Segal McCambridge Legal Blog

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.

Law.com is reporting that Baron & Budd and Cozen O’Connor Score Assignments in BP Oil Spill Litigation

From the story:

“Burton LeBlanc of Baron & Budd announced Friday that Louisiana attorney general James “Buddy” Caldwell has hired him and his firm to advise the state on damages it’s owed from the spill. LeBlanc, a former president of the Louisiana Trial Lawyers Association who is based in Baton Rouge, said Baron & Budd has a “tremendous familiarity with the ecology of the Louisiana coast.” (The Dallas-based firm apparently gained that tremendous familiarity when it acquired LeBlanc’s former firm, LeBlanc & Waddell, in 2008.)

Jindal has not always followed Republican orthodoxy when it comes to trial lawyers. According to Fisher, Jindal supported an effort to reverse a Louisiana law limited state contingency fee deals with outside lawyers. But that doesn't explain the state's hiring of Baron & Budd, which still gives heavily to Democrats. According to the AP, Jindal brushed aside questions about Baron & Budd’s hiring.

“I don’t care–to me it’s not about partisan politics,” Jindal said. “I don’t care if it’s a Democratic firm, Republican firm. The trustee agencies [and] the AG’s office looked across the country. They have found experts, they have found advocates that are the nation’s best. Certainly it is a positive thing that they’ve been able to identify some firms that have Louisiana roots, that have Louisiana connections, that know this coast, that know these wetlands. At the end of the day, this is all about being aggressive about defending our coast.”

LeBlanc said that Baron & Budd is already working to assess the damage Louisiana endured as a result of the spill. He said that after the assessment, he will present the state’s damages case to BP, specifying claims under federal and state laws. If the parties are unable to come to a resolution, he said, the state could pursue litigation.

In other oil spill litigation news, the BP victims compensation fund has hired Stephen Cozen of Cozen O’Connor. According to the Philadelphia Inquirer, which broke the story, Cozen will draft new rules on how the $20 billion BP has pledged to the fund will be doled out. Kenneth Feinberg of Feinberg Rozen, who is overseeing the Gulf spill compensation process, told the Inquirer, “There is no one else in the nation who has Steve’s grasp of these issues or his experience.”"

From Daniel Fisher at Forbes.com

“This just in: Baron & Budd says Louisiana Gov. Bobby Jindal has hired the Dallas law firm to "provide counsel" to the state on how to recover damages from the BP oil spill.

As noted here this morning, Baron & Budd are an unusual choice for Jindal, a conservative Republican whose supporters tend to abhor plaintiff lawyers. Especially the ones who make millions of dollars representing asbestos claimants and share a lot of that money with Democratic candidates.”

An earlier story from Daniel Fisher at Forbes.com is here