Last Friday, Daniel Fisher at Forbes reported on numerous health insurers and some hospital groups filing in Philadelphia state court various papers regarding a prospective suit against the HK Porter Asbestos Trust. Further specifics and the papers are now available.

In short, there is no lawsuit as of yet, at least judging by the papers

Trials are public events, right? The press and public can sit in and watch the trial, and the evidence becomes part of the public record, right?  The only exceptions would be, it would seem, for cases involving national security or a real, significant risk to the lives of jurors or a judge.  Maybe in most

Asbestos litigation is now yielding yet another example of why there should be transparency on asbestost trust claiming data.  Unfortunately, as I’ve been pointing out for years, the formerly somewhat transparent trusts reversed field some years ago started and began hiding claiming data from public view. 

The latest example arises from the Peter Angelos

Global asbestos claiming. The latest chapter in the global growth is a new lawsuit filed against the Manville Trust in New York bankruptcy court. The claimants are persons who live overseas and claim inhalation of Manville’s asbestos fibers while aboard US warships. The complaint alleges that the Manville Trust terms are unfair and inequitable because persons living overseas are treated less well than are persons living in the US.  According to Jaqueline Palank’s Wall Street Journal article on the case, the Manville Trust intends to move to dismiss the complaint, quoting David Austern, the long-time General Counsel of the Trust. 

The lawsuit raises myriad interesting questions, but it’s not plain all will be reached or revealed in the litigation. Start with the question of jurisdiction – does the bankruptcy court have the power to resolve this claim? Next, do the plaintiffs have a ‘right" to treatment equivalent to persons living in the US when judged against 1) the terms of the Trust, and 2) other sources of legal rights.

Third, were the plaintiff’s interests adequately represented during the Manville bankruptcy, and can they bound by the terms of the bankruptcy court proceedings as a matter of due process? To my knowledge the Manville bankruptcy process did not include any estimates for overseas claims. Assuming that’s correct,  it seems plain the futures representative did not adequately represent his entire constituency. That being so, one could argue that the Manville injunction does not bind overseas claimants, and so current owners of Manville face successor liability tort claims by exposed and injured persons living overseas. This prior post explores that subject in greater depth, including analogies to the issues which have arisen after the original Agent Orange resolution. 

Fourth, will this suit and discovery provide insights into the decision-making processes of the Trust? A look into the decision-making process would be fascinating because the Trust has become increasingly opaque in recent years, as discussed here. The case might also delve into why the Manville Trust stopped collecting social security numbers from claimants, a topic previously covered in this post

One suspects the case will be resolved without all the issues being reached. But the due process and adequacy issues will remain for another day.  

One more thing. The suit was filed by Mitchell S. Cohen, a lawyer in Narbarth, Pennsylvania. The web site for his firm describes his practice as follows:  

 

Mitchell S. Cohen has successfully practiced complex litigation and has specialized in representing injured workers exposed to asbestos and other toxic materials, since leaving the U.S. Department of Justice in 1979. He continues to hold companies accountable for the harm and damage they have caused to those who have worked in shipyards, power stations, refineries and elsewhere in the building trades, as well as their families who are likewise affected. He has obtained significant jury verdicts and settlements on behalf of those whom he has been privileged to serve.

 

 


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