is because a number of states have passed stronger test criteria bills.”

The number of mesothelioma lawsuits has remained roughly equal in recent years, with about 3,400 people nationwide diagnosed with the disease annually.

Blevins said people diagnosed with an asbestos-related illness should consult with an attorney to discuss their past exposure. 

Approximately 30 million people have been exposed to some level of asbestos. Less than 5 percent pursue claims because the majority have not developed an illness.  


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