A deposition is simply the out-of-court oral testimony of any witness under oath for discovery purposes or for use in court. Some states, such as New York, refer to deposition as an “examination before trial,” which aptly describes their purpose. A deposition allows opposing counsel a chance to question a witness prior to trial.

If you or someone you know has filed a Mesothelioma lawsuit, it is likely that depositions will be scheduled.  Depositions allow a claimant to discuss relevant work history and asbestos product identification. 

Under the Federal Rules of Civil Procedure, Rule 30, which the majority of states have adopted to some degree, the number of depositions each side can take is limited to 10 and the deposition of any one deponent is limited to 1 day and 7 hours.

Fed. R. Civ. R. 26(c)(1) states that “the Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”  Additionally, a court may also preclude a deposition “due to a witness’ failing health or the overly burdensome nature of the request,… particularly where the information is believed to be obtainable from another source.” Ahrens v. Ford Motor Co., 340 F.3d 1142, 1147 (10th. Cir. 2003).  Moreover, under Fed. R. Civ. P. 26(b)(2) a Court may limit the scope of a deposition:

(c) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

When a case is in state court the rules regarding depositions will vary by venue.

According to Rhode Island Superior Court Civil Rule, Rule 30(d)(2), the court may limit the time permitted for a deposition.  “If  the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.”

In Connecticut, the court has authority to limit the time available for deposition upon a showing of good cause.  Connecticut Superior Court Civil Rules  §13-27 (e). Additionally, on a showing of bad faith or information that the examination is being conducted so as to annoy, embarrass or oppress the deponent, the court may even terminate the deposition. Conn. Sup. Ct. Civ. Rules 13-30(c).

Some states have implemented strict time limitations.  For example:

1. Texas.  Plaintiff’s depositions are limited to 6 hours in asbestos cases;
2. New Jersey.  Plaintiff’s deposition cannot go more than two full days without approval from a Special Master via an Application by telephone;
3. Oklahoma.  Follows the federal rule and limits depositions to 7 hours;
4. District of Columbia & Maryland.  Unless otherwise authorized or stipulated, depositions are limited to one seven hour day;
5. Illinois.  Limits all depositions to three hours absent court authority; and
6. California.  A new State bill (AB 1875) signed into law last month, would limit depositions to 7 hours absent the court’s permission to extend the limit for complex cases.

Despite the time investment necessary for a successful deposition, the witness’ health should always remain the top priority.  Depositions should always be scheduled so as not to conflict with medical appointments or treatments.  Attorneys should schedule depositions at your home or place of care and strive  to place reasonable time restraints on each day of testimony.

During a deposition counsel may ask any question which may lead to the discovery of admissible evidence. A question, therefore, need not be admissible, but only relevant, in order to pass this burden.

In Mesothelioma lawsuits, relevant areas of questioning may include:  past medical history, employment history, history of residences and/or vehicles owned, family work histories and even the activities and hobbies a person frequently engages in.  

Counsel may issue several objections over the course of a deposition. In most jurisdictions, the types of objections allowable at a deposition are limited to a couple of categories, such as:  form of the question, asked and answered, mischaracterizing testimony of the witness and, of course, counsel may object whenever they feel the questioning attorney is harassing the witness. Despite these objections, unless specifically directed not to answer a question, the witness will still need to respond to the question posed.

When undergoing a deposition it is important that the witness is confident that they understand the question posed. There is an assumption that when a witness answers a question under oath that they understood the question. Whenever a question is unclear or confusing, a witness may ask for clarification.

It is important to remember that a deposition is under oath. At the beginning of a deposition, a court reporter will ask the witness to raise their right hand and swear to the truthfulness of their statements. For a fact witness, as opposed to an expert witness, questions will be straightforward and call on the witness’s personal recollection. Therefore, when questioned about areas outside of the witness’s personal knowledge it is perfectly acceptable to answer, “I don’t know.”

Going through a deposition can be an interesting process that refreshes the memory of the witness regarding events they have not considered for many years.  Although time consuming, going through the effort of preparing for and taking a deposition can be of great financial benefit to your Mesothelioma lawsuit.

The case [Gail Acquarulo, Executrix of the Estate of Hannibal Saldibar, Et al. vs. Tile Council of North America, Inc., F/K/A Tile Council of America, CV 09-5024498] was a case of first impression against the Defendant Tile Council in the country. This case was notably distinct from other product liability lawsuits in that the Tile Council did not manufacture the product but rather researched, designed, patented, formulated, licensed, marketed, advertised, inspected and made a profit from the sale of tiles using its asbestos-containing formula.

The Tile Council of America is a trade association made up of ceramic tile manufacturers who designed and developed dry set mortar formulas containing asbestos. Although the Tile Council did not actually make dry set mortar, it received royalties for each bag of dry set mortar sold; had oversight and control over the manufacture of the product; and advertised these products as Tile Council products. Because the Tile Council formulas were confidential, workers like Mr. Saldibar did not know asbestos was in the tile product; similarly, workers like Mr. Saldibar did not know that breathing the dust created when working with the defendant’s product could be hazardous and potentially life-threatening.

After a jury trial, on May 22, 2012, the jury was presented with evidence which showed that the Tile Council knew asbestos was dangerous and failed to warn. The evidence also showed that non-asbestos alternatives were available, however, the Tile Council did not rush these products to market for use.

Mr. Saldibar was awarded in excess of Two Million Dollars against the Tile Council.

On April 17, 2012, Rep. Benjamin Quayle (R-AZ) and co-sponsors, Reps. Jim Matheson (D-UT) and Dennis Ross (R-FL) introduced in the House the “Furthering Asbestos Claim Transparency Act of 2012” (H.R. 4369).

The Judiciary Committee Hearing on the 'FACT' bill is set for Wednesday, June 6, 2012 at 9:30 a.m.in the Rayburn House Office Building.

The FACT Bill was created by lobbyists on behalf of asbestos corporations and insurers against those diagnosed with and suffering from Mesothelioma. It is the latest effort by these groups to delay justice for victims and to minimize accountability for defendants.

Asbestos is a naturally occurring mineral that is known for its strength, durability and capacity to resist fire and heat. Asbestos is highly carcinogenic. Asbestos has long been proven to cause serious health ailments, including pleural plaques, asbestosis, lung cancer and Mesothelioma. Mesothelioma is an uncommon, but no longer rare, caner that is difficult to diagnosis and poorly responsive to treatment. Mesothelioma is the most serious of all asbestos-related diseases.

Victims of Mesothelioma and other asbestos-related illnesses are able to seek financial redress – compensation – against the manufacturers, suppliers, distributors, etc. of asbestos products. Victims can file a civil lawsuit and proceed in the civil court system against viable asbestos companies and/or file administrative claims against now-defunct (bankrupt) asbestos entities.

The FACT bill keys in on the bankruptcy trust element of asbestos litigation. Specifically:

• FACT would require the private asbestos bankruptcy trusts to publically release extensive individual information about those asbestos victims seeking redress from the trusts, including now confidential settlements; &
• FACT would also permit asbestos defendants to delay compensation to victims by submitting information requests, no matter how irrelevant or immaterial.

If passed, the FACT bill will protect the Asbestos Bankruptcy Trusts, businesses and defendants from victims seeking justice. The legal procedures available to victims seeking financial compensation will likely be delayed and difficult.

Voice your outrage to Congress! Urge the Members of the House Judiciary Committee to vote “No!” on HR 4369 (the 'FACT' Bill) and protect asbestos victims and their families.

Contact the below members of the Judiciary committee and leave the following message:

Please OPPOSE HR 4369 when it is marked up in the Judiciary Committee on Wednesday. This Bill seeks to hurt asbestos victims and their families by delaying compensation and making the process more difficult for victims. Do NOT support the asbestos industry against victim rights.

• Honorable John Conyers, Jr. (D-MI)
  Judiciary Committee Ranking Member
  (202) 225-5126
• Honorable Howard Berman (D-CA)
  (202) 225-4696
• Honorable Jerrold Nadler (D-NY)
  (202) 225-5635
• Honorable Bobby Scott (D-VA)
  (202) 225-8351
• Honorable Mel Watt (D-NC)
  (202) 225-1510
• Honorable Zoe Lofgren (D-CA)
  (202) 225-3072
• Honorable Sheila Jackson Lee (D-TX)
  (202) 225-3816
• Honorable Maxine Waters (D-CA)
  (202) 225-2201
• Honorable Steve Cohen (D-TN)
  (202) 225-3265
• Honorable Hank Johnson (D-GA)
  (202) 225-1605
• Honorable Pedro R. Pierluisi (D-PR, Resident Commissioner)
  (202) 225-2615
• Honorable Mike Quigley (D-IL)
  (202) 225-4061
• Honorable Judy Chu (D-CA)
  (202) 225-5464
• Honorable Ted Deutch (D-FL)
  (202) 225-3001
• Honorable Linda Sanchez (D-CA)
  (202) 225-6676
• Honorable Jared Polis (D-CO)
  (202) 225-2161

The risks appear to be highest in the first week following diagnosis and to decrease throughout the first year. The risk rates for suicide were found to be highest in patients with a poor prognosis and, specifically, in men. The risk of cardiovascular deaths following diagnosis was also strongest in the first weeks following diagnosis and then decreased throughout the first year.

In our nationwide cohort study of more than 6 million persons, those who received a diagnosis of cancer had an increased risk of suicide or death from cardiovascular causes within the first weeks after the diagnosis. This spike in risk was particularly prominent among patients in whom cancers with a poor prognosis were diagnosed and was not explained by preexisting psychiatric or cardiovascular conditions.

Fang Fang, M.D., Ph. D. et al., “Suicide and Cardiovascular Death after a Cancer Diagnosis,” The New England Journal of Medicine , April 5, 2012, pg. 1316.

Furthermore, scientific research indicates that delirium frequently accompanies terminal illness. In “Suicide and Terminal Illness,” Peter Marzuk of the Department of Psychiatry at Cornell University Medical College in New York wrote in 1994:

Many patients who have a terminal illness suffer from intermittent delirium. The prevalence of organic mental syndromes among those with terminal cancer may be as high as 85% (Massie et al., 1983) and may be even higher for those with AIDS (Perry, 1990). This not only makes interviewing these patients difficult, but also increases these patients impulsivity and unpredictability, making assessment of suicide risk difficult (Pg. 497).

Medical needs are not the sole priority when caring for a loved one diagnosed with Mesothelioma. If a family member or friend has been diagnosed with Mesothelioma, it is important to provide compassionate and loving support – offer transportation to/from a doctor appointment; make a homemade meal; spend a few hours cleaning your loved one’s home; go grocery shopping; and/or enjoy an afternoon of pleasant conversation and companionship. Keep vigilant watch over mood and demeanor of your loved one and express concern for a heightened state of sadness and/or depression.

Early, Lucarelli, Sweeney & Strauss, LLC recently attended the 3rd annual Wishing Well Miles for Meso 8k & Health Symposium in sunny Boca Raton, Florida.

This event, hosted by Mesothelioma patient and advocate, Larry Davis, brought together a number of Mesothelioma survivors, as well as, their friends and families for a weekend of learning, fund-raising and support.

Attendees spent Saturday, February 12th, listening to a variety of advocates dedicated to the rights of Mesothelioma patients. Keynote speakers for the event included:

• Dr. Raja M. Flores, Chief Thoracic Surgeon at Mt. Sianai Medicial Center, New York. Dr. Flores discussed current surgical treatment options available to Mesothelioma patients. These surgical options include the EPP (Extrapleural Pneumonectomy) and Pleurectomy.
• Dr. Dipnarine Maharaj, Founder & Medical Director of the South Florida Bone Marrow/Stem Cell Transplant Institute. Dr. Maharaj detailed ongoing clinical trials with stem cells.
• Linda Reinstein, co-founder of the Asbestos Disease Awareness Organization. Ms. Reinstein discussed ongoing efforts to raise awareness about asbestos, as well as, the failure of the United States failure to ban its use.
• Kathy Wiedemer, director of the Mesothelioma Applied Research Foundation (MARF). Ms. Wiedemer elaborated on the continued and dedicated efforts of MARF to fundraise for scientific research; to celebrate the successes of survivors; etc.

Mesothelioma survivors, Larry Davis (event host) and Richard Mosca (MARF board member) also spoke during the event. Mr. Mosca discussed some of the ongoing problems MARF has had collecting adequate funding, as well as, lobbying efforts in Washington, DC.

On Sunday, February 13th, participants laced-up their sneakers for the Miles for Meso run! It was great to see so many caring, compassionate and dedicated survivors, friends, family and advocates racing in support of a great cause!

Early, Lucarelli, Sweeney & Strauss, LLC will continue to be a proud financial sponsor of Miles for Meso and MARF.

A special thank you to Larry Davis for his passionate advocacy and coordination of a great event!

Over 60 countries have banned the use of asbestos including Australia, New Zealand, Egypt, Iceland, Saudi Arabia, Israel, Hungary, Greece, United Kingdom and most of the European Union. In fact, countries all over the world have begun to recognize the devastating impact of asbestos.

In the United States, however, asbestos continues to be used in products and materials such as gaskets, friction products, roofing materials, fireproofing materials and various other consumer products in varying degrees.

Senator Patty Murray of Washington State introduced a bill proposing the total ban of asbestos in October of 2007. Although the “Ban Asbestos in America” bill was passed by the Senate it has yet to pass the House of Representatives.

The “Ban Asbestos in America” bill has three main components:

1. Banning all uses of asbestos in the United States and prohibiting the importation, manufacturing, processing and distribution within the United States of products containing asbestos. Please note, this provision includes all known types of asbestos, as well as other harmful fibers with a similar structure.
2. Upon passage of the “Ban Asbestos in America” bill the Environmental Protection Agency will issue rules resulting in the removal of almost all asbestos products currently being marketed within in the United States. This provision calls for a two (2) year removal enforcement ban subsequent to the bill’s enactment.
3. Funding for asbestos research.

Full text of the “Ban Asbestos in America” bill, can be found at: http://www.mesothelioma.com/ebooks/ban-asbestos-in-america-2007.pdf.

Please consider contacting your senator and/or Senator Murray to show your support for the “Ban Asbestos in America” bill: http://murray.senate.gov/public/index.cfm/contactme.

Fortunately, scientists are continuing to test and experiment new types of treatments. Some of these emerging forms of treatment include:

• Immunotherapy:
  Immunotherapy utilizes the body's immune system and natural defenses in order to strengthen the body's ability to fight cancer. Immunotherapy uses biological response modifiers (BRM's) to do this. Some BRM's such as cytokines and antibodies are naturally occurring in the body. New developments, however, have now made it possible to produce BRM's in the laboratory. BRM's may have the effect of reducing cancer growth; blocking or reversing the process that changes a normal cell to a cancer cell; and/or making cancer cells more susceptible to destruction by the immune system.
• Anti-Angiogenesis:
  Anti-Angiogenesis treatment uses drugs or other substances to prevent tumors from creating new blood vessels thereby stopping the growth of the tumor. Anti-angiogenesis treatments do not attack cancer cells but rather attack the blood supply required by those cells to grow and multiply. Both natural and synthetic anti-angiogenesis inhibitors are currently being studied in clinical trials including trials of cisplatin, permetrexed and bevacizumab (for untreated Mesothelioma) and of bevacizumab and eriotinib (for previously treated Mesothelioma).
• Photodynamic Therapy:
  Phytodynamic therapy works by injecting a photosensenitizing drug into the patient. The drug then operates by avoiding healthy cells and attacking diseased cells. Doctors can then use a special laser light capable of activating the photosensitizing agent. When the light hits the drug, surrounding cancer cells are destroyed.
• Gene Therapy:
  Gene therapy involves removing, replacing or altering genes in order to treat or to prevent disease. To deliver new or changed genes to the correct location, scientists use carrier molecules called vectors. The most commonly used vector is actually a virus. Currently gene therapy is only targeted towards "somatic" cells and therefore cannot be passed down to any offspring. A clinical study of the treatment of malignant pleural Mesothelioma with gene modified cancer cells is currently underway at the Gene Therapy Laboratory at Louisiana State University.
• Hormone Replacement:
  Hormones are known to increase the rate of cancer growth. Therefore, cancer scientists take advantage of this fact by blocking certain hormones or their receptors. This treatment is frequently used as a follow-up to other traditional treatments and may help to decrease the risk of cancer reoccurring in the body. Recent studies using dexamethasons, a synthetic hormone, yielded promising results for the treatment of patients with mesothelioma.

If chemotherapy isn't working for you, or you are interested in supplementing your existing treatment plan, you may want to talk to your doctor about utilizing another form of treatment.

Without the assistance of a private third- party insurance and/or supplement medical benefits, Medicare benefits are of the upmost importance to ensure proper medical care and treatment.

A great source of worry and anxiety over pursing an asbestos-related legal matter for those newly diagnosed relates to whether or not Medicare benefits will be lost and/or compromised as a result of a lawsuit.

Medicare's general policy as it relates to asbestos-related lawsuits is as follows:

• Medicare does not assert a lien for repayment of medical expenses based on claims where the date of exposure to asbestos occurred before 12/5/1980;
• Medicare focuses on the last date of exposure to asbestos for purposes of determine whether the exposure to asbestos occurred on or after 12/5/1980.

Medicare will not assert a lien for recovery of payment, therefore, when the date of exposure to asbestos occurred before 12/5/1980. For exposure post-1980, Medicare does have the right to assert a lien for recovery of medical bills against any/all recovery in an asbestos-related lawsuit.

For example:

1. The diagnosed retired from work as an automobile mechanic on 12/1/1980. There are no additional known exposure to asbestos after the date of retirement. No Medicare lien.
2. The diagnosed retired from work as an automobile mechanic on 12/1/1980. On or about Jan. 1981, the diagnosed did certain home construction projects which required the removal of asbestos materials in the home. Medicare may assert a lien.

Where Medicare does assert a lien, however, certain measures may be taken by the attorney representing the diagnosed to compromise the amount of the lien repayment.

For questions or concerns about Medicare, please contact Attorney Jennifer Lucarelli at Early, Lucarelli, Sweeney & Strauss. Attorney Lucarelli can be reached toll-free at 800-336-0086.

Receiving a diagnosis of asbestosis, lung cancer or Mesothelioma as a result of your work with asbestos-containing products may permit you to file a Worker's Compensation claim.

Products liability matters (lawsuits in civil court for damages) require a plaintiff to recall specific details regarding the asbestos-containing products used during employment experiences. However, the Worker's Compensation Act allows a claimant to recover for general exposure to asbestos during employment experiences.

Retirement does not necessarily bar a claimant from filing a Worker's Compensation claim. In Connecticut, for example, the Connecticut Supreme Court has decided in Green v. General Dynamics Corporation, et al., 245 Conn. 66 (Conn. 1998), that an employee's voluntary retirement prior to the date of diagnosis did not bar weekly benefits for the individual or spouse as compensation for a loss of earning capacity. This case, therefore, allows a retired person diagnosed with an asbestos-related illness - or the widow of someone who has recently passed away as the result of an asbestos-related disease – to pursue benefits under the Connecticut Worker's Compensation Statutes.

Generally, a claimant may have three (3) years from the date of an asbestos-related diagnosis to file for benefits under a Worker's Compensation action. However, if the injured party passes away as a result of an asbestos disease, a Worker's Compensation action shall be filed by the surviving family within the one (1) year or the date of death. Please, note, however, these statutory filing dates vary by states.

Worker's Compensation is a viable option for financial recovery for victims of asbestos-related illnesses. Worker's Compensation payments may result in the form of a lump sum or weekly payments. These payments are not taxable. While Worker's Compensation payments typically will not be equal to salary while employed, these payments can help alleviate some financial burdens.

If you have any questions about filing for Worker's Compensation benefits, please contact Attorney Jennifer Lucarelli. Attorney Lucarelli can help guide you in the right direction for filing these claims.

If you find yourself burdened with financial worries, consider the following strategies for keeping costs down:

1. Family Medical "Point-Person"

   Speak openly with loved ones regarding your financial fears. Seek the assistance of a family member(s) to keep track of ongoing medical costs & expenses; payment of bills; creating a filing system to record present & future bills; challenging insurance denials & seeking appeals for denied coverage; etc.

2. Shop Around

   Not all medical facilities are equal. When comparing procedures between different hospitals refer to the CPT or the "current procedural terminology" to compare rates for the same procedure. The easiest way to find this information is call the hospital finance department directly. Alternatively, you can also ask your primary care physician to take this step your behalf.

3. Negotiate the "Best Deal"

   Health costs are often flexible. Patients may be able to negotiating directly with the hospital regarding the costs of specific medical tests and/or procedures. One useful tactic is to call the hospital you wish to use and inform them about the rates you found at other hospitals/facilities and ask them to "match" or "beat" that rate. If you find that the rate for a particular procedure is consistent amongst facilities, you may still wish to negotiate a reduction for early payment or, conversely, agree to a plan that lets you pay out expenses over a period of time. Another strategy that may prove successful for those covered by private insurance plans is to inquire as to what a hospital charges for Medicare rates and try to negotiate down to this rate.

4. Know your Plan

   Knowing the details of your health care plan is usually the most challenging and yet important step of keeping down medical expenses. Often, waiting for a new time period to have a certain procedure or by switching to a generic drug, rather than non-generic, may lessen extraneous expenses under your plan. Pay particular attention to deductibles and co-pays and as a rule, always ask questions! Navigating the health care industry is no easy task and you should expect to have to make a few calls to get the best deal.

5. Consider Legal Options

   If you have been diagnosed with Mesothelioma and are concerned the burdens of rising medical costs & expenses be reassured that there is compensation funds available for you to address your financial needs. Financial compensation options range from Social Security Disability; Veterans Disability Benefits; Workers Compensation; and/or an asbestos-related lawsuit.

If you are the spouse, son or daughter (including stepchildren and adopted children) of a veteran diagnosed with an asbestos-related lung cancer or mesothelioma as a result of their exposure to asbestos in the armed forces, you may be eligible for the VA's Dependent's Educational Assistance Program.

Children, for the most part, will be eligible for this financial education assistance from age 18 through age 26. A spouse or surviving spouse may be eligible for 10 years from the date of diagnosis.

The maximum monthly allowance rate as of October 1, 2011 is $957.00.

Most persons accepted under the Program will be eligible for approximately 45 months of total assistance.

It is important to note, too, that there are numerous VA educational benefits, although you are only permitted to receive payment one at a time. Some of these programs include:

• Montgomery GI Bill- Active Duty Educational Assistance Program (MGIB-AD)
• Montgomery GI Bill- Selected Reserve (MGIB-SR)
• Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)
• Educational Assistance Test Program (Section 903 of Public Law 96-342)
• Educational Assistance Pilot Program (Section 901 of Public Law 96-342)
• Education Benefits for Reservists and Guard Members Called to Active Duty (Chapter 1607 of title 10, U.S. Code)
• National Call to Service Incentive Program (Section 531 of Public Law 107-314)

The money you receive through the VA Dependent's Educational Assistance Program can be used for undergraduate & graduate degree programs, independent study programs, cooperative training, certificate programs at business, technical or vocational schools, apprenticeships, farm cooperative courses, overseas programs, preparatory courses or completing high school degrees. Specialized training is also available for people with disabilities.

To start the application process, contact Attorney Jennifer Lucarelli at Early, Lucarelli, Sweeney & Strauss at 1-300-336-0086 for more details and for an application.