Because the defendant’s husband passed away before he was deposed, the plaintiff attempted to use naval records and discovery responses to establish the elements of her claims. Naval records indeed established that he served on the ships during the time in question and, further, that the manufacturer’s engines were on the ships. Discovery responses filed in other jurisdictions also established that the engines in question were equipped with asbestos-containing gaskets and that asbestos was used on some of the exhaust systems attached to the engines. The plaintiff maintained that the documentary evidence she produced was sufficient to establish a genuine issue of fact concerning whether her husband was exposed to asbestos from the manufacturer’s engines. The manufacturer moved for summary judgment arguing that despite the documentary information, there was no evidence, expert or otherwise, as to the frequency, duration or proximity of the alleged exposures, if there were any exposures at all.

The plaintiff opposed summary judgment contending that, if given the opportunity, she would present the testimony of a naval historian to detail the nature of exposures expected of someone who held the rank and assumed the duties of her husband. The manufacturer countered that under the applicable rules, the time for designating and offering expert evidence had passed and that without this testimony, the plaintiff could not meet her burden of proof. After hearing, Superior Court Judge David W. Skolnick allowed the motion. The handling of this case was in keeping with the philosophy of Hermes, Netburn, O’Connor & Spearing, P.C. We tailor our litigation strategy to provide a vigorous defense appropriate to the needs of each case. Here, the manufacturer was prepared to present a thorough defense through trial but was able to obtain summary judgment before paying the significant costs associated with experts and other trial preparation.

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After the appeal, the tenant and its insurer continued to maintain that the provision was unenforceable based upon the facts of the case. The owner prevailed on a Motion for Summary Judgment in the Superior Court and the firm continued its representation when this decision was appealed to the Massachusetts Appeals Court. This time, the ruling of the Superior Court was affirmed.

As a result of the work done by the lawyers of Hermes, Netburn, O’Connor & Spearing, P.C., commercial leases in Massachusetts may continue to contain a customary provision requiring tenants to provide liability insurance for the benefit of the owners for claims arising out of the tenant’s use of the lease premises.

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The evidence presented at trial concentrated on the valuation of stocks and bonds over time because the income of the investment advisory business was tied to the performance of its clients’ investments. After a jury waived trial, the Court valued the business at $40,000,000 and the ultimate payments by the defendants to the client, including interest, were more than six times the highest settlement offer tendered by the defendants. The lawyers of Hermes, Netburn, O’Connor & Spearing, P.C. overcame the many obstacles associated with being retained on the eve of trial to provide the aggressive representation needed to protect the client’s interests.

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Each of the subcontractors had worked with the firm’s client for many years and received a significant portion of their business from this contractor. We convened a meeting of the principals of the subcontractors and their attorneys and carefully explained the reality that faced these subcontractors. The settlement demand from the condominium association, when equitably divided among the subcontractors, with the client taking a share, was in the approximate amount of the subcontractors’ deductibles on their insurance. Additionally, it was far less than the transactional costs involved in conducting litigation in a construction case involving claims of alleged defects in dozens in units. As a result, each subcontractor committed to make payments to settle the case and to preserve its business relationship with our client. The case settled and our lawyers were successful in obtaining releases from all of the unit owners in the condominium.

This case contrasts markedly with other litigation in which contractors and sub-contractors engage in costly litigation over many years only to settle on the eve of trial for an amount which could have resolved the case years earlier. At Hermes, Netburn, O’Connor and Spearing, P.C. we are committed, wherever possible, to seeking cost-effective solutions for our clients, even in the most complex situations. We can create novel strategies appropriate to our client’s business needs and pursue those strategies at all stages of pre-suit claims and lawsuits.

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At the same time, Hermes Netburn retained experts to study the cause of the delamination of the paint and, after those studies, brought a civil action against the steel supplier whose failure to cure the painted steel properly resulted in the delamination. The subcontractor’s surety was also a party in the case. After defeating Motions for Summary Judgment by the subcontractor and the surety, we obtained a settlement in the case that, with other reimbursements available to its client, resulted in recovery of substantially all of the expenditures by the client. Additionally, the client retained the good will of the developer of the project and subsequently was awarded substantial contracts for the construction of other projects.

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Hermes, Netburn, O’Connor & Spearing, P.C. represented a major international corporation which self-insured its workers’ compensation coverage with a fronting insurer. The fronting insurer attempted to obtain substantially increased letters of credit and to draw down on existing letters of credit. The insurer was suspected using the letters of credit as general corporate assets rather than as restricted funds available solely for the payment of claims under the client’s self-funded policies of insurance.

Within two days, our lawyers commenced an action in a Federal District Court and obtained a temporary restraining order barring the insurer from drawing on the letters of credit. This temporary restraining order became a preliminary injunction. The preliminary injunction remained in effect while we successfully assisted our corporate client in placing the fronting insurance with another carrier, and in obtaining a return of both the existing letters of credit and a refund of premium previously paid to the insurer by the client. This swift action prevented potentially significant business complications which could have been caused by the posting of additional letters of credit.

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The Plaintiff was a 69 year old living mesothelioma patient who alleged exposure to asbestos-containing products in three ways: (1) while serving in the U.S. Navy as a boiler technician aboard the U.S.S. Ault (DD-698), the U.S.S. Sierra (AD-18), the U.S.S. Norfolk (DL-1) and the U.S.S. Pawcatuck (AO-108) from 1957 to 1979; (2) while working as a civilian boiler inspector from 1979 to 1996; and (3) while assisting his father during home renovation projects in the 1950s. With respect to the firm’s client, the Plaintiff alleged exposure to distilling plants and fuel oil heaters supplied to the Navy by our client’s alleged predecessor.

The gist of the Plaintiff’s case was that our client acted negligently and breached a warranty by failing to warn him about the hazards of asbestos because (1) the client’s equipment was wrapped in asbestos-containing external insulation and, although the client did not supply the external insulation, it reasonably should have foreseen that the Navy would cover the equipment with asbestos-containing insulation, and (2) the equipment had asbestos-containing gaskets and packing in it when originally supplied and, therefore, the client reasonably should have foreseen that the Navy would use asbestos-containing replacement gaskets and packing in the equipment. In support of their claims, the Plaintiff called a cell biologist, a pathologist, an occupational medicine specialist and a naval expert.

We defended against the Plaintiff’s claims on several theories, including (1) our client had no duty to warn about external insulation because it did not recommend or require asbestos-containing external insulation and it had no way of knowing what type of external insulation the Navy might apply to its equipment post-sale, (2) our client had no duty to warn about asbestos-containing gaskets and packing because the state of the art before and during the Plaintiff’s work with its equipment was such that an equipment manufacturer had no reason to believe that gaskets and packing could cause disease, and (3) our client was relieved of any alleged duty to warn because of the sophisticated user defense. In support of its defenses, we called two naval experts and a Certified Industrial Hygienist.

The Judge allowed our motion for a directed verdict on the external insulation issue and, therefore, the only issue before the jury was whether our client acted negligently or breached a warranty with respect to the asbestos-containing gaskets and packing in its equipment. The jury found that the Navy was a sophisticated user of asbestos, such that any warning by our client would have been superfluous and unnecessary. The jury also found that it was reasonable for our client to rely on the Navy’s knowledge regarding asbestos. As a result, the jury found that our client neither breached a warranty nor acted negligently.

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