A widow’s case against manufacturer On Marine Services Co. LLC was denied reconsideration after initially ending in mistrial. Joanne K. Lipson, whose husband died of mesothelioma, claimed that “hot tops” – an insulating product manufactured by On Marine Services – contained asbestos. Mrs. Lipson alleged that her husband came into contact with the “hot tops” and was exposed to asbestos during his time working at a steel mill.
During trial, On Marine Services maintained that any asbestos in the company’s hot tops degraded and detoxified during the steelmaking process. In an attempt to have the case reconsidered, Mrs. Lipson offered expert testimony stating that “significant quantities” of asbestos endured the high heat. Judge James L. Robart would not accept the testimony as new evidence, pointing out that the court is “concerned not with the correctness of the expert’s conclusions, but the soundness of the methodology.”
Judge Robart was referring to the fact that the evidence could not be considered new if it was in the plaintiff’s possession at the time of trial, or if it could have been discovered through research. Data such as the temperatures of molten steel and the temperatures at which asbestos fibers degrade is “certainly something which [Mrs. Lipson] could have discovered with reasonable diligence.”
“Absent new evidence, the event of a mistrial is not an opportunity for the parties to relitigate deficiencies in their cases identified during the first proceedings,” Judge Robart wrote in his opinion.
Asbestos exposure is the primary cause of mesothelioma. Despite the decades-long ban on asbestos, there are approximately 3,000 mesothelioma diagnoses made each year.