War of words: Court fight centers on 'victims,' 'industry'

By Steve Lash
BridgeTower Media Newswires
 
Foster Wheeler LLC and the family of a man who allegedly died from exposure to the company’s asbestos-containing products are engaged in a war of words as the family’s lawsuit heads toward trial in federal court in Baltimore.

Specifically, the two sides are battling over whether Joseph Morris’ family members will be permitted at trial to refer to him and themselves as “victims” of mesothelioma — the asbestos-related cancer that killed him — and to call Foster Wheeler a member of the “asbestos industry.”

Foster Wheeler opposes the terms, stating in papers filed with the court that the words would rile the jurors’ emotions in the family’s favor to such an extent that they would ignore evidence absolving the company of liability.

The family members counter that they fit the dictionary definition of “victims” and that Foster Wheeler can properly be placed in the “asbestos industry.”

U.S. District Judge Catherine C. Blake, who is presiding over the litigation, has yet to rule on the company’s motion to exclude the terms.

In the lawsuit, the family alleges that Morris contracted mesothelioma during his 30 years at the Bethlehem Steel Sparrows Point Shipyard, where he worked near asbestos-containing boilers produced by Foster Wheeler. Morris, who worked for Bethlehem Steel from the late 1940s through the 1970s, died in 2015.
Foster Wheeler denies the allegations of wrongdoing.

In papers seeking exclusion of the words, Foster Wheeler’s attorney stated that the term “victims” is essentially a legal conclusion that, if permitted by Blake, would lead the jury to presume from the outset that the company was at fault.

The family’s “one-sided assessment and conclusion, presented by the use of the word ‘victim,’ has no probative value,” stated Patrick C. Smith, of DeHay & Elliston LLP in Baltimore.

“Foster Wheeler anticipates that plaintiffs’ counsel will likely refer to plaintiffs in those terms to incorrectly suggest that this defendant engaged in some type of malicious behavior and to unduly and unfairly generate an emotional reaction, in this case, sympathy, for the plaintiffs in order to improperly influence the jury,” Smith added.

“The word ‘victim’ has substantial prejudicial effect since the word alone means that a wrongdoing has occurred to the plaintiffs and that the plaintiffs and the court believe this fact to be true,” he said.

Similarly, linking Foster Wheeler to the vague “asbestos industry” would miscast the company because it made marine boiler systems, not the carcinogen, and did not act in concert with other manufacturers, Smith wrote.

“Use of the false or misleading label ‘asbestos industry’ is unfairly prejudicial because this collective noun connotes by its mere usage an agreement, or a disposition toward agreement, among certain parties,” Smith said. “Use of the broad label makes the obvious suggestion that those in a group relationship are more likely to enter into an agreement for illegal or malicious purposes than an individual company.”

But the family’s lawyer, Thomas P. Kelly, stated in papers filed recently that calling Morris and his family “victims” is appropriate, as the term is defined in the Merriam-Webster dictionary as people “acted on and usually adversely affected by a force or agent” or “subjected to oppression, hardship, or mistreatment.”

Morris “suffered and died from the horrific asbestos-cancer known as mesothelioma,” wrote Kelly, of the Law Offices of Peter G. Angelos P.C. in Baltimore.

“This (use of ‘victim’) is not hyperbole – it is proper use of the English language and is a linguistically correct description,” Kelly wrote. “The term ‘victim’ is not confusing or prone to lead the jury to a conclusion overwhelmed and inflamed by emotion.”

Kelly stated that Foster Wheeler representatives have attended conferences and received documents relating to the “asbestos industry,” a broad description that, he added, fairly encompasses makers of asbestos-containing products.

“The use of the term itself is not offered by plaintiffs as evidence of any wrongdoing,” Kelly wrote.

“While evidence about the actions of, and/or knowledge of, the asbestos industry may be against the interests of Foster Wheeler, there is no support for an argument that the use of the term the ‘asbestos industry’ would create a danger of unfair prejudice against Foster Wheeler,” Kelly added. “Indeed, there is and was an ‘asbestos industry’ much like there is a ‘service industry,’ ‘entertainment industry’ and ‘automobile industry.’ It would be unfairly prejudicial to plaintiffs, not defendant, if the court were to grant this motion, thereby preventing counsel from describing the asbestos industry and state of the art knowledge within that industry at the time of plaintiffs’ exposure.”