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.

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