Asbestos Litigation in California: Filling in the Facts

Last fall an article filled with half-truths reared its ugly head in the California Daily Journal, attacking the integrity of asbestos litigation in California.

Half-truths are a dangerous animal. Fortunately, Gary Paul of Waters, Kraus & Paul has issued a thoughtful response to the article, debunking some of its misrepresentations, and proving yet again that even the wildest of half-truths can be tamed.

Gary is an excellent lawyer and stalwart defender of asbestos-victims’ rights. For your consideration, he’s been kind enough to give me permission to share it here on our blog.

Asbestos Litigation in California:  A Response to Mark Behrens

By Gary M. Paul

In responding to Mark Behrens’ November 18, 2009 column on asbestos litigation in California, it is difficult to know where to begin.  The piece is so packed with mischaracterizations, half-truths and outright falsehoods that it would be comical were the subject not so serious.  Yet like clockwork, its assertions have been repeated by the Civil Justice Association of California, which like Mr. Behrens would never let the facts get in the way of a good yarn.

Mr. Behrens first asserts that “lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions.”  It is hard to imagine a more callous statement: what “keeps the litigation going,” sadly, is the many thousands of Americans who continue to die each year of asbestos-related cancers.  Mesothelioma, an extremely painful and invariably fatal cancer of the lung lining, alone still kills 3,000 Americans a year.  It is their widows and children who, in Mr. Behrens’ crass formulation, have the temerity to “keep the litigation going.”

Mr. Behrens repeats a familiar complaint about out-of-state law firms opening offices in California.  It is worth noting, of course, that Mr. Behrens’ own firm, founded and headquartered in Kansas City, has opened two California offices in the last ten years.  As for me and my firm, I have been practicing law in Los Angeles for 35 years.  Andy Waters, the firm’s founding partner, lived and practiced in Long Beach over 20 years ago.

Mr. Behrens charges that lawyers file unnatural numbers of cases in California because it will afford a “tactical advantage,” rather than file cases “where there is a logical and factual connection to a claim or claimant.”  This is not true of California asbestos litigation and never has been true.  First, Mr. Behrens does not state what the “tactical advantage” in California is; in fact, there is one feature of California law that operates very harshly on asbestos victims: Cal. Civ. Proc. Code §377.34, which bars the recovery of damages for pain and suffering of a decedent.  Since this is a very significant element of damages in asbestos cases, available in many other states, it is hard to see why plaintiffs with no connection to California would file their cases here.

Second, it is in any event simply a myth that there are legions of out-of-state cases in California.  Mr. Behrens states that a 2006 “sample” of California asbestos plaintiffs showed that 30% had addresses outside California.  But this ignores the fact that many persons who no longer live in California nonetheless sustained their exposure to asbestos here due to the state’s large number of industrial and petrochemical facilities, shipyards and naval bases.

Asbestos industry lobbyists themselves have acknowledged that there is no glut of cases from other states in California—indeed, they have used this fact for their own purposes in other states.  Just this year, for example, a bill was introduced in the Texas Legislature that sought to ameliorate certain very restrictive features of Texas law in mesothelioma cases.  Some claimants asserted that Texas law was so harsh that Texans were being forced to file out of state, including in California.  Peter Coleman, who defends asbestos cases for the Sedgwick firm in San Francisco, testified that he had analyzed all mesothelioma cases filed in California in the years 2007 and 2008, and found that 373 claims alleging mesothelioma were filed during that two year period.           

Of these 373 claims, they had exposure information on 362 of them, and 342 of these 362 alleged exposures in California.  Even without regard to residence, then, the vast majority of all mesothelioma claims filed in California involve exposure here.

When you know the facts that industry lawyers use for their purposes elsewhere, you know there is no problem with out-of-state filings.  And when the occasional case with no true California connection does get filed, a court can readily dismiss it on forum non conveniens grounds. See, e.g., Hansen v. Owens-Corning Fiberglas Corp., 51 Cal. App. 4th 753 (1996).  Mr. Behrens is apparently not aware of the forum non conveniens doctrine (he has never personally tried a toxic tort or asbestos case), as his proposal to enact “reforms” to “send out-of-state claimants to more appropriate jurisdictions” ignores the fact that California law already provides the means for doing so where a case has no true nexus with the state.

Mr. Behrens knows full well that there is no problem with out-of-state asbestos filings.  Nor do the relatively small number of mesothelioma and other asbestos-related cancer cases filed in California have anything to do with the “worsening financial crisis” affecting state courts to which Mr. Behrens refers.  This financial crisis is, of course, a result of many causes, and state courts around the country are experiencing similar problems.  See, e.g., “State Courts at the Tipping Point,” New York Times, November 24, 2009. 

Finally, in his perhaps worst example of misleading commentary, Mr. Behrens quotes from an order by Judge Munoz in a single Waters & Kraus mesothelioma case.  Somehow, Mr. Behrens neglected to mention that Judge Munoz specifically found that nothing Waters & Kraus did in that case was impermissible; that the Second District Court of Appeals and the California Supreme Court both summarily rejected a defendant’s attempts to seek appellate review of Judge Munoz’s order (the Court of Appeals is currently considering a second attempt); and that the case—as Mr. Behrens knows full well—involved an egregious attempt by defendants to delay a dying man’s deposition in California.  In truth, the “grisly game of asbestos litigation” far more typically involves meritless defense maneuvers to delay dying plaintiffs’ trial dates until after they pass away, thus denying them and their families their day in court, and avoiding a significant element of damages exposure.  For example, in Galassi v. A.W. Chesterton Company, No. C-05-02017-WHA (N.D. Cal. June 13, 2005), an asbestos defendant, in a classic maneuver familiar in asbestos cases, removed a dying mesothelioma victim’s case one month before trial.  The federal court found that the removal “was wholly unnecessary, meritless and obviously an attempt to delay plaintiffs’ upcoming trial date.”  The court therefore found that an award of attorney’s fees and costs was warranted.  The baseless removal paid off, however, as the plaintiff died before a new trial date in state court could be scheduled.

Much as the asbestos industry concealed the hazards of its product for decades, Mr. Behrens conceals the true facts behind California asbestos filings, and the true circumstances behind what he asserts is “litigation gamesmanship.”  He also conceals his true interests.  Mr. Behrens describes himself as “an attorney in the Washington, D.C. – based Public Policy Group of Shook Hardy & Bacon.”  From this description one might almost think that Mr. Behrens spends his time reflecting on matters of “public policy” from an academic, disinterested standpoint.  But he is hardly disinterested: Mr. Behrens is a partner at the Shook Hardy firm, which regularly represents Lorillard and other companies in asbestos litigation.  Yes, that’s Lorillard—its cigarettes used to have asbestos filters in them (thus creating perhaps the most lethally defective product ever made).

Mr. Behrens also files between 15 and 20 amicus briefs a year for the so-called “Coalition for Litigation Justice,” the American Tort Reform Association, the Property and Casualty Insurers Association of America, the American Petroleum Institute and the American Chemistry Council.  These groups, of course, consist of corporations that are frequent defendants in asbestos litigation, and insurance carriers responsible for their liabilities.  In addition, Mr. Behrens receives an $8,000 monthly retainer from the Coalition for Litigation Justice, separate and apart from the remuneration he receives for filing amicus briefs on the Coalition’s behalf, essentially to write articles like the one he wrote for this publication.  Finally, Mr. Behrens is a lobbyist for asbestos defendants including Crown Cork & Seal Co. and for the American Legislative Exchange Council—a group that has a bland name but that derives 95% of its funding from corporations.  Its “private enterprise board” includes such regular asbestos defendants as Koch Industries, Exxon Mobil and Pfizer.  From about February to the early summer of this year, Mr. Behrens received about $20,000 per month just from his lobbying activities on behalf of Crown Cork & Seal.  Mr. Behrens apparently did not think that any of this information was relevant.

In any event, the California bench and bar should be reassured that there is no glut of out-of-state filings in California.  The relatively few cases that are brought, of course, involve catastrophic injuries.  Indeed, Mr. Behrens quotes a former San Francisco Superior Court judge who said, "Lately, we have seen a lot more mesothelioma and other cancer cases than in the past."  Yet ironically, in his last paragraph, Mr. Behrens recommends that California enact “a series of reforms, [including] assuring that claimants are truly sick….”  Every asbestos claimant in California is “truly sick,” and “truly dying,” because of industry conduct juries have repeatedly found negligent and indeed grossly negligent.  These claimants ask only their day in court, and California’s system works well in providing it.

Gary M. Paul is a partner at Waters, Kraus & Paul in Los Angeles.

Mesothelioma & Asbestos Round-Up

Mesothelioma & Asbestos Round-Up: January 15, 2010

In the past few weeks, two major stories concerning asbestos exposure have appeared in the news. While it’s encouraging to see an international spotlight being put on this serious issue, both stories underscore troubling themes in the response to asbestos exposure.

In each of these cases, the focus is on the aftermath of asbestos exposure rather than on prevention. Each is marked by bitter wranglings and arguments about responsibility, liability, and compensation. And while in each case, there have been some positive outcomes, they also serve to illustrate how political and commercial self-interest can sometimes get in the way of justice.

The Ongoing Effort to Clean Up Libby, Montana

Let’s start in the U.S. In the past, we’ve reported on the heartbreaking case of Libby, Montana, where asbestos contamination sickened and killed miners and their families. More than 30 years after the company became aware of the danger – and continued to expose local residents – the mining firm W.R. Grace was finally brought to trial on criminal charges.

In May, 2009, victims and their families were dealt yet another blow as W.R. Grace and three of its former executives were acquitted of all charges. The New York Times reported that during the trial, Judge Donald W. Molloy excluded some compelling evidence offered by prosecution as “prejudicial,” including company memos in which executives discussed the costs of people dying in Libby. Swift on the heels of this decision, the EPA declared a public health emergency in Libby, and the Department of Health and Human Services earmarked $6 million to finance treatment at the nearby Lincoln County Health Clinic.

Libby again appeared in the headlines in December during debates about the recently passed health care bill. Several news outlets noted that, while not specifically named, Libby would receive benefits “buried” in the proposed bill as a proposal to expand Medicare coverage to cover certain victims of “environmental health hazards.”

Montana senator Max Baucus has defended the proposal, noting that it’s a necessary and responsible part of this country’s health care plan, which should protect future victims as well as those in Libby. “The people of Libby were poisoned and have been dying for more than a decade,” he said. “New residents continue to get sick all the time. Public health tragedies like this could happen in any town in America. We need this type of mechanism to help people when they need it most.”

Scottish Insurers Lose Compensation Battle

The issue of compensation for victims of asbestos exposure has also taken center stage in Scotland. During a 22-day hearing, UK insurance companies sought to overturn a law giving victims of pleural plaques the right to compensation. Pleural plaques is a benign scarring of the lungs caused by asbestos exposure. On January 8, 2010, the challenge to the law was rejected, and the new act was upheld, requiring that insurers compensate claims by sufferers of this condition.

The battle was a win for victims, and sheds light on the lengths to which insurance companies will go to avoid paying compensation. According to the insurers involved in the hearing, pleural plaques did not count as a “disease,” even though the condition indicates a higher risk for developing mesothelioma.

The Association of British Insurers (ABI) intends to appeal the decision, declaring, “This is not the end of the road.”

But Member of Scottish Parliament Stuart McMillan highlighted the other side of the argument: "In Scotland we have the legislation to ensure those who should be compensated for their injuries receive that compensation  not to deprive people of legitimate compensation as the insurance companies were attempting."

And general secretary Alan Ritchie’s comment underscored the competing interests that drove this challenge, saying, "The insurance industry were using the judicial review to delay paying compensation to asbestos victims both north and south of the border. It was a very cynical manoeuvre and I am pleased it has failed."

While new legal provisions and protections such as these can help redress some of the damage done by asbestos exposure, all too often the legal system is the last recourse for victims who have been poisoned, exploited, and ignored. The crusade to ban asbestos and raise awareness about this deadly substance must be our first line of attack against mesothelioma.

A Look Back on 2009

Working day-to-day, it’s easy to lose sight of the big picture. For that reason, I’d like to take a moment to reflect on all we’ve achieved this past year: the battles we’ve won, the projects we’ve spearheaded, and the goals we’ve reached.

There have been a number of factors that made 2009 an important year for our firm. In July, we celebrated our 10-year anniversary. Over the past decade, I’ve taken great pride in the work of our dedicated attorneys and staff who have committed themselves to serving the victims of mesothelioma. Through their efforts, we’ve reached thousands of patients and their families and helped fight for their rights as they’ve faced this preventable, life-ending illness.

As part of our 10-year anniversary celebration, we made the decision to change the name of our firm. As Simmons Browder Gianaris Angelides & Barnerd LLC, we will continue to build our legacy as one of the nation’s leading advocates for the victims of mesothelioma and other asbestos-related diseases. This new name reflects the strong leadership role taken by four of our partners, Perry Browder, Ted Gianaris, Michael Angelides, and John Barnerd. But since we know this new name is a mouthful, we’ll be more casually known as the Simmons firm.

Earlier in 2009 we had a further expansion of our partnership with the addition of six new partners. Each of these individuals continue to bring extensive experience in asbestos litigation to our clients. 

In 2009, we redoubled our ongoing efforts to raise awareness about mesothelioma and work to improve life within our community. As part of that effort, we sponsored the very first “Miles for Meso,” a 5K run/walk to raise money for mesothelioma research.  This inaugural event raised approximately $30,000 and drew nearly 500 participants.

I was also incredibly proud of the work done by Simmons employees outside of the workplace to help those in need. During the summer, the Simmons Employee Foundation (SEF) held a dinner auction which generated over $150,000 to support a variety of local charitable organizations. In November, the SEF held an annual food drive, collecting more than 50,000 pounds of food for Madison County pantries. Even in this climate of economic uncertainty, Simmons employees made generous donations that speak to their commitment to making a positive impact on the lives of others.

It’s this spirit of service and commitment that we’ll be taking into the new year. As we move into 2010, we’ll continue to fight for the rights of patients and their families. We’ll work to raise awareness about mesothelioma, generate funds for research, and call for legislation banning the use of asbestos. We are grateful for 2009, and look forward to the challenges of the coming year.

Have a safe and happy holiday. See you in the new year.

ADAO Announces 6th Annual Asbestos Awareness Day Conference

Next spring our friends at the Asbestos Disease Awareness Organization will host their sixth annual conference in Chicago. I spoke with Linda Reinstein, Executive Director for ADAO, and she told me this year's program promises to be the strongest conference to date. The speaker list will feature renowned asbestos and mesothelioma experts such as Dr. Hedy Kindler. No doubt members of the Simmons firm will be in attendance to show support. Details on how you can register are included below. 

Register for the 6th Annual Asbestos Awareness Day Conference

April 9 - 11, 2010

Marriott Renaissance Hotel, Chicago, Illinois

Global Mission: Prevent, Detect and Treat Asbestos-Related Diseases

"Science and Technology Proves Asbestos is a Carcinogen"

This conference is made possible with the support and collaborative efforts of the Barbara Ann Karmanos Cancer Institute and the International Ban Asbestos Secretariat (IBAS).

Registration Fee:   

Professionals: $300

Students/Patients/Caregivers: $150

Sunday Remembrance Brunch: $25 with conference registration/$50 without conference registration

Agenda Session Topics Include

• Preventing Asbestos Exposure
• Detecting and Treating Asbestos-Related Diseases
• Asbestos Victim and Family Resources and Support
• Global Advocacy

Conference Speakers

Brad Black, MD

Barry Castleman, ScD

Jeff Camplin, CSP, CPEA

Sean Fitzgerald, PG

Arthur Frank, MD, PhD

Patrick Gerkin, PhD

Fernanda Giannasi, ABREA

Michael Harbut, MD, MPH, FCCP

Tanis Hernandez, LCSW

Laurie Kazan-Allen, IBAS

Hedy Lee Kindler, MD

Richard Lemen, PhD, MSPH

Terry Lynch, Int'l Vice President, Insulators Union

Pat Martin, Canadian Parliament Member

Linda Reinstein, ADAO

Kimberly Rowse, RN

Jordan Summers, Musician

James Webber, PhD

Jordan Zevon, ADAO National Spokesperson and Musician 

ADAO Asbestos Awareness Day Honorees

U.S. Senator Richard Durbin will be presented with the Tribute of Hope Award for his steadfast commitment and determination to ban asbestos.

The Center for Asbestos Related Disease Center (CARD) will receive the Tribute of Unity Award for their work to unite, educate and empower asbestos victims and medical community.

Dr. Hedy Kindler will be recognized with Dr. Irving Selikoff Lifetime Acheivement Award in honor of Dr. Selikoff's dedicated research into the social and medical impact asbestos has had on humankind.

Fernanda Giannasai will be presented with teh Tribute of Inspiration Award for being a bridge of hope and strength to victims of asbestos exposure in India and worldwide.

Warren Zevon "Keep me in Your Heart" Memorial Award - TBA

June Breit, honored posthumously, The Alan Reinstein Memorial Award for her commitment to advocacy to eradicate mesothelioma and offer support to patients and their families. 

Conference Schedule

Friday, April 9th

NEW! Private Gathering for Family, Patients, & Caregivers Only

5-6 p.m.

Meet and Greet  with Jordan Zevon

7-9pm

Saturday, April 10th

Conference

8 a.m.-5:30 p.m.

Sunday, April 11th

Remembrance Brunch

9:30-11:30am

On Sunday ADAO will light five candles at 10:30 a.m. CST for victims throughout and around the world.

Remembering Ernie Conry

We lost one hell of a fighter and good man this week. Ernest Conry, a husband, father and friend to many, lost his battle with mesothelioma on September 18, 2009. He passed away at his home in St. Louis, Missouri.

Ernie lived with pleural mesothelioma for over 7 years. His resilience against the disease is truly a testament to the power of a positive attitude. He was always quick with a joke and happy to spread the cheer. For years he attended the Mesothelioma Applied Research Foundation's annual symposium, where he took it as his mission to bring a bit of laughter to the many families and patients in pain.

Ernie once said, "The thing to do is get up and do something. Don’t let the cancer bog you down. Wait until someday it might bog you down, but my God, if you are still moving, keep moving. Go on about like you don’t have a disease. So the thing to do is get up and do something. Keep moving and enjoy it. You know, take the life that you have going for yourself and make use of it."

Born in 1933 in Tennessee, Ernie moved to St. Louis as a child. He entered the automotive field at age 17, becoming an apprentice auto mechanic at a Ford dealership. He was drafted into the army in 1953, and arrived in Inchon, Korea, six months after the armistice had been signed. From 1950 to 1998, when he retired on a union pension, Ernie worked consistently as a mechanic at a series of Ford dealerships.

Once diagnosed with mesothelioma, he took it upon himself to visit St. Louis area union halls and mechanic shops, distributing literature about the dangers of asbestos. He gave numerous seminars to our staff here at the firm. He taught us a lot - not just about asbestos in the auto industry, but about strength, character and resilience.

Ernie gave freely of himself, and all he ever expected in return was the pleasure of good company. He was a wonderful man. And he will be dearly missed.

An Ounce of Prevention...American Public Health Association Calls on Congress to Ban Asbestos in the United States

The topic of asbestos is always shrouded in a haze of misunderstanding, half understandings and disinformation.  Many people believe that asbestos has been banned in the United States.  It has not.  Similarly, many people also believe that asbestos is a problem that is going away. Sadly, it isn't going anywhere.  As a matter of fact, asbestos is still routinely mined in Canada and is sold directly and indirectly for use in products regularly sold in the United States.

Last week I found myself reading Andrew Schneider’s blog, “Cold Truth.”   Schneider, a Pulitzer prize winning journalist, noted that the American Public Health Association at long last is calling on the U.S. congress to enact a ban on the manufacture, sale, export, or import of all asbestos-containing products. Mr. Schneider correctly points out that the United States has basically never had any kind of meaningful ban on asbestos.  For a brief time in the late 80’s asbestos was banned from being imported into the United States.  However, this ban was defeated by legal challenges funded almost entirely by a Canadian industrial group.

Mr. Schneider didn’t discuss the details of the Canadian group involved.  I would like to put a little light on them now.

The Canadian group, then known as the “Asbestos Institute” is, to my way of thinking, exactly analogous to the lobbying powers used by the tobacco industry.  The Asbestos Institute routinely denied, even until very recently, that asbestos was a carcinogen.  They deny that their products hurt anyone.   And when the facts aren’t with them, the Asbestos Institute does anything and everything in its power to protect its industry, public health be damned.

Of course, the world has come to realize that asbestos is deadly.  So to avoid the stigma of “asbestos,” the Asbestos Institute changed its name.  They are now called “The Chrysotile Institute.” Now they don’t deny that asbestos CAN cause cancer, they just deny that THEIR asbestos causes cancer.  Specifically, they state that even though chrysotile is a form of asbestos, it is a harmless form of asbestos. They go on to say that, even if their asbestos were dangerous, if properly used it's as harmless as mother's milk.

Of course, this is complete hogwash, and they know it.  Their main tactic is to keep anyone from ever discussing the dangers of asbestos.  In a recent newsletter The Chrysotile Institute crows about keeping the topic of chrysotile out of the Rotterdam convention of industrial nations. Note that the topic of banning chrysotile wasn’t even on the table.  This was simply a request that chrysotile asbestos be included on a list of hazardous substances and chemicals.

As mentioned at the outset, the topic of asbestos is always shrouded in misunderstanding.  Much of the misunderstandings are intentionally perpetuated.  The asbestos industry has killed hundreds of thousands of people, just like the tobacco industry.  As long as there is money to be made, the asbestos industry will stop at nothing to continue the mining, sale and export of their deadly products.

This is why it is important, as Mr. Schneider observes, that the American Public Health Association is at long last taking a stand on this issue.  Mr. Schneider quoted Linda Reinstein, Director of the Asbestos Disease Awareness Organization on this.  “APHA set a precedent with strong language aimed at preventing asbestos exposure to eliminate deadly diseases.  We can’t let history repeat itself – it is time to ban asbestos and fund educational and research programs,” says Linda Reinstein.

Benjamin Franklin is famously quoted for saying “an ounce of prevention is worth a pound of cure.”  This, in the case of asbestos disease, is painfully true.  All asbestos diseases can be prevented.

The Simmons firm has been a leader in funding research in finding a cure for asbestos diseases.  More than anything, we want our clients, and all asbestos victims, to be cured.  More fundamentally, though, we would like for people not to get asbestos diseases at all, which is why we support a meaningful federal ban on the mining, use, import and export of any and all asbestos and asbestos containing products.

ADAO Issues Urgent Message Encouraging Others to Spread the Word About the Dangers of Asbestos Exposure