ATRA: Asbestos litigation 'more incredible every year'

By Heather Isringhausen Gvillo | Jan 8, 2014

WASHINGTON (Legal Newsline) - In light of the recent Judicial Hellhole Report released in December, it is clear that asbestos played a key role in the rankings, given what the report's authors feel is a vast negative impact on the court system nationally.

American Tort Reform Association Director of Communications Darren McKinney said it is no coincidence that asbestos litigation has influenced the Judicial Hellhole investigations, as it is "the dominant mass tort" in America.

McKinney argues that no other tort has bankrupted hundreds of companies nor is generating billions of dollars in litigations, settlements and verdicts in plaintiff-friendly jurisdictions.

"If anyone wants to know why asbestos seems to get significant attention in the Hellhole report every year," McKinney said, "it's because it gets more incredible every year!"

In fact, asbestos can be attributed to the primary reason behind three of ATRA's top six Judicial Hellholes of 2013: California, New York City and Madison/St. Clair counties in Illinois.

Asbestos is a somewhat new reason to drag New York City down this year - previously awarded a Judicial Hellhole ranking thanks to its roughly 2,000 lawsuits against the police department.

The New York Asbestos Litigation Docket, also known as NYCAL, contributed to its No. 3 ranking in the report due to its aggressive consolidation practices and heavy corruption, ATRA says.

According to the report, since early 2011, the average NYCAL plaintiffs' verdict in a consolidated case was $29.8 million, more than nine times greater than the $3.2 million average verdict for individual cases.

"Individual cases more fairly allow defendants to prove that plaintiffs were not exposed to asbestos from their products," the report states.

Meanwhile, Arthur Luxenberg, a partner of the Weitz & Luxenberg law firm - which regularly litigates NYCAL cases - was appointed by New York State Assembly Speaker Sheldon Silver to the Judicial Screening Committee. This means judges with hopes of earning seats in the high courts must be reviewed by Luxenberg for a recommendation.

"If you're an asbestos trial judge in New York City, and you aspire to a Supreme Court or Appellate Court seat, you don't want to upset this Weitz & Luxenberg law firm, especially Arthur Luxenberg, who sits on this influential judicial nominee committee," McKinney said.

McKinney said he intends to follow the issues in New York closely, saying ATRA will "stay on them like a cheap suit."

As asbestos exposure declines due to new government health and safety standards, mesothelioma cases fall, which leaves asbestos lawyers looking for new ways to bring lawsuits to the docket, McKinney said.

"Lawyers don't want to see their golden goose die," McKinney said, "so they've got to come up with new ideas."

As a result, lung cancer and third-party exposure cases are on the rise, and often times are completely unrelated to asbestos, McKinney claimed.

A popular, and recent, example of this new development is New York Congresswoman Carolyn McCarthy's lawsuit, filed by Weitz & Luxenberg.

According to the Hellhole report, McCarthy is a "lifelong pack-a-day smoker" and was diagnosed with cancer in 2013.

Because she could "not realistically hope to win a lawsuit against tobacco companies," she and her lawyers filed a lawsuit against approximately 70 defendant companies for third-person asbestos exposure. She claims her lung cancer can be attributed to the asbestos dust her father and brother brought home on their clothing after work.

However, McKinney pointed out that if she was a "pack-a-day" smoker as she claims, and there are roughly 20 cigarettes in each pack, it is reasonable to assume she smokes more than a cigarette per hour.

"More than a cigarette an hour is a load on anyone's lungs," McKinney pointed out.

While McKinney expressed deep concern and sadness for those facing life-threatening cancer, he said there is no excuse for a member of Congress, as well as a lawyer, to file such a lawsuit.

"Her lawsuit is patently bogus," he added.

Baltimore and Newport News, Va., were also included on the watch list due to their asbestos dockets.

"The continuing manipulation of asbestos trust fund claims and lawsuits demonstrate how plaintiffs' attorneys take advantage of a playing field that remains tilted in their favor," the report states about Baltimore.

As for Newport News, the report states, "The court has set a low bar for scientific reliability of expert testimony, relaxed causation standards, hidden from juries what the plaintiff's employer knew about the health hazards of asbestos, and prevented product makers from asserting widely-accepted defenses."

It's not all gloom and doom for ATRA where asbestos is concerned. McKinney did offer some positive trends throughout the nation.

"Generally speaking," McKinney said, "during the course of the last several years, there has been any number of little spots of good news."

He speaks specifically about the nation's "epicenter for asbestos litigation": Madison and St. Clair counties.

Madison County entered a defendant verdict in November for Georgia Pacific, a construction manufacturing company accused of contributing to a man's mesothelioma through its asbestos-containing joint compound used in dry wall work.

McKinney attributes the surprise verdict to the jury, which can be "trusted to make pretty level-headed decisions in Madison County."

"If a judge runs an even-handed courtroom, most juries will come back and offer an even-handed verdict," he said.

The Illinois Supreme Court was even listed in the "Points of Light" section of the Hellhole report for "striking a blow against the filing of asbestos cases with no connection to the state in its Judicial Hellhole."

According to the report, the St. Clair County Circuit Court refused to dismiss a Mississippi plaintiff's asbestos case with no connection to Illinois. The Illinois Supreme Court reversed that decision in its efforts to eliminate forum shopping.

"The high court's action sends an important message that it will not allow plaintiffs' lawyers to file lawsuits on behalf of people from around the country in St. Clair or other Illinois counties simply because those Illinois jurisdictions are more likely to produce favorable outcomes than are jurisdictions in plaintiffs' home states," the report states.

Despite occasional good news coming out of America's courtrooms, McKinney said ATRA and its numerous contributors look at systematic issues and consistent problems.

"A single case, good or bad, isn't likely to influence us," McKinney said.

"When small, rural Madison County is no longer the home of 25 percent of the nation's asbestos cases, then we can talk about a clean bill of health for Madison County," McKinney continued. "Unless there are more Georgia Pacifics willing to fight this and say, 'No, we're going to trial. We're going to fight this,' then I don't know how one improves the predicament in Madison County."

A common problem attributing to systematic issues is a knee-jerk settlement, he said. McKinney said companies typically settle a case rather than endure a risky and costly trial. But such a passive mindset can ultimately lead to clogged dockets and more problems in the future, he said.

If settling cases is the go-to strategy, "you don't have to be a genius to figure out that these lawsuits are going to come a-mile-a-minute," McKinney said.

McKinney said to prepare for a long ride, as asbestos won't soon be leaving the spotlight.

"It has been in America for some 30 years, and some analysts and experts believe it will continue to be a huge factor for another 40 years," he said.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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