In the community of American asbestos litigation, the realm that creates all those mesothelioma ads, attorneys hotly debate the merits of specific jurisdictions and if state law is better than federal law -- but it turns out the best place to sue asbestos-related corporations uses neither.
Instead, Newport News, Virginia is getting national attention for, in effect, using maritime law to work around business-friendly state laws and even higher-court judicial decisions.
For the second year in a row, the city of 180,000 has earned a place on the "Watch List" of the American Tort Reform Foundation, a leading pro-business group that ranks "Judicial Hellholes" annually. (FYI: New York is the leading hellhole this year, displacing California.)
The business group takes pains to note that Virginia is generally credited with being business friendly, but then cites research from Westlaw, VerdictSearch and other trade sources to assert that "... asbestos defendants that take their cases to trial are more likely to lose in Newport News than in any other jurisdiction in the nation... [and] 85 percent of Virginia asbestos lawsuits that go to trial, the bulk of which are filed in Newport News, result in plaintiffs' verdicts."
That is in the context of a 52 percent plaintiffs' verdict rate nationwide, the report notes.
That winning percentage is credited to maritime laws, the "laws of the sea" that are linked to present days from Newport News seagoing history, especially a history of shipbuilding and seagoing military service. Those activities are often linked to asbestos exposure, even if government sources are sometimes exempted from private lawsuits.
This plaintiff-friendly Newport News use of maritime law contrasts sharply with recent headlines involving incidents like the BP Deepwater Horizon oil spill, where maritime law actually limited the corporate liability. In fact, earlier this month, The Hill newspaper in Washington, D.C. reported that the Bureau of Ocean Energy Management, or BOEM, is "... moving forward with more expensive fines for companies," going from a liability cap of $75 million to $133.65 million - the largest increase they can make under current law.
It's the first time they've raised those caps since 1990, and BOEM said raising the fines will ensure a "polluter pays principle" that deters oil companies from reckless behavior.
The changes go into effect in 30 days.
But in Newport News, business groups complain that maritime law is being used to benefit plaintiffs, allowing the local jurisdiction to differ from the rest of Virginia in a key arena called "causation." Under those local policies, juries are instructed that any exposure is enough to find a company liable. This is in opposition to a 2013 Virginia Supreme Court ruling that included causation language that reflected national trends, and is considered more business friendly.
The Hellholes report explains that "... this plaintiff-friendly standard is in stark contrast to the standard set by the Virginia Supreme Court for non-maritime claims . The state's high court ruled in 2013 that a plaintiff who was exposed to asbestos from multiple sources must show that the exposure stemming from the defendant's product was sufficient to cause his condition in absence of other exposures."
The report doesn't note if the maritime legal strategies are being adopted by other maritime communities, but the focus on Newport News signals that it has joined other jurisdictions on a growing list of specific locations and cases that might reshape asbestos litigation in 2015.
This list is significant as recent research indicates that litigating mesothelioma and other illnesses caused by the fiber has topped the $10 billion per year mark, surpassing annual revenues of, say, the National Football League.
That much money guarantees more mesothelioma outreach coming to a TV near you, and promises to vault maritime laws into the national civil justice narrative.
Sara Corcoran Warner is publisher of the California Courts Monitor website, "Your Daily Ration of Civil Justice Rationing," and a frequent commentator on national legal policy and civil courts issues.