In an edition of the Washington Legal Foundation's Legal Opinion Letter, Shook Partner Mark Behrens proposes some improvements to the asbestos litigation system in Newport News, Virginia. Asbestos plaintiffs there enjoy the highest rate of success in the United States—85 percent—due to a "favorable confluence of legal precedent and consistently pro-plaintiff judicial rulings that lower the bar for plaintiffs while tying defendants' hands," Behrens explains.
Behrens suggests a few changes that would even out the situation for plaintiffs and defendants. He points to a jury instruction that is "outside the mainstream" as well as the jurisdiction's categorical exclusions of employer knowledge of asbestos hazards and dose reconstruction evidence as overly favorable to the plaintiffs. "Trial courts there may not have flexibility where binding precedent is tilted," Behrens admits, "but they can and should do more to address unfair application of the law and provide a fair shake to asbestos defendants who proceed to trial."