The asbestos litigation pot continues to boil in Australia. Over the last couple of weeks, CSR was denied the opportunity to split its business, a topic I keep hoping to get to, but life is busy. For now, here is a new article about plaintiff's seeking to amend a complaint to seek to prove up purported collusion between Hardie and CSR. How much does that sound like US litigation ? The text also is pasted below.
___________________________________________________________________________
Hardie, CSR 'colluded', sufferer says LEONIE WOOD
February 8, 2010 .
THE building products manufacturers James Hardie and CSR have been accused in court of joining forces during the 1960s and '70s in a bid to dissuade regulatory authorities from restricting or controlling the use of their potentially lethal asbestos products.
The court has also heard allegations that James Hardie and CSR deliberately did not mark their company names on asbestos-laden products so that they could conceal which company manufactured them - a move which, the court heard, would make it harder to identify which company had liability for future claims of potential injury or disease.
The allegations emerged on Friday before Justice Terry Forrest in the Victorian Supreme Court during preliminary proceedings ahead of a trial in which a Melbourne man, Robert Berengo, is claiming damages from James Hardie's asbestos liability fund, Amaca, and from CSR.
The fresh allegations come just days after Justice Margaret Stone in the Federal Court in Sydney cruelled CSR's plans to spin off its sugar business, citing concerns about the company's future ability to meet asbestos-related claims.
Justice Forrest will decide tomorrow if Mr Berengo's lawyers can amend his statement of claim to incorporate the new allegations of collusive behaviour.
If the judge allows the allegations to proceed, it may pave a new route for claimants in asbestos-related cases who often struggle to prove which of the two Australian asbestos manufacturers was responsible for products that caused their asbestosis or mesothelioma.
Counsel for both James Hardie and CSR criticised the form of the proposed amendments, with Graeme Uren, QC, for CSR describing them in court as ''a porridge of assertions that don't lend easily to a legal conclusion''.
Mr Berengo was a young boy in the early 1970s when he accompanied his father, a builder, to properties where asbestos-cement sheeting and other asbestos products would be sanded, altered or removed.
The proposed allegations are that James Hardie and CSR, which owned Wunderlich, had an agreement or arrangement about how they would influence Australian public opinion and regulatory authorities in the 1970s, and that they co-ordinated their lobbying of authorities and responses to media articles to stifle public concerns about asbestos.
Counsel for Mr Berengo, John Gordon, told the court that his client planned to allege that ''over a considerable period of time, the two companies … formed arrangements, agreements or an understanding to act together to influence the public debate on the dangers of asbestos, and to influence regulatory authorities on the control of, and the use of, the asbestos''.
He said that, as a result, the public was not warned by the companies of the risks and dangers of using asbestos products.
CSR sold Wunderlich to James Hardie in 1976. The case is due to begin on February 15.
Monday, February 8, 2010
Sunday, February 7, 2010
How Often Does Manville Trust Diagnose (and Pay?) Claims 37 Years After Death ?
Today, a new example of issues that arise from secrecy in asbestos litigation. The question in short: How often do asbestos trusts diagnose claims 37 or so years after death, and how often and how much do they pay out for claims that would ordinarily be barred by statutes of limitation?
Chapter 11 asbestos cases, and asbestos trusts, are noteworthy for a penchant for secrecy. The penchant for secrecy applies even though secrecy is perhaps the greatest antithesis of due process, and was an especially detested feature of Star Camber proceedings, as described here in simple terms and here at some length in a wonderfully easy to read but thorough 2009 law review article written by Stephen Wm. Smith, a United States Magistrate Judge in the Southern District of Texas, Houston division. See "Kudzu in the Courthouse: Judgments Made in the Shade," 3 Fed. Cts. L. Rev. # 2, 177 (2009).
Judge Smith explained the problems with secrecy, at 214:
“In our common-law tradition, the exercise of judicial power is an inherently public act. A court of record, by definition, is a court that acts on the record, placing its rulings in the public domain, whether by pronouncement in open court, handwriting on a parchment roll, typing on a docket sheet, or digital key-strokes on-line. It is not merely that publicity has many virtues—promoting public confidence in courts, enhancing reliable fact-finding, and curbing judicial abuse of power. Nor is it simply that the people have already bought and paid for the right to know what their judges do with their office. Rather, it is the public record of judicial decisions that renders those decisions legitimate. Philosophers from Kant to Rawls have written treatises on why this is so, but one of our colonial forebears nailed it with only eight words: “Justice may not be done in a corner.”
How does secrecy play out in asbestos litigation ? In many ways, and they are not all covered here.. For prior examples of asbestos trust secrecy, go here (absence of material data about Manville Trust payments to the not sick), and here (Manville Trust withdrawing data previously made public under licensing agreements). Here's a new example that arises because of an opinion sent along by a friend out east when he enountered a new federal district court opinion that involves asbestos trusts.
According to the pro se complaint, a Mr. Palermo worked with asbestos-contiaing products while working for Halliburton, and "[o]n June 6, 2003, Palermo was posthumously diagnosed with mesothelioma "by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Manville Trust." (Am. Compl. P 17.) How odd is that? To me, it's quite odd since the complaint also alleges that Mr. Palermo had died back in 1966 of metastasis from "stomach cancer."
If true, the allegations indicate that a diagnosis was made some 37 years after death. One may also assume a payment was made by the Manville Trust. The complaint goes to on complain - unsuccessfully - that another trust would not make a payment.
So, what does this all mean in the larger context? It's fairly easy to think that Mr. Palermo may well have actually died of peritoneal mesothelioma due to asbestos-inhalation. And, surely there are arguments to be made for paying compensation whose deaths were wrongfully caused, regardless of the date of death, but those arguments have not succeeded when statutes of limitation are applied. So, for purposes of social policy decision-making, one does have to wonder how often claims of some age are made, how the post-death diagnosis was made (old tissue ? medical records? narrative?), and how much money is paid out each year by the trust for claims of this ilk.
Can answers be obtained? I don't know, but will send an email off to the Manville Trust and will let you know if I hear anything back.
_______________________________________________________________________________
Here are key excerpts from the opinion in Gail Garner v. DII Industries, 2010 U.S. Dist. LEXIS 9583 (Feb 4. 2010).
"Viewing the allegations in the amended complaint as true, the following are the relevant facts for consideration of the present motion. The decedent, Angelo Palermo ("Palermo"), was a union insulation mason for twenty-nine years from 1937 through 1966 in the construction asbestos industry. He spray coated and handled asbestos-containing products while working for one or more of the Haliburton or Harbison-Walker entities. Palermo died on April 23, 1966, at the age of 51 years. (Am. Compl. PP 14 & 34.) His death certificate listed the immediate cause of death as acute liver failure due to "metastasis cancer due to primary stomach (place of origin)." (Am. Compl. PP 11-15.)
On June 6, 2003, Palermo was posthumously diagnosed with mesothelioma "by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Mansville Trust." (Am. Compl. P 17.) On April 4, 2006, Plaintiff filed a claim with DII Industries, LLC, and, the following day, filed a claim with the DII Trust, with regard to her father's death. Defendants eventually rejected the claims, and a pro bono evaluator confirmed Defendants' denial. (Am. Compl. PP 18-27.) (emphasis added)
Chapter 11 asbestos cases, and asbestos trusts, are noteworthy for a penchant for secrecy. The penchant for secrecy applies even though secrecy is perhaps the greatest antithesis of due process, and was an especially detested feature of Star Camber proceedings, as described here in simple terms and here at some length in a wonderfully easy to read but thorough 2009 law review article written by Stephen Wm. Smith, a United States Magistrate Judge in the Southern District of Texas, Houston division. See "Kudzu in the Courthouse: Judgments Made in the Shade," 3 Fed. Cts. L. Rev. # 2, 177 (2009).
Judge Smith explained the problems with secrecy, at 214:
“In our common-law tradition, the exercise of judicial power is an inherently public act. A court of record, by definition, is a court that acts on the record, placing its rulings in the public domain, whether by pronouncement in open court, handwriting on a parchment roll, typing on a docket sheet, or digital key-strokes on-line. It is not merely that publicity has many virtues—promoting public confidence in courts, enhancing reliable fact-finding, and curbing judicial abuse of power. Nor is it simply that the people have already bought and paid for the right to know what their judges do with their office. Rather, it is the public record of judicial decisions that renders those decisions legitimate. Philosophers from Kant to Rawls have written treatises on why this is so, but one of our colonial forebears nailed it with only eight words: “Justice may not be done in a corner.”
How does secrecy play out in asbestos litigation ? In many ways, and they are not all covered here.. For prior examples of asbestos trust secrecy, go here (absence of material data about Manville Trust payments to the not sick), and here (Manville Trust withdrawing data previously made public under licensing agreements). Here's a new example that arises because of an opinion sent along by a friend out east when he enountered a new federal district court opinion that involves asbestos trusts.
According to the pro se complaint, a Mr. Palermo worked with asbestos-contiaing products while working for Halliburton, and "[o]n June 6, 2003, Palermo was posthumously diagnosed with mesothelioma "by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Manville Trust." (Am. Compl. P 17.) How odd is that? To me, it's quite odd since the complaint also alleges that Mr. Palermo had died back in 1966 of metastasis from "stomach cancer."
If true, the allegations indicate that a diagnosis was made some 37 years after death. One may also assume a payment was made by the Manville Trust. The complaint goes to on complain - unsuccessfully - that another trust would not make a payment.
So, what does this all mean in the larger context? It's fairly easy to think that Mr. Palermo may well have actually died of peritoneal mesothelioma due to asbestos-inhalation. And, surely there are arguments to be made for paying compensation whose deaths were wrongfully caused, regardless of the date of death, but those arguments have not succeeded when statutes of limitation are applied. So, for purposes of social policy decision-making, one does have to wonder how often claims of some age are made, how the post-death diagnosis was made (old tissue ? medical records? narrative?), and how much money is paid out each year by the trust for claims of this ilk.
Can answers be obtained? I don't know, but will send an email off to the Manville Trust and will let you know if I hear anything back.
_______________________________________________________________________________
Here are key excerpts from the opinion in Gail Garner v. DII Industries, 2010 U.S. Dist. LEXIS 9583 (Feb 4. 2010).
"Viewing the allegations in the amended complaint as true, the following are the relevant facts for consideration of the present motion. The decedent, Angelo Palermo ("Palermo"), was a union insulation mason for twenty-nine years from 1937 through 1966 in the construction asbestos industry. He spray coated and handled asbestos-containing products while working for one or more of the Haliburton or Harbison-Walker entities. Palermo died on April 23, 1966, at the age of 51 years. (Am. Compl. PP 14 & 34.) His death certificate listed the immediate cause of death as acute liver failure due to "metastasis cancer due to primary stomach (place of origin)." (Am. Compl. PP 11-15.)
On June 6, 2003, Palermo was posthumously diagnosed with mesothelioma "by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Mansville Trust." (Am. Compl. P 17.) On April 4, 2006, Plaintiff filed a claim with DII Industries, LLC, and, the following day, filed a claim with the DII Trust, with regard to her father's death. Defendants eventually rejected the claims, and a pro bono evaluator confirmed Defendants' denial. (Am. Compl. PP 18-27.) (emphasis added)
Friday, February 5, 2010
Canadian Securities Class Actions - 2009 Summarized
Go here for a sumamry from D & O Diary of NERA's new study/report on Canadian securities cases.
Tuesday, February 2, 2010
Juror Comments on the $ 37 Million Bad Faith Verdict
Here is the link to juror comments on the $ 37 million bad faith verdict for rescission of a health care policy. Some excerpts are pasted below:
"In the case of Jennifer Latham, who was badly injured in 2005 when her car was broadsided by a meth dealer fleeing cops, Assurant denied her claim because ambiguous information about a uterine condition and an ER visit for a panic attack wasn't disclosed in the application she submitted months earlier.
As first reported here, the jury decided after six hours to award Latham and her two youngest children $37.3 million, including economic and punitive damages -- the largest bad-faith judgment against an insurance company in Colorado history.
But some jurors wanted to award even more.
Jury foreman Dan Vela says he was in favor of awarding Latham $150 million as a way of punishing the insurance company. "They didn't have a leg to stand on," says Vela, a general manager for a seamless gutter company. "I hope we sent a message back to them that this was wrong."
Jurors contacted by Westword say that Assurant failed to prove that Latham deliberately misrepresented her health on her application or that the company had conducted a reasonable investigation before revoking her coverage. Testimony indicated that the company's "rescission panel" reviewed more than a hundred cases in two hours -- "68 seconds apiece," as Latham attorney Marc Levy put it in his closing argument.
"We had to determine who was lying," says juror Denise Kaatz, a production manager for a Louisville apparel company. "Most of their witnesses seemed dishonest, defensive and just showed a basic lack of humanity. It was kind of frightening."
"I was blown away by just how much they acted like robots," adds Vela.
"In the case of Jennifer Latham, who was badly injured in 2005 when her car was broadsided by a meth dealer fleeing cops, Assurant denied her claim because ambiguous information about a uterine condition and an ER visit for a panic attack wasn't disclosed in the application she submitted months earlier.
As first reported here, the jury decided after six hours to award Latham and her two youngest children $37.3 million, including economic and punitive damages -- the largest bad-faith judgment against an insurance company in Colorado history.
But some jurors wanted to award even more.
Jury foreman Dan Vela says he was in favor of awarding Latham $150 million as a way of punishing the insurance company. "They didn't have a leg to stand on," says Vela, a general manager for a seamless gutter company. "I hope we sent a message back to them that this was wrong."
Jurors contacted by Westword say that Assurant failed to prove that Latham deliberately misrepresented her health on her application or that the company had conducted a reasonable investigation before revoking her coverage. Testimony indicated that the company's "rescission panel" reviewed more than a hundred cases in two hours -- "68 seconds apiece," as Latham attorney Marc Levy put it in his closing argument.
"We had to determine who was lying," says juror Denise Kaatz, a production manager for a Louisville apparel company. "Most of their witnesses seemed dishonest, defensive and just showed a basic lack of humanity. It was kind of frightening."
"I was blown away by just how much they acted like robots," adds Vela.
Citizens in India Protest Abestos Fiber Sales from Canada
Here's another example of global activism regarding asbestos. Here is the article online; the full text is pasted below.
February 1, 2010
Indian workers rebuke Quebec over asbestos
By CBC News
Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.
Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.
'It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it.'?Gobal Krishna, activist
While Quebec Premier Jean Charest led his 130-person mission through meetings with local business leaders and entrepreneurs, Indian opponents spoke out against the asbestos industry, blaming it for making workers in the subcontinent ill.
It's hypocritical for Quebec to ban the use of chrysotile asbestos at home, while selling it to countries in the developing world, said activist Gobal Krishna.
"It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it," Krishna told reporters at the news conference in Mumbai.
Asbestos has been banned by nearly every developed country and a growing number of developing nations, but countries like India still rely on the flame-resistant mineral for construction projects.
At least 20 per cent of workers in India are exposed to asbestos on a regular basis, and the building material is responsible for making many Indian workers sick, accused Sanjay Singhvi, secretary general of the Trade Union Centre of India, a labour federation.
Asbestos can't be used safely in India, he said.
The United Nations says chrysotile asbestos, widely used in building materials, accounted for about 94 per cent of global asbestos production and is considered a carcinogen by the World Health Organization. At least 90,000 people die each year from asbestos-related diseases such as lung cancer and mesothelioma, the UN said.
Singhvi said he was disappointed Charest refused to meet with his organization during the weeklong trade mission. Charest's office said Quebec promotes the responsible use of asbestos.
Quebec exports to India hit $427M
Charest arrived in Mumbai on Sunday with 130 Quebecers participating in the trade mission.
The premier said the mission aims to promote Quebec expertise in infrastructure, environmental technologies and telecommunications to the Indian market, which counts more than 1.2 billion people.
Thirteen deals were penned between Quebec and Indian companies on Monday, including an agreement with a Quebec City company specializing in cleaning industrial waste water.
Quebec exported $427 million in goods to India in 2008, including airplanes, paper, asbestos and electronics.
Opposition Parti Québécois members accuse Charest of fleeing to foreign lands in order to avoid political pressure at home, including calls for a public inquiry into the province's dysfunctional construction industry.
Quebec operates two asbestos mines.
February 1, 2010
Indian workers rebuke Quebec over asbestos
By CBC News
Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.
Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.
'It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it.'?Gobal Krishna, activist
While Quebec Premier Jean Charest led his 130-person mission through meetings with local business leaders and entrepreneurs, Indian opponents spoke out against the asbestos industry, blaming it for making workers in the subcontinent ill.
It's hypocritical for Quebec to ban the use of chrysotile asbestos at home, while selling it to countries in the developing world, said activist Gobal Krishna.
"It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it," Krishna told reporters at the news conference in Mumbai.
Asbestos has been banned by nearly every developed country and a growing number of developing nations, but countries like India still rely on the flame-resistant mineral for construction projects.
At least 20 per cent of workers in India are exposed to asbestos on a regular basis, and the building material is responsible for making many Indian workers sick, accused Sanjay Singhvi, secretary general of the Trade Union Centre of India, a labour federation.
Asbestos can't be used safely in India, he said.
The United Nations says chrysotile asbestos, widely used in building materials, accounted for about 94 per cent of global asbestos production and is considered a carcinogen by the World Health Organization. At least 90,000 people die each year from asbestos-related diseases such as lung cancer and mesothelioma, the UN said.
Singhvi said he was disappointed Charest refused to meet with his organization during the weeklong trade mission. Charest's office said Quebec promotes the responsible use of asbestos.
Quebec exports to India hit $427M
Charest arrived in Mumbai on Sunday with 130 Quebecers participating in the trade mission.
The premier said the mission aims to promote Quebec expertise in infrastructure, environmental technologies and telecommunications to the Indian market, which counts more than 1.2 billion people.
Thirteen deals were penned between Quebec and Indian companies on Monday, including an agreement with a Quebec City company specializing in cleaning industrial waste water.
Quebec exported $427 million in goods to India in 2008, including airplanes, paper, asbestos and electronics.
Opposition Parti Québécois members accuse Charest of fleeing to foreign lands in order to avoid political pressure at home, including calls for a public inquiry into the province's dysfunctional construction industry.
Quebec operates two asbestos mines.
Monday, February 1, 2010
New Science - Exhaled breath condensate biomarkers in asbestos-related lung disorders
Remember those controversies about biased doctors misreading reading x-rays to find asbestosis or "pleural changes consistent with exposure" to asbestos or silica ? New science will bring new controversies - see below for a recent article on using biomarkers in exhaled breath to find asbestosis. Here is the online source of the abstract pasted below.
_____________________________________________________________________________
Exhaled breath condensate biomarkers in asbestos-related lung disorders.
Sharron Chow, Charlotte Campbell, Alessandra Sandrini, Paul S Thomas, Anthony R Johnson, ...Deborah H Yates show all
Respiratory Medicine (2009)
Volume: 103, Issue: 8, Pages: 1091-1097
PubMed ID: 19520561
Abstract
OBJECTIVES: Asbestos induces generation of reactive oxygen and nitrogen species in laboratory studies. Several such species can be measured non-invasively in humans in exhaled breath condensate (EBC) but few have been evaluated. This study aimed to assess oxidative stress and lung inflammation in vivo. METHODS: Eighty six men were studied: sixty subjects with asbestos-related disorders (asbestosis: 18, diffuse pleural thickening (DPT): 16, pleural plaques (PPs): 26) and twenty six age- and gender-matched normal individuals. RESULTS: Subjects with asbestosis had raised EBC markers of oxidative stress compared with normal controls [8-isoprostane (geometric mean (95% CI) 0.51 (0.17-1.51) vs 0.07 (0.04-0.13) ng/ml, p<0.01); hydrogen peroxide (13.68 (8.63-21.68) vs 5.89 (3.99-8.69) microM, p<0.05), as well as increased EBC total protein (17.27 (10.57-28.23) vs 7.62 (5.13-11.34) microg/ml, p<0.05), and fractional exhaled nitric oxide (mean+/-SD) (9.67+/-3.26 vs 7.57+/-1.89ppb; p<0.05). EBC pH was lower in subjects with asbestosis compared with subjects with DPT (7.26+/-0.31 vs 7.53+/-0.24; p<0.05). There were no significant differences in exhaled carbon monoxide, EBC total nitrogen oxides and 3-nitrotyrosine between any of the asbestos-related disorders, or between these and controls. CONCLUSION: In asbestos-related disorders, markers of inflammation and oxidative stress are significantly elevated in subjects with asbestosis compared with healthy individuals but not in pleural diseases
_____________________________________________________________________________
Exhaled breath condensate biomarkers in asbestos-related lung disorders.
Sharron Chow, Charlotte Campbell, Alessandra Sandrini, Paul S Thomas, Anthony R Johnson, ...Deborah H Yates show all
Respiratory Medicine (2009)
Volume: 103, Issue: 8, Pages: 1091-1097
PubMed ID: 19520561
Abstract
OBJECTIVES: Asbestos induces generation of reactive oxygen and nitrogen species in laboratory studies. Several such species can be measured non-invasively in humans in exhaled breath condensate (EBC) but few have been evaluated. This study aimed to assess oxidative stress and lung inflammation in vivo. METHODS: Eighty six men were studied: sixty subjects with asbestos-related disorders (asbestosis: 18, diffuse pleural thickening (DPT): 16, pleural plaques (PPs): 26) and twenty six age- and gender-matched normal individuals. RESULTS: Subjects with asbestosis had raised EBC markers of oxidative stress compared with normal controls [8-isoprostane (geometric mean (95% CI) 0.51 (0.17-1.51) vs 0.07 (0.04-0.13) ng/ml, p<0.01); hydrogen peroxide (13.68 (8.63-21.68) vs 5.89 (3.99-8.69) microM, p<0.05), as well as increased EBC total protein (17.27 (10.57-28.23) vs 7.62 (5.13-11.34) microg/ml, p<0.05), and fractional exhaled nitric oxide (mean+/-SD) (9.67+/-3.26 vs 7.57+/-1.89ppb; p<0.05). EBC pH was lower in subjects with asbestosis compared with subjects with DPT (7.26+/-0.31 vs 7.53+/-0.24; p<0.05). There were no significant differences in exhaled carbon monoxide, EBC total nitrogen oxides and 3-nitrotyrosine between any of the asbestos-related disorders, or between these and controls. CONCLUSION: In asbestos-related disorders, markers of inflammation and oxidative stress are significantly elevated in subjects with asbestosis compared with healthy individuals but not in pleural diseases
Sunday, January 31, 2010
$ 37 Million Bad Faith Verdict - Post-Claim Underwriting by a Health Insurer
So, after I finished up my first post this morning, Mike sent around this link to a blog post about a new $ 37 million bad faith verdict against an insurer that uses "post-claim underwriting" as one of its business methods. Plaintiff's counsel suggested $ 7 million in damages - the jury awarded $ 37 million.
Is this a reasonable verdict ? The more I see, the more I have to say: yes, it is a reasonable and logical verdict very precisely intended to deter bad corporate behavior. I say that after spending 25 years as a commerical litigator who has seen plenty of corporate behavior, most of it quite good and well intended, but sometimes there are in fact good faith misunderstandings and disputes.. But, as to insurers, I keep seeing simply inexcusable behavior. For example, one corporate client has been battling insurers for 27 years (really !) to obtain coverage for asbestso claims that plainly are covered. In other situations, insurers appoint defense counsel who may be fabulous trial lawyers but cannot effectively represent my clients because they labor under conflicts of interest created by too many clients, with some having conflicting defense strategies. For example, most asbestso products contain white (chrysotile) asbestso fibers. Some say pure chrysotile cannot cause cancer because it breaks down quickly in the lungs. Whether or not one accept that defense completely, any decent defense lawyer for a seller of a chrysotile produce always looks for and wants to blame a particular plaintiff's disease on inhalation of amphibole asbestos fibers, which include but are not limited to the blue (crocidolite) and brown (amosite) asbestos fibers, not to mention tremolite and other asbestoform minerals and man made substances. Why blame the amphiboles ? Because amphibole fibers are FAR, FAR more toxic than are chrystotile fibers. Numerically, that means perhaps a 500 - 1 potency ratio. Indeed, even hard core plaintiff's expert Dr. Richard Lemen acknowledges that amphibole fibers are incredibly potent; he simply will not exonerate chrsyotile fibers, especially when they include tremolite or other amphibole contamints (go here to see an article on this topic by Dr. Lemen and others).
To return to the post that started this post, insurers should indeed see a message in the $37 million verdict. Here are some key excerpts from the article:
"Longmont teacher Jennifer Latham and her husband Frank both suffered broken bones, internal injuries and brain injuries from the crash. But Time Insurance, also known as Fortis and Assurant Health, rescinded a health insurance policy Jennifer had recently taken out, claiming that she'd failed to disclose a complete and accurate health history on its application form--leaving her with more than $180,000 in medical bills.
Time is notorious in the health insurance industry for its "post-claim underwriting"--going back to the application after a claim is made to determine if misrepresentations were made that would warrant revoking the policy, even if the medical conditions involved have nothing to do with the claim. A similar case in South Carolina, in which the company rejected coverage for a teenager who discovered through a blood donation that he had AIDS, resulted in a $10 million punitive judgment. That verdict was upheld last fall by the state's supreme court.
In closing arguments of the two-week Boulder trial, Latham attorney Marc Levy asked for $2 million in economic damages and roughly $5 million in punitive damages. "You are the final stop," he told the Boulder County jury of four women and two men. "You are the conscience of the community. Is this the way we want health insurance companies to act?"
Time attorney Walter Wilson maintained that Latham had failed to disclose certain medical information on the application, including one trip to an emergency room for "shortness of breath" that Latham maintains was a panic attack. He argued that evidence of her "alleged emotional distress" from cancellation of her health insurance "is scant at best and nonexistent in reality."
***
Testimony from Time officials indicated that the company only rescinds half of one percent of its policies--but that resulted in more than 8000 rescissions over a five-year period, saving the company $150 million in unpaid claims.
The Latham case and the practice of rescission in the health insurance industry is the subject of an upcoming Westword feature. Stay tuned."
Is this a reasonable verdict ? The more I see, the more I have to say: yes, it is a reasonable and logical verdict very precisely intended to deter bad corporate behavior. I say that after spending 25 years as a commerical litigator who has seen plenty of corporate behavior, most of it quite good and well intended, but sometimes there are in fact good faith misunderstandings and disputes.. But, as to insurers, I keep seeing simply inexcusable behavior. For example, one corporate client has been battling insurers for 27 years (really !) to obtain coverage for asbestso claims that plainly are covered. In other situations, insurers appoint defense counsel who may be fabulous trial lawyers but cannot effectively represent my clients because they labor under conflicts of interest created by too many clients, with some having conflicting defense strategies. For example, most asbestso products contain white (chrysotile) asbestso fibers. Some say pure chrysotile cannot cause cancer because it breaks down quickly in the lungs. Whether or not one accept that defense completely, any decent defense lawyer for a seller of a chrysotile produce always looks for and wants to blame a particular plaintiff's disease on inhalation of amphibole asbestos fibers, which include but are not limited to the blue (crocidolite) and brown (amosite) asbestos fibers, not to mention tremolite and other asbestoform minerals and man made substances. Why blame the amphiboles ? Because amphibole fibers are FAR, FAR more toxic than are chrystotile fibers. Numerically, that means perhaps a 500 - 1 potency ratio. Indeed, even hard core plaintiff's expert Dr. Richard Lemen acknowledges that amphibole fibers are incredibly potent; he simply will not exonerate chrsyotile fibers, especially when they include tremolite or other amphibole contamints (go here to see an article on this topic by Dr. Lemen and others).
To return to the post that started this post, insurers should indeed see a message in the $37 million verdict. Here are some key excerpts from the article:
"Longmont teacher Jennifer Latham and her husband Frank both suffered broken bones, internal injuries and brain injuries from the crash. But Time Insurance, also known as Fortis and Assurant Health, rescinded a health insurance policy Jennifer had recently taken out, claiming that she'd failed to disclose a complete and accurate health history on its application form--leaving her with more than $180,000 in medical bills.
Time is notorious in the health insurance industry for its "post-claim underwriting"--going back to the application after a claim is made to determine if misrepresentations were made that would warrant revoking the policy, even if the medical conditions involved have nothing to do with the claim. A similar case in South Carolina, in which the company rejected coverage for a teenager who discovered through a blood donation that he had AIDS, resulted in a $10 million punitive judgment. That verdict was upheld last fall by the state's supreme court.
In closing arguments of the two-week Boulder trial, Latham attorney Marc Levy asked for $2 million in economic damages and roughly $5 million in punitive damages. "You are the final stop," he told the Boulder County jury of four women and two men. "You are the conscience of the community. Is this the way we want health insurance companies to act?"
Time attorney Walter Wilson maintained that Latham had failed to disclose certain medical information on the application, including one trip to an emergency room for "shortness of breath" that Latham maintains was a panic attack. He argued that evidence of her "alleged emotional distress" from cancellation of her health insurance "is scant at best and nonexistent in reality."
***
Testimony from Time officials indicated that the company only rescinds half of one percent of its policies--but that resulted in more than 8000 rescissions over a five-year period, saving the company $150 million in unpaid claims.
The Latham case and the practice of rescission in the health insurance industry is the subject of an upcoming Westword feature. Stay tuned."
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