Mass Tort Litigation Blog

Anita Bernstein on Asbestos Achievements

Anita Bernstein (Brooklyn) has posted to SSRN her article, Asbestos Achievements.  Here's the abstract:

This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.

BGS

Supreme Court Reaffirms Availability of Damages for Fear of Future Illness in Asbestos Cases

In CSX Transportation, Inc. v. Thurston Hensley, the Supreme Court addressed the question of whether a former railroad worker who contracted astestosis after long-term exposure to asbestos on the job could recover damages for pain and suffering under the Federal Employers' Liability Act (FELA) based on his fear of developing lung cancer in the future.  In its June 1 decision, the Court, per curiam, reaffirmed a prior requirement that such damages are available but are limited to plaintiffs who can prove that their fear of cancer is both genuine and serious; the Court thus found that the lower court erred by not utilizing a jury instruction embodying this standard.  The full text of the opinion can be found here.

WBR

Justice Souter Retiring

Justice David Souter plans to retire from the Supreme Court when the term ends in June, according to new accounts.  In the field of mass torts, Justice Souter authored the majority opinion in Ortiz v. Fibreboard Corp., the 1999 decision rejecting a Rule 23(b)(1)(B) limited fund settlement class action in asbestos litigation.  After Ortiz, non-opt-out settlement class actions -- which in the 1990s had some appeal as a potential mechanism for resolving future claims in high liability mass torts -- are both difficult and unappealing to use as a mass tort settlement mechanism.  For the tenth anniversary of Ortiz, the University of Kansas is planning a symposium in October, organized by mass torts prof Laura Hines.

HME

Mark Lanier Expanding Plaintiffs' Tort Law Firm

Article by Alison Frankel in AmLaw Litigation Daily -- Texas Torts Firm Says Business Is Booming, Expands Houston Office.  The article has some interesting quotes from Mark Lanier about asbestos litigation.  Here's an excerpt from the article:

In asbestos, Lanier's firm handles only mesothelioma cases, which he said have not slowed even though it's been decades since asbestos has been widely used. We asked whether the complaints by tort reformers that Delaware has become a haven for asbestos litigation were true, and, somewhat to our surprise, Lanier said that indeed, Delaware had become a frequent forum. But not, he hastened to add, because it's particularly friendly to plaintiffs. "It's not a home run forum for us," Lanier said. "It's a one-stop shop. You have jurisdiction over most defendants there."

We couldn't let that comment pass without asking what were still home run jurisdictions for asbestos claimants. There aren't a lot, Lanier said: Baltimore; New York; some parts of California, though that's beginning to change; and West Virginia, if you can get jurisdiction there. Lanier told us he's hoping to revive Texas asbestos litigation and is making a new push to file cases in Boston.

BGS

Wall Street Journal Editorial on Silicosis Fraud Follow-Up

Here's an excerpt from the Journal's editorial, The Silicosis Abdication: A scam that deserves as much scrutiny as Lerach and Scruggs:

It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a ring of doctors and lawyers who ginned up phony litigation to reap jackpot payouts. So where's the enforcement follow-up?

That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron. He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.

Dr. Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.

BGS

Panel on New Book, Regulation by Litigation, by Andrew Moriss, Bruce Yandle, and Andrew Dorchak

The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library).  The event will be held on Tuesday, March 17, 2009 at the Mayflower Hotel in Washington, D.C.  Panel members will include the book's authors, as well as Professor David Vladeck (Georgetown) and Roger Martella (Sidley Austin), and the moderator will be Jonathan Adler (Case Western).  Here's the description of the book:

Federal and state regulatory agencies are increasingly making use of litigation as a means of regulation. In this book, three experts in regulatory law and theory offer a systematic analysis of the use of litigation to impose substantive regulatory measures, including a public choice-based analysis of why agencies choose to litigate in some circumstances.

The book examines three major cases in which litigation was used to achieve regulatory ends: the EPA’s suit against heavy duty diesel engine manufacturers; asbestos and silica dust litigation by private attorneys; and private and state lawsuits against cigarette manufacturers. The authors argue that litigation is an inappropriate means for establishing substantive regulatory provisions, and they conclude by suggesting a variety of reforms to help curb today’s growing reliance on such practice.

BGS

Libby, Montana Asbestos Criminal Trial Begins

Article on cnn.com -- Decades later, asbestos-ravaged town has its day in court, by Josh Levs.  Here's an excerpt:

For much of the last century, people in the small town of Libby, Montana, were surrounded by toxic asbestos. It covered patches of grass, dusted the tops of cars and drifted through the air in a hazy smoke that became a part of their daily lives.

Now, after decades of suffering and watching loved ones die, area residents are getting their day in court.

Federal prosecutors have begun a trial of the mining company they blame for the pollution, which doctors say left more than 1,000 people ill and more than 200 dead.

BGS

Southwestern University Law Review Asbestos Symposium Issue

The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008.  Here are the articles contained in the issue:

Alan Calnan & Byron Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008).  Download calnan_stier_introduction_final_pdf.pdf

Mark A. Behrens & William L. Anderson, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008).  Download behrens_anderson_article_final_pdf_121808.pdf

Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 Sw. U. L. Rev. 511 (2008).  Download freedman_article_final_pdf_121808.pdf

Michael D. Green, Second Thoughts About Apportionment in Asbestos Litigation, 37 Sw. U. L. Rev. 531 (2008).  Download green_article_final_pdf_121808.pdf

Phil Harley, Judicial and Practical Perspectives: Transcript of Phil Harley, 37 Sw. U. L. Rev. 533 (2008).  Download harley_transcript_final_pdf_121808.pdf

David G. Owen, Against Priority, 37 Sw. U. L. Rev. 557 (2008).  Download owen_article_final_pdf_121808.pdf

Keith N. Hylton, Asbestos and Mass Torts with Fraudulent Victims, 37 Sw. U. L. Rev. 575 (2008).  Download hylton_article_final_pdf_121808.pdf

James A. Henderson, Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw. U. L. Rev. 595 (2008).  Download henderson_article_final_pdf_121808.pdf

Gregory C. Keating, The Heroic Enterprise of the Asbestos Cases, 37 Sw. U. L. Rev. 623 (2008).  Download keating_article_final_pdf_121808.pdf

Richard Nagareda, Public and Private Law Perspectives: Transcript of Professor Richard Nagareda, 37 Sw. U. L. Rev. 659 (2008).  Download nagareda_transcript_final_pdf_121808.pdf

Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. Rev. 665 (2008).  Download erichson_transcript_final_pdf_121808.pdf

Jospeh Sanders, Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation,  37 Sw. U. L. Rev. (2008).  Download sanders_article_final_pdf_121808.pdf

Anita Bernstein, Asbestos Achievements, 37 Sw. U. L. Rev. 691 (2008).  Download bernstein_article_final_pdf_121808.pdf  

Neil Vidmar, Social and Cultural Perspectives: Transcript of Professor Neil Vidmar, 37 Sw. U. L. Rev. 717 (2008).  Download vidmar_transcript_final_pdf_121808.pdf

Judy Sloan, Perspectives on Asbestos Litigation: Introduction to the Keynote Address, 37 Sw. U. L. Rev. 731 (2008).  Download sloan_transcript_final_pdf_121808.pdf

Barbara Rothstein, Perspectives on Asbestos Litigation: Keynote Address, 37 Sw. U. L. Rev. 733 (2008).  Download rothstein_transcript_final_pdf_121808.pdf

My many thanks again to all those who worked on the symposium and the issue, and of course to all of the speakers (including co-blogger Howard Erichson) who made for a fascinating day.

BGS

Bruce Mandel and James Kline on Ohio Supreme Court's Greater Deference to Legislative Tort Reform

Bruce Mandel and James Kline (both of Ulmer & Berne) list the areas of greater deference in their Washington Legal Foundation paper, Recent Ohio High Court Rulings Reflect Respect for Legislature's Role in Making Tort Law.

BGS

Upcoming American Association of Justice Meeting

Point of Law discusses possible litigation developments involving AAJ's Litigation Groups for product liability and class actions.

BGS

The Causation Problem in Chemical Exposure Cases

Whereas some toxic substances have signature diseases (asbestos and tobacco come to mind) in other cases causation is difficult for impossible to prove, creating serious legal problems for workers and others exposed to the substances seeking compensation through the tort system.  A New York Times article by Felicity Barringer ("Exposed to Solvent, Worker Faces Hurdles") from this past Saturday (January 24, 2009) details the story of a worker trying to obtain compensation for workplace exposure that he believes caused his Parkinsons.  While a 2008 study showed increased risk of disease from exposure to the chemical at issue, that does not necessary translate into legal causation for purposes of worker's compensation and/or tort suits. 

The article demonstrates how difficult it is to bring tort claims arising out of exposure to various toxic chemicals.  As one lawyer stated:

“Most workers who have an occupational disease don’t think they have an occupational disease,” Mr. Metzger said, adding that “the few who might think it are mostly not successful” in getting compensation “because there isn’t a robust body of literature to support the claim.”

This problem demonstrates the interrelationship between our tort system, worker's compensation system, environmental, insurance and healthcare systems.  Because we have a weak insurance and healthcare regime and weak regulations, many turn to the tort and worker's compensation systems to support workers who are harmed.  But these systems are not well structured or suited to address the problems they are being asked to solve.  The currect state of causation doctrine is one reason why. 

ADL

Court Exposes Questionable Asbestos Expert Diagnoses

Echoing the shot heard round the world -- Judge Jack's opinion exposing systemic misdiagnoses by plaintiffs' experts in the silica litigation -- a Michigan state judge has now found a similar pattern of plaintiff-expert misdiagnoses in the asbestos litigation.  From an editorial in today's Wall Street Journal:

Good legal news for a change: The courts keep making progress against phony asbestos lawsuits, this time in Michigan, where Wayne County Circuit Court Judge Robert Colombo, Jr., has risen to the challenge of a case we wrote about in November.

Judge Colombo has been overseeing asbestos cases in which defendants were trying to disqualify Michael Kelly, a physician who had diagnosed thousands of people with asbestos-related disease on dubious grounds. The judge made clear in court that he didn't appreciate the national attention of our editorial, to put it mildly. But in the end he did the right thing by granting a hearing into Dr. Kelly's diagnoses. Tellingly, the plaintiff attorneys immediately withdrew all but one of their suits.

The judge plowed ahead anyway, helping to expose another asbestos scam. Defendants presented evidence that Dr. Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. An outside panel of radiologists who looked at Dr. Kelly's work found abnormalities in only 6 of 68 patients; Dr. Kelly had found abnormalities in 60 of those 68.

BGS

Supreme Court to Hear Asbestos-Related Suit

The Supreme Court granted cert today on whether a federal bankruptcy court can block private suits seeking damages for injury and death caused by asbestos.  The consolidated cases are Travelers Indemnity v. Bailey, et al. (08-295) and Common Law Settlement Counsel v. Bailey, et al. (08-307).  SCOTUSblog has links to the Second Circuit's opinion and the petitions for certiorari.  The question presented is:

Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the "res" of a debtor's estate, despite this Court's recent ruling that "[t]he Framers would have understood that laws 'on the subject of Bankruptcies' included laws providing, in certain respects, for more than simple adjudications of rights in the res," Central Virginia Community College v. Katz, 546 U.S. 356, 370 (2006), and whether the court of appeals compounded this error by: (a) failing to apply as written a federal statute (11 USC §§ 524(g) and (h)), by limiting the scope of relief in a manner that is contrary to the express terms and purposes of that statute; (b) failing to give effect to the Supremacy Clause and holdings of this Court that federal bankruptcy relief cannot be overridden by rights alleged to have been created under state law; and (c) failing to respect important principles of finality and repose, and the express provisions of § 524(g), by failing to approve a federal court's enforcement of a confirmation order that was affirmed over two decades ago on direct appeal.

ECB

W.R. Grace's Asbestos Settlement

The Associated Press reports that W.R. Grace has agreed to pay up to $140 million to settle the Zonolite attic insulation asbestos cases.  The article is available here.

ECB

WSJ on Asbestos Screenings in Michigan

The Wall Street Journal commented today in an editorial on problems involved with asbestos screenings involving a particular doctor in Michigan State Court.  Here's an excerpt from Michigan Malpractice:

One reason we know about the great silicosis legal scam is that a Texas judge was brave enough to expose doctors who'd been paid by tort lawyers to gin up phony diagnoses. So it is encouraging to see a Michigan judge now helping to expose evidence of similar medical fraud in asbestos claims.

This action is taking place in the courthouse of Wayne County Circuit Court Judge Robert Colombo, Jr. Asbestos defendants have been attempting to disqualify Michael Kelly, a physician who appears to have falsely diagnosed thousands of people with asbestos-related disease. Judge Colombo recently gave them an opening, which is already having a dramatic effect on state asbestos claims.

BGS

Asbestos Litigation Conference in San Antonio

ALI-ABA is running a conference ominously entitled "Asbestos Litigation: Where Is It Going? When Will It End?" in San Antonio, Texas, on Dec. 4-5, 2008, with presentations by prominent lawyers and law professors including John Aldock, Patrick Hanlon, Deborah Hensler, Stephen Kazan, Mark Lanier, Ellen Pryor, Joe Rice, and Perry Weitz.

HME

Brickman Against Screening

Lester Brickman (Cardozo) has just posted an article on SSRN entitled The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?"  Here is the abstract:

Lawyers obtain the "mass" for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These "litigation screenings" have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers' offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate "medical" evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants' products. Usually a handful of doctors ("litigation doctors") provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on "diagnoses" of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were "manufactured for money."

Despite the considerable evidence I review that most of the "medical" evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.

Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.

ADL

Florida Asbestos Cases Revived

The Fourth District Court of Appeal in Florida revived thousands of Florida asbestos suits last week by ruling that the Florida Asbestos and Silica Compensation Fairness Act couldn't be applied retroactively. Here's an excerpt of the Daily Business Review's story:

Judge Gary Farmer wrote for the unanimous court that the Florida Asbestos and Silica Compensation Fairness Act "may not constitutionally be applied to eliminate the existing vested rights in the lawsuits pending when the act became effective" July 1, 2005. Judges W. Matthew Stevenson and Carole Taylor concurred.

The ruling reversed 13 decisions by Palm Beach Circuit Judge Elizabeth Maass upholding retroactivity. Some of the cases date back to 1999. The decision revives them in the lower court.

"It certainly means that there are thousands of cases that were in the pipeline that were retroactively thrown out by this legislation that now may see new life," said Miami solo practitioner Joel Perwin, who helped handle the 4th DCA appeal for plaintiffs.

The 2005 law set impairment standards for plaintiffs. People with nonmalignant asbestosis must have lost at least 20 percent of their breathing capacity to sue, and those with lung cancer would have to have asbestosis and diminished breathing capacity to discount the effects of smoking.

"There are limits to legislative power," Perwin said. "You don't take away rights that have already been accrued when you're passing new laws."

Coral Gables, Fla., attorney David Jagolinzer, a partner in the Ferraro Law Firm who has represented asbestos victims at the trial level, said he is "extremely happy" with the new ruling. He said it could restore as many as 4,000 asbestos illness cases statewide.

"The importance of this decision is that the whole statute is unconstitutional," Jagolinzer said. The law "established a level of sickness, a level of impairment which you never had before" as a threshold for a lawsuit.

The appeals court said it could not sever the provisions of the act dealing with retroactivity from other provisions.

"The act in its entirety may not constitutionally be applied to require claimants with accrued causes of action for damages resulting from exposure to asbestos to plead and prove that any malignancy or physical impairment results from their exposure to asbestos," the court ruled. "Instead, their accrued causes of action required them to show only that they suffered from an injury from an asbestos-related, nonmalignant disease." The ruling means the 2005 law cannot be applied to anybody with an asbestos-related disease whether or not they sued before the law took effect, Jagolinzer said.

ECB

Brickman on Fraudulent Claims

Lester Brickman (Cardozo) recently updated an article on fraudulent claims in the asbestos context on SSRN.  The title is "Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies." The article was published in the Cardozo Law Review in 2007.

The bottom line, according to Brickman: "The conclusion I draw from the data and evidence presented is that Judge Jack's findings with regard to the medical reports in the silica MDL applies with at least equal force to nonmalignant asbestos litigation: the medical reports are mostly manufactured for money."

ADL

Philadelphia Asbestos Verdict - $25.2 million

The Legal Intelligencer reports that after a reverse-bifurcated trial, a Philadelphia jury awarded $25.2 million in compensatory and punitive damages to compensate for malignant mesothelioma deaths. Plaintiffs in the three cases requested Kentucky law; two settled after the compensatory damage phase. According to plaintiffs’ attorneys, Kentucky law ultimately permitted the jury to award higher punitive damages than it could under Pennsylvania law. Here’s an excerpt:

His case, Baccus v. Crane Co., was brought against the Crane Co., John Crane and Yarway, a company. The defendants sought to have Kentucky law apply to the jury's findings in Baccus and the judge agreed. The jury had previously awarded $7 million in compensatory damages to Baccus and apportioned liability in the amount of 45 percent against John Crane, 35 percent against Crane Co. and 20 percent against Yarway, Shein said.

The jury, applying Kentucky law, also found Yarway and Crane Co. "grossly negligent for failure to warn of the dangers of asbestos in reckless disregard of the safety of others," Shein said. The jurors assessed $11.9 million in punitive damages against Crane Co. and $6.3 million against Yarway.

Shein said this is the first case in Philadelphia he has seen in more than 20 years in which a jury awarded punitive damages in an asbestos case. He said the standard for applying such damages in an asbestos case in Pennsylvania is "much, much higher." He said Pennsylvania usually defers the finding of punitive damages until later in the case whereas Kentucky law instructs the court to do it sooner.

The defendants, Shein said, wanted to apply Kentucky law because it uses an apportioned liability standard in which each of the defendants, even those who previously settled, are given an individual portion of liability. The Pennsylvania model is more akin to "in for a penny, in for a pound," Shein said, in which each defendant splits the damages equally.

"The thing kind of backfired on them because the jury held all of the settled defendants zero-percent responsible," he said.

The defendants that settled before the compensatory damages phase of the trial were Ingersoll Rand, THAN, IMO/DeLaval, Westinghouse, Owens Illinois and Goulds Pumps.

ECB