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Burkhart v. H.J. Heinz Co. – Asbestos Injury Deposition Inadmissible in Workers’ Comp Case

If you have been injured in the course of your employment, generally the only compensation you can receive will come from your workers’ compensation insurance. However, there are third-party liability exceptions. One of the most common examples is third-party toxic tort lawsuits against manufacturers who produced products containing asbestos.
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Throughout the 20th Century, asbestos was in everything from floor tiles to insulation to piping. While many workers were unaware of it, those manufacturers knew how dangerous the asbestos was and yet failed to warn companies and their workers of those dangers.

Because of the latent nature of asbestos-related diseases, which typically don’t manifest until several decades after exposure, we are only just now seeing the effect on workers today – many of whom might already be retired. Although the statute of limitations would generally bar claims filed so long after the injury occurred, time is often tolled in asbestos cases out of consideration for the fact the worker was unaware he or she was injured until decades after exposure. Because of the complex nature of occupational cancer cases, it’s important to consult with an experienced Atlanta workers’ compensation lawyer as soon as possible to explore all options.

The recent case of Burkhart v. H.J. Heinz Co., reviewed by the Ohio Supreme Court, revealed how complex these cases can be.

In this case, the court ruled testimony given by a maintenance worker in the course of his product-liability litigation against an asbestos manufacturer can’t be used in a separate case asserting rights to collect workers’ compensation benefits. In most other cases this wouldn’t be an issue because the worker could simply be deposed again by the defendants in the workers’ compensation case. However, that isn’t possible here because the worker has passed away.

The worker died of mesothelioma, which is an aggressive terminal cancer of the stomach and lung lining that is caused by exposure to asbestos. Prior to his death, he filed a lawsuit against the manufacturer of the products with which he worked in the boiler room of a ketchup bottling company.

Following his death, his widow filed a claim for workers’ compensation against the man’s former employer. He’d worked there 40 years prior to retirement in 1986.

She sought to admit into evidence in the workers’ compensation case her husband’s deposition testimony in the product liability case, asserting both defendants had virtually the same motive. However, the Ohio Supreme Court disagreed.

In writing for the majority, Justice Terrence O’Donnell noted that while each asbestos manufacturer named in the product liability lawsuit sought to disprove the worker had been exposed to asbestos from products it produced, none had an incentive to prove he wasn’t exposed to the material while working for Heinz.

This was a major blow to the workers’ compensation case because without that exception, that testimony is considered hearsay. The court indicated the only exception would be if a defendant could be considered a “predecessor-in-interest,” which was not the case here.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:
Burkhart v. H.J. Heinz Co., Sept. 3, 2014, Ohio Supreme Court
More Blog Entries:
Whigham v. Jackson Dawson Communications – Kickball Game Injuries Compensable, Sept. 7, 2014, Atlanta Work Injury Lawyer Blog