The Madison County Record and its Kelly Holleran have kindly provided a summary of new asbestos cases filed in St. Louis during March and the last two days of February. The summary indicates that 18 cases were filed. Of the 18 cases, 11 allege mesotheliomas and 7 of the cases involve lung cancers. The seven lung cancer cases were filed by several different plaintiff's firms.
The text in bold below is from one of many press releases and "articles" generated by the Asbestos Disease Awareness Organization. The organization issues a constant stream of "news," thus creating many online references to asbestos and litigation. Accordingly, it provides "priming" for causing people to associate asbestos, disease and litigation, thus fitting well into the desire of the plaintiff's bar to encourage a "fast," automatic "system 1" reaction in favor of litigation when someone becomes sick. This stream runs some what counter to the various "fraud in litigation" streams of "news" continuously distributed by insurer sponsored groups and others. See generally: Thinking, Fast and Slow, by Nobel prize winner, Daniel Kahneman, and prior posts such as here.
"The 8th annual International Asbestos Awareness Conference this weekend in Los Angeles, California, will feature participants from nine different countries, highlighting the global public health crisis that has crossed all geographic boundaries.
Saturday will be filled with a wide range of speakers and presentations. Doctors Richard Lemen (Emory University) and Arthur Frank (Drexel University) will receive a Lifetime Achievement Award for work toward reducing asbestos-caused disease. Joel Shufro (New York City Occupational Safety and Health) will be presented with the Tribute of Inspiration Award. Patients Debbie Brewer, from the United Kingdom, and Larry Davis, from South Florida, will be honored for their work in helping others while fighting their own disease."
Asbestos litigation never ceases to surprise. This week's surprise is found in an on line article by Kelly Holleran for the Madison - St. Clair County Record, a great, free on line resource for tracking events in the litigation industry in Madison and St. Clair counties.
The story is that two different law firms filed suits for the plaintiffs, with the first suit filed in Madison County and the second filed six days later in St. Clair County. According to the article, the plaintiffs and law firms are as follows:
"Glenn and Joyce Metzger of Othello, Wash. filed a lawsuit against 59 defendant corporations April 27 in St. Clair County Circuit Court. They filed a similar lawsuit May 3 in Madison County Circuit Court.
In both complaints, the Metzgers allege the defendant companies caused Glenn Metzger to develop mesothelioma after his exposure to asbestos-containing products throughout his career as an insulator at various sites from 1953 until 1989.
David I. Cates and Judy L. Cates of the Cates Law Firm in Swansea will be representing the Metzgers in their St. Clair County lawsuit. Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville will be representing them in their Madison County lawsuit. "
It's usually not good for the defendants when the popular legal media is picking up verdicts from asbestos trials. That's true again this time; go here to see the coverage. Trying cases is part of life and a good defense, but there are indeed risks.
Madison County, Illinois gets most of the ink, but it has a sibling in St. Clair County. In year's past, when I was a baby lawyer, some considered St. Clair as bad for defendants as Madison County. Asbestos filings have ticked up there in recent weeks, and the filings may mark the start of new strategic gambits by plaintiff's counsel. Set out below is an update from the always informative Madison- St. Clair Record.
St. Clair County's nearly dormant asbestos docket is seeing new life.
3/18/2010 4:39 PM By Amelia Flood
Recent asbestos lawsuit filings by several well-known asbestos attorneys -- and some new partnerships -- have sparked a revival of the little-known and infrequently used asbestos docket.
At least five new asbestos cases have been filed in St. Clair County this year.
Swansea attorney Judy Cates has teamed with the Chicago law firm of Cooney and Conway, having filed four mesothelioma-related asbestos suits on the same day this year, alleging claims against familiar asbestos defendants such AW Chesterton, Bondex and John Crane, Inc.
Cates, who has litigated a number of high profile class actions, had not filed any asbestos cases in at least six years.
Other attorneys have made recent asbestos claims in St. Clair County, including Randy Gori of Edwardsville. Gori, whose firm has brought hundreds of asbestos cases into Madison County's packed asbestos court, has filed at least one asbestos case in St. Clair County this year.
In Gori's newest St. Clair County case, clients Aubrey and Olive Roach claim Aubrey Roach developed cancer from working with asbestos products during his time as an army mechanic in the 1940s.
While Madison County's asbestos filings reach into the hundreds each year, St. Clair County stands in contrast.
From 2004 to 2007 there were just 61 asbestos cases filed in St. Clair County, compared to more than 1,200 in Madison County during the same period of time.
Of the years analyzed in St. Clair County, 2006 had the most filings at 25. There were 22 cases filed in 2005.
None were filed in 2008 and a single one was filed in 2007, according to records from the St. Clair County Circuit Clerk's Office.
St. Clair County clerk Amy Boeving said the asbestos docket is light and hardly used.
Boeving sets hearings once a month and seldom has more than one or two attorneys come through, she said.
"The last few years it's really died down," Boeving said.
St. Clair County Circuit Judge Robert LeChien handled all of the asbestos cases from 2005 to 2009. The 2010 filings have so far been assigned to St. Clair County Circuit Judge Patrick Young.
St. Louis attorney Daniel Francis, who has filed more asbestos cases in St. Clair County than any other attorney, is responsible for four of the 25 asbestos St. Clair County filed in 2006.
Of those cases, 23 named a single defendant, Illinois Central Railroad Company.
Gori has filed the second most number of St. Clair County asbestos cases.
None of the St. Clair County asbestos cases have resulted in verdicts or trials.
That differs from Madison County where juries have decided a number of cases, some having topped $200 million in jury awards.
But the most recent case to go to trial in Madison County was decided in favor of defendant Ford Motor Co.
The trial, which lasted for eight days earlier this month, was the first 2010 asbestos trial for Madison County and the first ever for Madison County Circuit Judge Barbara Crowder who presided.
Crowder is slated to become Madison County's next asbestos judge when Circuit Judge Daniel Stack retires in December. She has already begun taking over her new duties.
The Ford trial ended in a defeat for plaintiff Larry and Meta Williams of Chicago. The couple sued Ford and a number of other companies claiming that asbestos dust contained in brake products caused 58 year-old Larry Williams to develop mesothelioma.
The jury took an hour and a half to find in Ford's favor.
Ever wonder why asbestos plaintiff's lawyers presently are spending so much time and energy trying to limit the time allowed for depositions of asbestos plaintiffs ? Obviously plaintiff's lawyers on contingent fees prefer to spend less time in deposition than do defense lawyers being paid by the hour. But, some say there is more to it than just the time.
Consider, for example, yesterday's post and today's images of asbestos products made by entities now in chapter 11. Think about the verdicts plaintiff's might lose if insurers paid for and co-defendants actually were fully organized and prepared to depose a plaintiff on the extent of his use of the thousands of asbestos-containing products made by any of the over 80 entities that have exited the tort system via chapter 11. Think also about the time that would be involved. Those are reasons why some say it's perfectly obvious that asbestos plaintiff's lawyers want to get shorter deposition time limits in place in order before the remaining co-defendants get organized and start using depositions to pose meaningful " product identification questions to plaintiff's product identification witnesses.
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.
Go here to see the new filings summary from the Madison County Record. Of 28 cases, 14 are said to be lung cancer cases and 14 are mesothelioma cases. 13 of the lung cancer cases are filed by Simmons, Browder et al and 1 by the Gori, Julian firm. One could infer that Simmons, Browder et al want to make sure they have plenty of work to fill slots in trial dockets, and want to guard against a falling rate for persons to develop mesothelioma.
This article from Business Insurance overviews points from an A.M. Best study to be released on Monday with data and projections on losses from asbestos and pollution claims. Here are some excerpts from the Business Insurance advance article:
"Best estimates the industry's ultimate asbestos and environmental losses will reach $117 billion, down from a previous estimate of $121 billion. Asbestos exposures, however, are projected to reach $75 billion, up $10 billion from a previous estimate; environmental exposures are projected to drop to $42 billion from a previously estimated $55 billion. (emphasis added)
I'm headed to London this weekend to chair an asbestos litigation conference starting On Tuesday the 29th, so this seems a good time for an update on new speakers added to the conference roster and on some UK developments regarding asbestos litigation.
Conference Update: Two additional conference speakers have been added. One speaker will address new research regarding the impact of the chapter 11 asbestos trusts in the United States. Some of the research data was released in the US earlier this month and quite explicitly proves that indeed the chapter 11 bankruptcies have a significant impact on the litigation fortunes of the defendants that remain in the tort system. The research was undertaken by Bates White and will be presented by Peter Kelso. Additional upcoming research on asbestos bankruptcies also will be discussed.
Another speaker was added to address the evolving topic of litigation as a target of investors. Litigation investment will be addressed in two ways. First, Selvyn Seidel of Burford Advisors will explain the nature of the business and how and why it is expanding. Second, additional speaker Andrew Evans will describe the emerging market in which defendant companies may pay other companies to take over some or all litigation risks in, for example, asbestos litigation. Mr. Evans is part of a business known as Litigation Resources Group that has its roots in Bates White work on the economic realities of asbestos litigation.
Conference registration is still open at the online site here. The conference runs all day on Tuesday the 29th and a half-day on Wednesday the 30th. I'm speaking on the 30th as part of a panel on asbestos trusts.
Pleural Plaques: Trade unions in the UK this week started ratcheting back up their efforts to persuade the UK government to enact legislation that would reinstate damages claims for pleural plaques. This September 24 article from the UK asserts that the unions expect "betrayal":
"Unions will again call on the Government to restore compensation for pleural plaques sufferers at the Labour Party Conference next week.
Gordon Brown was presented with a campaign video produced for the Trade Union and Labour Party Liaison Organisation by Jim Kennedy, political officer of construction union UCATT, this week.
Unions are demanding a new law to overturn the Law Lords' 2007 decision that sufferers of the asbestos-related disease do not need compensation.
Mr Brown promised the TUC Congress that ministers would examine the question when Parliament returns. But UCATT warned earlier this year that they were expecting "betrayal" on the issue"
Asbestos in Schools Hysteria in the UK: Hard to believe the way asbestos-in-schools history is now repeating itself in the UK via essentially hysterical UK news articles that fail to take any lessons from like prior hysteria in the US. Thus, this article from the UK's Mirror newspaper rather hysterically reports that 50,000 law suits are expected against uninsured UK school councils for allegedly causing asbestos-related disease. The article states:
"Test case may lead to 1000s of asbestos compensation claims
By Mark Ellis 23/09/2009
A test case may open the floodgates to thousands of compensation claims for asbestos-related cancers, a court heard yesterday.
And it could create a massive financial burden on education budgets for generations to come.
The warning comes amid fears that many comprehensive schools built in the 60s are riddled with the potentially lethal material.
It also adds weight to the Mirror's Asbestos Timebomb campaign. Lord Justice Moses at London's civil appeal court heard that 50,000 cases against largely uninsured councils are expected over the next 40 years.
And he set the stage for a landmark ruling by allowing council chiefs at Knowsley, Merseyside, to appeal a £240,000 award.
The case involves Dianne Willmore, 49, who blames her time as a pupil for her incurable lung cancer.
Asbestos timebomb: For more information on the Daily Mirror's campaign visit our blog."
UK reporters actually interested in facts and reality would do well to take lessons from the US experience. Asbestos-in-buildings hysteria swept the United States in the 1980s as EPA and plaintiff's lawyers predicted waves of deaths of janitors and school teachers, and thousands of lawsuits arising from injuries to be attributed to the presence of asbestos in school buildings. Ultimately, the hysteria ended because defendants W. R. Grace, U.S. Gypsum and National Gypsum gathered and analyzed literally tens of thousands of air samples in school buildings. The samples were analyzed and evaluated by world-class experts, including Rich Lee and Morton Corn (Dr. Corn earlier was a highly senior OSHA official and oversaw a dramatic but thoughtful reduction in the PELs for asbestos) . Their peer reviewed articles and testimony ultimately stemmed the tide of hysteria because they proved that in most but not all instances, the indoor air in schools contained no more asbestos fibers than did outdoor air. They also proved that even if fibers are being released in a certain spot in the building, the fiber levels a few feet away are still normal. Morton Corn proved this by, among other things, using air sampling to monitor fiber levels at various points in a room in which he was using a baseball bat to strike an asbestos-containing ceiling material.
Meanwhile, asbestos-in-buildings lawsuits at first flourished in the mid to late 1980s and early 1990s but then faded away hen the plaintiff's bar realized that the cases were very hard to win and expensive to litigate. Indeed, my then-partner Pat Lamb and I went to trial for W.R. Grace back in 1995 on asbestos-in-buildings claims brought by the Chicago Board of Education and numerous suburban school districts. After several days of trial, the claims settled for a very modest fraction of the demand.
Today, asbestos-in-buildings claims do not exist in the US except in the non real world of chapter 11 cases where science and state law are routinely ignored. Why? Because Congress' section 524(g) gives economic power to claims that lack merit by giving claimants votes the debtors need to exit chapter 11, thus leading debtors to pay money to settle claims that plaintiff's do not in fact bring or win in state courts. This pattern once again highlights that chapter 11 decision-making for tort claims is seldom grounded in reality.
Now online here at no expense is a new paper by the economists at Bates White. The paper is titled "The Naming Game" and is well-worth reading because it uses data from Alameda County to prove the reality that when defendants have exited the tort system to chapter 11, plaintiffs lawyers have in fact sought out and sued new defendants with increasing frequency. The paper also raises other interesting questions for discussion another day regarding the practices of plaintiff's lawyers in collecting money from asbestos trusts AFTER they have finished collecting money in the tort system.
The online article is a reprint from the September 2 issue of the Mealey's report for Asbestos Litigation.
Just in time for upcoming asbestos litigation seminars. the economists at Bates White have issued a new report on asbestos litigation, asbestos trusts and the practices of plaintiff's lawyers in choosing and naming defendants to target in lawsuits. The article is well-worth reading as it uses data from Alameda County to prove the reality that as defendants have exited the tort system, plaintiffs lawyers seek out new defendants, among other things.
The article is in the new September 2 issue of the Mealey's report for Asbestos Litigation, or presumably is available through Lexis/Nexis in general.
Many words have been written and said about asbestos litigation and class action litigation in Madison County. Disturbingly, academics and many others lack meaningful access to many concrete facts regarding the day in, day out events in Madison County and other courts that are very active in tort litigation. Instead, war stories and antecdotes - often but not always extreme - tend to dominate the media and academic exchanges, and produce many disputes about what really is and is not happening. In that light, the points of this post are 1) to provide an example of one week of asbestos claims filed in Madison County and 2) also to point out that the litigation industry now includes free news sources focused on providing a continuing flow of information regarding some of the active forums for tort litigation.
One group of sources for data consist of "the Record" publications that focus on Illinois' Madison and St. Clair counties, Southeast Texas and West Virginia. Specific to Illinois are the Madison and St. Clair County Records. All are free online publications, with paid print versions. The publications are run by private ownership, with an investment from the U.S. Chamber of Commerce. The Chamber of course has a view but that does not change the facts nor the reality that these publications provide by far the best real time, free and easy windows in to the goings on in these active venues that are so much a part of the litigation industry.
Free email subscriptions bring readers the news each week as defined by the Record; subscription sign up is available at the Ma,dison Record's home page (here). More or less each week the Record publishes a summary of the new asbstos case filings ( I keep bugging them to also put the complaints online, but so far that has not happened.) Set out below is the weekly summary for the week July 27-31.
As you read the case summaries, note how few of the cases appear to have a meaningful connection to Illinois. And, beyond considering the litigation industry view, consider also the widespread impact of cancer. Imagine what these families have been through or are going through as they try to cope with the devastion caused by these 18 of the 1.4 million cancers that will be diagnosed this year in the United Sates according to this detailed Powerpoint presentation for 2009 from from the American Cancer Society.
18 new asbestos cases filed July 27-31
8/20/2009 8:39 AM
By Kelly Holleran
A total of 18 new asbestos lawsuits were filed in Madison County during the week of July 27 through July 31.
The following claims were filed:
--Norbert and Marjorie Bossen of Iowa allege Norbert Bossen developed mesothelioma after his work in the United States Navy from 1944 until 1946; as a boilermaker in the late 1940s and early 1950s; with Gilbert and Bossen Farm Implements from the early 1950s until 1967; as a pipe fitter from 1967 until 1982; and performing home remodeling work to his homes in the mid 1970s. The Bossens are represented by Robert Rowland and Elizabeth V. Heller of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Sean P. Worsey of Levin, Simes, Kaiser and Gornick in San Francisco will serve of counsel. Madison County Circuit Court case number: 09-L-795.
--Walter Derby of Colorado, an aviation mechanic, consulting engineer, police officer, security guard, laborer, tree trimmer and contractor/construction worker at various locations throughout Illinois, California, Colorado and Oklahoma from 1967 until 2007 claims mesothelioma. Derby is represented by Timothy F. Thompson Jr. and Ryan J. Kiwala of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-789.
--Catherine Fridmanski claims her recently deceased cousin, Andrew Mulato, developed mesothelioma after his work as a bricklayer and steelworker at various locations from 1940 until 1980. Fridmanski is represented by Andrew O'Brien, Christopher Thoron, Christina J. Nielson, Bartholomew J. Baumstark and Gerald J. FitzGerald of the O'Brien Law Firm in St. Louis. Madison County Circuit Court case number: 09-L-792.
--Josie Gonzales of Texas claims her recently deceased husband, Eulalio Gonzales, developed mesothelioma after his work as a laborer and foreman at various locations throughout Illinois, Missouri, Colorado, Kansas, New Mexico and Texas from 1958 until 1985. Josie Gonzales is represented by Amy E. Garrett and W. Brent Copple of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-798.
--Joseph and Sandra Goudreau of Michigan claim Joseph Goudreau developed mesothelioma after his work as a laborer, painter, operator and engineer at various locations in Illinois, Michigan, Alabama and Wisconsin from 1950 until 2000. The Goudreaus are represented by Timothy F. Thompson Jr. and Ryan J. Kiwala of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-801.
--Julie Hied of Montana claims her recently deceased husband, Lyle Woolston,developed mesothelioma after his work as a rancher and mechanic at various locations from 1968 until 1978. Hied is represented by Robert Phillips, Perry J. Browder and Rosalind M. Robertson of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-775.
--Betty Hughes of Virginia claims her recently deceased husband, Cecil Hughes, developed mesothelioma after his work as a laborer and carpenter from 1970 until 1979. Hughes is represented by Robert Phillips, Perry J. Browder and Rosalind M. Robertson of Simmons, Browder, Gianaris, Angelisdes and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-776.
--Robert and Barbara Krupp of Illinois allege Robert Krupp developed lung cancer after his work in the U.S. Coast Guard from 1952 until 1955; as a laborer at Mallinckrodt Chemical Company from 1955 until 1957; as a laborer at The New York, New Haven and Hartford Railroad Company from 1957 until 1961; as a laborer at Stickland Trucklines from 1962 until 1965; and as a laborer at Manufacturers Railway Company from 1965 until 1991. The Krupps are represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-777.
--John Lappin of Missouri, a machinist and steelworker from 1947 until 1992, claims mesothelioma. Lappin is represented by Andrew O'Brien, Christopher Thoron, Christina J. Nielson, Bartholomew J. Baumstark and Gerald J. FitzGerald of O'Brien Law Firm in St. Louis. Madison County Circuit Court case number: 09-L-772.
--Ronald H. and Karen L. Larson claim Ronald H. Larson developed mesothelioma after his work as a field lineman with the United States Army from 1960 until 1963 and as a steel plate inspector at Bethlehem Steel from 1963 until 1987. The Larsons are represented by Randy L. Gori of Gori, Julian and Associates in Edwardsville. W. Mark Lanier, Patrick N. Haines, C. Taylor Campbell, J.D. McMullen and William H. Barfield of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-781.
--Christopher Morelli of New Jersey claims his recently deceased wife, Michelle Morelli, developed mesothelioma after her work as a laborer at Lockheed Martin in 1982. She was also exposed to asbestos fibers while doing abatement work during the late 1990s and was secondarily exposed through her husband, who owned a painting, drywall and texture company from 1982 until now, according to the complaint. Christopher Morelli is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-782.
--Jimmy E. and Rosalee Murphy of Arkansas claim Jimmy Murphy developed mesothelioma after his work as a manufacturer from 1967 until 1971 at Tucker Duck and Rubber Company, Fort Smith Table and Chairs and Bowmen and Company; as a laborer for Capco from 1971 until 1976; as a welder for Structural Steel in 1976; as a forklift operator for Farmland Feed Mill from 1976 until 1980; as a welder for Branham Industries from 1980 until 1981; as a welder for Interstate Electric from 1983 until 1986; and as an assembly line worker for Trane from 1986 until 2000. The Murphys are represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-793.
--Shirley Jo Peeler of Ohio, a cashier for Liberal Markets from 1953 until 1956 and an employee at Revco and a press operator at Stanhope Products from 1956 until 1958, claims mesothelioma. Peeler is represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-794.
--Larry C. and Bettye M. Sims claim Larry C. Sims developed mesothelioma after his work as an engineer and machinist mate while in the U.S. Navy from 1962 until 1987; as a maintenance man at Dorchester School District in South Carolina from 1987 until 1998; as a home remodeler at his house from 1960 until 1970; and as a shadetree mechanic from 1959 until 1979. The Sims are represented by Randy L. Gori of Gori, Julian and Associates in Alton. W. Mark Lanier, Patrick N. Haines, Angela B. Greenberg, Sam T. Richard, Bridget B. Truxillo and Lauren H. Ware of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-779.
--Toni Solano of Texas claims her recently deceased husband, John M. Solano, developed mesothelioma after his work as a laborer and division engineer for Burlington Northern Santa Fe Rail Road from 1975 until 2005. Toni Solano is represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-796.
--Robert A. and Darlene M. Switzer claim Robert A. Switzer developed mesothelioma after his work as a service representative, products liability specialist, maintenance, expert claims witness for Caterpillar Tractor Company from 1953 until 1988; while being enrolled in officer's candidate school where he learned and performed duties on Navy ship from 1944 until 1946; while working for a road equipment contractor and on welded metal tracks from 1949 until 1953; as a farmer at Norvel Switzer Farm from 1926 until 1944; as a shadetree mechanic from the 1950s until 1980; and in residential construction from the 1950s until 1980. The Switzers are represented by Randy L. Gori of Gori, Julian and Associates in Edwardsville. W. Mark Lanier, Patrick N. Haines, R. Craig Bullock and J. Kyle Beane of Houston will serve of counsel. Madison County Circuit Court case number: 09-L-780.
--Leo J. and Ruth A. Vietmeier claim Leo J. Vietmeier developed mesothelioma after his work as a laborer, assembly line worker and maintenance man at American Vitrified in the 1950s; as a laborer while in the AFL-CIO Union in the 1960s; as a mine worker at Pegg's Run Coal Mill in Pennsylvania in the 1970s; as a meat cutter at Giant Eagle from 1980 until 1996; as a home remodeler at his home from 1967 until 1990; and as a shadetree mechanic on his automobiles from 1950 until 1980. The Vietmeiers are represented by Randy L. Gori of Gori, Julian and Associates in Alton. W. Mark Lanier, Patrick N. Haines, Angela B. Greenburg, Sam T. Richard, Bridget Baragona and Lauren H. Ware of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-778.
--Mary Ellen White of New Hampshire claims her recently deceased husband, John Grohosky, developed mesothelioma after his work in the U.S. Navy from 1944 until 1964 and as a forklift driver from the early 1970s until 1988. White is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-784.
--Fred Young of Wisconsin, who served in the British Navy from August 1940 until August 1954 and who worked as a mechanical researcher from 1954 until 1956; as a mechanical researcher at AV Roc from 1956 until 1958; as a design engineer for Pratt and Whitney from 1958 until 1960; as a design engineer at the GE Nuclear Power Demonstration Plant from 1960 until 1963; as a senior reactor operator at Ontario Hydro from 1963 until 1965; as a maintenance supervisor at Thunder Bay Generating Plant from 1965 until 1967; as a maintenance supervisor at Wisconsin Electric Point Beach Plant from 1968 until 1972; as a laborer at Bechtel from 1972 until 1984; and as a consultant at Wisconsin Electric Point Beach Plant from 1984 until 1989, claims mesothelioma. Young is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-797.
This article from the Madison County Record reports that Judge Daniel Stack has decided to retire as of 2010. Judge Stack is well known as the Madison County judge who took over the asbestos docket from Judge Byron. Judge Stack is generally credited with having made Madison County a less extreme place to litigate for asbestos defendants, although that's relative praise. That said, Madison County continues to grind out trial dates and settlements for asbestos cases, and so claims for 2009 are up from recent years.
For years, many have posed the question: what is the next "asbestos" ?
The answer usually has been: more asbestos.
Here is one recent example of why the answer remains largely true. The example is a plaintiff's firm press release urging the need to treat taconite as if it is asbestos even though its never before been classified as asbestos. There are some real health issues as to taconite, which you can see from this University of Minnesota web page addressing an ongoing study. The point here though is that the next asbestos is more asbestos. The second point is that the underlying JOEH article it cites purports to find a medical link between the presence of pleural plaques and pain in this particular person. The plaintiff's bar no doubt will continue to use this article as part of the always ongoing campaign to find reasons why money should be paid to persons without actual impairment of their day to day activities.
In light of this morning's news from the General Motors chapter 11 case, and emails landing in my inbox of late, this seems an apt time to mention that the recession, chapter 11 cases and asbestos litigation are all intersecting at upcoming asbestos litigation conferences.
For one, Perrin Conferences is hosting a September 14-16 asbestos litigation conference in San Francisco. In a nod to the recession and slashed corporate budgets, Perrin Conferences is offering free registration to inside corporate lawyers. Go here for the agenda.
The entire conference looks excellent for both substance and speakers. My eye was particularly caught by the seminar's day three panel on chapter 11 cases related to asbestos claims. Who knows what the world will look like by then, but for now, the panel is top notch:
9:00 AM - Asbestos Bankruptcy: New Filings, Confirmations & Dismissals
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part I: Why are these companies still in bankruptcy?
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part II: Who are these new filers and how are they doing?
Overview of the asbestos trust process, the Three "C's": Claims, Contribution and Cooperation
Will there be any defendants left? The automotive industry and bankruptcy
Joseph F. Rice, Esq., Motley Rice LLC, Mount Pleasant, SC
Charles Mullin, Litigation Resolution Group LLC, Washington, DC
Robert Phillips, Esq., SimonsCooper, LLC, East Alton, IL
Lucy P. Allen, SVP, Mass Torts and Product Liability Chair, NERA Economic Consulting, New York, NY
Per this article from Delaware Online:
June 25, 2009
DuPont sued over asbestos in ArgentinaEx-Lycra plant workers say they were exposed
By ANDREW EDER and AARON NATHANS
The News Journal
DuPont Co. exposed workers in Argentina to asbestos until the late 1990s despite knowing the risks of the material, according to three lawsuits filed Wednesday in Delaware.
The lawsuits came from former workers at a Lycra spandex plant in Mercedes, Argentina, that was part of DuPont until the sale of its textile unit in 2004.
DuPont knew that exposure to asbestos could harm workers as early as 1964, the complaints said, but the company continued to use asbestos in the heat pipes and machinery of its Argentina facilities until the late 1990s.
The workers, Cristian Dematei, Juan Carlos Laborda and Ceferino Ramirez, are represented by the Wilmington law firm Jacobs & Crumplar. The law firm said more lawsuits would follow.
Dematei, who worked at the facility for 11 years, suffers from asbestosis, a chronic condition that causes shortness of breath and an increased risk of lung cancer, the complaint said.
Laborda worked at the plant from 1968 to 1980, according to his complaint, and suffers from asbestosis and asbestos-related lung cancer.
Ramirez worked at the facility for 32 years before retiring in 1993. He has been diagnosed with asbestos-related laryngeal cancer and asbestosis, his lawsuit said.
The lawsuits allege that workers were never warned of the dangers of asbestos exposure or given respiratory protection.
Amanda Velazquez, asbestos medical paralegal for Jacobs & Crumplar, said: "They need to break the double standard," referring to DuPont stopping using asbestos in U.S. plants earlier.
DuPont spokesman Dan Turner said, "While we have not had the opportunity to review the filing yet, and cannot comment on the specifics, we do find it puzzling that the plaintiff's attorneys have filed the compliant in Delaware rather than the country of origin. The safety and health of our employees, our neighbors and our community has and continues to be DuPont's highest priority."
Velazquez said it makes sense to sue a company in the place where it is based.
An article by Steve Korris in the Madison County Dail Record provides an update on CSX's lawsuit targeting the Pittsburgh-based Peirce, Raimond plaintiff's law firm and radiologist Ray Harron, one of the doctors identified by many as facilitating bogus claiming. The case is set for trial in August on CSX's claims that in essence accuse the law firm and doctor of manufacturing bogus law suits. Here are some key excerpts from the article:
"Baylor's case was a sham," CSX lawyer Marc Williams of Huntington, W.V. wrote to U.S. District Judge Frederick Stamp on June 16.During his May 11 deposition, Baylor "had virtually no knowledge of the circumstances" around his representation by Peirce, Raimond and Coulter of Pittsburgh, Williams wrote.
He wrote that Peirce firm lawyers "consistently acted without his authorization."He wrote that at his deposition Baylor identified his own signature on a questionnaire but said handwriting on the asbestos exposure section belonged to someone else.
Stamp plans to start trial Aug. 11 on CSX's fraud conspiracy suit against the Peirce firm, owner Robert Peirce, and radiologist Ray Harron of Bridgeport, W.V."
The Record, as its known, is a great source for general information about litigation developments in some well-known venues for tort litigation. The information comes with a definite but disclosed pro-defense view, as explained here. Different iterations of the Record focus on different "plaintiff-friendly" jurisdictions, including West Virginia (go here) and southeast Texas (go here).
In a win for defendants in general and some asbestos defendants in particular, the U.S. Supreme Court issued a June 1, 2009 per curiam opinion holding that when FELA claimants pursue "fear of cancer" claims, the defendant is entitled to an instruction that the jury must find evidence that the fear is "genuine and serious." The opinion is titled CSX Transp., Inc. v. Hensley, 556 U.S. _______ (2009). The slip opinion is here. The issue arose because a plaintiff said to have suffered other severe diseases also claimed damages for alleged fear of cancer due to having been diagnosed as having asbestosis.
The win is significant for railroads and others because FELA applies nationally since it is a federal statute. Click here for a Wikipedia article on the history of FELA.
The free version of the GM docket is located here. The case is assigned to Judge Gerber, who has been handling the Thompson-Hayward asbestos bankruptcy. An Am Law Daily article here provides a nice summary of the lawyers and parties, except that somehow it missed the lawyers for the asbestos claimants.
At least some of the lawyers for asbestos claimants show up in docket number 81, which is an appearance filed by Sander L. Esserman and Peter C. D'Apice of Stutzman, Bromberg, Esserman & Plifka as counsel for the Ad Hoc Committee of Asbestos Personal Injury Claimants. The ad hoc committee is said to consist, "at this time," of asbestos personal injury claimants represented by the law firms commonly known as 1) Waters & Krause; 2) SimmonsCooper, 3) Weitz & Luxenburg, and 4) Brayton Purcell. In addition, Stephen Kazan of Kazan, McClain, Lyons, Greenwood & Harley is listed as an ex officio member of the committee.
In addition, docket number 114 is an appearance for asbestos claimants represented by Kelley & Ferraro.
An article on the BBC and an article on Scotsman.com report that trial has started on the insurance indsutry challenge to Scotland's recent legislation reallowing lawsuits seeking compensation for pleural plaques. According to the articles, trial is expected to end by June 12.
Meanwhile, London still has not announced a decision on pleural plauqes but campaigning about asbestos medical research continues to grow. A May 25 article reports that 22,000 Brits signed a petition to Downing Street to request a central medical authority to lead research efforts regarding mesothelioma, and yet another article reports on two lawyers and another person embarking on a 1,200 mile bike marathon aimed at encouraging medical research, with the journey to be chronicled on a blog.
This May 12, 2009 post updates a post of Wednesday, April 22, 2009 regarding pleural plaques and asbestos issues in the UK.
The UK press is now reporting that the UK government has now publicly stated that it will not make its decision on pleural plaques legislation until some time prior to Parliament's summer recess. The statement can be seen here in context, but it's brief. The statement says:
"Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Of course, I fully acknowledge the concern of my hon. Friend and other hon. Members on both sides of the House about that issue. Consideration of the responses, of which we have received quite a number following publication of our paper on the way forward, is taking longer than we anticipated, because of the complexity involved. However, I certainly intend that we should come to conclusions before the summer recess."
Meanwhile, union groups and their supporters have continued to agitate for legislation to once again allow claiming for pleural plaques. A "members bill" was introduced and discussed in Parliament. The discussion can be read here, and reveals that at least some of the legislators are ill-informed on the issues.
My personal opinion is that London will rue the day if it allows plaques claiming to go forward. Plaques claiming in the US was a disaster for companies and Chapter 11 trusts that were swamped by claims from persons with little or no impairment. The April 22 post links to my detailed set of reasons regarding why plaques claiming should not be reinstituted.
The New York Times ran a Saturday article detailing growing evidence of government misconduct in the criminal prosecution of WR Grace officials. Unlike most of the ongoing superficial stories about the trial, this article includes links to the judge's opinion excluding evidence proferred by the government, plus a brief from teh Grace side that details government misconduct. The article also includes references to the students and professors following the trial through a reasonably helpful blog.
The bottom line? As is so often the case when speaking about asbestos, the opponents of industry seek to ignore scientific lines drawn for many years between types of asbestos and how asbestos is defined. The science and lines deserve respect because, at the end of the day, good decisions have to be based on science.
Please do not take me as seeking to excuse everything done by industry or insurers. I certainly agree that officers of Johns-Mansville and some other companies took inexcusable actions. Some of their insurers also have much dirty laundry.
That said, distinctions between among asbestos fiber types are very real and their "toxicities" are different by orders of magnitude. For example, crocidolite fibers are usually viewed as 5oox more potent that chrysotile fibers in terms of causing mesothelioma.
Caveat/Disclaimer: In the mid-to-late 1990s, I was part of ateam of lawyers who represented W.R. Grace in asbestos litigation. My personal opinion is that the prosecution always has been a travesty because it ignored the facts and science regarding the Libby, Montana zonolite mining facility purchased by Grace after the facility had been in operation for many years.
The battle over pleural plaques claiming is continuing to evolve in the UK
With respect to the Scottish legislation allowing renewed pleural plaques claiming, an April 21, 2009 Business Insurance article by Sarah Veysey reports that four insurers have now filed the promised lawsuit challenging the pleural plaques legislation in Scotland. The article states: "the four insurers challenging the law represent more than half of the U.K. employers' liability market. They are Aviva P.L.C.; AXA Insurance, the U.K. arm of AXA S.A., RSA Insurance Group P.L.C.; and Zurich Financial Services Group." Much the same information is found on the website for the Association of British Insurers.
Meanwhile, the Brtish government still has not announced its position on pleural plaques. An April 8 article said that London is supposed to provide its answer on plaques "after Easter." The article states in pertinent part:
"Prime Minister (Gordon Brown) has issued a statement that a decision on pleural plaques will be made when Parliament resumes after the Easter recess.
During Prime Minister's Questions Brown was asked (by Jarrow MP Stephen Hepburn) what he planned to do to end the compensation injustice for pleural plaques sufferers. Brown replied: "Asbestosis is a terrible disease, and all those who suffer from it deserve the best of help from the public authorities. It is right that we look again at this as a result of legal actions that have been taken about the obligations of insurance companies. "The Justice Secretary will make a statement on this when we return after Easter."
I previously submitted to the government in London a detailed opposition the the pleural plaques claiming. You can see it here.
Lawyers are starting to react publicly to the Illinois Supreme Court's ruling on the Lipke issue. One article is pasted below, and quotes a well-respected and veteran Chicago lawyer, Ed McCambridge, 'as saying:
'It's probably the biggest asbestos opinion in the history of the state,'' McCambridge said. ''It is clearly going to have a huge effect on how cases will be tried in this state."
Ed is more than correct. Indeed, the opinion has national implications.
Why? Under (misinterpretations) of the Lipke case decided decades ago, the absurd result was that the last few defendants left in cases in Illinois were under enormous pressure to settle. Why? Because Lipke was construed to say that the jury could only hear evidence of the alleged exposure to the products of the defendant(s) in trial. For example, assume a plaintiff with mesothelioma who spent 10 years working at the old Manville plant in Waukegan, a suburb north of Chicago. Assume he spent his 10 years shoveling the especially lethal mphibole asbestos fibers that Manvilleused in some of its products. Assume also that outside of work, he once changed car brakes and once changed a gasket on a pump. Under Lipke as misconstrued, the plaintiff could take the brake lining maker and gasket maker to trial, but the defendants could not put in evidence to prove up his work at the Manville work as the sole cause of his mesothelioma. Does that make for an absurd trial and an absurd result? You bet, but trial judges in Illinois applied the law that way for decades, thus making Illinois a favored forum for plaintiff's to bring cases against defendants with little or no actual role in causing mesothelioma.
As Ed said, the implications are huge for the trial of cases in Illinois. The implication also are national because "Illinois values" should now fall for many defendants. That matters nationally because asbestos bankruptcy "liability estimates" have for years been artificially inflated by "Illinois values." Indeed, I was personally involved in proving in a bankruptcy that the settlement values for one defendant were 8x higher in Illinois than anywhere else in the nation.
So, so long as defendants and insurers do not blow this win with bad trial tactics, Illinois values should drop. The ruling also will be germane to choice of law issues, a topic of increasing importance in asbestos litigation.
Two other observations. One wonders why it took the Illinois Supreme Court almost tow years to issue this fairly simple opinion. One also wonders why it took insurers and defendants decades to take up an asbestos verdict and get Lipke reversed. During those years, literally billions of dollars were paid out for asbestos claims filed in Illinois.
Ruling aids exposure defense on asbestos
By Bethany Krajelis Law Bulletin staff writerSPRINGFIELD -- The defendant in an asbestos case should not have been barred from presenting evidence of the decedent's other exposures to the material, the Illinois Supreme Court held Thursday.
In a 5-1 ruling, the high court remanded the matter of Sally Nolan v. Weil-McLain to the Circuit Court for a new trial and overturned two appellate decisions, saying the lower courts had misinterpreted a rule created in Lipke v. Celotex Corp., 153 Ill. App. 3d (1987), to prevent defendants from introducing evidence of other exposure.
Justice Robert R.Thomas did not take part in the decision and, while Justice Thomas L. Kilbride agreed with the majority that it was an error to exclude such evidence, he disagreed that the error requires a new trial.
Nolan sued 12 defendants, including Weil-McLain, in 2001, claiming that her husband's death from mesothelioma was caused from asbestos exposure at work. The other defendants settled, leaving Weil-McLain, a manufactorer of cast-iron boilers, the only defendant at trial.
A Vermilion County jury awarded Nolan $2.3 million in 2004. The 4th District Appellate Court affirmed the lower court's ruling, relying on Lipke, Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d (1993), and Spain v. Owens-Corning Fiberglass Corp., 304 Ill. App. 3d (1999).
The Lipke court acknowledged there can be more than one proximate cause of an injury, but noted that ''the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of such exposure is not relevant.''
In a 26-page opinion on Nolan's claim written by Justice Charles E. Freeman, the court agreed with Weil-McClain's argument that the trial court misinteprepated Lipke in barring the defense from preventing evidence of other sources of asbestos exposure that Clarence Nolan had encountered.
''Lipke simply determined that evidence of the plaintiff's other exposures was not relevant to the specific defense raised, i.e., that the plaintiff did not have an asbestos-related disease,'' Freeman wrote. ''In the matter at bar, however, defendant wishes to offer evidence of decedent's other exposures for different purposes: to contest causation through the use of the sole proximate cause defense, which was not raised by the Lipke defendant.''
Because the Kochan court extended the Lipke rule to say that evidence of other exposure is always irrelevant, which the justices acknowledged basically makes it impossible for asbestos defendants to argue a sole proximate cause defense, the high court overruled that portion of the Kochan decision.
In overruling Kochan and Spain, the high court also relied on its decisions in Thacker v. UNR Industries Inc., 151 Ill. 2d (1992), and Leonardi v. Loyola University of Chicago, 168 Ill. 2d (1995).
And while Kilbride agreed with most of the majority opinion, he said in his dissent that the error of not allowing evidence of other exposure at trial does not merit a new trial. He noted that other evidence that was admitted did provide Weil-McLain grounds for a sole proximate cause defense.
''[A] new trial is not warranted because Weil-McLain was able to receive a fair, albeit not perfect, trial in spite of the trial court's ruling,'' Kilbride wrote.
Nolan's attorney, David A. Novoselsky, said Kilbride's dissent says it all.
''In my opinion, the defendant got a fair trial here,'' Novoselsky said. ''This jury heard all of the evidence. It's as simple as that.''
Novoselsky said he plans to recommend that his client petition for a rehearing before the high court. He said he would ask the justices to consider Kilbride's dissent.
Richard P. Godfrey, who represented Weil-McLain at oral argument, said he was pleased with Thursday's opinion and believes the ruling will have an impact on a number of other cases.
Edward J. McCambridge, the national coordinating counsel for Weil-McLain, said Thursday's opinion is not only huge for the company, but for asbestos litigation in general.
''It's probably the biggest asbestos opinion in the history of the state,'' McCambridge said. ''It is clearly going to have a huge effect on how cases will be tried in this state.''
Edward Murnane, president of the Illinois Civil Justice League, and Gregory L. Cochran, the president of the Illinois Association of Defense Trial Counsel, both said they welcome the long-awaited decision with open arms.
Defense lawyers, defendants and insurers all are smiling today because the Illinois Supreme Court today issued a ruling that favors defendants in asbestos litigation. Specifically, the court made plain today that the so-called Lipke rule no longer applies if it ever did. The opinion is available from the Illinois Supreme Court's website or here. Within the world of asbestos litigation, much will be said about this opinion over the next few days.
This post follows up on a prior post that described the Manville asbestos trust halting its prior practice of licensing its claims data to third parties for uses such as estimating future claim counts, seeing evidence of claiming trends, and weeding out fraudulent claims.
After the original post, I heard two sets of comments through emails, phone calls and personal conversations. First, I heard multiple comments that fall into the general category of complaints that the Manville data cutbacks are exacerbating an already difficult claims management situation arising from the absence of verifiable public data on asbestos claim payments.
Second, I heard from professionals at Navigant regarding a database of asbestos claims it is licensing to users, and its ongoing efforts to expand the scope of the database. Navigant is the name of a consulting firm that today is home for scores of professionals with massive asbestos experience. Navigant's data and professionals have roots in extensive work for insurers and insureds on asbestos claims as the claim morphed in the late 1970s and early 1980s. I'm happy to give its database a bit of a plug here because I know from personal experience that Navigant's professionals do lots of great work on asbestos claims. Indeed, back in the 1980s, I worked with several of their professionals (then at Peterson & Co.) on the dinosaur known as "asbestos-in-buildings" claims. (That species of asbestos claims long ago became extinct in the tort system due to lack of merit, but - incredibly - those claims still live on in the alternative universe of asbestos trusts. Why that is so is a story for another day. )
Marketing material for the Navigant database is available here. The gist is that the database includes a variety of useful data, with two subsets that are especially valuable. One subset consists of all mesothelioma lawsuits filed in the United States beginning in 2005. The data can be organized by state and in time sequence. These are powerful tools to evaluate the scope of recent mesothelioma claims, which today are the claims driving the majority of the costs for asbestos defendants and/or insurers. The database also identifies the entities named as defendants in each case, and to the extent available from the complaint, the nature of the plaintiff's trade and alleged dates of asbestos exposure. This information also is highly useful for assessing the relative role of a particular defendant as compared to others, and for assessing insurance issues tied to exposure date allegations.
Navigant's Brad Drew and others are responsible for the database, and tell me they are working on trying to expand the database through cooperative efforts among defendants and others. Hopefully they succeed in the far less than simple task of herding together decision-makers and information from the key players among the thousands of asbestos defendants. (Once upon a time back in the late 1980s and early 1990s, the plaintiffs were at a disadvantage because the relatively limited set of defendants and insurers actually worked pretty well together to share claims data and war stories. That stopped being true as more and more of the original original defendants fell into bankruptcy and the number of defendants exponentially expanded as plaintiff's lawyers and experts started selling the notion that even the tiniest "exposure" constitutes a "cause" of disease.)
The Navigant database also includes hundreds of thousands of old asbestos claims assembled over the many years that Navigant has been processing claims for insurers and defendants. This data also can be very valuable for estimating claims, perceiving trends and proving up facts regarding the "elephantine mass' of asbestos claims. Old claims also may be used to find fraudulent multiple claims by one person.
It's great that Navigant is making this data available. That said, it seems incongruous that there is no free, national database of objective data regarding asbestos litigation.
James Hardie is an Australian building products company that made lots of asbestos-cement products, some of which were made from the especially lethal blue asbestos fiber known as crocidolite. In years past, it was being sued frequently. It then redomesticated to the Netherlands and established a trust to pay victims, perceiving the law there as favorable towards that end. The trust turned out to be grossly underfunded (which in my opinion was obvious from the start to anyone with a brain and any meaningful experience in asbestos litigation). Ultimately 10 of the senior officers were taken to trial by Australian securities regulators for misleading statements to investors. A recent newspaper article indicates the case is moving towards the end of the becn trial, with summations having started. A decision is expected in a few months. It will be fascinating to see how the judge assesses the situation.
It is striking news that a bankruptcy judge has refused to allow Congoleum to continue to try to confirm an asbestos bankruptcy plan. Instead, late last week, she cut off the litigation with a final order that is being appealed. The opinion and related papers are here. The case has along history that is summarized in an appendix to the opinion, and I will not try to summarize it here today since I am on vacation. That said, the appeal here, if it goes forward, could break some fascinating new legal ground applicable to any and all asbestos bankruptcies. Issues that could be resolved include standing to contest terms of the Chapter 11 plans, and the propriety of plan voting rights related to persons who settle claims before and after the bankruptcy under special deals.
The news is striking because over the last few years, there have been very few denials of the outcome sought by the asbestos plaintiff's bar and the handful of companies that found the process expedient. Indeed, these and other players have created an asbestos compensation system parallel to but largely cut off from the tort system. That alternative system has been created in US federal bankruptcy court through trusts, with most created under chapter 11 of the bankruptcy code. The system is huge - existing asbestos trusts held something north of $ 30 billion prior to the financial fiasco, as is described in teh Bates White paper cited below.
The basic procedural history of asbestos bankruptcy litigation is well told in a wonderful series of continually updated papers that the Crowell & Moring firm makes available on its website at this page. Mark Plevin and other lawyers at their firm have represented insurers opposed to various terms of many of the chapter 11 plans. A great overview of the situation is provided by PdD economists Charles Bates and Charles Mullen of Bates White in their paper titled: Have Your Tort and Eat It Too.
Disclosure: I have in the past and do now represent non-insurer parties opposed to certain terms of asbestos bankrupcties, and also have represented and do represent entities that are defendants in or financially tied to asbestos litigation through indemnity obligations or shared insurance. Further specifics are available on my bio at my law firm's website (www.butlerrubin.com) or feel free to email me at work if you need further information.
How valuable are mesothelioma claims to plaintiff's firms? I can't tell you for sure but plainly they are much sought. An Internet site purports to list prices paid for clicks through Google's Adsense that allows bloggers to be paid through ads on their website. The top end of the list is dominated by search terms related to mesothelioma. The entire blog entry is at:
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Popular wisdom has it that that the types of tort litigation we have in the US are abhorred by the rest of the world. The reality, however, is that the world is changing, as is evidenced by today's news including an article from the Mainiachi Daily News regarding the filing of two new asbestos claims in Korea. The full text is set out below.
Bereaved families of 2 South Koreans sue firms over asbestos deaths
SEOUL -- The bereaved families of two South Korean residents who died from mesothelioma after living near a factory producing asbestos have filed a damages suit against three parties including Nichias Corp., it has emerged.
In the suit filed at the Busan district court, plaintiffs demanded companies including Tokyo-based Nichias Corp. pay 200 million won (about 14 million yen) each in compensation.
It is the first time that local residents near an asbestos factory have filed a damages suit in South Korea. Local environmentalist groups and former residents near the factory have also joined hands in seeking relief measures.
The plant -- an asbestos spinning factory -- was run by Jeil Asbestos (present-day Jeil E&S), which was jointly established by Nippon Asbestos (forerunner of Nichias) and a South Korean company near Busan city hall in 1971. The plant continued to operate until 1992.
One of the male victims was living 900 meters away from the factory for seven years in the 1980s and subsequently died in 2006 from mesothelioma at age 44. The other victim was living 2.1 kilometers away from the factory for four years during the 1970s and died in 2002 from mesothelioma at age 62.
On Nov. 13 this year, their bereaved families sued Nippon Asbestos and Jeil E&S, as well as the South Korean government for "failing to take measures to improve the factory."
According to the complaint, the plaintiffs claim that Nichias established the joint venture while knowing the toxicity of asbestos but concealed it from the public.
"Nichias moved (its operations) to Busan after regulations against asbestos particulates were strengthened in Japan and it became difficult to produce asbestos in the country. The company now also operates plants in Indonesia and other Third World countries. We want to prevent the spread of pollution exports through the suit," said a representative of a Busan-based environmental group supporting the plaintiffs.
A representative of Nichias said, "We have not received the complaint and have not confirmed the suit. Those involved in the joint venture have already retired and we do not know the details."
In a related development in December last year, the Daegu district court in South Korea ordered Jeil E&S to pay 158 million won in compensation to a female former employee of its Busan factory who died from mesothelioma. The court case has subsequently prompted a series of damages suits against the company by its former employees.
Click here for the original Japanese story
(Mainichi Japan) November 18, 2008
The Canadian Medical Association has come out with an editorial, described here, that calls on Canada to join with other countries to further regulate "asbestsos" exports. The topic is of interest in Canada because its been a major exporter of asbestos for decades, and so the fibers produce jobs, corporate profits and tax revenue. The issue is in part caused by disputes about how safe or unsafe are the various types of asbestos fibers and their various end uses. The topic is relevant here because a recurrent issue in tort litigation no doubt will be whether and how health standards and practices in one country should effect what happens in another country or be applied in different countries.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
Global tort litigation issues continue to evolve. Last fall, the UK's highest court decided that it would not permit recovery of money as compensation for persons found to have "pleural plaques." Pleural plaques are generally deemed benign markers of past inhalation of asbestos fibers. Now, on July 9, the British government issued a request for comments on whether to use legislation to overturn the decision precluding damages.
Specifically, the "consultation" process calls for interested persons to submit views on whether persons with "pleural plaques" should be allowed a chance to recover damages for the physical change in the lungs or anxiety. The consultation paper, number 14/08, is viewable here.
So, what's at stake? In dollars, it's some number of billions; current estimates probably will prove to be too low, just like most other estimates of asbestos costs. In lives, the issue may or may not have significance. Pleural plaques generally are thought not to impair life function in any way, but they generally are considered a marker for past asbestos inhalation. Some may argue that finding those people now will help them later avoid premature deaths by leading them to annual health screenings with a focus on their particular risks.
Back to dollars. The consultation likely will become a fight between insurers and insureds as to which entities pay how much. Insurers and reinsurers will have issues between them. The process also will include battles between solvent entities and entities that claim to be insolvent or are pursuing "schemes of arrangement." Schemes of arrangement? They are end of corporate life financial engineering tools. Insurers like to say that the schemes free up capital to return to the marketplace and stimulate business. Insureds like to say that schemes improperly allow insurers to avoid IBNR claims, which are claims that are foreseeble based on past events, but that have not yet been filed because, for example, the future claimant does not yet know that a mesothelioma tumor already has formed and is growing, at a microscopic level.
Note also that government agencies will have a financial stake. Legislation may help them avoid paying the massive health care costs that may accrue when a mesothelioma is found "early."
The issues also may be described more broadly. This could be a chance to find a fair compensation and medical treatment plan that avoids the many flaws in the current American systems, and to think carefully about how one defines who is "sick" or when they are "injured." This could be a chance to limit attorneys' fees to modest amounts. This could be a chance to take a long term view. This could be a chance to look for new answers.
In a prior article of May 18, we noted an asbestos lawsuit in Japan. Since then, the lawsuit has not received much press, nor has there been a public annoucment of the filing of the second lawsuit that was indicated when the existing lawsuit was filed. My efforts to obtain the complaint from the plaintiff's firm were turned down by that firm, citing ethical issues since I represent defendants. One wonders what issues are involved in providing a copy of a public document. In any event, it appears that the plaintiff's firm also is not sharing the complaint with Laurie Kazan Allen or others on the plaintiff's side since her website now refers to the lawsuit, but only to the original press release/article in Wikipedia. http://ibasecretariat.org/lka_jap_cause_effect.php. The complaint also has not appeared in Mealeys, HarrisMartin or other publications that follow asbestos litigation.
Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."
A parallel article on Wikinews adds some quotes from workers, but not much more.
Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.
I'm often told that asbestos litigation is essentially just a U.S. issue because our culture is said to be so litigious. However, even the reputedly nonlitigious Japanese culture has produced asbestos claims and payments. A Japanese website reports that a Japanese corporation recently voluntarily paid compensation to a person claiming to suffer from mesothelioma. The claimant was aided by a victim's rights group based in Japan. The victim worked at a manufacturing plant reported to have used crocidolite fibers.