Walter Olson ‘s PointofLaw has a June 12 post about Judge Weinstein writing a pessimistic paper about the way courts handle mass tort claims. Judge Weinstein may feel the need to write again after considering the Manville Trust’s quarterly report for the 1st quarter of 2009. The report is available here, and is depressing both for what it shows and what it does not show.
The visible and depressing part of the report involves nonmalignant claims – the ones that seemingly have been fading away. But, that’s not true for Manville during the first quarter of 2009. Instead, nonmalignant claims went back up – significantly – contrary to prior trends. They are said to be category 2 nonmalignancies, which means “asbestosis/pleural plaques” with a scheduled payment of $12, 000 (subject to prorated payment ) under the terms of the 2002 Manville TDP procedures available here – see page 7.
Specifics? Doing a little math from figures shown in the report’s cover letter to Judges Lifland and Weinstein, it looks like there were about 2,900 nonmalignant claims, which is far more claims than ALL the Manville claims filed in 1Q 2008. According to the report’s cover letter:
“During the first quarter of 2009, the Trust received 4,853 new claim filings compared to 1,776 for the same period of 2008. The malignant filing population has accounted for approximately 40% of the total for the first quarter of 2009 claim filings compared to 68% for the first quarter of 2008. The percentage decrease in malignancies is attributed to the sharp increase in the filing of unimpaired non-malignant Level 2 claims.” (emphasis added) “The Trust settled 3,749 claims for $30.4 million during the first quarter 2009 compared to 1,582 claim settlements for $14.8 million during the same period of 2008. The average settlement amount for the first quarter of 2009 and 2008 was approximately $8,100 and $9,300, respectively. Once again, the decrease in the average settlement amount is due principally to the higher percentage of non-malignancy claims settled during the first quarter 2009.”
Also depressing is the lack of data in the report to tell readers where these nonmalignant claims are coming from and the nature of the supporting proofs. Are these claims from persons resident in the US or persons who live overseas? Are some of these claims from older claimants who perhaps really did inhale large amounts of Manville fibers, or are some these claims from younger claimants with x-rays read by physicians of dubious repute who have not yet been banned from submitting the reports ? Or, are these all valid claims supported by sound medicine and science ? The report does not shed light on the answers to the questions. Once again, bankruptcy- related proceedings prove themselves to be the antithesis of transparency, and the Manville Data apparently remains unavailable, thus making it harder for anyone to figure out the real facts about tens of millions of dollars that perhaps should instead be available to be paid to mesothelioma claimants.