Public scrutiny of mass tort trusts just escalated dramatically. The escalation arrives in the form of  the Rand think tank releasing its Phase 1 report that is part of its major study of asbestos bankruptcy trusts. The Report is available on line here at no cost. The Report’s authors are Lloyd Dixon, Geoffrey McGovern, and Amy Coombe. The Report is titled:

Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts

This Report is a big deal, in my view. So, over the next few weeks, readers can expect to see here various comments on the Report, and presentation of  facts that help to put the Report in context. Today’s post starts that process with some background and big picture comments on the importance of RAND’s study.

For those new to asbestos, analysis starts with some relevant background. Rand’s website is here, and is worth browsing in order to observe in general the massive depth of its experience and expertise on many civil litigation subjects, among many topics it has covered.  And, more specifically, RAND brings to the table enormous experience in asbestos litigation as it previously studied asbestos litigation and issued major reports that soon became definitive statements on the subject of asbestos litigation in the US.  Here is a full list of RAND’s asbestos related publications. The RAND studies date back to a 1985 report and a 1992 report. A 2002 interim study is here. That study contains some of the information found in RAND’s major 2005 study, which is here.

What’s important about this Phase 1 study? Many things.  Overall, this study is critical because it sets an indisputable factual platform for debate and decision-making regarding the now-enormous bankruptcy compensation system for asbestos-claimants. Why indisputable? Because RAND took in data on 26 trusts, analyzed the data through its own peer review processes, and offered an opportunity to comment to trusts, defense lawyers and plaintiff’s lawyers, among others.  Comments were submitted by 23 trusts.  See Report at xi – xii. 

Comments also were submitted by counsel for asbestos defendants and plaintiffs.  See Report at xix. More specifically, the asbestos plaintiff’s bar brought tremendous expertise and resources to the analysis and comments. Thus, the commenters included Elihu Inselbuch, who is the dean of the bankruptcy bar representing the interests of asbestos claimants. Mr. Inselbuch’s comments no doubt included comments from myriad asbestos plaintiff’s lawyers who represent the asbestos claimants.  Mr. Inselbuch’s bio is here. It states, among other things:

“Highlights

Since 1985, when he was first retained to act for the Asbestos Claimants’ Committee in the Manville reorganization, Mr. Inselbuch has been recognized for his extensive experience in asbestos creditors’ rights litigation. Working with the asbestos plaintiffs bar, Mr. Inselbuch has represented their constituency in a number of large bankruptcies and class actions, including Johns Manville, Jim Walter Corp., Raytech Corporation, Babcock & Wilcox, Pittsburgh Corning, Armstrong World Industries, G-I Holdings, W.R. Grace, United States Gypsum, Federal Mogul, Owens Corning, Ortiz v. Fibreboard, North American Refractories Company, Kaiser Aluminum, Global Industrial Technologies, Combustion Engineering, Dresser (Halliburton), ACandS, Congoleum, Flintkote and Quigley.”

The plaintiff’s bar and Mr. Inselbuch also were able to draw on strong connections to RAND. Why? Because Mr. Inselbuch and the trusts frequently use the services of an expert witness and advisor, Mark Peterson. Mr. Peterson previously was a senior research analyst at RAND (1976-2000), and authored portions of some of RAND’s reports on civil jury trials in general, among others. Mr. Peterson’s vita is available on line here from prior asbestos bankruptcy litigation. Mr. Peterson’s vita states the following as to engagements as an expert witness and advisor for asbestos claimants and trusts, as well as some non-asbestos trusts and situations. The vita states the following, among other things:

1984-Present–Legal Analysis Systems, Inc. Special master, expert consultant in complexlitigation.

Findley v. Falise, Findley v. Blinken (mandatory, limited fund class actions to reorganizeManville Personal Injury Settlement Trust): Special Advisor to U.S. District Courts for Easternand Southern Districts of New York, U.S. Bankruptcy Court for Southern District of New York.

Special master and technical consultant to the courts and parties.Fuller-Austin Settlement Trust: Trustee, Chairman of the Trust and expert on estimation of claims for trust created to allow and pay asbestos personal injury claims.

NGC Asbestos Disease and Property Damage Settlement Trust: Consultant for estimatingpresent and future asbestos personal injury claims and cash flow analyses of Trust’s ability to pay projected claims.

UNR Asbestos Disease Claimants Trust: Consultant on estimation of present and future asbestos claims and claims distribution procedures.

Eagle-Picher Asbestos Trust: Consultant on estimation of present and future asbestos claims and claims distribution procedures.

Celotex Trust: Consultant to Representative of Future Claimants regarding estimation of asbestos liabilities.

Keene Asbestos Claimants Trust: Expert of estimation of liabilities for asbestos personal injury claimants.

CNA: Expert for CNA insurance on liabilities of an asbestos defendant insured by CNA.

In re: H. K. Porter Inc. Asbestos Claimants Trust: Consultant on estimation of present and future asbestos claims and claims distribution procedures.

In re: Celotex and Carey Canada: Expert for Asbestos Claimants’ Committee on estimation and treatment of asbestos personal injury claims.

Ahearn v. Fibreboard (mandatory class action): Expert for CNA and Continental insurance Companies regarding estimation of values of future asbestos personal injury claims and likely performance of the proposed Fibreboard Trust.

In re Bankruptcy of Dow Corning Corporation: Expert for Tort Claimants’ Committee regarding estimation and treatment of breast implant and other medical implant claimants.

In re: Bankruptcy of Wallace and Gale Corporation: Expert for Asbestos Claimants’ Committee regarding estimation and treatment of asbestos personal injury claims.

In re: Bankruptcy of Fuller-Austin Insurance Company: Expert for Asbestos Claimants’ Committee regarding estimation and treatment of asbestos personal injury claims, negotiation of prepackaged bankruptcy plan and cash-flow analyses for proposed claimants’ trust.

In re: Bankruptcy of Raytech Corporation: Expert for Asbestos Claimants’ Committee regarding estimation and treatment of asbestos personal injury claims and for design of procedures to pay such claims.

In re: Bankruptcy of Raymark Corporation: Expert for Unsecured Claimants’ Committee regarding estimation of liabilities for asbestos personal injury claims.

In re: The Babcock and Wilcox Company et. al.: Expert for Asbestos Claimants’ Committee in bankruptcy proceedings regarding estimation and treatment of asbestos personal injury claims.

In re: Pittsburgh Corning Corporation: Expert for Official Committee of Unsecured Asbestos Creditors in bankruptcy proceedings regarding estimation and treatment of asbestos personal injury claims.

In re: Owens Corning, et. al.: Expert for Official Committee of Asbestos Claimants in bankruptcy proceedings regarding estimation and treatment of asbestos personal injury claims.

In re: Bankruptcy of Eagle-Picher Industries, Inc.: Expert for Injury Claimants Committee regarding estimation and treatment of present and future asbestos injury claims and design of

Trust distribution procedures to pay asbestos and potential lead claims.

In re: Bankruptcy of National Gypsum Corporation: Expert for Asbestos Claimants Committee regarding estimation and treatment of present and future asbestos injury claims and design of Trust distribution procedures to pay asbestos personal injury claims.

In re: Bankruptcy of H. K. Porter Company, Inc.: Expert for Unsecured Creditors Committee regarding estimation and treatment of present and future asbestos injury claims.

In re: Bankruptcy of Hillsborough Holdings Corporation: Expert for Asbestos Claimants regarding estimation of values of present and projected future claims against Celotex Corporation at various points in time.

In re: Bankruptcy of Keene Corporation: Expert for Asbestos Claimants Committee regarding estimation of present and future asbestos claims.

Manville Personal Injury Settlement Trust: Developed ‘‘expert system’’–rules for evaluating asbestos personal injury claims derived from plaintiffs and defense lawyers.

In re: Bankruptcy of A. H. Robins Company, Inc.: Neutral expert for the U.S. Bankruptcy

Court for Eastern District of Virginia. Developed ‘‘expert system,’’ data bases and statistical analyses to evaluate claims for personal injuries from Dalkon Shield.

Jenkins v Raymark (Voluntary class action): Neutral expert for the U.S. District Court, Eastern District of Texas to evaluate asbestos personal injury claims.

Ohio Asbestos Litigation Plan: Neutral expert for the U.S. District Court, Northern District of Ohio to valuate asbestos personal injury claims.

MGM Grand Hotel Fire Insurance Litigation: Expert for Frank B. Hall, Inc. to evaluate wrongful death and personal injury claims arising from MGM Grand Hotel fire.