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  • Writer's pictureKirk Hartley

Asbestos – UK – Update on Various Topics

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.

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