Friable Thoughts

Wednesday, March 30, 2005

Closing in on a Mesothelioma Cure?

It seems the drug, ONCONASE, is showing some promising results in increasing the longevity of mesothelioma patients. With trials going on in the US and Europe, now the Aussies have granted the drug "orphan drug status", which encourages health care providers to use the drug and gives it priority over other treatments.

According to this press release, mesothelioma is becoming more common down under so this is good news for the maker of this drug. Of course, since Australia only banned the use of asbestos a couple years ago, it probably isn't that surprising that they have an increasing rate of mesothelioma.

Of course, this doesn't mean there's a "cure" yet. But the longer you live, the better your chances they'll find a cure. And that sure beats being dead...unless you happen to be in a "persistent vegatative state" in the state of Florida.

Monday, March 28, 2005

A Simple Half-Loaf Asbestos Reform

Even though various senators have expressed hope that they can get a reform bill, the smart money is that the current bill is dead. Not that Congress would listen to one lone blogger, but here's an alternative that is simple and would provide a partial solution to the asbestos litigation crisis.

First, most folks want some sort of medical criteria solution. While that would be very helpful, it is also complicated by the fact that B readers are not the most reliable screeners, especially if they are paid by plaintiff's attorneys. Thus, until they can develop a more reliable screen for medical criteria, Congress probably won't bite on that solution on such short notice.

A simple solution would be to cap non-economic damages of say $1 million or three times economic damages, whichever is greater. There's no need to hire experts to determine who qualifies and hopefully a cap will drive down the settlement values of less serious cases slowing down the drain on insurance reserves.

While plaintiffs' lawyers will howl bloody murder, the basic argument for a damage cap is that the money "saved" by a damage cap is probably going to be paid out to future plaintiffs anyways and not for yachts and golden parachutes for insurance company CEO's. Plus, all economic damages still get paid in full.

Again, this won't "solve" the problem of the frivolous claims. However, it is something a Congressman or Senator can understand and can hopefully drive down the settlement values of the frivolous cases. Plus, it does not foreclose future legislation based on medical criteria or state efforts along those lines.

Thursday, March 24, 2005

Springtime in Asbestosland

I just got back from Florida and forgot that Spring Break is starting. Where I was in the Sunshine State was far from the wild college coeds but I was smack dab in the middle of the "Family Spring Break" where folks with little kids go to DisneyWorld for the wholesome fun. Which also means Congress is on break as well and that gives all the special interests: insurance companies, corporate interests, plaintiff's lawyers and the labor unions, plenty of time to make Arlen Specter's life a living pain in the backside.

I think someone should throw Senator Specter a bone. He probably means well but he's trying to do too much and he doesn't have enough support to do it. If they can settle for taking a big chunk out of the problem instead of solving the whole darn thing, then they might be able to declare victory and go home.

I'm starting to form an idea of what that "chunk" might be and how to do it but will ruminate a bit more before sharing it with you all.

Sunday, March 20, 2005

The Fat Lady Is Clearing Her Throat

I remember after the November presidential elections, many asbestos lawyers in California were despondent. Some spoke of moving to Canada or New Zealand. The re-election of George W. Bush and the pick up of four senate seats was the end of asbestos litigation and life as they knew it. John Ashcroft was going to start putting members of into reeducation camps, Kofi Annan would be arrested as a war criminal and they'd cancel "The West Wing" and "All Things Considered".

Well, all those folks are still here in the US, walking on the streets with not a single reeducation camp in sight and the only person out of a job is John Ashcroft...and the former leaders of the Ukraine and Lebanon.

And, it looks like the swan song for the asbestos trust fund now that some of the larger insurers are rallying against it. Don't know if it was the big price tag or the realization that no amount of money was going to be enough to buy them peace. Now, perhaps they can try something more feasable like medical criteria and damage caps. Oh yeah, and replace Josiah Bartlett with a conservative Republican so the show would be more believeable.

11 Insurers Lobby Against Asbestos Fund

Saturday, March 19, 2005

Red state rumble - Part Deux

While Congress labors away to establish a national asbestos trust fund, it appears that more states are seeking to establish their own solutions to the asbestos litigation crisis. Georgia and Tennessee may join Texas, Ohio and Mississippi in placing more restraints on filing claims. While this might slow the number of suits filed, I suspect enterprising plaintiff's lawyers will find ways to shoe-horn their cases into other states that don't have these restrictions. One would think traditional rules against forum shopping, proper venue or choice of law might stop that but when has "the Law" ever gotten in the way of a clever and determined plaintiff's lawyer and an activist judge?

Georgia Votes To Restrict Asbestos Suits
Tennessee, Texas Are Latest State Legislatures To Take Up Medical Criteria

Thursday, March 17, 2005

Verdicts Down in the Down Under

I know that the US dollar isn't doing so hot right now, but a $200K (Australian) verdict in Australia for a living mesothelioma ship carpenter seems a bit small to this Yankee. Of course, it's only a worker's compensation claim but it's barely enough to cover his legal costs. And, his employer offered to settle for $180K (Australian). It's just a different world down there.

$197,287 – the state's first asbestos payout

Tuesday, March 15, 2005

Mud-slinging Georgia-Pacific

With all the multi-district litigation and general return to sanity in Texas, one might almost feel sorry for the plaintiff's bar in Texas. And then they get a big verdict like this one against Georgia-Pacific for $9 million in a wrongful death case. According to the article, the decedent died of mesothelioma at the age of 41 and worked with joint compound (a.k.a. "mud") as a child and teen-ager. I guess that means the judge and jury didn't buy that "chrysotile asbestos doesn't cause mesothelioma" argument. Who's feeling sorry now?

Georgia-Pacific hit with $9 million asbestos verdict

Monday, March 14, 2005

OK to the UK?

Well, if asbestos reform does happen here in the US, plaintiff's lawyers (and some defense attorneys too) can all move to the jolly ol' England. Seems the courts there have held that mere lung scarring constitutes and injury and is compensable, even if there is no evidence of impairment. I wonder if they saw the asbestos litigation here in the former colonies and said "by Jove! We should do that!" I'll bet their numbers on the future cost of litigation will be off too. But the real issue is, do they serve doughnuts to their barristers?

Insurers to appeal on asbestos compensation

Sunday, March 13, 2005

Down and out in Silica Valley

Some attorneys point out that if asbestos reform did actually pass, all those asbestos cases would all of a sudden "transform" into silicosis cases. Well, even Senators are wise to that and might just include silica cases in reform. Even if they didn't, this latest insurance coverage case may rain on the parade of friable dust.

Seems the standard pollution exclusion of a commercial general liability policy will also exclude silica even if silica is not specifically mentioned as a pollutant and despite the fact that such exclusions did not apply to asbestos claims. So, plaintiff's lawyers might be able to sue silica defendants, but they might go bankrupt a lot faster than insured asbestos defendants. Rule number one: don't sue somebody with no money or insurance.

Case: GARAMENDI v. GOLDEN EAGLE INS. CO. , No. A104076, A104077 (Cal. 1st App. Dist. March 09, 2005)

Thursday, March 10, 2005

Just when you thought it was safe to leave

I was a good little lawyer this week at a deposition covering 40 years of a ship fitter's work history in three days and was hoping to finish early today medical history and damages. So, it's just my luck that he found two journals with all his auto repair work. So much for taking off early to get ready for my trip to LA. It's sad trying to pay attention to someone talking about all his oil changes and battery replacements, but, some days you earn your paycheck.

Wednesday, March 09, 2005

Red state rumble

Way back in the day when I was in law school, I learned that Texas courts really didn't apply the concept of forum non conveniens and were generally very friendly to plaintiffs. My, have times changed. Could it be that you actually need to be sick to file an asbestos claim in the Lone Star State?

Don't know the specifics of this bill, but I wonder if the plaintiff's bar will maintain a united front on this bill. If I represented only mesothelioma and lung cancer clients, it might benefit them to have the courts cleared of unimpaired cases and perhaps there would be more money to pay my clients if insurance companies didn't have to settle claims with unimpaired plaintiffs. Then again, I'm probably the last guy on the planet that thinks like any plaintiff's lawyer.

For those folks in D.C. working on asbestos reform, perhaps they should let the states try various "solutions" before going all out with a very expensive proposal that raises significant doubts on its effectiveness.

Senator's bill would limit asbestos lawsuits (registration required)

Tuesday, March 08, 2005

She's got more issues than Time magazine

When I hear that the Senate is "encouraged" by recent negotiations over the asbestos bill, I'm reminded of a child watching his parents trying to work out marital problems. Perhaps they'll try to work on the "little things" first and hope it builds the momentum to solving the bigger issues. But, like mom and dad find out in marriage counseling, it's not the little things that are the problem but the inability to resolve the bigger issues that lead to the big "D" - and I don't mean Dallas.

The same problem exists with the current reform proposal. Defense interests, understandably, want all of this litigation to go away. Plaintiff interests want to squeeze as much money out of the defense interests as possible so they won't agree to go away if the fund runs out of money, no matter how unlikely it may be. That is a big enough issue even if all sides (or enough of them) could agree on the fund size, the payouts, what to do about silica, apportioning the contributions among the insurers and insureds and who qualifies for payment. None of those issues are easy, just "easier".

So, until they can resolve the big issues, fixing the little ones is no more useful than calling Dr. Phil. But, then again, I could be wrong and maybe that's just what the US Senate needs. At least he's not as annoying as Senator Specter or Leahy.

US senators encouraged by Specter asbestos talks