Justice for a mesothelioma victim often depends on his deposition. The patient, the defense lawyers, and our guys sit down together and videotape the patient’s testimony. We get a chance to ask questions, and the bad guys then have a turn.

The procedure is fundamental to justice. The patient describes his exposure to asbestos, we ask him questions to clarify key points, and the defense then has a chance to poke holes in his story. Everybody gets a say, and the jury can watch the videotape and make up their own mind as to which story they believe.

But when does fair questioning become abuse? How much questioning is too much? What’s the difference between challenging someone’s story and physically trying to hurt them through extended, abusive, exhausting harassment—especially when they may be struggling through the final painful stages mesothelioma?

Makers of asbestos often capitalize on their victims’ frailties by making the questioning as drawn out as possible. The ensuing exhaustion may impair the victim’s ability to recall and effectively testify. More sinister still, this strategy weakens the already frail victim and can hasten his demise. The defendants literally have a financial incentive to delay: California law, while fair in providing for early trials for terminal patients, is manifestly unfair in barring the decedent’s estate from asking the jury to award damages for the pain, suffering, anguish and bodily disfigurement. 

There’s an old saying among insurance defense lawyers in California: If you run over a guy, check the rear view mirror. If he’s still moving, put it in reverse.

It’s no secret that bad companies who kill instead of maiming their victims get a windfall. The asbestos companies turned a cheap buck when they poisoned the worker, and they save money a second time around by manipulating the rules and dragging their feet long enough to avoid a living personal injury plaintiff witness. They won’t admit to that on the record, but off the record they’ll sheepishly admit they’d be foolish not to engage in delay tactics.

Some states shield mesothelioma victims from abuse. Texas limits defense questioning in asbestos cancer cases to six hours. The rules for cases filed in federal court limit depositions to six hours. In California, though, it’s still open season on the weak, the sick, and the frail.

Roger Worthington has long advocated reasonable limitations on the length of time that asbestos companies can grill their victims. The voice of the patient and his advocate, however, have historically been shouted down by the corporations that made and sold these poisonous products in the first place.

We know that victims of asbestos cancer need to conserve their energy to fight their disease, so we fight aggressively to limit abusive questioning. Where possible we obtain court orders that limit the defense’s abusive strategy. Doctors who are committed to the well-being of their asbestos cancer patients often help us with the declarations that judges need to protect our clients from harassment.

California lets a judge enter orders "as justice requires" to protect any party or person from "unwarranted annoyance, embarrassment or oppression, or undue burden and expense." Harassment by defense attorneys directly affects the health of an asbestos cancer victim. Harassment comes in all forms, including tactics like “running out the clock” by repeating the same tired questions, or going down rabbit holes that lead nowhere.

In a recent declaration submitted for one of his patients, Dr. Robert Cameron of the UCLA Geffen School of Medicine explained the relationship between questioning and the health of an asbestos victim:

“Fatigue has been identified as significantly interfering with quality of life in people of all ages who have cancer, regardless of diagnosis, treatment, or prognosis. Although there are established medical interventions for most cancer-related symptoms, there are only limited medical treatments for fatigue. Physical and emotional stress both contribute to a cancer patient's fatigue.

“Generally, fatigue becomes progressively worse as a malignancy progresses.  Fatigue can lower a cancer patient's concentration ability, which can seriously affect the patient's capacity for learning, problem solving, and performing even menial everyday tasks of living. The mental storing and recalling of information, called memory, can be affected by attentional fatigue and/or emotional or physical stress.  Prolonged emotional or physical stress can adversely interfere with memory and the ability to focus meaningfully on tasks.

“A prolonged legal deposition over a period of days, in which the cancer patient is daily subjected to hours of often repeated detailed questions by dozens of lawyers regarding events that may have occurred 30 to 50 years ago, can increase the patient's stress level and exacerbate fatigue, with its attendant negative consequences to the patient's cognitive status and cancer fighting ability.

“In medicine, physicians are obligated to relieve suffering. If we fail to do this, we are at risk for prosecution under the Older Americans Act, which was reauthorized in 1992 with a new Title VII, Chapter 3 to specifically prevent abuse, neglect and exploitation of the elderly (defined as someone 60 years of age or older). If the failure to relieve suffering itself is cause for legal action, then I have to wonder how this important Act would view the discomfort, fatigue, and frank pain visited on a terminal mesothelioma patient during the course of an unregulated, unlimited and burdensome series of legal depositions.  In my opinion, such an unlimited deposition could and should be construed as unnecessary, cruel, unethical, and inexcusable—something that certainly should be considered “elder abuse” – especially if less intrusive means of obtaining a history are available.

“Mesothelioma is regarded as one of the most painful tumors known to man.  In order to maintain any quality of life, it is essential that the patient avoid undue and avoidable stress in order to maintain sufficient strength and vigor to eat, breath, and continue fighting this horrific disease.”

Many judges will conclude that unlimited defense questioning constitutes oppression under the law and will impose strict limitations. However, because there is no “hard and fast” rule that every judge is required to apply consistently, the matter is left to each individual judge’s discretion. As a result, even under the same set of facts, there are some judges who are willing to ignore the destructive impact of this strategy and refuse to impose limitations.

The inconsistency of judges’ rulings on this issue emphasizes the need for uniform rules on defense deposition questioning. The Law Offices of Roger G. Worthington is fighting to have county-wide rules adopted. Not surprisingly, on the record, our efforts have been strongly opposed by asbestos companies and from the attorneys hired by the asbestos companies who stand to lose substantial profits if limits on questioning are imposed.

But off the record, this lawyer has had candid conversations with several decent lawyers, mainly the national counsel who have to pay the huge bills of their local defense lawyers, and they agree the time has come to impose fair limits on the length of depositions of meso patients in California. One national counsel has confided that the real problem is economic – many defense firms simply hire “contract” lawyers to sit through days and days of depositions, with no incentive to be efficient, lean, or even mean. They simply sit there, like a meter running, as the bills mounts and the plaintiff tires.

We will continue to fight for changes in the law which will stop asbestos companies from placing economic interests ahead of consumer health. We will continue to fight on a case by case basis for limitations on deposition questioning so that victims can focus on fighting their disease and spending precious time with their families.

*** POSTED JANUARY 14, 2007 ***