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Construction Claims Monthly has a post about the case here
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The Texas Civil Justice League recently released a Special Report on Texas Asbestos and Silica lawsuit reform. The purpose of this special report is to document the current state of asbestos and silica litigation in Texas state courts.
The first part of the report provides a brief history of asbestos and silica litigation in the United States and an overview of the legislative efforts in Texas to address abuses in asbestos and silica litigation. The report describes asbestos and silica litigation in Texas’s two multidistrict litigation courts handling asbestos and silica cases, and the impact of reform legislation (S.B. 15) on the state MDLs.
The report also discusses recent issues in Texas asbestos litigation, including the science-based evidentiary standards required by the Texas Supreme Court’s decision in Borg-Warner Corp. v. Flores.
Also included in the Special Report is a discussion of the issues relating to asbestos claimant compensation, the role of bankruptcy trusts in compensating asbestos claimants including the lack of transparency in that trust payment system that can provide substantial compensation to asbestos victims, but has inherent conflicts of interest and lack of oversight.
You can access the entire report “A Texas success story: Asbestos and silica lawsuit reform” here
Legal Newsline.com has an article entitled “Report: Texas tort reform a success”
Draft legislation was introduced on January 10th, 2011 in the Indiana Senate which would require courts to award attorney’s fees to a prevailing party in any civil action.
Senate Bill 324 bill currently has four (4) co-authors (Senators Banks, Delph, Kruse and Walker) and has been referred to the Committee on Judiciary.
Ed. Note: If the goal of the legislation is to deter “frivolous” lawsuits, Indiana would likely be better served by doing something via statute in terms of adding a Twombly/Iqbal initial pleading requirement and revising or eliminating the Jarboe summary judgment standard.
The draft Indiana legislation can be view here
Of note, Texas is apparently considering similar legislation. An article about “loser pays” (the “Holy Grail” of Tort Reform can be found here)
The Madison County Record reports that Madison County, Illinois Chief Judge Ann Callis responds to the ATRA report putting Madison County on the “Watch List”. The entire article can be found here
LegalNewsline.com reports that Philly is No. 1 ‘judicial hellhole,’ group says
The Southeast Texas Record reports Texas Gulf Coast courts tough place for defendants, ‘Hellhole’ report claims
The West Virginia Record article on its own third place in the report can be found here Reaction in West Virginia can be found here
From LegalNewsline.com
PHILADELPHIA (Legal Newsline) – Local law firms seem to make up the majority of Philadelphia’s asbestos docket at the Complex Litigation Center, but some regional and national firms also have a presence in the city.
A list of all trials scheduled for 2011 shows only 10 different law firms will be trying cases in Philadelphia, where a process called “reverse bifurcation” is used. A jury decides damages in the first phase of the trial, and then determines if the defendant is liable in the second part.
Among the big-name law firms who have trials scheduled next year are the Law Offices of Peter Angelos, Baron & Budd and Weitz & Luxenberg.
Forty-three trials are set to take place. In Philadelphia, plaintiffs are grouped for trial by their law firm and their alleged illnesses.
“It’s usually pretty much the same attorneys,” said Stanley Thompson, executive director of the CLC. “It’s the same players.”
As of Oct. 3, there were 631 active asbestos cases at the CLC, which was designed to solve a backlog of more than 7,000 cases. Thompson says the amount of lawsuits filed by these attorneys stays steady at 200-250 every year.
The full LegalNewsline.com article can be found here
The Southeast Texas Record article can be found here
In a recent products liability/fire case, the Texas Supreme Court confirmed that a plaintiff’s expert must explain or disprove alternative causation theories to establish plaintiff’s causation theory.
The Court conducted a thorough review of the underlying record and its per curiam opinion is a reminder that as much attention should always be given to the expert’s attempt to rule out other possible mechanisms as well as the attention given in supporting the expert’s opinions.
The Texas Supreme Court held that an expert’s failure to explain or adequately disprove alternative theories of causation makes his or her own theory speculative and conclusory and as such the causation opinion is insufficient.
The entire opinion is here
From the Texas Public Policy Foundation
The article, “A Case Study on Tort Reform” can be found here
A Case Study on Tort Reform
Six thousand claimants in Texas silica lawsuits await their day in court. For most, that day will never come. Though it seems like justice is not being served, this is actually good news for courts and these claimants.
Silica is a naturally occurring mineral used in industrial processes and products. In its finest form, silica is dangerous to inhale and can cause serious damage to the lining of the lungs – and death in extreme cases. This danger has been known for so long that safety respirators and special work procedures have been required with silica’s use for more than 60 years. Despite the effort towards safety, roughly 50 people each year are affected with silicosis.
However, in the 1990’s, there was an explosion of lawsuits filed on behalf of thousands of claimants alleging they had been exposed to silica and were suffering from silicosis.
No medical or safety-related explanation existed for why silica exposure would have increased so dramatically. There is a darned good explanation why the number of lawsuits claiming silica exposure jumped suddenly.
Mobile trailers containing x-ray machines and paramedical personnel used to set up in mall parking lots screening for “patients”. Remarkably, almost everyone screened was determined to have silicosis. Rather than being sent to doctors, the newly determined silicosis “patients” were referred to lawyers, at which time they became silicosis plaintiffs.
The reason these people sought out lawyers rather than doctors was that few, if any of them, were actually sick. Federal District Judge Janice Jack, the multi-district litigation judge in charge of the silica cases in federal court, held a multi-day hearing and determined that most, if not all, of the claims were fraudulent. She also found that several doctors who had examined many of these patients a decade before and diagnosed them with asbestosis were now submitting new reports based on the original x-rays and proclaiming the patients now had silicosis.
These new patient/plaintiffs each sued dozens of defendants. Since the medical and factual evidence was paper-thin, the goal of the plaintiff’s attorney was to settle each case for an aggregate amount of $150,000 – collected $500 to $1500 at a time per defendant. The defendants found it cheaper to settle for small amounts than to go to trial.
Because of the multitude of silicosis cases being filed, the Texas Legislature in 2003 created a multi-district litigation rule, which placed all of the pending silica cases before one judge. After Judge Jack’s hearing, the Texas Legislature in 2005 adopted a legal standard requiring anyone claiming to have silicosis show, by objective evidence in court, an actual physical impairment. In other words, plaintiffs must file a medical report establishing an illness before they could go to trial.
Amazingly, the prognosis for the 6,000 claimants suddenly improved. One attorney wrote his client that the attorney would no longer handle the lawsuit: “We had an independent physician re-read your x-ray and I’m sorry to inform you that you are not sick.”
Such is the case for most of the claimants pending in the state multi-district litigation case. Their attorneys, who were once willing to settle with as many defendants as they sued for $500 each, are no longer willing to file a report saying that their client is actually sick.
This news is obviously good for the healthy claimants, but it is equally good news for those few claimants, less than 10, with legitimate claims whose cases have moved forward in courts no longer clogged by thousands of meritless lawsuits.
In a few months, the state district judge in charge of the silica MDL is required to submit a status report to the Texas Legislature on the effectiveness of the statute which created the medical criteria. It will be interesting to read the judge’s report. One thing is certain: neither courts nor clients should be upset for getting a clean bill of health.
Judge Mark Davidson who presides over the Texas asbestos MDL denied summary judgment on the issue of whether a duty exists for take-home exposure to the spouse of a defendant’s employee. In Carrie Ramsey v. Borg Warner Morse Tec. Inc., et al, he issued a letter ruling in which he determined that DuPont owed a duty to the spouse of one of its workers that development mesothelioma.
The plaintiff’s ex-husband had worked at a DuPont facility from 1964 to 1974. He worked as an operator and later as a supervisor that patrolled the plant and worked in various areas during startups and shutdowns as needed. He did not work hands-on with any asbestos products but worked around those that did. Plaintiff laundered her ex-husband’s clothes on a daily basis which he wore home from his work at DuPont. Before she placed his clothes in the washing machine she would shake the dust off his cloths which she breathed. She was diagnosed with pleural mesothelioma in 2008.
According to Judge Davidson’s ruling, documents produced by DuPont indicated that DuPont knew of the dangers of asbestos by the early 1960s. DuPont knew of a link between small exposures to asbestos and cancer by June 2, 1966. A 1964 DuPont document authored by the Director of DuPont’s Haskell Laboratory for Toxicology and Industrial Medicine stated that cases of mesothelioma could be caused by “exposure to dust brought home by relatives working with asbestos.” This report also identified three types of exposures to asbestos that are recognized as leading to an increase of mesothelioma: 1) factory workers manufacturing asbestos textiles; 2) insulating materials; and 3) “exposure to dust brought home by relatives working with asbestos.”
A DuPont document dated May 21, 1968 detailed DuPont’s knowledge of asbestos dangers and that “Wives and children of asbestos workers are also being involved because of the dust laden clothes a man wears home at night.”
In his ruling, Judge Davidson stated that the evidence in this case went far beyond that in Behringer v. Alcoa in which the Dallas Court of Appeals held Alcoa owed no duty to an employee’s spouse who developed mesothelioma. Davidson stated the following:
“If this isn’t enough evidence to comply with Behringer, I really can’t imagine what is. Mr. Ramsey’s exposure continued for six years following the time interval DuPont documents show they were aware of the dangers to its employees’ families. The Behringer case held that the [sic] Alcoa had no knowledge of the dangers of household exposure in the 1950s, and that no duty existed in the absence of that knowledge. In this case, there is some evidence that the Defendant knew as early as 1964 and certainly by 1968. Exposure continued until 1974.”
Plaintiffs claimed that Universal Oil Products, L.L.C., (”UOP”), had “acted as an engineering design service provider [and] acted as a general contractor during construction by handling the bid process, evaluating the bids and communicating with the bid winner.” The petition then alleged a claim against UOP for the failure to warn of the dangers of asbestos, in UOP’s capacities both as designer and general contractor. The specifics of this claim will be set out further below. The petition also asserted claims against both defendants for gross negligence, fraud, conspiracy, and loss of consortium.
UOP filed motions to dismiss and for summary judgment, against all claims asserted by Plaintiffs on the basis that the Kozak Plaintiffs had failed to obtain a certificate of merit (dismissal motion) and on the claims’ merits or on the basis of the statute of repose (summary-judgment motion). By two interlocutory orders, the trial court dismissed or rendered judgment on all of the Kozak Plaintiffs’ claims against UOP, except for a claim based on UOP’s alleged failure to warn of the dangers of asbestos. Both parties appeal the ruling on the motion to dismiss. The Court of Appeals affirmed the order in part, reverse it in part, and remand the case with instructions. Sitting on the Panel were Justices Radack, Bland and Massengale.
The entire opinion can be viewed here