May 21, 2012
Louisiana asbestos litigation bill to be heard
From the Louisiana Record
BATON ROUGE – A bill that would change the discovery process in asbestos litigation is scheduled to be heard in a state Senate committee tomorrow.
House Bill 477, an asbestos bankruptcy trust bill, would require plaintiffs in asbestos exposure lawsuits to provide a list of all potential defendants during the discovery process.
Proponents of the change say it will keep plaintiffs from recovering twice for the same injury.
“One of the trends we have seen in asbestos litigation all over the country is plaintiff’s attorneys who are abusing the system because of a lack of transparency between these bankruptcy trusts and our court systems,” said Melissa Landry, executive director of Louisiana Lawsuit Abuse Watch.
The issue lies in the distinction between lawsuits and claims against bankruptcy trusts. Former asbestos producers who were forced out of business due to the proliferation of asbestos-related suits were liquidated and their remaining assets put into trusts that regularly pay out damages to those suffering from asbestosis and mesthelioma.
Mark Behrens, an attorney and expert in asbestos litigation with Shook, Hardy and Bacon in Washington, D.C., said there is no communication between trusts and the torts system. Behrens said the change would help give juries a better picture of damage recovery.
“When you can’t tell what claims are being made you can’t tell whether the plaintiff is making a false claim or an exaggerated claim,” said Behrens. “So there is a problem there in the lack of transparency that would allow an unscrupulous plaintiff to file a false claim knowing that they probably can’t get caught in a lie. Also, in the tort system, what plaintiff’s lawyers do is game the system by filing their torts claims first and then wait until the torts case is resolved before they file those trusts claims.”
Deb Kuchler, who provides defense in asbestos cases for New Orleans-based Kuchler, Polk, Schell, Weiner and Richeson, said the change would provide a better picture of how claims are being paid out and whether those claims are being paid out proportionately.
“A defendant who might be 1 percent at fault might have to pay 20 percent of the verdict because there may be only five defendants left,” Kulcher said. “So we’d like to give the jury a more complete picture of what the real exposure was.”
In the end Kulcher said the change would likely tighten up the way damages are awarded in asbestos cases.
“One of the goals is to try and prevent multiple recoveries for the same claim,” Kulcher said. “The second goal is to have full disclosure of the underlying facts of exposure.”
HB477 passed the House unanimously. If it passes the Senate and is signed by the governor it would be the first legislation of its kind in the country.