Motion to Dismiss Denied After Mesothelioma Victim Points to Grueling Deposition

Mesothelioma is a form of cancer whose symptoms don’t appear until many decades after the asbestos exposure that causes it, and once it makes itself known its effects can be devastating. Victims seeking justice from those responsible for their illness are asked to remember details from years earlier, all while suffering the effects of the disease and the side effects of the treatments they are undergoing. It is this dynamic that was described when clothing manufacturer American Optical Corporation tried to have Donald MacLachlan’s lawsuit against them dismissed. The company argued that Mr. MacLachlan had changed his testimony between two legal proceedings, while the man blamed the shift on the grueling effects of his disease. The court sympathized with the victim and denied the asbestos company’s motion to dismiss.

Mesothelioma Victim Blames Asbestos in Protective Clothing for His Illness

Mr. MacLachlan’s lawsuit blamed asbestos in American Optical’s protective clothing for his mesothelioma. He had worked as a cast house helper in a steel plant and wore the company’s coats, gloves, leggings, and hoods that protected him from the molten steel and intense heat. He claimed that the material frequently broke down and that he had inhaled its fibers, but there were inconsistencies about the dates that he’d worn them in statements he gave during two different depositions.

Despite acknowledging that they had manufactured asbestos-containing products, American Optical pointed to inconsistencies in testimony the mesothelioma victim provided in September of 2014 and again in May of 2015 to have the claim against them dismissed. They pointed to discrepancies as small as whether the collars of the coats he’d worn were made of leather or wool, where a tag with a logo was located on the coat, and what year he’d worn the coats.

Judge Denies Asbestos Company’s Motion to Dismiss Mesothelioma Lawsuit

In response to the asbestos company’s argument that the victim’s testimony was “revisionist,” Mr. MacLachlan explained that he’d been deposed “over two grueling days while suffering with the symptoms of mesothelioma.”  The judge considered both arguments and concluded, “Dealing with ill health and intense questioning about his complete work history, including dates of employment, locations, job responsibilities and asbestos-containing products he saw, Plaintiff concedes that at his depositions he misstated the extent of the time frame he wore Defendant’s protective coat.”

The judge went on to say, “Plaintiff Donald MacLachlan was asked about a job he held over thirty years earlier. He is now suffering with mesothelioma symptoms and somewhat advanced age. … the Court concludes that the contradictions in the supplemental affidavit can be reasonably explained by confusion, memory lapses and new pertinent evidence.” He determined that the decision as to facts should be made by a jury and that the case should be allowed to continue.