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 go here (specifics of 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)