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Newport News, Virginia

For too long Newport News has managed to avoid the discomfiting heat of the Judicial Hellholes spotlight, perhaps because it is situated in state that is widely known as friendly to business, or perhaps because the asbestos litigation there is largely dominated by local lawyers who discreetly choose to keep their golden goose to themselves without inviting out-of-state forum shoppers to join in. And though pending asbestos lawsuits in the Newport News Circuit Court number in the thousands, the number of cases that actually go to trial each year, on average, is less than a handful.

Why? Because any defendant who chooses to roll the dice at trial is virtually guaranteed to lose, and lose big. The body of laws – substantive, procedural and evidentiary – that has emerged in Newport News asbestos litigation is among the most plaintiff-friendly of any court in the country. A few quirks should be noted about Virginia’s procedure and practice. First, despite civil justice reforms enacted in early 2013 by state lawmakers that better balance tort litigation generally, the summary judgment practice in Newport News asbestos litigation is, for all intents and purposes, non-existent, as affidavits and critical depositions may not be used to support most asbestos theories upon which motions for summary judgment are based, such as evidence of frequency, regularity and proximity of exposure. Second, Virginia recognizes neither Daubert nor Frye standards for admission of scientific evidence, but has a more general test of “scientific reliability.” Consequently, trial courts have very broad discretion to admit or deny expert testimony. Finally, and arguably most significant, little avenue for appellate relief exists. Only one appellate court (the Virginia Supreme Court) hears such cases, and appeals are discretionary, not as of right. Armed with these procedural advantages, plaintiffs’ lawyers have circumvented the limitations of Virginia’s otherwise generally reasonable tort laws by pursuing shipyard and Navy cases under general maritime law, which offers claims and remedies not available in a Virginia-law action.

Most notably, maritime law permits a plaintiff to recover under the relaxed “substantial contributing factor” causation standard, and the Newport News court’s interpretation of that standard is indeed one of the most relaxed versions applied in any court. The jury is instructed that “any” exposure, as long as it is “real, not imaginary,” is a substantial contributing factor, “without regard to quantity.” Coupled with plaintiffs’ experts, who are permitted to offer freely the “every exposure contributes” opinion, product identification is virtually all that is required to get to a jury. Only if a defendant then can prove that the plaintiff’s disease was “solely caused” by other exposures can a defendant escape becoming jointly and severally liable for a multi-million dollar verdict. This “alternative cause” defense is really no defense at all since plaintiffs and their witnesses seldom recall the other numerous shipboard exposures (particularly those resulting from now-bankrupt defendants’ products), and circumstantial evidence (e.g., in the form of Navy ship records and military specifications) is rarely permitted.

Making matters far worse, however, a defendant on trial is virtually prohibited from mounting any low-dose chryostile or other scientific defense to the “every exposure contributes” opinion, because the Newport News court liberally characterizes such evidence as impermissible “dose reconstruction.” For example, a defendant is not permitted to demonstrate that the level of asbestos fibers released from its product is below OSHA’s permissible exposure limit. Nor is a defendant’s expert permitted to opine to a numerical threshold of exposure required to cause mesothelioma. And a defendant is not permitted to rely upon any peer-reviewed medical or scientific literature based in any way upon “dose estimates” (literature that is routinely accepted without question in asbestos trials in other states).

Ironically, as the “every exposure contributes” theory is increasingly discredited by other courts, it has become the junk-science standard in Newport News against which defense experts are effectively barred from arguing. In response to plaintiff experts’ opinions that a defendant’s products caused the plaintiff ’s mesothelioma, a defen- dant’s expert can do little more than offer vague principles of physiology and medicine.

Defendants are also categorically prohibited from introducing evidence regarding what the plaintiff’s employer – in most cases, the Newport News Shipbuilding & Dry Dock Company or the U.S. Navy – knew about the health hazards of asbestos, or did or failed to do that may have caused or contributed to the exposures. The Newport News court has long held that commonly available defenses such as the government contractor, sophisticated user/learned intermediary, and intervening negligence/superseding cause defenses are unavailable to a product defendant.