March 25, 2019

Implants 'as dangerous as asbestos'

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Implants 'as dangerous as asbestos'

Manufacturer's Lonely Quest To Open Asbestos Claims Files Gains Strength

The American philosopher William James once observed that real scientific breakthroughs are achieved by “the born geniuses” who “let themselves be worried and fascinated” by exceptions to widely held theories about how the world works. They chase down explanations, he said, until the conventional wisdom is upset.

Something similar may be happening with asbestos litigation. A manufacturer’s stubborn crusade to open up the records of thousands of claims in asbestos cases has drawn the support of big names like Ford and Aetna, as they join in the effort to uncover evidence that lawyers have been gaming the multibillion-dollar system with conflicting stories about how their clients got sick.

The evidence is all there, in hundreds of thousands of claim forms and lawsuits filed by people seeking tens of billions of dollars for asbestos-related diseases. But plaintiff lawyers have mounted a fierce effort to keep most of those records sealed, in defiance of the normal presumption that court proceedings should be open to the public.

A bankruptcy judge in Charlotte, N.C. today is scheduled to hear arguments on motions by Aetna, Ford, Volkswagen, Honeywell and other companies to make public evidence Garlock Sealing Technologies uncovered in its bankruptcy. (Legal Newsline, a publication funded by the U.S. Chamber Institute for Legal Reform, has a similar case on appeal in federal court.)

In a January ruling, U.S. Bankruptcy Judge George R. Hodges slashed the asbestos liability of Garlock, an EnPro Industries unit, by $1 billion to to $125 million, citing evidence that lawyers had withheld information about their clients’ exposure to other asbestos products in order to pry larger settlements from Garlock.

(Photo credit: jasleen_kaur)

Ford, in a filing earlier this month, said Hodge’s “findings of widespread and demonstrable misconduct by asbestos claimants” and their attorneys suggest there’s valuable evidence in the sealed files that the automaker could use to defend itself. Volkswagen, in a filing earlier this week, said “it is nearly impossible for asbestos defendants to uncover the type of misrepresentation exposed in this proceeding without judicial intervention.”

If the companies are successful, they might finally unravel a pattern of misrepresentation in asbestos litigation that has cost companies billions of dollars and driven many of them into bankruptcy. Defense lawyers say the asbestos-lawsuit business is built upon the secrecy of plaintiff records, since only the lawyers representing asbestos claimants know all the different stories they’ve told in legal proceedings against different companies. (For one egregious example, see my story from 2006.) If those stories can be pulled together into a single file – as a Texas judge a few years ago did to uncover a massive fraud involving silicosis claims – then companies might have a better shot at limiting payouts to people who have already collected for their disease.

All the companies are seeking Rule 2019 filings, so named after the provision of the federal bankruptcy code that requires lawyers to identify clients who have claims against a bankrupt company. They say they need the 2019s to match up people who filed prior asbestos claims against lists of people suing them, so they can uncover evidence those plaintiffs had told conflicting stories about how they got sick.

This is a standard defense in tort law, which requires plaintiffs to prove that a company’s products were a “substantial factor” in causing their illness. As companies that made clearly dangerous products like asbestos pipe insulation have gone bankrupt, plaintiff lawyers have targeted companies like Garlock and Ford who sold products such as gaskets and brake pads that are unlikely to have made anyone sick. To help their clients win, they advise them to remember working only with the products of the company they are suing, even if they have previously made equally exclusive claims against other companies.

Normally 2019 filings are public like any other judicial record, but asbestos lawyers in the early 2000s convinced judges to seal their filings for a variety of reasons. Chief among them: The records might reveal confidential “commercial information,” such as fee arrangements, that would hurt their business. Not only would potential clients be able to play one law firm off against another for lower fees, but the records might reveal fee-splitting arrangements that violate ethics rules in most states. Lawyers are not supposed to get fees for referring clients unless they do significant legal work on the case, but the practice is common in the industry where lawyers draw in clients with TV and Internet ads and then hand them off to firms that focus on litigation and settlement.

The lawyers also said the filings contained confidential medical information, but that argument is undermined by the fact they freely supplied the information for years before seeking to seal 2019 records, and plaintiffs must make all the same information public when they sue.

“A lot of firms simply responded” by filing public 2019 forms with medical information in the early days, said S. Todd Brown, an associate professor at State University of New York Buffalo Law School and expert on asbestos bankruptcy trusts. “It wasn’t until later, after the litigation really got into full swing, that the current approach (of sealing records) became more common. Now everything is filed under seal and you have to jump through a bunch of hoops to get access to it.”

The plaintiff lawyers had an ally in Judge Judith Fitzgerald, since retired to private practice, who oversaw a number of high-profile bankruptcies including Pittsburgh Corning, Armstrong World Industries, Federal-Mogul and Combustion Engineering. She allowed the lawyers to submit their 2019 filings on CDs, to be held by the court and released only on a judge’s order.

Not many people asked for the records until Garlock was driven into bankruptcy in 2010 by the escalating demands of asbestos plaintiff lawyers. The company had been settling asbestos claims for small amounts for years because its products contained a type of asbestos believed to be 1/1000th as dangerous as the long-fiber amphibole asbestos in insulation, and it was sealed in plastic. A plaintiff who took such a case to trial would have a hard time establishing the legal level of proof to win any damages. The Sixth Circuit Court of Appeals threw out a $500,000 jury verdict against Garlock on this basis in 2011, saying that to blame a pipefitter’s mesothelioma on Garlock gaskets would “be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean’s volume.”

As solvent defendants went bankrupt, however, plaintiff lawyers started targeting companies like Garlock and demanding far more money to settle claims than they had before. Garlock’s attorneys figured their best defense might be to obtain evidence of other exposures, which would be contained in the 2019 filings and related paperwork filed with trusts bankrupt companies established to pay asbestos claims. But they hit a brick wall.


Manufacturer's Lonely Quest To Open Asbestos Claims Files Gains Strength

Ford Seeks Garlock Bankruptcy Information To Fight Its Own Asbestos Suits

Ford Motor Ford Motor Co. has filed a motion to unseal the records in the Garlock bankruptcy case, hoping to obtain evidence it needs to derail asbestos lawsuits against itself.

In a motion and accompanying memorandum of law filed with the federal bankruptcy court in Charlotte, N.C. late Friday, Ford is seeking access to sealed testimony and exhibits that Judge George R. Hodges relied upon to conclude that plaintiff lawyers had withheld evidence their clients had made conflicting statements about their asbestos exposure to different courts and bankruptcy trusts set up to pay claimants.

Ford, like many manufacturers, has been named in thousands of lawsuits as plaintiff lawyers mount an aggressive search for solvent defendants to sue, after most of the companies that made and sold dangerous asbestos products like pipe insulation have filed for bankruptcy protection to settle claims. Plaintiff lawyers target car manufacturers because they sold vehicles with brake pads containing asbestos. Epidemiological studies have failed to show that car mechanics have higher levels of mesothelioma, the cancer most closely associated with asbestos exposure, so Ford has an interest in showing that plaintiffs suing it for such cancers have claimed exposure to more dangerous substances elsewhere.

In his January ruling slashing Garlock’s asbest0s-related liabilities to $125 million, Hodges cited the results of an examination of 15 plaintiff files which found that lawyers had withheld potentially important evidence of asbestos exposure from each of them. The judge stopped just short of calling the activity fraudulent, but said the process “was infected by the manipulation of exposure evidence by plaintiffs and their lawyers.”

Such manipulation is possible because plaintiff lawyers largely control the trusts asbestos manufacturers set up to pay claims, and those lawyers have maintained a system of confidentiality that allows them to tap numerous trusts, often with conflicting stories about how their clients got sick, without fear of having anybody match those claims up against each other. The secrecy also allows them to file lawsuits against solvent companies first and negotiate larger settlements than they otherwise might obtain by failing to acknowledge the more serious exposures their clients will later allege against the bankruptcy trusts.

In the memorandum, Ford says it has been a co-defendant with Garlock, which made asbestos-containing gaskets, in numerous lawsuits. It said it suspects it has been induced to pay out more than it should “in reliance upon similar misrepresentations of asbestos exposures and asbestos trust claims.” It said it believes there is evidence it can use to defend itself among the files of thousands of claimants in the Garlock bankruptcy.

By court order, the statements of those plaintiffs include their law firm, address and partial Social Security numbers, Ford said, information it could use to match up against plaintiffs suing it for asbestos exposure. Lawyers have managed to keep such records secret, citing the privacy of health records. But they also began requesting secrecy in the early 2000s after judges started concentrating thousands of cases in a single court, making it easier to expose unethical fee-splitting arrangements and other practices they’d prefer to keep out of the eyes of the public.

In its filing, Ford said the company, “like everyone else, enjoys a presumptive right to inspect judicial records, or documents filed in the Nation’s courts to adjudicate rights.” Since public access is presumed, the company said, it’s the burden of the plaintiffs to show why the records should remain sealed. Concerns about privacy and identity theft “may be preserved by more reasonable, less restrictive measures.”

Reuters reported last month that Ford cited Hodge’s ruling in another, unrelated case in North Carolina. And health insurers including Humana Humana, Aetna Aetna and Blue Cross have filed motions in Philadelphia and New York seeking the records of bankruptcy trusts so they try and recover money they’ve spent treating diseases plaintiffs blame on asbestos exposure.

If Ford is successful, it may help undermine a strategy that has allowed lawyers to earn billions of dollars in fees by suing multiple companies over asbestos exposure with often conflicting stories about how their clients got sick. While some scientists argue in court that even one stray asbestos fiber can cause cancer, most epidemiological studies have found that continuous, heavy exposure to long-fiber amphibole asbestos is necessary to develop asbestosis and mesothelioma.

In order to prevail in court — or to make a legal argument sufficient to obtain a large settlement — plaintiffs must show the company they are suing was the most likely cause of their illness. So it is important to defendants like Ford, whose products have little or no connection to asbestos disease, to be able to show that the person suing them has previously claimed exposure to more potent compounds.

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Ford Seeks Garlock Bankruptcy Information To Fight Its Own Asbestos Suits

The Asbestos Scam

In May, Carolyn McCarthy, a nine-term congresswoman from Long Island, was diagnosed with lung cancer. Her treatment began almost immediately, causing her to take a lengthy absence from her office while she fought the disease. At the same time, McCarthy, 69, ended a pack-a-day cigarette habit that she’d had for most of her life, presumably because she understood the link between cigarette-smoking and lung cancer. Scientists estimate that smoking plays a role in 90 percent of lung cancer deaths.

“Since my diagnosis with lung cancer,” she wrote in a recent legal filing, “I have had mental and emotional distress and inconvenience. I am fearful of death.” She added, “My asbestos-related condition has disrupted my life, limiting me in my everyday activities and interfering with living a normal life.”


Yes, that’s right. It’s hard these days for smokers to sue tobacco companies because everyone knows the dangers of cigarettes. Instead, McCarthy has become part of a growing trend: lung cancer victims who are suing companies that once used asbestos.

With asbestos litigation well into its fourth decade — the longest-running mass tort in American history — you’d think the plaintiffs’ bar would have run out of asbestos companies to sue. After all, asbestos lawsuits have bankrupted more than 100 companies. Yet McCarthy has found more than 70 additional companies to sue, including General Electric and Pfizer. Asbestos litigation, says Lester Brickman, a professor at Yeshiva University and perhaps the most vocal critic of asbestos lawsuits, “is a constant search for viable defendants.” Because asbestos was once such a ubiquitous product, there is always somebody else to sue.

Let me stipulate right here that exposure to asbestos can be deadly. The worst illness it causes is mesothelioma, a rare form of cancer that essentially suffocates its victims to death. If it were only the real victims of asbestos-related diseases who sued, there would be no issue. That’s how the tort system is supposed to work.

But, over the years, plaintiffs’ lawyers have brought tens of thousands of bogus cases. They took doctors on their payroll to industrial sites, where all the employees would be screened for signs of an asbestos-related disease. They found some real cases, of course — along with many that could never have stood up in court. Nonetheless, by bundling real cases with phony ones — and filing giant lawsuits — they took down one company after another.

The bankrupt company would then put money aside in a trust that would parcel out payments to asbestos victims. The trusts have billions of dollars to disburse and are largely controlled by the plaintiffs’ lawyers. It is a compensation system that runs alongside the tort system.

Eventually, the judiciary got tired of dealing with all the “nonmalignant” cases, as they are called, relegating them to the trusts. At that point, the lawyers mainly handled mesothelioma cases, of which there were some 2,500 a year, and which could generate large payments — usually between $500,000 to $5 million.

But, soon enough, the asbestos lawyers came up with a new tactic: finding lung cancer victims who had some exposure to asbestos. All of a sudden, lung cancer cases exploded in volume. “There is nothing new in the science to suggest an upsurge in cases,” says Peter Kelso, an asbestos expert with Bates White Economic Consulting. “It is just basically due to economic incentives.” That is, by bundling lung cancer cases with other cases, the plaintiffs’ lawyers could bring a new set of companies to heel. For many companies, it is cheaper to settle than fight.

Which brings us back to Congresswoman McCarthy. Her claim for “asbestos exposure” is that when she was young, her father and her brother worked as boiler makers, and she came into contact with asbestos dust because they all lived under the same roof. Plus, she says in her legal filing, she “visited and picked up my father and brother at the various work sites, including Navy Yards, Bridges, Hospitals, Schools, Powerhouses, and other sites where I breathed the asbestos dust.”

Her lawyer at Weitz & Luxenberg — which has feasted for decades on asbestos lawsuits — told The New York Post that “it has been conclusively proven that cigarette smoking and asbestos exposure act synergistically to cause lung cancer.” Actually, it hasn’t been: There are plenty of studies saying there is no synergy at all. At best, the science is muddled.

Not that that matters. No doubt McCarthy’s lawsuit will be bundled by her law firm with other cases to force a company that had nothing to do with her disease to pay up. I hope McCarthy wins her battle with lung cancer. It is an awful disease. But the right thing for her to do is drop this lawsuit. All it has really accomplished is showing how asbestos litigation is a giant scam.


The Asbestos Scam

Asbestos linked to renovation boom

QUEENSLAND’S ombudsman has recommended a new department be set up to handle the problem of asbestos.

It comes as the state braces for an increase in asbestos-related diseases linked to the home-renovation boom.

A report tabled in State Parliament yesterday said any buildings built before 1990 in Queensland could contain asbestos but there was a lack of co-ordination and understanding about how to deal with it.

In one case outlined in the report, a woman who called her council about asbestos on a neighbour’s property in September 2011, received no response until her lawyer got involved six weeks later.

After more to-ing and fro-ing between agencies, resulting in a Workplace Health and Safety investigation, the distressed woman sold up and moved.

Ombudsman Phil Clarke identified confusion with housefire-related asbestos issues, including which agency was responsible for removing the material from neighbouring properties and who should pay for the clean-up.

The report highlighted a case at Maroochydore, in which a vacant, unfenced house with asbestos roof and fibro walls was severely damaged by fire.

Despite talks between Workplace Health and Safety, council and Queensland Health, no one could agree who was responsible for the Maroochydore site.

It took over a month for a fence to be erected, during which time members of the public – including children – entered the property and were potentially exposed to asbestos.

If breathed into the lungs, airborne asbestos fibres can cause asbestosis, lung, larynx and ovarian cancer, mesothelioma and other diseases affecting the linings around the lungs and stomach.

Asbestos-related diseases can take between 10 and 40 years to develop, and were responsible for 640 deaths in Australia in 2010.

The report said incidents of mesothelioma were expected to peak between 2013 and 2021.

“An increase in future incidences of mesothelioma from non-occupational exposure from home renovation has also been predicted,” the report noted.

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Asbestos linked to renovation boom