Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘asbestos’

Mississippi changes venue and joinder rules

The Mississippi Supreme Court has reformed its joinder and venue rules to make both forum shopping and unfair mass tort litigation more difficult. The changes stem from a recent case where 56 plaintiffs sued 42 doctors and a drug manufacturer in Jones County, where only one of the plaintiffs resided. Mississippi state law has no provision for class actions, and judges had attempted to get around this by broad application of joinder rules. (AP, Feb. 21; Davis Brister, “Ruling Could Have Major Impact on Tort Reform”, WLBT, Feb. 20; Janssen Pharmaceutica v. Armond; rule and comment changes).

Aside from the forum shopping, such overly permissive joinder is often fundamentally unfair to defendants, who may be forced to try cases where their issues are entirely different from the central issues in the case. Pending before the Mississippi Supreme Court now is the case of 3M Company v. Johnson, where six plaintiffs with a minor lung impairment that did not restrict their activities won a $150 million judgment in rural Holmes County against 3M for allegedly defective face masks in the middle of a much larger proceeding involving many other defendants and asbestos manufacturing–even though 3M’s masks were never designed for asbestos protection, and some of the plaintiffs had no evidence that they had ever used a 3M mask. The plaintiffs did not work together; the defendants were being sued under different theories and different sets of facts, permitting the plaintiffs to introduce large amounts of evidence about manufacturers’ supposed careless marketing of asbestos-containing products that had nothing to do with 3M. (Washington Legal Foundation press release and amicus brief). Update Jan. 22, 2005: Mississippi high court throws out verdict against 3M.

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Asbestos: send in the prosecutors?

Prof. Lester Brickman of Yeshiva University’s Cardozo School of Law, a noted legal ethicist and the leading academic critic of the asbestos litigation, has a devastating new 137-page article out in the Pepperdine Law Review. His contention: mass attorney solicitation of claimants has combined with willfully unreliable medical screening and witness-coaching by law firms to generate hundreds of thousands of fundamentally fraudulent claims which are obtaining unjustified payouts in the billions and even tens of billions of dollars. The only likely catalyst for reform at this point, he argues, would be a full investigation by a grand jury armed with subpoena powers. (Stuart Taylor, Jr., Dec. 31; Paul Hampel, “Many asbestos suits are fraudulent, professor says”, St. Louis Post-Dispatch, Jan. 13). The article, not online but available to those with LEXIS access or in law libraries, is Lester Brickman, “On the Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality”, 31 Pepp. L. Rev. 33. For our coverage of asbestos, see, e.g., Nov. 12, Oct. 24, Sept. 25, and earlier posts.

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Newsweek vs. ATLA: Stuart Taylor, Jr. responds (I)

Newsweek, as is typical for a newsweekly, published only a terse editorial response (see previous post) to the litigation lobby’s concerted attack on its reporting. However, Stuart Taylor, Jr., the distinguished veteran journalist who (with Evan Thomas) was principal author of the feature, has kindly consented to let us reprint his more detailed point-by-point rebuttal to ATLA’s official gripe catalogue, published under the title “Spin or Facts? A Look Behind Newsweek’s Series ‘Lawsuit Hell’“. Because of the length of Taylor’s response, we’ve split it into two posts, the first responding to the first six points of ATLA’s critique and the second responding to the rest. Check out in particular, under heading #6, ATLA’s false (and remarkably brazen) assertion that the Tillinghast study’s $233 billion estimate of the cost of the liability insurance sector includes “the cost of the entire property/casualty insurance industry” and in particular the cost of hurricanes and similar damage. (It doesn’t.)

Read On…

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The Lawsuits of Madison County

In 2002, Madison County (Dec. 3, Oct. 7, etc.)–where juries and judges are notorious for finding liability where no other courts will–led the nation in class actions per capita when there were 77 filed in the state courts there. In 2003, the number of class actions filed in Madison County rose to 106. The number was three as recently as 1998. (Brian Brueggeman, “Class-action lawsuits set a record”, Belleville News-Democrat, Jan. 2; Sanford J. Schmidt, “Debate renews in wake of record class action filings”, Alton Telegraph, Jan. 4; Michael Bobelian, “Congress Eyeing Major Reforms Of Class Actions”, New York Lawyer, Jan. 5).

One example of the forum shopping is a 2003 asbestos case of Whittington v. U.S. Steel. The plaintiff claimed to have been injured as a result of exposure to asbestos on the job in Gary, Indiana, and sued his former employer, U.S. Steel. A plaintiff-friendly judge let a legally frivolous argument against application of workers compensation laws go to the jury–which appears to be the first time a tort suit against an employer for asbestos exposure was permitted to get to a jury. The jury, on flimsy evidence that the asbestos exposure occurred at U.S. Steel or that U.S. Steel was negligent (helped by a ruling precluding U.S. Steel from showing the safety measures they had employees take), awarded $50 million in damages and $200 million in punitives. “I could hardly write it down,” the jury foreman said. “I’ve never seen numbers that big.” The size of the award, compounding at 9% interest, caused U.S. Steel to decide to settle for a fraction of that amount rather than take their chance with an appeal. (Paul D. Boynton, “$250 Million Asbestos Verdict Awarded Against U.S. Steel”, Lawyers Weekly USA, 2004; Peter Page, “Asbestos Exposure Cases Draw Big Awards”, National Law Journal, Apr. 10, 2003; Brian Brueggemann, “Man awarded $250 million in cancer case”, Belleville News-Democrat, Mar. 29, 2003).

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How do your holiday parties compare?

Attorney Willie Gary, frequently mentioned in this space (see Apr. 1-2, 2002 and links from there) sent out 275,000 invitations this year to his annual holiday party in Stuart, Fla., a fabulous bash that has been called South Florida’s premiere party; tens of thousands attended (Tyler Treadway, “Liberally distributed, invitations to Gary festival more elaborate each” (sic), TCPalm.com (Scripps newspapers), Dec. 11; “Thousands take part in Gary’s holiday fete”, Dec. 13). Gary had an extra reason to celebrate this year, because a jury on Dec. 12 awarded $18 million to one of his clients, a road builder who said he was defamed by an investigative-journalism piece in the Gannett chain’s Pensacola News-Journal (see Mar. 30, 2001). (“Florida jury awards $18 million to road builder”, AP/First Amendment Center, Dec. 16). (More on case: Jan. 7; appeals court reverses, Oct. 25, 2006)

In Houston, meanwhile, trial lawyer W. Mark Lanier expects 5,000 holiday attendees at his 25-acre estate for what he bills as the “best party in the world”, now in its twelfth year. Lanier, who is noted for buying asbestos items on eBay and in 1998 won a $115 million verdict for 21 plaintiffs in an asbestos case, hired Bill Cosby to entertain the crowd this year; previous years’ talent have included Barry Manilow, Crosby, Stills, and Nash, Diana Ross, and the Dixie Chicks. (Jonathan D. Glater, “Houston Holiday: Barbecue, Al Green and 5,000 Guests”, New York Times, Dec. 15)(fee archive) Incidentally, the Times also reports the following: “‘I support tort reform that gets rid of the garbage cases,’ said Mr. Lanier, who is a Republican. ‘I do not support the medical malpractice reform because I think it hurts the good cases and doesn’t do anything to restrict the garbage cases.'”

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Cost of U.S. liability sector in 2002: $233 billion

“The U.S. tort system cost $233 billion in 2002, a $27.4 billion increase over 2001, representing the largest dollar increase in U.S. history. Current costs translate into $809 per U.S. citizen, $87 more than in 2001 and $797 more than in 1950.” So say the people at Tillinghast Towers Perrin, who’ve issued the newest update to their widely followed series of estimates of the size of the liability insurance sector of the U.S. economy. Liabilities tied to asbestos payouts jumped to $11 billion, double the level of just two years earlier, and medical malpractice, class actions and shareholder suits all exerted upward pressure on the totals. Less than 50 cents on the dollar of these costs were returned to claimants, and only 22 cents went to compensate actual economic losses, the report says. “Tort costs increased by a total of 30% in the last two years — the largest two-year increase since 1986/1987.” (“U.S. Tort Costs Climbed to Record $233 Billion in 2002, According to Tillinghast Study”, Dec. 10, executive summary (PDF).

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Trying too few cases = legal malpractice?

Two legal malpractice lawsuits against the Madison County, Ill. firm of Goldenberg, Miller, Heller and Antognoli claim that the firm settled injury cases for too small a sum and in particular allege that it lacked credibility among defense counsel because it too seldom took cases to trial. Although the Goldenberg firm was one of two major plaintiff’s firms handling asbestos claims in Madison County, for example, one rival lawyer contends that it had not taken an asbestos case to trial in ten years. (Paul Hampel, “Madison County law firm is sued again”, St. Louis Post Dispatch, Nov. 29, via Lori Patel, Law.com). The article is noteworthy for the way it sheds light on longtime feuds among plaintiff’s lawyers in the notorious county (see Dec. 3 and many others).

The case also draws comment (Dec.3) from David Giacalone, who we are delighted to say has resumed limited posting at his website. Giacalone has further information about the tale (see Jun. 17-18, 2002) of Rochester, N.Y. attorney Jim (“The Hammer”) Shapiro, who advertised that “I want to get YOU the biggest, fattest cash award I can, as fast as I can, from as many defendants as I can find. Just call me! Day or night, I’ll talk to you free.” but who later admitted in a deposition that he lived in Florida and had never tried a case. See Jeff Williams, “Lawyer ads get loud”, PrairieLaw, undated.

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Madison County: “We’re number one!”

When word arrived that the American Tort Reform Association had named Madison County, Ill. (Oct. 7, Jul. 12, etc.) the worst of its “judicial hellholes” nationwide (Nov. 20) and the least fair in according due process to accused defendants, “Randy Bono, a plaintiffs’ attorney with The Simmons Firm in East Alton, led a group of lawyers in his office in a mock cheer of the announcement Wednesday afternoon. ‘We’re number one! We’re number one!’ chanted the lawyers, who were preparing for asbestos lawsuit trials next week.” (Paul Hampel, “Report rips Madison County as top ‘judicial hellhole'”, St. Louis Post-Dispatch, Nov. 6). More on Madison County: David Bailey, “Illinois county court a corporate ‘hellhole'”, Reuters/Forbes, Oct. 5; Jon Sawyer and Eric Morath, “Senate debate on class actions spotlights Madison County”, St. Louis Post-Dispatch, Oct. 21 (county is a place “near and dear to me”, says Sen. Dick Durbin — we’ll bet).

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Silica lawsuits: castles from sand

Mississippi is far outpacing the rest of the country in silica litigation (see Sept. 13): “More than 17,000 plaintiffs in this state have sued U.S. Silica, a leading producer of silica sand, for allegedly causing them to develop an incurable lung disease.” One lawsuit filed at the courthouse in Macon, Miss. “was filed by 4,200 plaintiffs, close to double the 2,461 residents in this Noxubee County town.” Less than one percent of the plaintiffs are actually from Mississippi, the others having been brought there by their lawyers to sue. Critics say law firms are using mass solicitation and screening techniques to recruit thousands of claimants with no actual disability, as was done earlier with asbestos. One silica plaintiff, “62-year-old Noah Myers Bufkin of Lucedale, said he was diagnosed in a mass screening as having silicosis, although he can’t say for sure he has any symptoms. …The same screening company diagnosed him as having asbestosis seven or eight years ago, he said. He estimates he has received about $10,000 from that suit. …. He doesn’t know of any symptoms he’s suffering from silicosis or asbestosis. ‘I’m saving up in case I do have a problem,’ he said. ‘For a poor fella like me, every little bit helps.'” (Jerry Mitchell, “Silica suits latest to hit Miss. courts”, Jackson Clarion-Ledger, Oct. 19).

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