Client avoids potential multi-million dollar judgment with separate-case argument

Our client, a national transportation company, was sued under the Federal Employers Liability Act (FELA) by many employees in “mass” asbestos complaints that first listed all of the plaintiffs, and then alleged general claims for malignant and non-malignant injury from asbestos exposure without specifying for each plaintiff what type of claim he had. Many of the plaintiffs had only non-malignant disease when the cases were filed, but while the cases were pending several plaintiffs developed what they thought was asbestos-related cancer. Several years later, their cases were set for trial, and plaintiffs’ counsel made exorbitant settlement demands for the plaintiffs with cancer.

We refused to make substantial offers, because, in our view, the malignant and non-malignant claims were two separate claims, which was the position that plaintiffs’ counsel had argued in earlier cases to defeat defenses of Release or Statute of Limitations. Since they were separate claims, any plaintiff who contracted cancer while his case was pending needed to file an amendment to the complaint or do something similarly substantial to preserve the cancer claim. Since they did not, the statute of limitations had expired and the cases were time-barred. Thus, for settlement purposes the plaintiffs’ claims were “worth” a few thousand dollars, instead of hundreds of thousands.