Asbestos Defense Investigations

Asbestos Defense Investigations

Asbestos defense investigations are complex fact finding inquiries with many specialized challenges. With over 10 years of experience in asbestos defense investigations, J. Mahoney & Associates LLC has the expertise to provide valuable information for attorneys defending mesothelioma and other asbestos exposure lawsuits.

Time Factor

One of the biggest challenges about asbestos investigations is time. The average latency period for the diagnosis of mesothelioma is 32 years; therefore, asbestos defense investigations often focus on details that occurred decades earlier. In fact, thorough research of an individual’s potential exposure to asbestos may range from birth to only a few years prior to when their suit was filed.

Over time, documents, buildings and products are destroyed or altered and memories fade. Undoubtedly, the age of the plaintiff or other witnesses is a major obstacle in asbestos exposure cases. Most asbestos claimants have already led a full and productive life and are usually in their twilight years. Due to comorbidities and age, witnesses often struggle to recall events from their past. Plaintiffs’ testimony regarding work history and alleged exposure is, in many cases, littered with inconsistencies and errors. As such, investigators and defense counsel must turn their focus from the flawed memories of deponents to discovering existing documents or witnesses that contradict or support testimony. Frequently, due to various retention policies, documents pertaining to the plaintiff’s life and work history have been warehoused or destroyed, adding more challenges to discovering pertinent information. Time, patience and client communications are key for a successful outcome.

1. Lanphear BP, Buncher CR (July 1992). “Latent period for malignant mesothelioma of occupational origin”. J Occup Med 34 (7): 718–21. PMID

Alternative Exposure

Discovering alternative means by which the plaintiff could have been exposed to asbestos often begins with a review of former work sites, residences, schools and neighborhoods. Retrieving records linked to the abatement or removal of asbestos from these locations will show that the alleged exposure may have occurred from some previously unknown source. For example, a review of records from a state labor office revealed that a plaintiff who had claimed residential exposure to a joint compound which contained asbestos, had actually worked in a manufacturing facility that contained large amounts of asbestos. We discovered correspondence between state regulators and managers of the facility made during the 1960s that revealed the concern for poor air quality. The airborne contaminants were attributed to asbestos insulation on overhead pipes that was flaking off due to vibrations within the facility. The records are also useful in identifying other witnesses whose testimony can be just as damaging as the records themselves. We seek any documents that expose alternative asbestos exposure, then identify and interview people with knowledge of said exposure or familiarity with the plaintiff.

Developing Witnesses

Another important service we offer to our clients is our instinctive ability to identify, locate and interview individuals that have knowledge of events that occurred decades earlier. Recognizing how to find witnesses that might have knowledge of products continually changes; therefore, we continually reassess our strategy in locating these groups of people.

Even today, not everything is stored electronically. We often locate witnesses by reviewing a variety of records outside of a computer. Often the best places to look are local (sometimes remote) libraries, town halls or historical societies. Reviewing old telephone books and archived business information can help create a large witness pool. Records stored within these public archives can be inconsistent, though. Consequently, the results can be both disappointing and surprising. We are experts in having a keen eye and an open mind of where to locate relevant evidence after years of experience scouring the archives of hundreds of mismanaged public agencies.

Creating a large witnesses pool is also important because the bigger the pool generated, the better the probability of finding key witnesses. Because the investigation is focusing on events that took place between 15 and 40 years ago, many of the people identified might be difficult to find. Therefore, it is important to increase the odds by conducting an expansive search for witnesses.

Interviewing Witnesses

We give special care and consideration to all of the witnesses involved with asbestos cases. Whether you are speaking with a custodian about the storage of records, or with the plaintiff’s co-worker about their recollection of events, the primary goal is to gain the person’s cooperation. Without it, the case could be lost. Therefore, an investigators’ demeanor and tact are requisite when talking with people from a broad spectrum of life. The janitor at the corporation, for instance, might provide more relevant information than the owner. We are mindful of all persons’ relevance and assume that they might be needed for future testimony.

Due to the nature of asbestos cases, often the most important witnesses tend to be elderly. Therefore, it is important to be respectful and considerate of their possible mental and physical limitations. Hearing and memory are two of the most fundamental senses that can affect the interview. Hearing problems can usually be compensated for; however, managing a person with a faulty memory is more challenging. Sometimes elderly witnesses with flawed memories can remember their past clearer than recent events. An experienced investigator will engage witnesses in conversation to help refresh their memories as well as evaluate their suitability for potential trial or deposition. It is important to make follow-up inquiries throughout the course of the case, to ensure that their memories have not changed and to inquire as to whether anything new has been remembered. We are careful not to overwhelm or riddle witnesses with questions making them feel uncomfortable. In my experience, elderly witnesses tend to be more generous with their time. They enjoy discussing the past and can often provide beneficial information.

Digging In

Newspapers, books, magazines, newsletters, building permits, obituaries, architectural specifications and asbestos abatement records are some of the resources that can be found online or through strategically placed Freedom of Information Act requests. Periodicals and other printed materials, both old and new, are being scanned into databases on a daily basis and being made available on the web. Public online records are updated frequently. It is important to be diligent and consistent. An item that was unavailable one day, might be available the next.

In our experience, records custodians usually provide more documents when making the request in person. In one instance a building-department clerk faxed a limited amount of records with inconclusive findings in response to a request sent by a law firm. However, when we physically visited on a different day, the clerk discovered a new document that completely contradicted the plaintiff’s testimony. This evidence rebutted the plaintiff’s assertions by showing that a third-party contractor built the addition, not him. In this instance, as in many others, a routine faxed record request fell short. Our personal interaction with the clerk allowed her to empathize with our search for records and we subsequently gained her full cooperation for the benefit of our client.

Identifying and locating witnesses and documents that can contradict the plaintiff’s testimony requires time, patience and exhaustive searching and interviewing skills. Memories can become stale and documents are sometimes either lost or destroyed. Most asbestos defense investigations cases vary in complexity, exposure, and location. Therefore, our gathering and assembly of this information will adapt with each case. Efficiently gathering this information from such a wide range of sources that constantly change is what makes asbestos defense investigations uniquely challenging and rewarding. Hiring an investigation company that is unhindered by these challenges, and is current with evolving changes in asbestos litigation, will ensure the best results.

Learn More

Read Jed’s Asbestos Defense Investigations: A Primer article (June, 2021) in Pursuit Magazine.

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Witness Interviews

Once relevant witnesses are located, we engage in conversational-style interviews after properly introducing ourselves and explaining the reason for our inquiry.

Background Investigations

Identifying and locating witnesses and documents that can corroborate or contradict testimony requires time, patience and exhaustive searching and interviewing skills.

Social Media Investigations

To help prepare for all our assignments, we ethically scour social media platforms and publicly available information for useful intelligence that assists with our investigation.

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