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December 13, 2018

Asbestos firms ready to fight Silver’s ‘slanted legal system’

Now that disgraced former Assembly Speaker Sheldon Silver is out of power, asbestos defense lawyers are revolting against what they say is a slanted legal system.

Silver, who had ties to the mesothelioma-suit firm Weitz & Luxenberg, was accused of using his clout to stack the odds for plaintiffs.

A group of 45 law firms that represent companies defending against asbestos lawsuits asked Administrative Judge Peter Moulton this week to put a 60-day moratorium on any pending and new cases to consider their gripes over Silver’s alleged influence.

Moulton replaced Justice Sherry Heitler as head of a special section of Manhattan Supreme Court called NYCAL, or New York City Asbestos Litigation, last month.

Under her tenure, Heitler, at the request of Weitz & Luxenberg, last year lifted a 20-year rule that barred punitive damages in asbestos cases — paving the way for jackpot jury settlements and verdicts.

The court also fast-tracked plaintiffs’ asbestos cases over other civil matters, the defense lawyers said.

Weitz handles more than half the asbestos cases in Manhattan. It won $273.4 million the last four years.

Excerpt from: 

Asbestos firms ready to fight Silver’s ‘slanted legal system’

Silver’s law firm rakes in cash as asbestos court fast-tracks claims

Sheldon Silver has perverted the courts as well as the Capitol.

His law firm, Weitz & Luxenberg, gets its asbestos cases — and paydays — moved more quickly than those of other attorneys, and reaps a fortune from favorable rulings by friendly judges, charge lawyers and tort-reform advocates.

Silver’s East Village firm handles more than half the cases in a special section of Manhattan Supreme Court called NYCAL (New York City Asbestos Litigation). So dominant is the firm, the court’s Web site refers to cases as “Weitz” or “non-Weitz.”

The chief asbestos judge, Sherry Klein Heitler — also Manhattan’s chief civil judge — has handled dozens of Weitz & Luxenberg cases.

“They’ve taken over a section of the courthouse, and the people in charge of the courthouse run it for them,” said a disgusted lawyer who files personal-injury cases in Manhattan. “It pours money into the firm.”

The firm told investigators it hired Silver, who has no experience in asbestos cases, in 2002, because it hoped to “increase the firm’s prestige and perceived power,” according to last week’s federal indictment charging Silver raked in about $4 million in bribes and kickbacks.

That perceived power has paid off, critics say.

Last year, at Weitz & Luxenberg’s request, Heitler reversed a 20-year rule barring punitive damages in asbestos cases, paving the way for much bigger jury awards and putting pressure on defendants to settle.

Another judge, Joan Madden, consolidated unrelated asbestos cases. Joining up to seven plaintiffs has resulted in huge increases in NYCAL jury verdicts — from an average of $7 million to $24 million per plaintiff between 2010 and 2014, data collected by Bates White Economic Consulting show.

Last year, Weitz & Luxenberg won a record $190 million in a consolidated trial for five mesothelioma victims who worked in different jobs for different employers.

Of 15 mesothelioma verdicts in the last four years, Silver’s firm won $273.5 million of $313.5 million awarded by NYCAL juries. Law firms usually take a third.

The average award for a NYCAL asbestos case — nearly $16 million per plaintiff between 2010 and 2014 — is two to three times larger than those in other courts nationwide, Bates White reported last month at an asbestos law conference in New York.

Conference speakers included Heitler, Madden and Perry Weitz, Silver’s law partner and a founder of Weitz & Luxenberg.

Last month, the American Tort Reform Association branded NYCAL the nation’s top “judicial hellhole,” saying it’s rife with plaintiff attorneys “brazenly favored by the judges.”

The group largely blames Silver, who not only has killed any tort reform, such as efforts to limit claims and cap damages, in Albany, but wields enormous power over the judiciary.

“Imagine you’re a judge and you know the person in front of you litigating in asbestos court is also responsible in some way for your career,” said Tom Stebbins, a spokesman for the New York Lawsuit Reform Alliance, which also faults Silver.

As Assembly speaker since 1994, Silver names one of 13 members to a state judicial screening committee. The panel recommends candidates for the governor’s appointment to the Court of Claims and Appellate Division and other judge vacancies.

In 2008, Silver named his law partner and another Weitz & Luxenberg founder, Arthur Luxenberg, to the committee, ignoring the blatant conflict of interest.

Silver also plays a key role, along with Gov. Cuomo and the state Senate majority leader, in negotiating the judiciary’s budget. In 2011, Silver’s appointee to a seven-member state commission cast the deciding vote to give all state judges a 27 percent pay hike.

As one of the state’s most powerful Democrats, Silver also strongly influences his party’s nomination of candidates for judgeships in Manhattan and elsewhere. Heitler and Madden are both Democrats, and both first ran for the bench during Silver’s tenure as speaker.

“He has a hand in judicial appointments, and judges know not to bite the hand that feeds them,” said Mark Behrens, a DC attorney who advocates for asbestos-litigation reform for defendants.

To top all that, Silver and New York’s Chief Judge Jonathan Lippman are boyhood chums from the Lower East Side.

Lippman, who has been the chief administrative judge for all New York state courts since 2009, can assign judges to top administrative positions and plum posts.

Heitler was promoted to Manhattan’s chief administrative judge in 2009, a post she holds in addition to running asbestos court.

Sources say Weitz & Luxenberg gets the “red-carpet treatment” in Manhattan, including “more experienced and better judges” in the asbestos court.

One lawyer said he recently showed up to start a trial.

“In walked the Weitz & Luxenberg lawyers,” he said. The entire pool of 150 potential jurors was herded into their courtrooms.

“A jury clerk told us, ‘The asbestos cases are taking priority. You have to wait,’ ” the lawyer recalled, griping that his trial was delayed four days until another batch of jurors became available.

“All the other lawyers — and their clients — are getting screwed,” he said.

State courts spokesman David Bookstaver said Friday that he could not reach anyone to explain the alleged jury hogging.

Weitz & Luxenberg filed 53 percent of the NYCAL mesothelioma cases and 74 percent of the lung-cancer cases from 2011 to 2013, Bates White found.

Besides the landmark $190 million award, the firm last June won $25 million for two workers exposed to asbestos insulation, and $20 million for the family of a former ship fitter who died.

The indictment says Silver pocketed $5.3 million from Weitz & Luxenberg without ever doing legal work — as he was paid a yearly salary of $120,000 (for a total $1.4 million since 2002) and $3.9 million in “referral fees.”

Silver allegedly drummed up plaintiffs — and referral fees — by having Columbia University Medical Center cancer researcher Dr. Robert Taub funnel mesothelioma patients to the firm.

In return, Silver allegedly steered $500,000 in taxpayer-funded grants to Taub and $25,000 in state funds to a nonprofit employing Taub’s wife and a helped find a job for Taub’s son at a different nonprofit.

Dr. Taub has been fired.

Additional reporting by Isabel Vincent

See the article here – 

Silver’s law firm rakes in cash as asbestos court fast-tracks claims

Tips on painting an asbestos ceiling

QUESTION: Our house was built in the early 1970s and has popcorn textured ceilings. The ceilings have been painted. I know the ceilings might contain asbestos, but how do I clean the cobwebs that have collected on them? I am afraid of disturbing the asbestos. — J. Tracy

ANSWER: You are correct that the ceilings might contain asbestos. Popcorn textured ceilings with asbestos were sprayed on the ceilings of countless homes and apartment buildings in the 1960s and 1970s. Asbestos was banned in 1978, but any ceiling installed prior to about 1980 should be suspect.

Your first step should be to test one of the ceilings to make sure you do have an asbestos problem. It is best to have testing done by a certified professional, but you can also buy an asbestos test kit at some home centers or on the Internet; instructions for taking a sample and sending it to the laboratory are included.

If the popcorn tests positive for asbestos, you have a bigger problem than cobwebs, but more about that later.

It must be stressed that there is no way to guarantee absolute safety in tampering in any way with asbestos; you must be the judge of whether your ceilings are firm and stable enough to attempt cleaning. The paint might add some stability.

If these were my ceilings and I felt the popcorn was firm and stable enough, I’d get a stepladder, a spray bottle that produces a fine mist of water, and a paint brush about three inches wide with very soft bristles. I’d mist the area around a cobweb (damp popcorn is less likely to flake) and very gently and carefully try to remove the cobweb with the brush, touching the cobweb only and not the ceiling.

I would also wear a good dust mask, preferably a respirator-type mask, eye protection, a head covering, and immediately wash the clothes I wore after removing the cobwebs. If the popcorn showed any signs of crumbling or flaking, I’d stop at once.

You might get suggestions from some sources to use a brush attachment on a wet-dry vacuum cleaner, but I don’t recommend this; these vacuums suck in dirt, but spew some particles into the air while doing it.

But the bottom line isn’t just removing cobwebs. If you plan to sell the house at some point, the popcorn ceilings will be a major drawback. Removal by accredited experts would be very expensive and is not recommended except as a last resort if the popcorn is damaged (the Environmental Protection Agency says the best way to treat asbestos-containing materials in good condition is to leave them alone).

Some asbestos materials can be encapsulated or covered up, but this is difficult with popcorn ceilings because almost any treatment, such as covering with a layer of drywall, is likely to be a health hazard by causing the popcorn to break up and put particles in the air.

One possibility is suspended ceilings, which consist of large removable tiles in a metal grid below the existing ceiling. But the popcorn would still be there and you would need to disclose its presence at sale, although it should solve your cleaning problems and make the rooms more attractive.

Painting is not considered a good option, but some people paint anyway. If paint is used, it should be oil-based and applied with a low-pressure (HVLP) sprayer. Latex paint applied with a roller can cause popcorn to loosen and fall off.

QUESTION: There are some fairly large cracks in my concrete driveway. I think I know how to repair them, but I’d like to make the patches blend into the rest of the driveway. Is there some way to give the patching cement a darker color so it looks old? — M. Silver

ANSWER: Quikrete, a maker of concrete products sold at many home centers, has a line of liquid dyes that can be used to color concrete.

The dyes are sold in 10-ounce bottles, and one of the colors is charcoal. With some experimenting, you should be able to use this to approximate the appearance of your driveway.

You might be able to buy the dye at a home center near you, or you can search the Internet with the words Quikrete Concrete Colors to find a source. The dye is mixed with the water used to prepare the patching material.

E-mail Gene Austin at gaus17@aol.com. Send regular mail for Gene Austin to 1730 Blue Bell Pike, Blue Bell, PA 19422.

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Tips on painting an asbestos ceiling