Friable Thoughts

Duty to Warn for Component Parts Defense Gets Confusing in California

2009-10-05T21:55:00.000-07:00

California law on the subject just got confusing. After the Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 decision, it appeared manufacturers were immune from liability from asbestos containing component parts made by other entities but used in their products. Recently, another California appellate court refused to follow that holding in O'NEIL v. CRANE CO. In both cases, the defendant manufactured pumps and valves as part of ship systems. O'Neil focused on whether the pumps and valves were components of the ship where Taylor focused on whether insulation, replacement gaskets and packing were components in the pumps and valves. To add more to the confusion, the same appellate district that decided O'Neil issued another opinion a week later in MERRILL v. ELLIOTT CO., agreeing with the Taylor decision.

Given a split in authority, one would think the California Supreme Court will review one, if not more of these decisions. Given that the California Supreme Court declined review of Taylor when it came out may indicate how it would rule. But, perhaps the reasoning of O'Neil will persuade them.

Asbestos Defendants Win Insurance Coverage Case

2009-02-03T11:53:00.000-08:00

While plaintiff's lawyers love to rail against corporate America, the actual entities that pay most of the settlements and verdicts in asbestos cases are the insurance companies that insure corporate America. So, there's been quite a bit of litigation between asbestos defendants and their insurance companies on just how much coverage is available.

One of the disputes is the meaning of the word "occurrence" in insurance policies. Many policies will limit the amount of coverage per "occurrence". If a corporate entity manufactured asbestos-containing products, they could get sued quite a few times. The issue in Wisconsin was whether an occurrence happens each time a company got sued by a new plaintiff or if the occurrence was the decision to use asbestos in their product and all the subsequent lawsuits derive from that one decision. The Wisconsin Supreme Court held that each time a plaintiff sues is a separate occurrence and thus, the insurance company is on the hook a bit longer than it wanted.

Plastics Eng'g. Co. v. Liberty Mut. Ins. Co.

Still Filing in Madison County

2009-01-23T13:39:00.000-08:00

This article looks into why filings in Madison County have gone up recently. As other states have passed tort reform, it would seem a no-brainer to have cases for out of state plaintiff's moved out of Madison County. The only real theory advanced was the presence of Illinois-based defendant John Crane. But, despite the fact that Madison County has improved its reputation as a plaintiff friendly venue, at the end of the day, it still is a plaintiff friendly venue.

Concord family wins $1.3 million in asbestos death lawsuit

2009-01-13T12:42:00.000-08:00

Plaintiff's side wins a few cases in San Francisco. All of the plaintiff's were pipe fitters that worked at industrial sites in the San Francisco Bay Area and the defendant was an insulation contractor.

Ohio Medical Criteria Applies Retroactively (again)

2009-01-06T21:56:00.000-08:00

NEAL v. A-BEST PRODS. CO. holds that the medical criteria to file an asbestos lawsuit (RC 2307.91, et. seq.) may apply retroactively without violating the Ohio state constitution's prohibition against retroactive laws. Not the first time an appellate court in Ohio has held this but also not the first time an Ohio trial court struck it down as violating the retroactivity rule.

So, you actually have to be sick to file in Ohio.

Doctor with cancer wins $24.2M jury award

2008-05-06T19:37:00.000-07:00

A doctor nails Bendix with Florida's largest verdict. Just goes to show juries don't buy the chrysotile defense to mesothelioma. This one also didn't buy the no substantial exposure to brake work either. Of course, defense lawyers rarely send press releases when they get defense verdict and the newspapers don't report defense verdicts as often so who knows what the real batting average is for these defenses.

Anti-asbestos drug could prevent harmful effects

2008-04-14T20:17:00.000-07:00

There may be a treatment to prevent an asbestos illness. It appears asbestosis creates a protein similar to the one related to gout. The theory is that a treatment for gout that inhibits that protein may work to protect folks from asbestosis. The proposed treatment won't cure an asbestos-related illness but might might prevent someone exposed from getting ill. As with many new drugs, the jury's still out but it might be worth asking about if you worked around asbestos containing materials.

Identifying an Asbestos-Containing Product for Summary Judgment

2008-04-09T12:51:00.000-07:00

Since most instances of asbestos exposure occurred many years ago, it's almost impossible to test the actual material a plaintiff was exposed to in order to determine if it had asbestos. Thus, it falls to the plaintiff's own testimony and those of co-workers. So, to what extent can a lay witness testify that a product he saw actually had asbestos?

KOERPER v. BRAND INSULATIONS, INC., out of the Pennsylvania Court of Common Pleas limits how much a witness in the construction trade can do just that. Here, a plumber testified he believed the pipe insulation he encountered contained asbestos because of the age, appearance and application. However, since he wasn't trained to spot asbestos-containing insulation, that wasn't good enough to raise a triable issue to survive a summary judgment.

Suffice to say, if the plaintiff testified about plumbing products, it probably would have been admissible and survived summary judgment. I suspect it would be simple to retain an expert to review such testimony and render an opinion sufficient to survive a speculation objection at least for summary judgment.

Sophisticated User Defense Applies to Product Liability Claims in California

2008-04-07T13:50:00.000-07:00

The California Supreme Court put a possible crimp into the plaintiff's bar with the JOHNSON v. AM. STANDARD, INC., last week, holding that a sophisticated user defense applies to product liability actions. While Johnson is not an asbestos case, the potential application could remove the lowest hanging fruit in asbestos cases. If, for example, insulators are sophisticated users of insulation, then they would have a hard time recovering against an insulation manufacturer or supplier.

Of course, the real test is how lower courts in California will interpret and apply Johnson.
Given that plaintiff's lawyers tend to file cases in venues they find favorable, the lower courts will probably interpret Johnson narrowly until someone files an appeal.

Products Still Need to Contain Asbestos...

2008-04-02T20:33:00.000-07:00

...to have an asbestos-related product liability claim. Plaintiff's lawyers have pushed a failure to warn theory to make manufacturers liable for another defendant's asbestos-containing products especially if that other defendant's asbestos-containing product is a replacement part. The claim is also popular if someone insulates a defendant's otherwise asbestos free product. However, you still need to show there was some asbestos-containing product used in, on, or next to a product. Something the plaintiff's were unable to show in IANNUCCI v. CLEAVER-BROOKS, INC., out in Pennsylvania. What a strange concept, at least to some plaintiff's lawyers.

Raw Asbestos Fiber (Still) a Product for Product Liability Actions...

2008-03-31T12:14:00.000-07:00

...at least in the state of California. GARZA v. ASBESTOS CORP. LTD.
reaffirms this somewhat unremarkable holding. Looking at the opinion, one wonders why it was published as the defendant asbestos fiber supplier raised all the same arguments that they had lost in previous decisions.

For the plaintiff's lawyers, identifying a raw asbestos supplier is hard because it's not that easy to identify whose fibers are in a finished product when the lawsuit is filed decades after the exposure. Even if you can identify the product manufacturer, figuring out who supplied them the fiber for a particular product is hard since manufacturers often used multiple fiber suppliers. Now, if someone is handing raw fiber, it's much easier but most of the time, the fiber is incorporated into a finished product.

Down and Out in Indiana

2007-09-03T15:22:00.000-07:00

The plaintiff's bar took it on the chin in the Hoosier state with a trio of opinions that knocked out any hope of a product liability claim for asbestos cases. DAP, INC. v. AKAIWA, held the asbestos miner exception to the 10 year statute of limitations for product liability actions does not apply to a defendant that merely used asbestos fibers in its product. TH AGRICULTURE AND NUTRITION, LLC v. AKAIWA held that a distributor of raw asbestos fiber also does not fall into the asbestos miner exception. And finally, ASBESTOS CORP. LTD. v. AKAIWA put the nail in the coffin, holding that a plaintiff's admission that he did not see dust when working with an asbestos containing product is sufficient to show no exposure to the fibers in the product.

Of the three, DAP was a no-brainer given prior precedent from the state supreme court. TH-Agriculture was close given it sold raw fiber and Asbestos Corporation seemed to be the plaintiff's best shot, although the issue there was whether there was substantial exposure.

Even if the plaintiff's bar wins at the state supreme court on the second and third of these cases, wouldn't it make sense to file in another state (assuming you could)? DAP limits the number of potential settling defendants to asbestos mines and, possibly, distributors of raw fiber. The only other defendants are premises and contractor defendants and you need to prove negligence, rather than strict liability, for those defendants.

Duty to Warn Expands for Equipment Makers

2007-02-12T20:34:00.000-08:00

The plaintiffs' bar won two decisions in Washington state on whether equipment makers must warn about asbestos containing components used with their equipment or on their equipment even if they did not make the asbestos containing components.

BRAATEN v. UNION CARBIDE CORP.

SIMONETTA v. VIAD CORPORATION

Ohio Judge Finds Calif. Firm Submitted Fraudulent Asbestos Claim Forms

2007-01-18T21:08:00.000-08:00

The Brayton firm got to withdraw from the Kananian case but the judge gave them a very stern tongue lashing and a not-so-subtle hint to never come back. If that's the worse that happens to the Brayton Purcell firm, they should consider themselves very lucky. It's not every day you make the tobacco lawyers look like the good guys. I doubt Hollywood will make a movie about this one.

The seamy underside of asbestos litigation

2006-12-05T11:45:00.000-08:00

A Wall Street Journal editorial casts a not-so-favorable light on the antics of the plaintiffs' bar. While us defense lawyers may complain too much about plaintiffs' lawyers pulling dirty tricks, they usually aren't caught this badly. It's especially unflattering when you make the tobacco defense lawyers wear the white hats. Sadly, probably won't affect asbestos litigation now that almost all jurisdictions allow discovery of trust fund applications, but sometimes it's nice to catch the other side with its pants down.

3rd Circuit Revives Case Against Asbestos Class Action Lawyers

2006-10-31T21:19:00.000-08:00

It must be a cold day somewhere down below when asbestos plaintiff's sue their former lawyers claiming they got ripped off to pad the settlements of other plaintiffs. The irony is rich as the initial class action was dismissed because the plaintiff's could not prove "causation" or "actual injury" from any alleged breach of fiduciary duty. It was reversed on appeal because under Texas law, you don't need to show causation or actual injury...just like an asbestos cause of action at times.

Perhaps I shouldn't gloat too much but it is amusing to see plaintiff's and their lawyers fighting over money. After all, isn't this about justice?

Baron & Budd Wins One in Los Angeles

2006-09-25T12:26:00.000-07:00

Another Texas firm has success in California. Baron & Budd gets a verdict against Crane Co. for a former Navy gunner's mate with mesothelioma. Sounds like the chrysotile and no substantial exposure defenses didn't work this time. The press release doesn't mention how much fault the jury allocated to Crane versus, oh, pipe insulation and who knows what Crane may have offered in settlement. But, it's usually better to win than to lose.

Asbestos Bankruptcy Trusts

2006-08-27T09:13:00.000-07:00

This story on how plaintiff's lawyers are filing claims with asbestos bankruptcy trusts shouldn't come as a big surprise to many defense lawyers. With the settlement amounts confidential and claims records hard to get, who wouldn't have expected plaintiff's lawyers to make exposure claims that were inconsistent with claims they would make in litigation against non-bankrupt defendants? Now, however, with some information subject to discovery, perhaps they'll be less double dipping though you'd have to be very naive to think it would stop completely.

Victims' advocate sues asbestos attorneys for gypping her

2006-07-17T16:48:00.000-07:00

Who would've thought that a plaintiff's lawyer would rip off their clients by settling with defendants for less than they could've gotten? According to a "victims' rights" advocate, a firm that files in Madison County did just that and now she's alleging malpractice.

Now, plaintiff's firms do settle with defendants for less than what they could possibly get at trial because trials can be expensive and risky, let alone the delay in getting money after a favorable verdict. That's true in all kinds of litigation, not just asbestos.

Plus, it's really hard to believe that a plaintiff's lawyer, usually on a contingency fee, would let defendants go for substantially less than what he or she could squeeze out of them. At first glance, it looks like the plaintiff will have a tough road ahead though discovering how plaintiff's lawyers settle and value cases might make it worth watching.

Asbestos still killing people

2006-06-26T15:14:00.000-07:00

Canadians ponder whether they should continue to export chrysotile asbestos fibers. Of course, it's a no-no here in the US although some defendants still use the defense that certain asbestos fibers don't cause mesothelioma. So, it might behoove a defense lawyer to see if certain plaintiffs lived and worked out of the country for substantial periods of time.

Two-Disease Rule Applied Retroactively in Pa. Asbestos Case

2006-06-22T10:47:00.000-07:00

Asbestos can cause multiple diseases, not all of which manifest at the same time. So, if you sue for one disease in Pennsylvania when it was a "one disease" state but get a second disease after the courts change the law to a "two disease" state, can you sue for the second disease? This recent opinion says "yes". More on the opinion here.

Cancer Of Larynx, Others Linked To Asbestos

2006-06-06T15:16:00.000-07:00

So says the Institute of Medicine. On the other hand, they say the evidence is insufficient to link asbestos to cancer of the esophagus. If you want to pay some money, you can get the report here.

Asbestos Trust Plan Is Changed to Win Support in U.S. Senate

2006-05-26T16:02:00.000-07:00

Senator Specter is back with a revised trust fund bill. This time, he claims he's tightened up the medical criteria to prevent a fund from going under although getting a physician to state in an affidavit that someone's illness was caused by asbestos doesn't seem all that "tightened up". Additionally, the bill redistributes the contributions between big and small companies so it looks less like a bailout for big companies. But, let's see how the opponents react and if they can get the few votes needed.

Court: Exxon responsible for death of worker's spouse

2006-04-27T12:43:00.000-07:00

Kind of a misleading headline as the New Jersey Supreme Court ruled that to the extent a premises defendant breached a duty to an employee of a contractor working on the premises, it would also breach a duty to that employee's spouse for any asbestos fibers he may have carried home. So, for a para-occupational exposure, New Jersey holds that the premises owner owes the same duty to the spouse of a contractor employee as the employee. The case is here.

Sequential Chemotherapy for Pleural Mesothelioma Promising

2006-04-18T21:18:00.000-07:00

The latest on the medical front. The new regimen still isn't a cure but a mesothelioma victim might live a little longer.

Miss. high court tosses out 18 asbestos claims

2006-04-17T09:51:00.000-07:00

No more forum shopping in Mississippi. The news here is that Mississippi is finally coming into the mainstream and will shed its reputation of being a venue whore for asbestos cases. What a concept! Plaintiffs actually have to show some connection to the state like work history, exposure and residence. The case is here.

Future of asbestos bill looks iffy

2006-04-04T22:07:00.000-07:00

With all the fun and games in Washington over the immigration bill, it doesn't look good for the asbestos trust fund comeback. Specter and Leahy are trying to amend the bill to lower the contributions of the smaller companies but the darn uncertainty over the viability of the fund still seems to be the sticking point. Which just goes to show, you can't fix a fundamentally flawed bill by tweaking around the edges.

Re-entrainment Theory Too Speculative for Causation

2006-04-03T17:05:00.000-07:00

A California appellate court has issued a published opinion holding that a re-entrainment theory is too speculative to establish causation. In ANDREWS v. FOSTER WHEELER, the plaintiff admitted he never worked with defendant's product or saw anyone do so. In opposition to the defendant's summary judgment, plaintiff established that defendant had equipment installed on a ship over 21 years before the plaintiff set foot on the ship.

Plaintiff's experts opined that fibers from the equipment gaskets remained (or "re-entrained") on the ship until plaintiff entered that same area. However, the general assumption that work was done on equipment was not sufficient to constitute evidence that the work occurred. Even if the assumption was valid, the court held that it would be speculation that plaintiff was exposed to those fibers from those gaskets more that 16 years later (the last known reference to defendant's equipment being on the ship.

So, at least in San Francisco, plaintiff's experts are going to have to try a little harder to establish exposure and causation to beat a motion for summary judgment.

Jury reaches defense verdict in Madison County trial

2006-03-02T17:20:00.000-08:00

Drywall defendants get a defense verdict in Madison County in a para-occupational/secondary exposure case. A wife washing her husband's clothes sues the maker of products her husband purportedly used. Her three sons who worked with her husband did not testify as to what products their father used but fourth son, who did not work with the father, provided the product identification testimony.

So, at least some juries in Madison County can see a bad plaintiff's case, or at least a fishy one, and render a defense verdict. And, to my knowledge, Hell has not frozen over.

Asbestos Reform Group Looks to Revive Medical-Criteria Bills

2006-02-22T20:10:00.000-08:00

For now the trust fund and one wonders if medical criteria will get much of a chance. Senator Leahy opposes medical criteria because he believes many that have asbestos-related illnesses do not have viable remedies in the current tort system. Those groups are the para-occupational sufferers, employees of bankrupt entities and veterans. Now, whether those groups have a viable remedy is a matter of opinion, but they do have remedies.

Para-occupational (or secondary) exposure victims can sue all the same manufacturers, premises defendants, suppliers and contractors as ordinary run-of-the-mill plaintiffs. All they need to show is a family member who was exposed and that they had contact with the family member. A slightly more difficult burden of proof but not insurmountable.

Employees of bankrupt entities can file for worker's compensation claims, which reside with the compensation insurer or, if the insurer is insolvent, the state compensation fund. Additionally, employees of bankrupt companies can sue solvent defendants that supplied asbestos-containing component parts or raw fiber. The only employees of bankrupt entities really at a loss are employees of asbestos mines or raw fiber suppliers.

As for veterans, it is true they can't sue the federal government. But they can apply for veterans' benefits. Additionally, they can sue the manufacturers of asbestos-containing equipment and materials, of which there are still many viable defendants.

Validly injured plaintiffs have plenty of remedies in the current tort system. Problem is the system provides "remedies" to a larger number of questionable plaintiffs as well. Sorting the good and bad claims takes quite a bit of time and resources.

Senators seek to revive asbestos bill

2006-02-15T20:52:00.000-08:00

It appears Senator Frist was bluffing when he said that the trust fund bill was dead for 2006 if yesterday's vote went south. If Senator Inouye was the 60th vote that would have/could have/should have overcome the budget point of order, perhaps we'll get to revisit the issue after the next Congressional recess. Even so, many of those that voted to waive the budget point of order may vote against the trust fund. Isn't politics fun?

Senate rejects trust fund for asbestos victims

2006-02-14T16:48:00.000-08:00

The trust fund goes down on a budget point of order today. Ironically, a Republican brought the point of order so Senator Reid didn't have to pimp out for the trial lawyers. Now, let's see if Senator Conryn is serious about submitting a medical criteria bill and if the other senators will consider it.

Asbestos Bill Stays Alive as New Questions Arise

2006-02-13T15:50:00.000-08:00

Last week the Senate voted down a medical criteria alternative to the trust fund. This alternative would've addressed the biggest abuse in the current litigation but most of the senators seen enamored with the trust fund or don't want any reform at all.

Specter's stated reason that employees of bankrupt companies would have no one to sue under the alternative sounds strange because 1) employees can claim worker's compensation against their employers even if the employer is bankrupt and 2) they can sue those who supplied asbestos-containing components (like raw fiber) to their employers.

Now the question is whether the senators that voted for the medical criteria will scuttle the trust fund bill or support it.

Reid Removes Objection to Asbestos Bill

2006-02-07T17:43:00.000-08:00

So, after all the sound and fury, Senator Reid blinks. Now the interesting question is why. Does he have the votes to defeat the bill straight up? Does he have enough to filibuster the bill after it gets to the floor? If not, all that money from the plaintiff's bar was really well spent.

Fireworks erupt over asbestos-fund bill

2006-02-06T22:41:00.000-08:00

Tomorrow the Senate votes to send the trust fund bill to the floor or not. One wonders if the proponents have enough votes as Senator Reid is carrying water for the plaintiff's bar. Not helping matters is opposition from some of the defense interests. Does this mean we'll resolve asbestos litigation tomorrow? Probably not but for some folks, they'll be breathing a sigh of relief one way or another.

US asbestos bill backers set news conference

2006-02-01T16:16:00.000-08:00

Tomorrow Senators Specter and Leahy will try to rally the troops. Since the president didn't mention reform in last night's state of the union address, someone has to carry the torch. Of course, more debate is just what they need to pass the bill. After the last couple of years of debates, more debate will do the trick.

US Senate debate on asbestos to open Feb 6

2006-01-24T18:26:00.000-08:00

Specter confirms recent speculation that this will be the first item on the agenda when the Senate comes back from recess. As strange as it may seem, many of the issues they thought would be "resolved" in 2003, 2004 and 2005 still appear to be in dispute. Some aren't too thrilled with the medical criteria. Others claim the fund isn't big enough. It seems every interest group has a gripe about the bill.

Normally, the "screw'em all" approach might indicate a fair bill but most of these gripes go to the heart of the purpose of the bill: adequately compensating legitimate claims, excluding bogus claims all while staying solvent and being more cost efficient than resorting to the courts. I don't expect amendments on the Senate floor to be more effective than the three years of horse trading in committee but, we'll see in the next few months.

Asbestos bill headed for Senate floor: analyst

2006-01-18T18:54:00.000-08:00

According to a research group, debate on the trust fund bill could start in three weeks. Frist claims he has enough votes to bring the bill to the floor. Does that mean he has enough to merely pass the bill or break a filibuster? Or, could it be more posturing? I guess we'll know in three weeks or so.

Asbestos clients sue Florida Bar for millions

2006-01-17T09:34:00.000-08:00

Clients of a former plaintiff's lawyer are suing the Florida State Bar for their settlement money. It appears their lawyer didn't forward the settlement funds. Kind of an eye-opener for a defense lawyer. We always thought the plaintiff's lawyers were rolling in dough, at least the partners. Is one-third too little?

Judge denies venue change for W.R. Grace

2006-01-12T21:55:00.000-08:00

The W.R. Grace executives will be tried on Montana after all. Seems Montana is a big enough state to find an impartial jury. Not everyone lives in Libby, after all.

New Disease Won't Relate Back in Kentucky

2006-01-09T22:45:00.000-08:00

Kentucky is a "one disease" state for asbestos claims. Sue once, can't sue again even if your asbestosis becomes lung cancer or mesothelioma. Now, if you sue for one disease, better sue all your defendants then because you won't be able to sue new defendants if you get another disease if the statute of limitations has run out for the first. This, according to the opinion Combs v. Albert Kahn & Assoc., Inc.

Premises Defendants Lose One in California

2006-01-03T21:06:00.000-08:00

The California Supreme Court held recently in KINSMAN v. UNOCAL CORP. that a premises owner may still be liable to an employee of an independent contractor even if the premises owner did not actively commit a negligent act or control the working conditions if 1) the premises owner knew or should have known there was a dangerous condition; 2) the contractor could not have discovered the danger and 3) the premises owner did not disclose the dangerous condition to the contractor.

From a trial perspective, it sounds like a plaintiff would still have pretty far to go to nail a premises owner in an asbestos case. However, the decision makes it much harder for premises owners to get a summary judgment. Since most cases settle or get dismissed, a victory for the plaintiff's bar.

Senate's Frist reaffirms to bring up asbestos

2005-12-05T22:32:00.000-08:00

Now Senator Frist has affirmed his desire to bring up the trust fund for a vote in early 2006. Maybe Specter's lining up support in between preparing for Judge Alito's confirmation hearing or perhaps he's just going through the motions. When it comes to backroom politics, who knows what's really going on.

Asbestos Bill Will Have Its Day, But Chances Of Passing Are Slim

2005-11-30T19:30:00.000-08:00

Predicting the mood of Congress from California can be a bit too speculative but if this article is correct, then the trust fund bill is headed for ignominious defeat from bipartisan opposition in January. The article claims even Senator Feinstein, who supported the bill in the Judiciary Committee, may change her mind. It's like 2004 all over again.

Reading X-Rays in Asbestos Suits Enriched Doctor

2005-11-29T20:07:00.000-08:00

A New York Time profile of notorious B-reader, Ray A. Harron, at once illustrates the major problem with asbestos litigation and asbestos reform. The good doctor did himself no favors making finding of silicosis on some of the same folks he found asbestosis. Now, a judge at trial should be able to sort bad readings from good ones. But, very few defendants risk going to trial especially with some of the judges in certain "plaintiff friendly" venues.

A no-fault trust fund (and especially a medical criteria alternative) would have to quickly and efficiently weed out bad claims from the valid claims, something the current litigation-based system hasn't been able to do. And, if the Bates-White study is correct, it won't.

Dueling Numbers on Asbestos Claims

2005-11-09T20:56:00.000-08:00

This post over at the Statistical Assessment Service discusses the assumptions underlying the debate over whether the asbestos fund will have enough money to cover all the claims. It dismisses the use of past lawsuit filings or bankruptcy trust fund filings as a guide to how many people would make a hypothetical claim on the fund and believes that the Bates-White assumption is the most accurate, which is based on the prevalence of asbestos-related illnesses in the future.

If that was true, the fund would be more than enough so long as it properly excluded cancer cases not related to asbestos. But, the Bates-White study assumes that since the fund is a no fault system, anyone with cancer and some exposure to asbestos could file a claim and get paid. If that's the case, then there won't be anywhere near enough money.

I suspect that Congress won't be able to provide an easy way to sort out the valid asbestos-related cancer claims from the invalid ones. Heck, the current system chock full of judges, lawyers and doctors is having enough problems sorting that one out. Would politicians be any better?

U.S. hearing planned on projected asbestos claims

2005-11-07T10:21:00.000-08:00

The Senate Judiciary Committee wants to know if the trust fund is big enough. They also hope to determine if cancer victims, who don't normally file asbestos lawsuits, might file claims with the trust fund. If they do, the fund probably will go bust and real fast. One would think that they could set the standards to exclude bogus claims but given that our current system has problems sorting out valid and invalid claims, don't hold your breath.

New Jersey plaintiff's asbestos case kicked out of Madison County

2005-11-03T21:57:00.000-08:00

Imagine someone who never worked or lived in Illinois having a case heard in Madison County. Well, now those days are gone. What a concept, that venue thing. Too bad the plaintiff will have to file her wrongful death case in that defendant's haven of New Jersey. What is this world coming to?

Court Denies Liability for (Paraoccupational) Asbestos Exposure

2005-11-01T19:47:00.000-08:00

This decision from the New York Court of Appeals is surprising. The court just refused to recognize a duty owed to a spouse of an employee even though it may have been foreseeable. The court called plaintiff's theory "novel". The defendant is this case is lucky they're not in California. More on the case here.

Vote on US asbestos bill seen in early '06-Specter

2005-10-21T21:57:00.000-07:00

It seems the other business in DC: the Mier's confirmation, Katrina relief and all those spending bills, has delayed the trust fund bill until next year. I guess this means I kind of win my bet with some of the other asbestos counsel when I predicted we'd still be in business a year after the 2004 presidential elections. If any of them moved to New Zealand like they said they would, I won't be able to collect.

Blood test may detect asbestos-related lung cancer

2005-10-19T17:35:00.000-07:00

Doctors now can detect mesothelioma early or earlier than before by looking for the protein osteopontin in the blood. Hopefully, that makes earlier treatment possible but the study was still unsure if that would help. From a defense lawyer's perspective, it means the possibility of more living personal injury cases and fewer wrongful death cases which might mean more work on our part but, hopefully, we'll be deposing fewer folks on death's door.

Geography is a factor in asbestos-related cancer

2005-10-18T21:09:00.000-07:00

A sobering thought for those living in the El Dorado area of California. Now it appears that exposure to naturally recurring asbestos may increase your chance for getting mesothelioma. Of course, studies can be wrong but for asbestos plaintiffs in California, expect to get more questions about everywhere you lived.

Read the article (registration required)

Conflicts of Interest Put End to Congoleum's Pre-Packaged Bankruptcy Plan

2005-10-17T21:36:00.000-07:00

Well, the Third Circuit has decided to clamp down on the "business as usual" on pre-packaged asbestos bankruptcies. Last week, it held that a bankrupt company couldn't hire a plaintiff's law firm to represent it in bankruptcy in pursuing claims against the company's insurance carriers where that firm had sued the company. The court held that the insurance companies for Congoleum had a large enough stake to have standing to challenge the designation as plaintiff's firm as special insurance counsel and, since counsel had previously filed claims against Congoleum in asbestos cases, that was sufficient to constitute a conflict of interest.

Read the opinion here.

California-Texas Discovery Two-Step

2005-10-11T09:27:00.000-07:00

This recent unpublished decision in California will cause all sorts of gamesmanship in asbestos litigation. A court found admissible a deposition taken under Texas law even though the plaintiff's lawyers intentionally noticed the deposition under Texas law to prevent discovery that would have been available under California law. Probably a rare incident where the California law is more favorable to defendants than Texas.

Thankfully, the decision is unpublished but it will still encourage plaintiff's counsel to engage in this type of behavior, especially if they have a witness who may be dying. Of course, as a defense lawyer, I always think that plaintiff's lawyers that try to hide things usually have something to hide. So, I might just try harder to work up a case where opposing counsel would try a stunt like this.

153 asbestos and silicosis suits filed in Madison County

2005-09-28T19:32:00.000-07:00

Just when you thought it was safe to go into the water...more asbestos and silicosis cases get filed in Madison County. It was probably foolish to think they would all go away but this mass filing indicates that the Texas lawyers must still find something to like about the Madison County courts. At least it appears that their clients have some connection to the state.

Asbestos Fund Bars 9 Doctors

2005-09-27T16:51:00.000-07:00

And I thought this would be a slow week with the John Roberts confirmation hearings keeping the Senate Judiciary Committee away from the trust fund bill. Now, the Manville Personal Injury Settlement Trust has refused to pay claims that go through certain doctors or X-ray screening companies, presumably because they are fraudulent or invalid. According to the trust fund site, claims from the following doctors are blacklisted:

Dr. James Ballard
Dr. Kevin Cooper
Dr. Todd Coulter
Dr. Andrew Harron
Dr. Ray Harron
Dr. Glynn Hilbun
Dr. Barry Levy
Dr. George Martindale
Dr. W. Allen Oaks

Also, so are the following X-ray screening companies:

N&M, Inc.
Healthscreen, Inc. (Jackson, Mississippi)
RTS, Inc. (Mobile, Alabama)

I wonder if this list will get bigger and if the Manville Trust can/will drop the dime on other doctors and perhaps, the plaintiff's lawyers that represent the claimants.

US asbestos fund would quickly go broke: study

2005-09-27T16:50:00.000-07:00

The American Legislative Exchange Council has sponsored a study that concludes the asbestos trust fund would go belly up within three years. This study assumes that more cancer sufferers would seek compensation from the fund than would normally sue. It challenges the Congressional Budget Office assumption that cancer sufferers would sue in the same proportion as those filing lawsuits currently.

I don't know how well that assumption holds water, given the ease which plaintiff's lawyers currently entertain cancer cases. However, if medical criteria laws in the states do effectively bar disputed asbestosis cases, the flood of cancer claims just might happen anyway.

Of course, the Senate could amend the trust fund bill on the floor to directly address this concern. If the Democrats blink, then it's an indication that this study just might have a point.

ERS: Asbestosis Death in U.S. Stable at 1,000 a Year for Next Decade

2005-09-27T16:49:00.000-07:00

This study suggests that we'll have about 1000 asbestosis deaths a year for the next 10-15 years. This excludes mesothelioma and asbestos-related lung and other cancer. So, I'm curious as to what's wrong with the other 90,000 asbestos cases that get filed every year?

U.S. Senate panel OKs asbestos subpoena power

2005-09-12T21:26:00.000-07:00

So now the defendant companies will testify in front of the Judiciary Committee. Say hello to Judge Roberts on the way in.

I wonder if the companies can invoke some sort of attorney-client privilege? Or, if they happen to be public, point to their SEC filings? Of course, they could just say they really don't know and declare bankruptcy. That would sure throw a wrench in the works.

Legal firms fight bill ending asbestos claims

2005-08-29T22:48:00.000-07:00

The local plaintiff's bar has raised $435,000 for ads to fight the trust fund bill. You'd think they'd come up with more given their livelihood is at stake. I'm sure the conservative senators they've targeted with the ads will surely change their minds because of the ads (sarcasm off). But, now that the Senate is coming back from the August recess, we'll find out just how effective they truly were.

U.S. asbestos fund could fall short-budget office

2005-08-26T17:32:00.000-07:00

This sober (and very obvious) conclusion from the Congressional Budget Office might put the stake through the heart of the trust fund bill. Now, it raises the possibility that the fund isn't big enough which means that some won't get paid, the federal government would have to bail it out or those that don't get paid by the fund go back to court. Not a very desirable list of options for something so darn expensive and complicated.

Now, no one really has an idea how many claims will be made on the fund or how much it will cost. But, if history is a decent guide, isn't it darn likely that the politicians have underestimated the costs?

Frye motion could be magic bullet for asbestos defense

2005-08-25T13:47:00.000-07:00

Plaintiff's lawyers in New York get sanctioned for disclosing expert witnesses when they already knew, or should have known, they didn't have a case. Strange that a co-worker's testifmony could have been the basis of the knowledge unless it was something very foundational, like whether the decedent was ever around the defendant's product. Sounds like the plaintiff's lawyers were trying to bluff some settlement money and got called on it.

Source: Madison County Record

Asbestos Trust Fund Calculator

2005-08-18T13:35:00.000-07:00

The Coalition for Asbestos Reform has a calculator to estimate the costs of the trust fund for businesses. So, Senator Spector really didn't need to subpoena all those businesses to determine how much they would have to pay, right? Time to play with it and see if the numbers really add up. I'm thinking it'll be biased toward the high side given the CAR's opposition.

Verdicts in Louisiana and New Jersey

2005-08-16T14:53:00.000-07:00

A railroad workers gets $20 million in New Jersey and a Louisiana paper mill worker gets $4.5 million from his employer. I guess they don't have a worker's compensation exclusion in Louisiana.

EPA Drops Plan For Asbestos Panel

2005-08-15T14:03:00.000-07:00

After promising the folks in El Dorado that they'd form a panel to study the effects of naturally occurring asbestos, the EPA has changed its mind. Now, they're going to take some risk assessment tests. If I lived in El Dorado, I would not be happy about it but it's unlikely that a panel would prevent anyone from getting sick either. However, hire a lawyer and sue a whole bunch of folks, you just might get a whole bunch of "scientific" studies much quicker.

New Jersey couple gets $10M in asbestos case

2005-08-08T16:10:00.000-07:00

A New Jersey supplier gets hit for $10 million in a living mesothelioma case. Article doesn't say what the man did for a living though he did work at a place calls Suburban Fuel. Otherwise, it's hard to say whether this is a "big" verdict or a small one though $10 million seems like a good number. Also it is unclear how much of that verdict is attributed to the supplier.

Silica Case Seen as Breakthrough

2005-08-04T17:14:00.000-07:00

Are you a doctor who screens plaintiffs in mass tort cases for plaintiff's firms? Be careful because the Chamber of Commerce is coming for you.

Defense lawyers in asbestos litigation have long complained about these doctors for years but now it appears someone might be doing something about it. While it might be too late for asbestos, it might be useful in deterring questionable expert testimony in other new toxic tort claims. If this effort is useful in getting judges to put some teeth back into Daubert, it will be a good thing.

After $140 billion is gone asbestos will come right back to state courts, say Democrats

2005-08-03T16:35:00.000-07:00

Senate Democrats opposing the trust fund think the fund is, well, underfunded and that it will run out of money and not do what it is supposed to do: keep asbestos cases out of the courts. Discounting the fact that they have received large amounts of money from the plaintiff's bar, they may actually be right. Even some Republicans are concerned about the fund's solvency, though they think it's insolvent because the standards are too lax rather than the fund too small.

EPA to Test New Way to Remove Asbestos

2005-08-02T22:20:00.000-07:00

Can you remove asbestos without the Tyvek sheeting and the air suckers? If so, demolition of asbestos-laden buildings will be much cheaper. If not, back to square one.

Study: Natural asbestos risks low

2005-08-01T08:58:00.000-07:00

Right now, it seems exposure to asbestos in nature isn't so bad as the man-made kind. I wonder if that makes plaintiff's lawyers feel better, worse or just darn indifferent?

Specter backs down on the asbestos trust fund subpoenas

2005-07-29T11:08:00.000-07:00

So, it appears Specter made an empty threat because now he's decided he's not going to issue subpoenas. Of course, like any politician, he could change his mind.

He could still threaten to pull the bill entirely if the recalcitrant companies are the ones in favor of the trust fund. However, one suspects that the recalcitrant companies actually oppose the trust fund. Or otherwise don't think it's going to pass if they're afraid that disclosing the information Specter wants will lead to more lawsuits. I suspect it's more of the former and hope for the latter.

Subpoena? You don't need no stinkin' subpoena!

2005-07-26T21:58:00.000-07:00

Senator Specter is threatening to subpoena various defendant corporations to determine their contributions to a proposed asbestos trust fund. Now, why the author of the bill would need to subpoena that information seems strange. Why he would agree to sponsor the bill without that information is beyond me. Isn't how much each defendant contributes to the fund an essential element of the bill? Otherwise, without that information, there's a pretty good chance that the fund won't be fully, you know, funded.

Why the senator is threatening a subpoena also seems odd. Why not just threaten to withdraw the bill? If the corporations really want the fund, they'll pony up the info. Of course, if they are opposed to the fund, you'll never get that information out of them and it would be better simply to set their contribution and call it a tax or fine or something. Maybe it would be easier to confirm a Justice to the Supreme Court?

Blue State Rumble?

2005-07-21T20:43:00.000-07:00

Seems Pennsylvania is contemplating medical criteria. Now, it could be business-friendly legislators carrying the water against a liberal political establishment. But, if lawyers that represent cancer plaintiffs only get on board, who knows how the bill might fare.

The insurers are hoping to hit California and Michigan next year. If they can get a criteria bill in the heavily Democratic California Senate and Assembly, I'd be very impressed. I would suggest they do what they can to make some of the plaintiff's lawyers happy and isolate the ones that represent the "unimpaired" and explain to the labor unions that having contractors going bankrupt as a result of this litigation isn't good for current members or retired members on pensions.

Then again, perhaps this is how some retired union members get there "lump sum" retirement.

This Time, It's Criminal

2005-07-19T21:34:00.000-07:00

Could the US Attorney's office in New York be investigating plaintiff's firms for coaching their witnesses in asbestos cases? GAF's lawyers claim to have passed on some info to federal prosecutors there involving some the the nation's biggest plaintiff's firms. Could some of the biggest names in the business be doing the frog march in orange jumpsuits?

Of course, if this is true, it really hurts the plaintiff's lawyers and their clients that play by the rules, let alone the defendant companies and their employees and shareholders. It's kind of sad if is true. You'd think that if you had a legitimate case, you wouldn't need to suborn perjury, but heck, I'm an idealist.

Breaking Down Asbestos Fibers

2005-07-18T19:41:00.000-07:00

Perhaps all those potential defendants in Japan caught a break today when a professor in the Land of the Rising Sun announced he had developed a method to break down asbestos into harmless dust by using chlorofluorocarbons. Of course, since asbestos-related diseases take decades to develop, they're probably screwed already though this development might make abatement less costly.

Natural Exposure

2005-07-14T10:32:00.000-07:00

Living in the El Dorado hills of California might be living dangerously. A UC Davis study concludes that exposure to natural-ocurring asbestos may cause cancer. Since asbestos is in the state rock of California and asbestos-containing rock is present in Northern California, I suspect asbestos lawyers may start asking if plaintiffs ever lived in there areas and what they did there. I suspect it also means that we'll be seeing more asbestos cases from folks that had no workplace exposure.

Asbestos Hits Japan

2005-07-11T23:42:00.000-07:00

It seems the US isn't the only place that has an asbestos problem. Now Japan is starting to see quite a few asbestos-related illnesses popping up. Of course, if asbestos was used in there up until last year, then it looks like the Japanese have just run into the tip of the iceberg.

14 die after handling asbestos in Japan

Masking Liability

2005-07-08T00:13:00.000-07:00

You don't need to have an asbestos-containing product to be a defendant in asbestos litigation. Just ask 3M, the maker of the paper dust mask. Now, there is a bill to make dust mask manufacturers immune from product liability suits if the mask was approved by the National Institute for Occupational Safety and Health (NIOSH) or, before 1972, by the U.S. Bureau of Mines.

The bill would also preempt claims based on exposure to silica, coal dust and any other airborn toxin, though I would guess asbestos is the prime mover here. Always good to multi-task. Who would've thought that something as simple as a paper mask to get a big company into so much trouble?

Immunity for makers of dust masks?

Forum Shopping for Asbestos Cases?

2005-07-05T20:17:00.000-07:00

A couple of adverse verdicts in Madison County have sent plaintiff's firms looking elsewhere. But who would've thought Delaware? It is a blue state and quite a few big corporations are there but how many plaintiffs have any connection to the state? Well, not everyone worked for DuPont.

And, I guess a law firm there will have to co-counsel with the out-of-state firms until they can get someone admitted to the state. Having a firm with Joe Biden's son looks smart, especially if Senator Joe's long-shot bid for the presidency pans out.

Devil in the Details

2005-07-01T17:03:00.000-07:00

It looks like the asbestos bill is getting some action again though Justice O'Connor's retirement may take up some of the bandwidth of our senators this summer.

What is surprising is that Senator Specter does not know one of the most important details of the bill he is sponsoring. Seems he does not know how much each of the various parties is to contribute the the trust fund. While I imagine there would be a large number of contributors, isn't there a tenative list somewhere and of all people, shouldn't he have that list?

Why should a bill sponsor have to subpoena information for details of his own bill? Why would anyone sponsor a bill without knowing who pays? And, if he doesn't know this, do any of the senators, who would vote on this bill, know?

Ah, it's enough to bolster one's faith in our elected officials.

US lawmaker backs away from asbestos subpoena threat

Backfiring Ads

2005-06-14T20:29:00.000-07:00

Did a few TV ads in Alabama sway Senator Sessions' vote on the asbestos trust fund? Not according to him. He did admit he got about 115 phone calls about the issue though he claims they were evenly split on the issue. Interesting that the Senate Accountability Project focused their ads in states with Republican senators that supported the bill rather than in states with Democratic senators that supported the bill. It may have been better to have given the money to FreedomWorks and let them lean on the Republican senators from the right... assuming they'd take money from trial lawyers.

Silicosis Cases Go West

2005-06-07T20:50:00.000-07:00

Just when we thought the silicosis cases were gone from the Golden State, those darn Texas lawyers are back. Seems Texas isn't the lawsuit haven it used to be but even California plaintiff's lawyers are concerned that the newly arrived Texans might give them a bad rep. And, you really got to sink real low to get below the reputation of an asbestosis plaintiff's lawyer.

What with the initial doctors trying to avoid grand juries for less-than-reliable diagnosis (who would've thought you actually had to see someone to diagnose an illness?), the Texans may have a harder time than they thought.

Just a thought for our Texans and the California lawyers that may partner up with them: start with the serious (i.e. meritorious) cases first, win a few big verdicts and then you can go for the volume filings. Otherwise, you look like those lawyers that filed unfair competition lawsuits a couple of years ago and no one wants to look like them.

Defense Verdicts in Madison County

2005-06-06T11:30:00.000-07:00

Madison County has a reputation of being a plaintiff's haven for asbestos cases. Perhaps times are a changin'. A jury actually handed down a defense verdict in a mesothelioma case. In fact, before that happened, the judge almost dismissed the case characterizing the plaintiff's evidence as "weak". So, hat's off to the defense counsel for the prevailing defendant, General Electric and the other defendant, John Crane, who actually got a dismissal. Now, if they could just work their magic in San Francisco and Alameda counties.

Jury reaches verdict in favor of General Electric
Jury rejects asbestos claim

Counting Heads on the Asbestos Trust Fund

2005-06-01T11:47:00.000-07:00

Hope you all had a great Memorial Day weekend. I’m sure a lot of you were taken by surprise by the quick vote on the asbestos bill. I was too. I figured they couldn’t go through all those amendments in such short time. I forgot that most of those amendments probably came from senators who would’ve opposed the bill anyway so Specter and Leahy focused on the amendments from senators on the committee that they ended up getting and told Senator Durbin to jump in a lake and Senator Kennedy to go have another drink...and then jump in a lake. I am surprised that Senator Kohl went along with the bill.

However, much of this resembles what happened last year though whether the Democrats can muster a filibuster this time remains an open question. They have 44 senators and three (Leahy, Kohl and our very own Dianne Feinstein) already appear to support the bill. If they have independent Jim Jeffords with them, then they can afford to lose only one more vote. Wheel and deal for Libby residents and perhaps you can get Senator Baucus of Montana? Point out to the two Michigan senators that GM, Ford and the UAW support the bill and perhaps Stabenow or Levin may change their minds from last year.

Not to be a complete downer, but there are Republicans that have a problem with the bill. I doubt they would filibuster the bill given all the frustration that they have had with the Dems use of the procedure. However, if Specter can’t placate them, who knows how many of them could cross the aisle and bring down the bill. And, the House looks like it may not follow the Senate’s lead because the only bill there so far is a medical criteria bill.

But, all this is speculation. Someone analogized all this to steering a ship in a minefield during a hurricane. And, they would be right. Much can happen this summer. It should be an exciting ride.

Senate panel OKs asbestos trust fund bill

Who Needs an Asbestos-Containing Product for an Asbestos Claim?

2005-05-25T09:48:00.000-07:00

Plaintiff's trial lawyers love to paint all the defendants in asbestos litigation as "asbestos manufacturers" even though most of the defendants nowadays used only very minute amounts of asbestos in small component parts. Most of the real "asbestos manufacturers" are simply bankrupt and trial lawyers need someone to pay their sick clients and (more realistically) for their mansions, luxury cars and mistresses.

So, in California at least, they may now be able to sue companies that never used asbestos in their products. A court held last week that if someone uses your product with another product that has a toxic substance, you may be on the hook for failing to include a warning (i.e. do not use with a toxic material). In asbestos litigation, this could dramatically expand the number of folks that can get sued. Pity the poor plastic bucket maker that made the bucket that was used to mix insulation mud. Or, the sandpaper manufacturer whose sandpaper was used to smooth out joint compound.

Hopefully, other courts will limit this holding or, if we're really lucky, the California Supreme Court may reverse it and restore some sanity to product liability law.

TELLEZ-CORDOVA v. CAMPBELL-HAUSFELD No B172127, California Court of Appeals, 2d App. Dist. May 18, 2005

Senator Unclear on the Concept

2005-05-20T21:07:00.000-07:00

Where oh where is John Edwards when you need him? While I did not vote for the VP candidate, he made a much better advocate for the trial lawyers on asbestos reform than his replacement, Illinois senator Dick Durbin.

Even with the judge fight distracting from the markup of Specter's bill, Senator Durbin still manages to make a goof out of himself. Seems he's not too pleased that the fund caps attorneys' fees at 5%. He looked at the RAND study that showed more than half the money spent on asbestos litigation went to attorneys and figured that 5% was too low.

Now, as a lawyer, I'm not against lawyers getting paid but the whole point of the trust fund is to take the lawyers out of the equation so that insurers and manufacturers don't pay out as much as they do now but the people truly injured get paid more and sooner than they do now. Of course, it may be impossible to freeze out the lawyers but that is another issue. Though, if you cap fees at 5%, it would be a pretty power disincentive to get involved.

Bottom line, lawyers stand at the end of the sympathy line in asbestos litigation reform in DC and rightly so regardless of the fact that so many of us are stand up folks. We aren't dying. We aren't going bankrupt. We can find another line of work even if we don't really want to.

The Asbestos Numbers According to RAND

2005-05-17T18:55:00.000-07:00

RAND released another phonebook of a report on asbestos litigation last week. If you can slog through the 200+ pages in the pre-publication version, here you go. Some highlights from RAND:

only 42% of all the litigation costs go to plaintiffs
about 730,000 cases have been filed up to 2002
about 90% of new cases involve "non-cancerous injuries" which implies that a large percentage of cases are not valid.

Arlen Specter, Fire Your Editorial Writers

2005-05-16T08:49:00.000-07:00

It's not a big surprise that Arlen Specter would push for his bill in the New York Times editorial pages but this effort is kind of lame. First, why spend all your effort attacking Dick Armey when the main opposition is from the trial lawyers and the labor unions? Could it be that Mr. Armey has influence with the waivering conservative senators?

Second, if many of the major contributors to the fund are against the fund to start with, forcing them to pay into the fund would be a tax or, even worse, an unconstitutional taking. Specter implies that all the insurers and manufacturers have agreed to pay into the fund which is disproven by his own point that Mr. Armey is getting funding from an insurer opposed to the fund.

Finally, he makes very little hay on the (in)ability of the current tort system to handles asbestos claims. Where is the harping that only 10% of cases are legitimate or that less than half the money currently spent on litigation goes to the plaintiffs themselves?

There are valid reasons for asbestos litigation reform. There are good arguments for Specter's bill but, unfortunately, they're not laid out in Specter's editorial.

Paying for Asbestos

Who to Believe on the Trust Fund Bill?

2005-05-12T20:55:00.000-07:00

This week the Senate Judiciary Committee started plowing through the numerous amendments to the FAIR Act. The Boston Globe reports that the bill has stalled. On the other hand, CBS reports that the pro-fund forces have the momentum.

From reading the stories, I would guess CBS has is closer to the truth right now. They point to the votes today and the statement of the Republican most likely to oppose the bill, Senator Coburn, that he does not oppose the concept of the trust fund, just some of the current details of it.

On the other hand, the Globe quotes anonymous sources and focuses solely on the Democratic side, which ignores the fact that the bill can make it out of committee with none of the Democrats - other than two already supporting the bill. True, the Democrats could (and probably will) filibuster if the bill makes it out of committee but if two Democrats already support the bill, how many more outside of the committee will go along with them? After losing four seats last year, the margin of error is much smaller than it was last year.

For the labor unions and the plaintiff's bar, the great irony may lie in the possibility that the House will not follow the lead of the Senate but may simply adopt a medical criteria bill at the urging of "ultra conservative" former Congressman Dick Armey. Then, as with much legislation in the past five years, any hope of reform will die in conference.

Be Nice to the Wives

2005-05-09T09:42:00.000-07:00

Wives (spouses to be P.C.) have won favorable decisions recently in asbestos litigation. In New Jersey, an appellate court has held that a wife's paraoccupational exposure to asbestos fibers on her husband's clothing is reasonably foreseeable in a negligence (specifically premises liability) cause of action. Additionally, a Maryland court has held that the statutory damage cap does not apply to loss of consortium claims where the exposed spouse's last exposure to asbestos occurred before the effective date of the statute even if they got married after that date.

It's probably easier to look a blue collar tradesman in the eye and wonder if he knew of he health hazards of asbestos or quibble if he smoked to boot. However, doing the same to a spouse who washed clothes or hugged and kissed the tradesman is a whole other story.

Libby Vermiculite vs. California Serpentine

2005-05-04T09:39:00.000-07:00

It would be ironic if little things like compensating residents of Libby, Montana or residents of the El Dorado Hills in California finally kills the asbestos trust fund. Though why the folks in Libby can't get in line with everybody else is beyond me. I mean, it should be fairly easy to establish exposure for them (anything with a Libby mailing address would do) and they have someone to point the finger at, W.R. Grace.

On the other hand, folks in the El Dorado Hills really can't sue God for putting asbestos in the ground and going after building contractors is a bit harder than suing manufacturers. And, if I was an insurer or manufacturer putting money into the fund, I would be a bit miffed that some of that money would go to folks who had no claim against anybody let alone if those folks end up busting the fund.

Both groups have problems but including one and excluding the other may come down to old fashioned politics. Whose vote do you need and whose vote isn't going anywhere? Or, they can just include both and risk busting the fund...not that it was a problem in the first place.

The Other Asbestos Bill

2005-05-02T22:42:00.000-07:00

While Senator Specter's FAIR Act was getting plenty of ink last week, Congressman Chris Cannon quietly introduced the Asbestos Compensation Fairness Act of 2005. Whereas Specter's bill is a trust fund, Cannon's bill is a medical criteria bill. Most folks figured the real action is in the Senate since a legilative filibuster could stop anything the House would try. However, what the conventional wisdom has not taken into account is how the plaintiff's bar would react to a medical criteria bill.

After all, plaintiff's lawyers initially proposed medical criteria three years ago. Whether the Cannon bill addressed their concerns or goes too far or not far enough may determine whether the reform forces can split the trial lawyers and the labor unions.

Medical criteria at least targets the main problem with asbestos litigation. Whether a medical system can efficiently weed out the bad cases while allowing the meritorious cases is another issue altogether, let alone whether they can pass a bill if the trust fund bill sucks all the oxygen out of any reform.

I suspect the Cannon medical criteria bill will ride along quietly in the House while Specter's bill gets much more attention. Then, after Specter's bill dies a painful death, Cannon's bill may take all the reform watchers by surprise.

Asbestos Trust Fund: A Taxable Taking?

2005-04-26T14:19:00.000-07:00

If the trust fund does pass, it appears it will do so over considerable opposition from the insurance companies and some of the manufacturers. The interesting constitutional issue is whether Congress can force them to pay into the fund.

Proponents of the fund analogize the fund as another tax. Opponents claim forcing them to pay into the fund would constitute an impermissible taking. Now, it is true that democratic governments impose taxes on certain segments of society to pay for alleged ills done to others. However, the fund would require quite a bit of money up front and participants would be required to contribute specific amounts.

So, does that mean that there is a constitutional limit on how much you can tax someone? And, can you preemptively set someone's tax liability to bypass any finding of liability? If so, what's to prevent the government from nationalizing parts of the private sector? Heck, why don't they just "tax" the tobacco companies based on their entire market caps? Sounds a lot like socialism.

U.S. asbestos bill gains another sponsor

S.852: A FAIR Plan or Fairly Bad?

2005-04-25T08:04:00.000-07:00

It takes a singular political talent to bring such disparate interests as trial lawyers, insurance companies, labor unions and manufacturers into common cause. So, give Senator Specter credit for putting forth a proposal that brings all these interests together...in opposition unfortunately.

Well, Senator Specter can take cold comfort in that the Washington Post editorial page supports him though how many votes that brings is an unknown. But, tomorrow everyone gets a chance to take shots at Specter's work. Just goes to show, if you try to please everybody, you end up pleasing nobody...except the Washington Post editorial board.

The fact that almost everyone with an interest in this issue opposes the bill probably indicates that it's very fair or really, really bad. The bill is, to say the least, very long and complicated.

Plaintiff's Lawyers and Right-wingers Agree Trust Fund Is Bad?

2005-04-18T09:23:00.000-07:00

Hell hath frozen over if both the plaintiff's bar and conservatives both oppose the asbestos trust fund. Well, at least the right wing has started to change its tune with a campaign to stop Specter. Of course, both groups oppose it for different reasons. The plaintiff's bar has obvious reasons to oppose this. Now, the right sees the fund as a huge "tax" on business and a slush fund for the plaintiff's bar. It they're right, then the next logical thing would be the plaintiff's lawyers to come out in favor of the trust fund. If that happens, we have surely entered the Twilight Zone.

Stop the Arlen Specter Asbestos Tax!
Stop the Asbestos Trust Fund

Cutting Losses, Going for the Kill

2005-04-14T17:33:00.000-07:00

What's interesting about the asbestos reform negotiations in Congress is seeing the players change sides. First, the UAW has come out in support of the as-yet-to-be-proposed bill breaking the monolithic opposition from Big Labor last year. Before that, with some of the insurers breaking ranks and opposing the basic concept of the bill, one wonders if it's a net wash or a gain for either side.

It's probably safe to say that both sides see changes in the states that affect the likely outcome of doing nothing. Medical criteria bills are under consideration in Texas, Florida, Georgia and Tennessee and may come up in Mississippi and South Carolina. If that happens and the bills do what they're supposed to (a big "if" at that), a good chunk of the disputed asbestosis cases are gone or moving to other states.

For the insurers, that qualifies quite nicely in the "good things" category and for the labor unions and some of the plaintiff's bar, the "bad things" category. So, the dynamics of doing nothing have changed for the better for the insurance companies and their insureds and for the worse for some of the plaintiffs' interests. It just might well be that a trust fund would be more expensive than doing nothing, which is probably why some of the players are changing sides. And, it wouldn't it be ironic if they were right?

Posturing or Progress on Asbestos Reform?

2005-04-12T17:00:00.000-07:00

It seemed only a couple of years ago that Senator Hatch was saying what Senator Specter said today. So, I should take the "we're thisclose" to a deal announcement with some skepticism. However, if there are Democrats willing to come along for the ride, he might be onto something.

Of course, if the defense interests are willing to accept a trust fund plan that allows plaintiffs to go back to court and sue if it runs out of money, they're going to end up very, very disappointed...and short $140 billion. And, just how can they force insurers or defendants, who don't want to play ball, to pony up for the fund? I guess we'll find out later this week when the proposed bill comes out.

Senator Specter Says Asbestos Deal 'Very Close'

No Connection between SV40 and Mesothelioma

2005-04-11T15:20:00.000-07:00

As a lawyer, I sure didn't go to medical school and I suspect many a lawyer is as science- and math-impaired as I am. So, being able to evaluate what doctors say is quite hard unless you have another doctor or scientist to call the other one a quack. However, this study suggests that any connection between the SV40 polio vaccine and mesothelioma was caused by contamination in the testing procedures. So, all those plaintiff's lawyers trying to bring in the big pharmaceuticals into asbestos litigation just got a lump of coal in their settlement stocking. Of course, it's just another study and I'm sure there are studies that suggest the opposite. So, let the Daubert battles continue!

SV40 not implicated in mesothelioma

Plaintiff's Lawyers Complaining About Frivolous Lawsuits? Hell Hath Frozen Over

2005-04-06T13:13:00.000-07:00

It seems that asbestos plaintiff's lawyers aren't too thrilled with silica plaintiff's lawyers trying to muscle in on their racket. So much so that California asbestos plaintiff's lawyers are complaining about shady doctors and mass screenings. And, they got the California courts to agree with them.

Also, the silicosis plaintiff's lawyers are taking it on the chin in Texas. What with plaintiff's doctors basically admitting their diagnosis are questionable, one wonders why someone hasn't taken them to task in the asbestos world.

This also points to the major challenge for any medical criteria for asbestos cases. If doctors are corruptible, there need to be sufficient safeguards for medical criteria to be effective. Determining who would be "impaired" may also be as messy and expensive as it is now.

But, for now, I'll just be amused at hearing asbestos plaintiff's lawyers complaining about shady doctors and questionable medical diagnosis. Not that any of them ever use such doctors or use such dianogsis, no?

Mesothelioma Plaintiffs Down and Out in Indiana

2005-04-05T10:38:00.000-07:00

As a Californian, it's surprising to see such pro-defense decisions in courts of other jurisdictions. This decision from an Indiana appellate court basically shuts down any mesothelioma cases in the state. The court held that the plaintiff "must submit evidence that a reasonably experienced physician could have diagnosed the patient with one of these conditions within the statute of repose period, not merely that the plaintiff had lung damage that could eventually lead to one of these conditions." Given that the statute of repose is ten years and the latency period for mesothelioma is much longer than that, mesothelioma plaintiffs are effectively precluded from bringing a cause of action in the Hoosier State.

It seems the court was following the precedent of the Indiana Supreme Court because it had previously struck down the statute of repose as unconstitutional under the state constition but was reversed by the state supreme court. I wonder if that converts all the potential cases in the Hoosier state into asbestosis claims with later mesothelioma claims filed in another state.

Does this mean that Indiana asbestos lawyers need to get admitted into neighboring states? If so, stay away from California. We've got too many lawyers already.

JURICH v. JOHN CRANE, INC. No. 45A05-0407-CV-385 Indiana Court of Appeals (March 31, 2005)