© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | An Update on Defending Lung Cancer Cases in Difficult Jurisdictions West Virginia and Pennsylvania Anne D. Harman, Dinsmore & Shohl, LLP, Wheeling & Pittsburgh

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | West Virginia Update  Increased Discovery Activity Overall  More exigent plaintiff depositions occurring which involve non-smoking or remote smoking plaintiffs  Increased lung cancer and non-malig filings Last five years primarily mesothelioma filings, but in past two years increase of lung cancer filings

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | West Virginia  Increased non-WV plaintiff filings  Availing of WV’s “open door” policy as to non-resident plaintiffs’ actions against non-resident companies  Morris v. Crown Equipment Corp., et al., 633 S.E.2d 292 (WV 2006); product liability case VA resident against Ohio company filed in WV court  Justice Larry Starcher (former asbestos trial judge) issued opinion stating that the “stream of interstate commerce” principle underlies court’s analysis AND today’s economy operates in a multi-jurisdictional manner.

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | “Backlog” Lung Cancer Mediation Docket  Court has set groups 6 groups for mediation and trial  Filings date from —4 plaintiff firms  Some plaintiff’s firms have only “new” cases and still seeking inclusion in “backlog”  Reportedly 400 cases ripe for inclusion  Judge Wilson recent comments at June 2015 “regular” trial group indicates may agree with plaintiff’s request for mandatory mediation rather than trial/docket settings.  Issues: very old cases—no living witnesses or plaintiffs; many bankrupt defendants; SOL so new defendants can’t be added; court and plaintiff’s counsel view these as “regular” cases

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Pennsylvania Update Increased lung cancer filings throughout state, and more non-smoking or remote smoking history plaintiffs. Philadelphia now seeing more non-shipyard cases and 50% more lung cancer filings than previously. Expect western PA to see more filings now that WV has passed a comparative fault law along with bankruptcy disclosure requirements—many cases have job site overlap.

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Frye &/or Daubert Hearings—WV & PA  More frequent motions, thus importance of working with defense experts to challenge appropriately and solidly  Courts becoming aware of the trend and either balking and refusing the hearings (WV) OR permitting the hearings (Philadelphia and sometimes western PA)

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Discovery Strategies to Assist Your Expert in the Lung Cancer case  Full Work History—all jobs from youth, high school through adulthood  Full Social History and addresses/years of plaintiff’s school buildings  Full inquiry about all residences—building materials, basement, dirt floor, next to a power plant, downwind of a nuclear facility, next to a steel mill or chemical plant?  This is NOT mesothelioma, so solid basis to suggest alternative causation

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Discovery Strategies  Family history—smoking, work, social, cancers  Search for air monitoring of the facilities in plaintiff’s towns  Remediation/abatement of significant industrial sites in plaintiff’s towns  Google is your friend  US EPA records, state DEP, local ordinances, building permits, municipal codes  Drinking water reports of town  Abatement records for plaintiff’s schools

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Discovery Strategies  For lung cancer cases, necessary to view outside the usual mesothelioma/asbestos box, and treat as a “regular” case—what may have caused his cancer separate and apart from any asbestos exposures?  If plaintiff a smoker, inquire at deposition about warnings on cig packets. Plaintiff will have seen daily and ignored. 1962>>  Certain national defendants becoming very aggressive in this questioning and it can be helpful for a failure to warn or negligence defendant’s case

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Questions? Anne D. Harman, Esq. Partner 2100 Market St. Bennett Square Wheeling, WV