Virginia Supreme Court Issues Game-Changing Decision in Connection with Asbestos-Related Lawsuits

On March 2, 2012, the Virginia Supreme Court, in John Crane, Inc. v. Hardick, issued a unanimous decision holding that the trial court erred when it allowed a jury to award non-pecuniary damages to the widow of a former Navy sailor who developed mesothelioma allegedly as a result of asbestos exposure while serving aboard vessels in the territorial waters of the United States, on the high seas, and at foreign ports.  The case presented an issue of first impression in the country: whether the damages available to the estate of a Navy sailor were limited to those pecuniary damages made available under the Death on the High Seas Act, 46 U.S.C. §§ 30301-30308 (“DOHSA”), or whether the estate could avoid the impact of DOHSA by limiting its claim to those exposures that occurred in the U.S. territorial waters and thereby recover non-pecuniary damages (i.e., pain and suffering, loss of consortium) under the general maritime law.  In its decision, the Court held that a Navy sailor is considered a “seaman” for purposes of determining what damages are available under general maritime law wrongful death actions.  After citing Miles v. Apex Marine Corp., 498 U.S. 19 (1990) and DOHSA, the Court agreed that the damages available to a Navy sailor and his estate in such cases are limited to his or her pecuniary damages (i.e., lost future earnings, medical expenses, and funeral expenses).  Though this case included exposures on the high seas (and application of DOHSA), the Court’s reliance on Miles (which involved a death occurring in territorial waters) suggests that the Court would not require high seas exposure before finding that the damages under general maritime law are limited to pecuniary damages.  It is anticipated that this opinion will have significant impact on asbestos litigation going forward.

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