Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘asbestos’

Madison County asbestos: one for the books (O’Connell v. Georgia-Pacific)

Even Madison County juries have their limits it seems.

Anita O’Connell claimed that her mesothelioma came from asbestos from washing her husband’s and children’s laundry. Perhaps. But none of her three sons who worked for her father whose clothing she washed would testify in support of that. Instead, a fourth son, Michael O’Connell, who didn’t work for her husband’s plastering business, sought to blame Bondex International and Georgia-Pacific.

The plaintiff claimed the joint compound caused Anita O’Connell’s asbestos exposure because she shook her son’s clothes before laundering them.

The supplier for the O’Connell plastering business testified that only plaster was sold to the O’Connell business, not joint compound. The supplier also testified that he never carried the Bondex brand.

Michael O’Connell testified he remembered seeing silver Georgia-Pacific cans of joint compound, but that company’s cans were not silver during the period O’Connell claimed to have worked with drywall.

Adding chutzpah upon chutzpah, plaintiffs’ attorney Charla Aldous of Baron & Budd asked for $10 million in damages for the 84-year-old plaintiff. The jury awarded nothing. (Brian Brueggemann, “Madison County jury rejects woman’s plea”, Belleville News-Democrat, Mar. 2; Steve Gonzalez, “Jury reaches defense verdict in Madison County trial”, Madison County Record, Mar. 2; Friable Thoughts blog, Mar. 2).

Long-time readers may nod knowingly and think of the infamous Baron & Budd witness-coaching memo, which I have posted in full on the Liability Project’s “Documents in the News” page.

Many many more links after the jump.

Read On…

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R.I. jury finds former lead paint makers liable

“A Rhode Island jury today found Sherwin-Williams Co. and two other paintmakers guilty of creating a ‘public nuisance’ by manufacturing lead paint after it was found to be dangerous.” If upheld, the verdict will force the companies to contribute millions toward abatement of existing paint; a judge will also consider demands for punitive damages. The ruling, the first of its kind, is also expected to encourage the filing of more suits against the industry; the cities of Chicago and Milwaukee are among those with suits in progress. (Maya R. Payne, “Jury finds against three paintmakers”, Crain’s Cleveland Business, Feb. 22; AP/Boston Globe; Reuters). Blogger Jane Genova has been covering the three-month trial from the scene.

The verdict is an unfortunate confirmation that the “tobacco model” of mass tort litigation remains alive and well. In particular, contingency-fee private counsel have once again managed to 1) dream up a novel idea for litigation based on the idea that some category of public expenditure is really blameable on long-ago sales of a product; 2) sell the idea of suing to public officials who agree to front the action, and who thus provide (along with advocacy groups) a suitably public face for the lawsuit; and 3) manage to get liability attributed retroactively to businesses whose actions decades ago were plainly lawful under the standards of that time. In the Rhode Island case, in particular, the outcome represents the culmination of years of careful groundwork by South Carolina-based asbestos/tobacco powerhouse plaintiff’s firm Motley Rice (earlier Ness Motley), which some years embarked on a strategy of making itself a behind-the-scenes kingmaker in Rhode Island — one of America’s most politically insider-ish, as well as smallest, states. For details on how the Motley firm quickly established itself the number one donor in Rhode Island politics, with special generosity toward officials who could be helpful to its idea for a lead paint suit, see Jun. 7, 2001.

For more coverage of the Rhode Island suit, see Jun. 8-10, 2001; Jul. 2, Nov. 1 and Nov. 16, 2005; and various other entries.

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Asbestos Trust-Fund Legislation Defeated

The Senate has apparently defeated the bill that would create a $140 billion trust fund to pay asbestos claims (Charles Hunt, “The Senate Defeats Asbestos Trust-fund Legislation” The Washington Times, Feb 15).

Whether this represents a final defeat of the measure is unclear, since there seem to be a number of procedural questions surrounding the bill. The Wall Street Journal ($) had an interesting editorial yesterday (2/14), which described the bill basically as deeply-flawed legislation to try to correct a deeply-flawed litigation situation.

You can see the vote count here, but, in a fairly unique outcome in these hyper-partisan times, both Democrats and Republicans were split on this one.

Update: Made a few changes to the links to try to better match Ted and Walter’s style

Ted has more on the bills prospects at Point of Law, as well as a whole archive of following the asbestos mess.

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Nanotech’s legal risks

They’re anything but infinitesimal, or so conferees were told recently:

“However,” Monica warns, “no industry — including the nanotechnology industry — is beyond the reach of American trial lawyers. Concerns about possible health and safety hazards posed by nanomaterials are being raised among labor unions and environmentalists; trial lawyers cannot be far behind. Some have even begun to compare nanotechnology to asbestos, a material plagued by $70 billion in litigation over the past three decades.”

Lawyer John C. Monica Jr. of Porter Wright Morris & Arthur in Cleveland, along with colleagues, wrote the paper, which was entitled “Preparing for Future Health Litigation: The Application of Product Liability Law to Nanotechnology.” (Keay Davidson, “Big troubles may lurk in super-tiny tech”, San Francisco Chronicle, Oct. 31)(more tech law coverage)(& welcome InstaPundit readers).

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“7th Circuit Giveth–Then Taketh Away”

Budget Rent A Car won sanctions for its adversary’s filing of a frivolous appeal, but lost its ability to recover its fees when it submitted what the court, in a Judge Posner opinion, called an “exorbitant” nine-thousand-dollar bill. (David L. Hudson Jr., ABA Journal eReport, Nov. 18). But were the fees really that exorbitant? Point of Law explores why they perhaps might not have been.

Also on Point of Law:

Read it every day.

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“Trailblazing Anti-Tobacco Litigator Agrees to Disbarment”

No need for a public accounting dept.:

In a rare case of thievery at a large New Jersey firm, tobacco litigation pioneer Alan Darnell admitted that he misappropriated money from his partners and clients at Woodbridge’s Wilentz, Goldman & Spitzer and has volunteered for disbarment.

The reporter’s description of thievery in Garden State legal circles as “rare”, in case you were wondering, turns out to mean it’s not often the lawyers are caught misappropriating their own partners’ or clients’ funds in prohibited ways.

By bowing out of the profession before the investigation was complete, Darnell saved himself and 140-lawyer Wilentz Goldman from a public airing of the details of what money he took, whom he took it from and what he did with it.

Oh, well then that’s okay. Mustn’t risk giving the general public a peek at such matters, after all.

Darnell, who was known for filing asbestos and pharmaceutical claims, “was a leading member of the Wilentz Goldman team that represented plaintiffs in mass tort and product liability cases. …Big tobacco was his biggest target.” Wilentz, Goldman & Spitzer is perhaps the state’s best-known plaintiff’s firm (one of its ads) and is also renowned for its political connections, which have brought it much lucrative state business.

The state’s Office of Attorney Ethics will also be sealing the records of its investigation of Darnell, and it doesn’t appear that there are further legal proceedings against him in the offing. Remember this story next time lawyers denounce the alleged conspiracy of silence regarding doctors’ misconduct (Henry Gottlieb, New Jersey Law Journal, Oct. 6).

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Mobile Register on silicosis scandal

The gigantic silicosis/asbestos screening scandal recently laid bare in a Texas courtroom (see Ted’s and my extensive coverage at Point of Law, also this site May 19, 2005 and — we were on to this early — Sept. 13 and Nov. 12, 2003) originated with the sworn testimony of a Mobile, Ala. radiologist last October; George Martindale’s deposition set in motion a chain of events that led federal judge Janis Graham Jack to issue a scathing 249-page court order Jun. 30 charging that 10,000 silicosis cases before her courtroom had been “manufactured for money”. Now reporter Eddie Curran of the Mobile Register, whose work we’ve saluted before, is out with an investigative piece that makes compelling reading. (Eddie Curran, “Judge torches silicosis testing”, Mobile Register, Jul. 31).

Roger Parloff also tackles the scandal at length and exceptionally well in Fortune, as usual behind a subscriber-only screen (“Diagnosing for Dollars”, Jun. 13). An opinion piece by Luke Boggs in the Atlanta Journal-Constitution (“Frivolous claims spur backlash”, Jun. 14) comments: “While sleazy lawyers have traditionally chased ambulances, attorneys in the silica case didn’t trail anyone to a medical facility. Instead, they set up their own, putting an X-ray machine and a doctor in a trailer in a restaurant parking lot. Seriously. Not only that, but the X-ray machine was owned by a real estate broker, the doctor wasn’t a radiologist, and no one had a license to take X-rays.” On the reverberations that continue to echo from the scandal in the mass-tort business nationwide, see Peter Geier, “Silica Case Seen as Breakthrough”, National Law Journal, Aug. 4, and “Breathing Down on California: Texans charge into state with sometimes shady silicosis suits”, The Recorder, Jun. 3, reprinted at Texans for Lawsuit Reform site.

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Mississippi lawyer squabble

A reader characterizes:

I admit I get a perverse pleasure when I see the sharks feeding on each other. But this is just too good. Lawyer Luckey gets caught altering dates on asbestos claims, gets fired by Scruggs for altering the dates but then has the chutzpah to demand his cut of the contingency fee loot… and the judge gives it to him! I guess no one ever thought any disciplinary actions on anyone’s part was needed or indicated.

And it’s even sillier than that: the bulk of the damages appears to be for tobacco claims the partnership financed after Luckey was kicked out in 1993, triggering twelve years of litigation. Magistrate Judge Jerry Davis of the federal court in Oxford, Mississippi, awarded $13 million plus attorneys’ fees; the parties appear to have cut a deal so that there will be no appeal. (Leesha Faulkner (!), “Scruggs slapped with $13M settlement over partnership”, Northeast Mississippi Daily Journal, Jul. 22). More on Richard “Dickie” Scruggs: Jun. 15, Apr. 30. This appears to be the culmination of the fight that resulted in subpoenas to the Mississippi Supreme Court over Scruggs’s alleged influence there; at the time, Scruggs pooh-poohed the allegations, arguing that the dispute was only worth a few thousand dollars, and therefore not something worth risking improper influence over. (Jerry Mitchell, “Attorney testifies in justice probe”, Jackson Clarion-Ledger, May 17, 2003; “Lawyer, Former Colleagues Dispute Fees”, AP/Biloxi Herald, Mar. 27, 1998). Alwyn Luckey represents approximately 1500 Mississippi silicosis plaintiffs, so his troubles may not be over. (Updated from Jul. 23 post.)

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Publicity roundup

Texas Lawyer has a well-reported and personality-filled article, unfortunately not online, detailing how the state’s plaintiffs lawyers became “in many ways…the victims of their own success”; it happened when “tort reformers, provoked by the plaintiffs bar’s hubris, particularly as it was asserted at the state Capitol in Austin, galvanized themselves over the past 15 years to topple the trial lawyers’ dominance over Texas politics.” Also a lot about asbestos-suit reform (Miriam Rozen, “Paradise Lost; Plaintiffs Bar Bemoans End of an Era as Tort Reformers Target Asbestos”, Texas Lawyer, Feb. 28, not online). A Medill News Service dispatch from last December quotes me on the subject of class action jurisdiction (Betsy Judelson, “On the Docket: Getting Out of Madison County”, Medill News Service, Dec.). And Automotive Industries, in an ambitious backgrounder on the liability explosion, mentions my Hillsdale College speech of last year (Gary Witzenburg, “Urgent Need for Tort Reform”, April).

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Also new at Point of Law

If you’re not visiting our sister site Point of Law regularly you’re missing out on an awful lot. F’rinstance: contingency-fee tax collection in Mississippi, courtesy of that state’s AG; Alan Dershowitz’s coincidental whereabouts during the Larry Summers flap; liability reform in Georgia, South Carolina and Missouri, and (on asbestos) in Texas and Florida; topical TrackBack spam pings; the “Constitution in Exile” brouhaha; overtime lawsuits; crying wolf on class action reform; pressure for cooperation in white-collar crime cases; how Westchester County, N.Y. residents subsidize wildman enviro-litigator Robert F. Kennedy, Jr. and California residents subsidize trial-lawyer front groups as well as propaganda for antitrust enforcement; jury selection in Scotland; several posts on The American Lawyer’s recent special issue, “Plaintiff’s Power”; the supposed hypocrisy of lawsuit reformers; high-tech shareholder suits; much, much more from Ted on silicosis doctors’ testimony; Mike DeBow on Ford Crown Victoria suits; and Jim Copland on the Second Circuit’s dismissal of a tobacco class action. And don’t miss Ted’s priceless story of what happened to ATLA’s own insurance company (did you really think those guys would be good at running one?).

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