Mass Tort Litigation Blog

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

W.R. Grace Foots the Bill for Montana Asbestos Clean-up

Susan Gallagher of the Associated Press reports that W.R. Grace & Co. agreed to pay $250 million toward asbestos clean-up in Libby, Montana. The full story is available online; here’s a brief excerpt:

More than 215 asbestos-related deaths in Libby have been confirmed and a clinic in the community, the Center for Asbestos-Related Disease, is following about 2,000 asbestos cases, said Jon Heberling, a Kalispell lawyer with clients pursuing legal action for asbestos exposure.

"Any judgment against Grace is a good one," Gayla Benefield of Libby said Tuesday. "This is a step forward; $250 million is nothing to sneeze at considering that in 1999 they (Grace) were saying, 'We didn't cause the problem. We didn't do anything.'"

Benefield has said she suffers health effects from asbestos exposure and lost both parents to asbestos-related diseases.

The EPA's Peronard said the remaining cleanup work in Libby is likely to take three to five years.

In 2001, the government filed a lawsuit to recover costs and in 2003, the EPA won a $54 million judgment for cleanup costs incurred through Dec. 31, 2001. However, the money went unpaid during Grace's bankruptcy protection. The settlement announced Tuesday includes that 2003 judgment, the Department of Justice said.

Besides removing soil around homes and businesses, cleanup has included removing building insulation and debris containing asbestos. Peronard said cleanups have been completed at 954 properties, and 450 remain on a cleanup list. Still to be decided: what to do about some 700 properties that are in the Libby area and are contaminated but do not meet removal criteria.

ECB

Registration for Southwestern Law School Asbestos Symposium

On Friday, January 18, 2008, Southwestern Law School is hosting a symposium entitled, Perspectives on Asbestos Litigation.   Here's the press release, and brochure: Download southwestern_law_school_asbestos_symposium_brochure.pdf  For further information about the conference, see my prior posts here and here.  Attendees may register in advance by contacting the Student Affairs Office of Southwestern Law School at (213) 738-6716.  We look forward  to an engaging and informative day with a remarkable slate of speakers, and hope you will be able to join us.

BGS

W.R. Grace's Bankruptcy Trial

W.R. Grace, a company that initially registered on many civil procedure professors’ radars after its role in A Civil Action, will begin its bankruptcy trial on January 14. Amidst its creditors are a number of asbestos claimants. Peg Brickley of the Wall Street Journal reports:

If the answer from U.S. Bankruptcy Judge Judith Fitzgerald is $700 million or a little more, Grace and its shareholders are safe and on their way out of bankruptcy, with enough value to cover the asbestos-damage bill and have something left over for shareholders.

But if Judge Fitzgerald estimates asbestos liabilities at levels argued by plaintiffs' lawyers, Grace is destined to become the property of people damaged by its toxic products, and shareholders will be out in the cold.

Experts for the asbestos camp say Grace's liabilities are at least $3.7 billion. "If the asbestos experts are even close to right, then the equity in this company is severely at risk, or it will simply be wiped out," said Roger Frankel, a lawyer for asbestos creditors.

Investors are betting heavily that Grace -- bankrupt for more than six years and under criminal indictment for allegedly covering up its asbestos troubles -- will be the Chapter 11 case where phony claims are finally exposed, and "junk science" trashed.

Speculators pounce on every court filing, and are paying $25 a share for the stock -- an unusually high amount for a company in bankruptcy. That is a vote of confidence for the company and the litigator spearheading Grace's hard-fought bankruptcy case, one lawyer said.

ECB

Brickman Comments on DOJ

Professor Lester Brickman (of Cardozo) commented recently in the Wall Street Journal that the Department of Justice has given doctors and lawyers a "free pass" "to commit massive tort fraud, exceeding $30 billion in the past 15 years."  Here's an excerpt:

But it now appears as if neither this U.S. Attorney's Office nor the parent Department of Justice is going to prosecute mass tort fraud. Six months ago there were signs that Justice was moving forward on some key cases involving one or more of the litigation doctors. Now, unfortunately, that activity appears to have all but ceased.

The dimensions of this fraud are stunning. An asbestos screening of 1,000 potential litigants generates about 500-600 diagnoses of asbestosis. If these same occupationally exposed workers were examined in clinical settings, approximately 30-50 would be diagnosed with asbestosis. The total take for "excess" asbestos diagnoses is more than $25 billion, of which $10 billion has gone to the lawyers. More billions for bogus claims in the diet drug (fen-phen) and silicone breast implant litigations can be added to this bill.

A comparative handful of doctors and technicians are responsible for the vast majority of bogus medical tests and diagnoses. To indict and prosecute those responsible would require testimony from other doctors that the mass-produced diagnoses cannot have been rendered in good faith.

To be sure, doctors can differ in reading X-rays or making a diagnosis. But when a doctor has been paid millions of dollars to produce 5,000 or even 50,000 diagnoses in the course of mass-tort screenings -- and when panels of experts have found the vast majority of these to be in error -- the most compelling conclusion is that the diagnoses were "manufactured for money."

Prosecutors on the federal and state level are nonetheless concerned that such a "battle of the experts" will raise reasonable doubt in the minds of juries, and so they decline to prosecute these doctors, let alone the lawyers who hired them. This decision, however, gives the doctors a special dispensation to commit fraud.

Peter Lattman responded on the Wall Street Journal's Law Blog.

ECB

Perspectives on Asbestos Litigation Symposium

As I previously mentioned, Southwestern Law School is hosting a symposium entitled, "Perspectives on Asbestos Litigation," on Friday, January 18, 2008.  Here is a copy of the brochure Download lr_perspectiveinasbestoslitigation.pdf, which lists the exceptional speakers and panels that will occur throughout the day.  Hope you can join us.  We're overjoyed at the remarkable speakers who have agreed to participate.

BGS

Judge Weinstein's Numerous Mass Torts & The "Related Case" Designation by Plaintiffs

Point of Law flags a recent story in the New York Sun -- Judge Lands at Center of a New York Legal Mystery, by Joseph Goldstein -- which chronicles the use of the "related-case" designation by plaintiff's lawyers to maneuver their cases before Judge Weinstein in the Eastern District of New York. 

I first encountered plaintiffs' use of this device as a lawyer for defendants in the Simon II tobacco case, which plaintiffs had put before Judge Weinstein as a "related case."  A court might justifiably want to keep related cases before a judge with related cases -- there's an argument that it's inefficient to educate multiple judges about the same complex factual and legal issues.  But the devil is in the details.  Take a look at the Eastern District of New York civil action cover sheet: Download js44-45.pdf .  The cover page has a section asking whether there are "RELATED CASE(S) IF ANY" and includes a line for Judge and Docket Number.  The plaintiff then has the ability to list any case and judge on the line, and then I believe the case is automatically routed to that judge. 

The problem is that there may be multiple judges in a district who have cases that are arguably related to the plaintiff's case.  The plaintiff might list whichever judge the plaintiff believes is most inclined to the plaintiff's position -- a system that biases judge selection in favor of plaintiffs.  And then as the article notes, the defendant may be held to have no standing to challenge the "related case" judge selection by plaintiffs, on the remarkable grounds that it is an administrative determination when in fact  the determination has been made not by an administrator or a judge, but by opposing counsel.  Imagine that the first judge plaintiffs get in a mass tort is one who they don't like; then when filing another case, they list no related case, and hope for another particular judge; finally, once the desired judge is obtained, then all future cases are checked as "related" to that cases before that desired judge only. 

A better system would be for plaintiffs lawyers to be informed that they are ethically bound to list every case and judge that counsel is aware the case might be reasonably considered related to.  If the "related case" box is checked, the court -- through administrators or a judge committee -- should undertake an independent review of whether any other cases and judges are implicated.  (For example, court administrators could circulate a weekly "related case" email to clerks, asking if their judges have any cases that are related.)  If several judges are involved in the cases, then the case should be randomly assigned among those judges -- unless the court makes its own decisions to centralize all cases before a single judge for administrative reasons.  Case assignment to judges is a decision that should be made by the court, not the litigants -- and certainly not only one type of litigant.

BGS

Robles Sentenced to 15 Years

Plaintiffs' mass tort lawyer Louis Robles was sentenced yesterday to the maximum 15 years for stealing settlement money from clients he represented in asbestos litigation.  Here's an excerpt from the Sun Sentinel:

A Miami attorney who admitted stealing more than $13 million from thousands of clients suffering from asbestos-related illnesses was sentenced Tuesday in Miami federal court to 15 years in prison.

Louis Robles, 59, once known as the "King of Torts," pleaded guilty in September to three counts of mail fraud, each carrying a possible five year sentence. U.S. District Judge Alan Gold, who had rejected an earlier plea agreement he thought was too lax, sentenced Robles to the maximum prison term.

Between 1989 and 2002, Robles collected more than $164 million on behalf of roughly 7,000 clients suing asbestos companies. In the mid-1990s, he began dipping directly into settlement proceeds without his clients' knowledge to fund an extravagant lifestyle, prosecutors said.

For earlier proceedings, see posts on April 19,  Sept. 17, and Sept. 24.

HME

Scruggs Indictment for Allegedly Attempting to Bribe a Judge in Katrina Insurance Litigation

Top plaintiffs' lawyer Dickie Scruggs, of tobacco and asbestos fame, has been indicted for alleged attempted bribing of a Mississippi state judge in connection with the distribution of fees from the Katrina insurance litigation.  As with the separate Milberg Weiss allegations about paying class representatives, the government appears to have much stronger evidence against a less-well known lawyer intermediary, who was allegedly working on behalf of the well-known plaintiffs' lawyer.  In the Katrina litigation, that intermediary is alleged to be Timothy Balducci, who was audiotaped offering the bribe and delivering the money, according to the government.  Scruggs denies the allegations.

The Wall Street Journal has details on the build up of the case in the article, How the Scruggs Case Came Together, by Ashby Jones and Peter Lattman.  In addition, an editorial in the Journal -- The Trial Bar on Trial -- celebrates the possible downfall of prominent tort lawyers who were indicted this year, including Bill Lerach, Dickie Scruggs, and others at Milberg Weiss including Melvyn Weiss. 

If true, all of these allegations suggest remarkable hubris in at least some of the top plaintiffs' lawyers.  One wonders about the effect of a lifestyle of private jets and multiple wins of multiple millions (or tens of millions) in fees.  One also wonders about the effect of high-risk, winner-take-all, contingency fee litigation.  Brash and aggressive personalities seem to thrive in such an environment -- but they too must keep in mind that lawyers ultimately serve the client (not the other way around) and that no one (especially not the lawyer) is above the law.

BGS