Cooney & Conway has resolved a multi-million-dollar maritime asbestos case on behalf of a Michigan man who contracted mesothelioma more than 50 years after working on ore boats for two summers in his youth.
The case presented a number of unique challenges—the first of which was whether the case could be brought at all. Cooney & Conway initially became involved with the case almost three years after the Plaintiff was diagnosed with mesothelioma. In Illinois, the general time limitation in which to pursue an asbestos-related case (the statute of limitations) is two years from the date of diagnosis, or, in the event of death, two years from the date of death.
By the time Cooney & Conway became involved in this case, the statute of limitations against almost all potentially culpable companies had lapsed. In order to avoid the case being completely time-barred, attorney Charles Porretta filed the lawsuit against one defendant, the plaintiff’s employer. In most situations, worker’s compensation laws prevent mesothelioma victims from suing their employers. However, a federal statute provides an avenue of recovery for marine workers who are victims of asbestos exposure. The Jones Act allows seamen and their families to file a claim directly against an employer for negligence that causes an injury or death. Another benefit of the Jones Act, which was of particular importance to this case, is that the time frame in which to file a Jones Act case is three years from the date of diagnosis. Thus, while the case was time-barred under the general Illinois statute of limitations, it was able to proceed under the Jones Act.
The railroad industry has a very similar statute, the Federal Employers Liability Act (FELA). FELA allows railroad employees exposed to asbestos on the job to file a lawsuit against their employer. Like the Jones Act, FELA cases must be brought within three years of the date of diagnosis.
Cooney & Conway regularly prosecute Jones Act and FELA cases on behalf of victims of asbestos-related injuries who worked in the maritime industry and railroad industry, respectively.
As a result of the time constraints, this case also presented a rare situation in an asbestos case in which only one defendant was named in the case. In most asbestos-related cases, there are, on average, 15-20 different defendants named. This unusual one-on-one situation proved to be beneficial to the prosecution of the case in that it was difficult for the defense to point the finger at any cause other than its own negligence.
Ore Boat Summers Resulted in Deadly Cancer Years Later
Michael Miller was born and raised in Marine City, Michigan, a town on the St. Clair River bordering the United States and Canada. Mike came from a family of sailors – Mike’s father and brother served as captains of ships that navigated the Great Lakes. In the summer of 1962, at the age of 18, Mr. Miller worked the first of two seasons on a boat transporting ore from mines in Minnesota to steel plants in South Chicago, Gary, Indiana, and occasionally to Lorraine, Ohio. In 1963, he again worked the summer on an ore boat. During both seasons, Mike worked with and around asbestos-containing materials in the engine spaces on the ships. At no other time in his career did Mike knowingly work with or around materials containing asbestos. In 2014, 51 years after working on an ore boat, Mr. Miller was diagnosed with mesothelioma, a deadly cancer caused by inhalation of asbestos fibers.
While there were many legal issues to resolve, and both sides retained experts to debate exposure and causation, “At the end of the day, the strongest part of the case was Mike Miller,” said Mr. Porretta. “The defense recognized from early on in the case that Mike was going to be well-liked and well-received. Everyone could relate to him, be empathetic towards his issues and problems. Mike came across as someone who wasn’t looking for anything. He didn’t complain about his lot in life, he was worried about his wife and his family, not himself.”
Mr. Miller acted as his own best witness, recalling pertinent details to help prove the case.
“Even though he only worked on the boats for two summers when he was 18 and 19 years old in 1962 and ’63, more than a half-century later, he was able to recall the names and positions and home towns of basically everyone who worked with him on the ships.” Mr. Porretta said. “A lot of them came from Marine City, but even for the guys who didn’t come from his home town, he recalled where they lived. We later obtained the ships’ records and rosters—and they confirmed he was spot-on with names and positions. He wasn’t being asked to recall any real technical information, just to relay his experiences onboard the boats. And he was able to do so very well.”
“He Was Doing It for Her”
“What the settlement did was to allow Mike to rest assured that his wife was going to be taken care of financially,” said Mr. Porretta. “That was the most important thing to him the whole time. He wanted to make sure that Karen was going to be taken care of. He was doing it for her, knowing full well it was going to be her who was going to benefit the most.”