Archive for 2008

Asbestos litigation: background

I’m happy to see that my initial post — which doesn’t really include any details of yet — has already begun to spark debate in the comments. I have thoughts on the views expressed, but I’ll begin with some background. This information might be old hat to those familiar with the asbestos mess, but it’s essential for those with little knowledge. This summary largely follows the account from the introduction to our Trial Lawyers, Inc.: Asbestos report.

Asbestos manufacturing in the United States was ubiquitous. At one point, asbestos-related industries employed as many as 2.5 million Americans. Asbestos commercial mining began in the U.S. in 1874, and after the Johns-Manville corporation was founded in 1890 with a patent for a process that blended short asbestos fibers with magnesia, asbestos manufacturing exploded: “asbestos consumption went from only 956 metric tons in 1890 to a peak of 803,000 tons in 1973.”

While asbestos ultimately proved deadly, it was originally thought to be a “magic mineral,” as it was dubbed at the 1939 World’s Fair. The word asbestos itself is derived from the Greek for “indestructible,” and the product is an incomparable flame retardant: it insulated generations of schoolchildren from fire and indeed fireproofed our World War II Pacific fleet.

But asbestos has also long been known to be dangerous when inhaled–as far back, perhaps, as the days of Pliny the Elder. In the early 20th century, asbestos was deemed as dangerous as lead and mercury (two products that have themselves spawned much litigation). In 1918, the U.S. Department of Labor declared that there was an “urgent need for more qualified extensive investigation” into the harms of asbestos, and in 1938, the U.S. Public Health Service issued a “good-practice” guideline for Threshold Limit Values of asbestos exposure.

Thus, asbestos was known publicly to be dangerous when virtually everyone suffering from asbestos-related illness was exposed. The extent of the danger, however, was not known definitively until 1964, when a seminal study by Mount Sinai Hospital’s Irving Selikoff established a definitive link between asbestos exposure and lung cancers and asbestosis.

Subsequently, evidence indicated that asbestos manufacturing companies knew more about asbestos’ dangers than they originally let on, and indeed in some cases hid that information from the public. Still, as my colleague Peter Huber pointed out in his review of Paul Brodeur’s Outrageous Misconduct, a much-cited book that harshly criticizes the asbestos industry, the asbestos companies’ early knowledge about asbestosis–asbestos-related lung injury that is rarely fatal, and was generally known–should not be confused with knowledge of the deadly lung cancer mesothelioma, which was exposed by the Selikoff study: “In his account of who knew what when–the core of his cover-up theory–Brodeur systematically obscures the difference between asbestos-related cancer and asbestosis, usually a much less serious disease, and understood and discussed in the Manville boardrooms much earlier.”

In any event, the original asbestos manufacturers like Johns-Manville have long been bankrupt due to litigation exposure. (Johns-Manville, ranked 181 on the Fortune 500 with over $2.2 billion in sales, declared bankrupcty in 1982 due to its looming caseload of 16,500 cases, and projections of up to 200,000 in the future.) The story of how that litigation evolved will be the subject of my next post.

Excited to be here to talk about asbestos

I can’t say how excited I am to be here as a guest at overlawyered — the first legal blog still in existence! I’ll never be the indefatigable blogger that is my colleague Walter, or my friend and fellow legal reformer Ted, but I jumped at the opportunity to come over here to Mr. Olson’s “other” blog (he and Ted are also the mainstays of the Manhattan Institute’s PointofLaw.com, to which I occasionally contribute).

Overlawyered’s long-time readers have doubtless read a lot about asbestos. And we’ve covered asbestos litigation very extensively over at Point of Law. But there’s a lot of new material in the Manhattan Institute’s just-released Trial Lawyers, Inc.: Asbestos, as well as a lot of background for those new to the subject. Over the next week, I’ll be going through both.

I’d urge anyone interested to read the entire report, available here. Those who want a quicker review of some of the newer material should read my column in the Washington Examiner, which ran yesterday. And there’s a good overview of my thoughts in an on-line interview available here.

I’ll be back shortly to begin my walk-through of the report, looking at the underpinnings of the trial lawyers’ big asbestos machine.

At least they spelled our URL right

How many errors can you spot in the Jeannette Borzo/California Lawyer magazine story on legal blogging and its sentence about this weblog?

As best as most people can tell, the history of legal blogs began in July 1999 when two lawyers-a senior fellow at the Manhattan Institute and another attorney from New Jersey-launched Overlawyered (www.overlawyered.com).

Seidel subpoena aftermath

As a judge considers whether to impose sanctions on attorney Clifford Shoemaker for hitting investigative blogger Kathleen Seidel with an intimidating subpoena, one of Shoemaker’s attorneys asks the court for more time “to gather the material I would need to show the Court the justification for the Subpoena and its scope,” which prompts Eric Turkewitz to wonder (May 6): “Why is it necessary to look for justification for the subpoena after it was issued?” And: “Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.”

In another indication that heavy-handed pursuit of a blogger might not have worked out very well as a legal strategy, Shoemaker’s own clients, the Sykes family, have now voluntarily dropped their vaccine-autism suit against Bayer, which was the basis for the subpoena (Seidel, Orac).

Perhaps-ominous sequel: Seidel points out in a new post that Shoemaker’s legal papers accuse her of arguably tortious conduct in her comments on autism litigation, including interfering with “witnesses’ professions, professional relationships, and economic opportunities”, and that the witnesses in question in the Sykes suit, Dr. Mark Geier and David Geier, have previously pursued long and costly litigation against four scientists and the American Academy of Pediatrics over an article in Pediatrics which disputed the Geiers’ findings. The suit — which was eventually dismissed without prejudice as to the scientists, and dismissed with prejudice as to AAP — contended that damages were owing because the article in question had cut into the Geiers’ potential income as expert witnesses.

“Minn. driver kills dog, sues owners”

Maybe it’s better sometimes not to stand on all your legal rights? “Jeffery Ely ran over a dog and then sued its owners for the cost of repairing his vehicle. Ely claims in court filings that he suffered $1,100 in damages after Fester, a brain-damaged miniature pinscher, ran in front of his 1997 Honda Civic in January.” (USA Today, May 7).

The asbestos litigation machine

Yesterday the Manhattan Institute released a new report by my colleague Jim Copland, “Trial Lawyers Inc. — Asbestos“. As I note at Point of Law, even as a longtime observer of asbestos litigation I found it quite an eye-opener. I’m happy to announce that Jim Copland will be joining us tomorrow for a guestblogging stint to explain some of his findings.

New York Lottery sued

According to the would-be class action on behalf of Take Five ticket buyers, those supposed chances of “winning” are inflated by counting a free play as a win. “The lawsuit says merchants who sell the tickets should be held liable since they were in on the fraud.” (Thomas Zambito, “A lotto nonsense, says $5M lawsuit”, New York Daily News, May 6; Kati Cornell, “You’ve Gotta Sue To Win”, New York Post, May 6; Lottery Post).