Is Your Plaintiff “Over Coached?” Symptoms of Undue Influence on Testimony, Review of Applicable Ethical and Discovery Rules, and How to Combat Over Coaching In Asbestos Cases
Plaintiffs’ counsel and experts who work with them are effective at making every mesothelioma case asbestos-related and finding a solvent target to sue for that injury. Yet the scientific evidence is that not every tumor called “mesothelioma” is caused by asbestos exposure. For those that may be, the chances are slim that the entity responsible for those exposures is still viable after over forty years of litigation. But several converging forces allow asbestos litigation to continue, including: (1) coaching of plaintiffs to identify only the solvent companies as responsible parties; (2) experts who will opine that any exposure identified was a substantial factor; (3) inertia of large dockets that keep defense counsel and courts from adequately challenging improper practices by plaintiffs’ counsel; and (4) immense financial incentive to keep these practices alive. This paper examines the practice of coaching an asbestos plaintiff, including practices designed to maximize the effect of coached testimony. It then explores the ethical rules relating to witness preparation and discovery rules involved to shield preparation tactics. Finally, the paper offers some suggestions on how to address the problem of over-coaching in asbestos cases.