Potential “Miscarriage of Justice” Causes Judge to Grant New Trial in Mesothelioma Claim
What happens when the attorney you hire to represent your mesothelioma claim falls so short of what he should do that a judge sees the outcome as a miscarriage of justice? In the case of Emily Everett’s survivors, it leads to a new trial.
Judge Orders New Mesothelioma Trial Based on Additional Evidence and Attorney’s Failure
Emily Everett died of malignant mesothelioma after years of exposure to asbestos carried home on her ex-husband’s work clothing. She filed a personal injury claim against several of the defendants whose products the journeyman welder and boilermaker had worked with, and after her death in 2019 her case was carried on as a wrongful death claim by her children.
Foster Wheeler was one of the companies named in the mesothelioma lawsuit, and though the company is frequently named in asbestos cases, their attorneys argued successfully that the victim and her survivors had failed to provide evidence of specific causation. The claim against them was dismissed, but with new evidence in hand, the victim’s children filed a motion for a new trial based on the additional information. The judge hearing the case denied their motion despite the new evidence, in large part because of errors made by their attorney in arguing the family’s petition.
Mesothelioma Victim’s Children Continue Seeking Justice
In the face of these repeated losses, the mesothelioma victim’s children filed another appeal, this time asking for reconsideration of the judge’s decision. The appeals court judge hearing the case noted that the lower court judge’s denial had been the fault of the family’s attorney, who she said failed to grasp what was needed to address and correct the evidentiary issue in court.
In granting the mesothelioma case retrial, Judge Paula A. Brown of the Court of Appeal of Louisiana, Fourth Circuit agreed that the new information that the victim’s children had collected “would create a genuine issue of material fact as to causation.” She also pointed out that “when a trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered.” The family will have another chance at justice.
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