When the defense wins with the plaintiff's case

Edward R. Hugo, Brydon Hugo & Parker, San Francisco

By Michael Rehak

Imagine what might have been going through the minds of Foster Wheeler executives when attorney Edward Hugo, hired to defend the company in a multimillion dollar asbestos suit, showed up to court practically empty-handed. He didn't even have a single expert witness to act as heavy artillery.

The 59-year-old plaintiff, Paul Whitlock, was a retired U.S. Navy boiler technician who worked aboard the U.S.S. Kitty Hawk from 1965 to 1967.(Whitlock v. Foster Wheeler) He was diagnosed with mesothelioma, which he claimed was the result of scraping boiler tubes and regular exposure to refractory materials containing asbestos.

  Edward R. Hugo

The Brief on Edward Hugo

Education: J.D., University of California, Hastings College of the Law

Government service: Hugo was a senior trial attorney with the San Francisco District Attorney's office.
Hugo also serves as a Marin County Superior Court judge on a pro bono basis.

Whitlock's lawyers argued that about 15 parts suppliers and manufacturers, including Foster Wheeler—a global engineering, construction and power supply giant—knew about the exposure, but failed to notify and protect workers. The company faced a $4 million demand, and 11 defendants had already settled. But 29 grueling trial days later, Foster Wheeler was found not liable by a 9-3 jury vote.

Cases involving serious products liability claims usually become a battle of experts. However, Hugo and co-counsel John Brydon didn't present any. In his unorthodox fashion, Hugo won his case by letting his opposing counsel carry all the bags into the courtroom.

"It's extremely uncommon because most [defense] attorneys don't know how to do it," Hugo said. "It's not quite 'going for broke,' but it's close."

Solely through his cross-examination of the plaintiff's "state-of-the-art" expert witness, Hugo got his client's story before the jury: There was nothing the manufacturer could have told the Navy that would have changed the way the plaintiff used the product.

"Habitually, I start my preparation to defend each case with the assumption that I have no witnesses," Hugo said. "This forces me to analyze each of the plaintiff's witnesses as a vehicle to admit evidence that is favorable or necessary to my case, in addition to evidence that is harmful to the substance or credibility of the plaintiff's case."

Dangerous an approach as it may seem, Hugo has won about 20 cases and lost only one by applying what he calls, "the risk benefit test."

"When plaintiff rests, I add up all of the evidence that I have admitted through my opponent's witnesses and compare that evidence to what my own witnesses could provide if I called them in my case," he said.

Hugo also boasts of an ideology that separates him from his cohorts. "Defense attorneys generally try just not to lose," he said, "I'm not about that. I'm trying to disprove the case—I'm trying to win."

The Foster Wheeler verdict was a fitting end to 2006, a year in which Hugo and his firm went 6-0. There was one settlement, but it cost Hugo's client less than five percent of the $1 million demand. Also in October, Hugo and his firm wrapped up another victory representing Foster Wheeler on another asbestos claim (Kapraun v. Foster Wheeler). Hugo had just a week to celebrate before the Whitlock trial began.


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