Segal McCambridge Legal Blog

From Courthouse News Service

http://www.courthousenews.com/2012/01/24/43302.htm

 

Insurance companies can challenge a $600 million trust created to settle thousands of asbestos-related claims against a California insulation company, the 9th Circuit ruled Tuesday.
     Burdened by some 2,000 asbestos-related lawsuits and with more on the horizon, Thorpe Insulation and its subsidiary, Pacific Insulation, filed for Chapter 11 bankruptcy protection in 2007.
     A family-owned company, Thorpe installed and removed asbestos-insulation products in Southern California from the late 1940s to the early 1970s in both industrial and commercial buildings. During the last 30 years, it has faced about 12,000 lawsuits for wrongful death and personal injury; since 1978, its insurers have paid out more than $180 million defending and settling such claims, according to the ruling.
     A Los Angeles federal judge approved a reorganization plan for the companies in 2009 that established the Thorpe Insulation Settlement Trust to handle present and future asbestos-related claims. Thorpe’s settlements with 13 insurers funded the trust with more than $600 million in cash and securities, the ruling states.
     But objections came from insurance companies that had refused to settle with Thorpe – Continental Insurance Co., National Fire Insurance Co. of Hartford, Motor Vehicle Casualty Co., Central National Insurance Co. of Omaha and Century Indemnity Co. Among their various claims, the insurers said that the court approved a settlement built in bad faith by attorneys with conflicts of interest.
     U.S. District Judge Dale Fisher affirmed the plan nonetheless, finding that it pre-empted any state-law contracts among the non-settling insurance companies. At any rate, those companies did not have standing to challenge the plan in bankruptcy or federal court because it was “insurance neutral, Fisher said.
     But the federal appeals court in Pasadena reached a different conclusion. Though the three-judge panel agreed that the plan overrides state-level contracts, it reversed as to standing Tuesday
     ”Appellants argue that the plan is not insurance neutral because of possible preclusive effects of the plan, because they are responsible for claims channeled to the trust, because the trust permits direct file suits against appellants, because they are a contingent beneficiary of the trust, and because the plan and trust distribution procedure can be changed without court supervision,” Judge Ronald Gould wrote for the unanimous panel. “We conclude that the plan may economically affect appellants in substantial ways. A plan is not insurance neutral when it may have a substantial economic impact on insurers.”
     ”Because the plan had likely effects that would increase economic exposure of the insurer appellants to asbestos claimants, they had a right to be heard fully and fairly before the plan was finalized,” Gould added.
     On remand, the District Court should “return the case to the bankruptcy court to give appellants the opportunity to present their proof and argument.”
     As the plan is already in motion, Gould acknowledged that this decision throws a wrench into the proceedings.
     ”There is no entirely tidy way to resolve this case because the plan has proceeded without stay and without full input from insurer parties who will be economically affected by the plan,” he wrote. “But we have concluded that the starting place is for us to reverse the judgment of the District Court, and to remand to the District Court with instructions that it remand to the bankruptcy court to permit appellants to submit their proof on all issues they previously preserved.”
     No one with the Thorpe Insulation Settlement Trust was immediately available for comment. 

The decision can be found at http://www.nycourts.gov/reporter/3dseries/2012/2012_00421.htm

From http://newsandinsight.thomsonreuters.com/Legal/

A New York appellate court affirmed a $420.4 million ruling in favor of insurer Travelers Cos, handing it a victory in one of the longest-running and most complex asbestos-related litigations in history.

The dispute has to do with the obligations of certain reinsurers to Travelers, which joined in payments of nearly $1 billion to cover asbestos claims against the company Western MacArthur. Travelers subsequently sought to recover some of its payments from its reinsurance companies.

Among those reinsurers is the U.S. unit of industry leader Munich Re and units of the insurer and reinsurer ACE Ltd. A spokeswoman for Munich Re Americas declined to comment. An ACE spokesman could not immediately be reached for a comment.

In October 2010 a lower New York court ruled that the reinsurers were obliged to help cover Travelers. That ruling was affirmed on appeal on Tuesday.

The Appellate Division, First Department, ruled 4-1 that the reinsurance companies were bound by a concept known as the “follow the fortunes doctrine,” which holds that reinsurers share the burdens taken on by the insurance companies with which they do business.

The appellate court found that the lower court “correctly determined that the follow-the-fortunes doctrine required defendants to accept the reinsurance presentation made by (Travelers unit) USF&G.”

A Travelers spokesman could not immediately comment on the ruling.

The facts behind the case date to 1948, when USF&G first wrote a liability insurance policy for Western Asbestos Co. By the late 1970s, people harmed by asbestos began to sue Western Asbestos’ successor company, Western MacArthur, which in 1993 sued USF&G and two other insurers seeking indemnification.

In 2002, the sides reached a settlement, which resulted in Western MacArthur going into bankruptcy. USF&G then sought indemnification from its reinsurers.

The one dissenter in Tuesday’s ruling was Justice Sheila Abdus-Salaam, who said there was a genuine dispute as to whether some of the settlement USF&G reached with Western MacArthur was subject to the reinsurance treaties.

Besides the length of the litigation, the case is notable because of the high-profile law firms involved. Travelers was represented on the appeal by Simpson Thacher & Bartlett, while Wachtell, Lipton, Rosen & Katz represented Munich Re and Boies, Schiller & Flexner represented ACE.

The case is United States Fidelity & Guaranty Company vs. American Re-Insurance Co, New York Supreme Court, Appellate Division, First Department, No. 604517/02.

For American Re-Insurance Company: Herbert Wachtell of Wachtell, Lipton, Rosen & Katz.

For Excess Casaulty Reinsurance Association and OneBeacon America Insurance Company: Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan.

For ACE Property & Casualty Company: George Carpinello of Boies, Schiller & Flexner.

For respondents: Mary Kay Vyskocil of Simpson Thacher & Bartlett

Two articles from Law.com and Forbes.com on the recent GAO report detailing the secrecy issues surrounding asbestos bankruptcy trusts

LAW.com: GAO Reports Shines Light on Secretive Asbestos Trusts

GAO Reports Shines Light on Secretive Asbestos Trusts
The Government Accountability Office released a new report on Wednesday analyzing asbestos injury trusts, detailing a multi-billion-dollar system of plaintiff claims and payouts that operates largely in secret.

By Brian Glaser

10-20-2011

The Government Accountability Office released a new report on Wednesday analyzing asbestos injury trusts, shining some light on a multi-billion-dollar system of plaintiff claims and payouts that operates largely in secret.

The report, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts [PDF], reviewed 52 asbestos-related bankruptcy trusts that “have paid about 3.3 million claims valued at about $17.5 billion.”

The GAO found that while the majority of the trusts made general data available, very few provide detailed information about their activities without being directed to by a court of law: “Most asbestos trusts we reviewed publish for public review annual financial reports and generally include total number of claims received and paid. Other information in the possession of a trust, such as an individual’s exposure to asbestos, is generally not available to outside parties but may be obtained, for example, in the course of litigation pursuant to a court-ordered subpoena.”

In fact, the report found that only “one trust’s financial report contained claimant names and amounts paid to these individuals.”

Forbes reporter Daniel Fisher, in a review of the GAO findings, wrote that the report “gives fuel to critics who say the plaintiff lawyers who largely oversee the operation of these trusts prevent them from sharing information about how much their clients have been paid. That allows some plaintiffs to hit up multiple trusts with claims that may contradict each other.”

The month-old report was given to the House Judiciary Committee on September 23, at the request of Texas Republican Lamar Smith, the committee chairman, and is now being released to the public following a 30-day hold.

Accompanying the release of the report was a statement from Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform. Rickard said, “It is becoming clear that rather than acting to prevent abusive claims, the asbestos trusts are effectively encouraging fraud by inhibiting claims information sharing between the trusts and the tort system. We hope that Congress’s growing attention to this important issue will ensure that the trusts operate in a manner fair to asbestos victims and job-creating businesses, not plaintiffs’ lawyers and fraudulent claimants.”

Fisher’s analysis of the report pinpoints several findings of processes in the current trust system that could result in fraudulent claims:

The GAO report said 98% of trust claims go through “expedited review” process that requires only a claim form with “documented evidence” of exposure such as work history, invoices, or deposition testimony of plaintiff or coworkers plus a medical report. Prior investigations have shown how a tiny number of physicians have submitted tens of thousands of diagnoses of asbestos-related disease, many of them subsequently found to be incorrect.

One solution would be to require the trusts to share basic claims information in a central database. But the GAO said 65% of trusts reviewed treated claims information as confidential under rules that consider information submitted as part of a legal settlement process as privileged. Defendants and insurers say the trusts should be treated as non-adversarial settlement vehicles. They frequently seek information about claims paid so they can set off any court award by the amount the plaintiff has already obtained elsewhere.

The report itself does not claim to have documented any regular occurrences of fraud, however, and includes review of the trust distribution procedures (TDP) that each trust has in place: “Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust’s focus is to ensure that each claim meets the criteria defined in its TDP, meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees. Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud.”

Forbes.com: GAO Report Details Secrecy Of Asbestos Trusts

By Daniel Fisher

A General Accountability Office study of asbestos injury trusts released today shows that trusts with some $36 billion in assets operate largely in secret, submitting annual financial reports to bankruptcy courts but only revealing information about claims under the threat of subpoena.

The report, conducted at the request of Rep. Lamar Smith (R-Texas), the chairman of the House Judiciary Committee, gives fuel to critics who say the plaintiff lawyers who largely oversee the operation of these trusts prevent them from sharing information about how much their clients have been paid. That allows some plaintiffs to hit up multiple trusts with claims that may contradict each other. The trusts paid 461,000 claims totaling $3 billion in 2010. They have disbursed $17 billion so far to millions of workers who claim they came down with breathing disorders or cancer due to asbestos.

The report looked at 52 of the 60 trusts created in the wake of asbestos-related bankruptcies and found that only one publicly disclosed the identity and claims of people it had paid. Most of the rest resist such disclosure, citing the confidentiality of claimant medical records. The report’s authors downplayed the risk of fraud, however, saying most trusts audit claims.

“Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust’s focus is to ensure that each claim meets the criteria defined in its (trust rules), meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees. Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud.

The U.S. Chamber, which represents companies targeted by asbestos lawsuits, wasn’t convinced. In a release accompanying the report Lisa Rickard, president of the Chamber’s Institute for Legal Reform, said:

“It is becoming clear that rather than acting to prevent abusive claims, the asbestos trusts are effectively encouraging fraud by inhibiting claims information sharing between the trusts and the tort system. We hope that Congress’s growing attention to this important issue will ensure that the trusts operate in a manner fair to asbestos victims and job-creating businesses, not plaintiffs’ lawyers and fraudulent claimants.

The report was completed Sept. 23 but only became available today after a 30-day hold.

Critics of the asbestos-trust system point to examples like the Kananian case in Ohio, where lawyers were sanctioned for submitting conflicting work histories to multiple trusts on behalf of a man who died of mesothelioma, which is usually attributed to asbestos. In that case lawyers filed papers placing their client in harm’s way throughout his life, from laying on the top berth of a ship with rattling asbestos-clad pipes above his head in World War II, to removing asbestos-laced linoleum flooring in his basement himself, to smoking Camel cigarettes with asbestos filters that were marketed toward women for a couple of years in the 1950s. Internal documents revealed one of Kananian’s lawyers telling colleagues to “immediately brief all personnel … that they are not to ‘make up’ information to make a claim qualify.�

A similar scandal erupted in Texas after a federal judge demanded the records for thousands of plaintiffs claiming they’d come down with silicosis and found most had already hit up the asbestos trusts for money. Doctors say the two conditions almost never occur in the same patient and the outbreak of silicosis claimed in the lawsuits would have dwarfed any recorded in the medical literature.

Approximately 100 companies have declared bankruptcy at least partly due to asbestos-related liability so far. In the usual pattern lawyers for asbestos plaintiffs claim they represent the largest class of creditors and set up a trust to hold the bankrupt company’s assets and disburse them to their clients over time. The trusts have grown from 16 with $4.2 billion in assets in 2000, to 60 with $36.8 billion in assets this year.

The GAO report said 98% of trust claims go through “expedited review� process that requires only a claim form with “documented evidence� of exposure such as work history, invoices, or deposition testimony of plaintiff or coworkers plus a medical report. Prior investigations have shown how a tiny number of physicians have submitted tens of thousands of diagnoses of asbestos-related disease, many of them subsequently found to be incorrect.

One solution would be to require the trusts to share basic claims information in a central database. But the GAO said 65% of trusts reviewed treated claims information as confidential under rules that consider information submitted as part of a legal settlement process as privileged. Defendants and insurers say the trusts should be treated as non-adversarial settlement vehicles. They frequently seek information about claims paid so they can set off any court award by the amount the plaintiff has already obtained elsewhere.

Lawyers have a way around that, however: They simply wait until the trial is over before submitting claims to the bankruptcy trusts.

During hearings, three plaintiff attorneys said everything the defendants want is available through discovery in litigation and the trusts are “analogous to ay other settling party and related negotiations and payments are privileged.�

Defendants argue more information should be disclosed because payment information might reveal plaintiffs have already gotten more than the claims are worth.

The Institute for Legal Reform proposes quarterly reports disclosing every claim made and details including exposure history. The GAO report said quarterly reports won’t necessarily root out fraud and one person receiving payments from several trust “does not itself reveal impropriety.�

Congress Examines Alleged Fraud by Asbestos Claimants
September 9, 2011
By Dionne Searcey

Asbestos litigation may seem like a blast from the mass tort past, but it continues to be the key breadwinner for many a plaintiff attorney’s family.

Aided by a bevy of advertising on the Internet and TV, asbestos claims are on the rise. And the payouts are still big. Today in Congress, a House Judiciary Committee heard testimony on alleged fraud and abuse in the asbestos compensation system.

The committee reviewed transparency issues in asbestos trusts, which are massive pools of money set up by companies in bankruptcy to pay off asbestos claims. Defense attorneys have long claimed that plaintiffs double dip and get inflated payouts by filing multiple asbestos claims, both in court and with asbestos trusts, for the same injury. Because settlements are secret and the trusts aren’t required to make public their payouts, it’s difficult to verify whether claimants are getting overpaid.

In a written statement, Charles Siegel, a partner at the Dallas plaintiffs’ firm Waters & Kraus LLP, disputes that point, saying, “there is no windfall of money available to mesothelioma claimants, and plaintiffs cannot and do not ‘game the system’ such that solvent tort defendants pay the liability shares of bankrupt companies.�

See Reuters advanced take on the Congressional hearings here.

Reuters points out that complaints about asbestos litigation have been mounting for years on the Hill yet lawmakers never passed any kind of reform bill. It remains to be seen what the outcome will be of today’s hearings.

For now the asbestos litigation train keeps rolling. Later this month in San Francisco, attorneys will gather for a Perrin conference to hear about the state of the asbestos litigation, a roundup of legislation affecting asbestos suits, and a discussion about the future of asbestos bankruptcies.

From the Madison County Record

Med mal case belonged in Missouri – not Madison County, appellate court rules

10/18/2011 By Steve Korris

MOUNT VERNON – Madison County Circuit Judge Andy Matoesian kept a medical malpractice case that belonged in Missouri, Fifth District appellate justices ruled.

On Oct. 14, they directed Matoesian to dismiss a suit Cheryl Unterreiner filed against Missouri physician David Pernikoff and his professional corporation.

They rejected Matoesian’s conclusion that a telephone call from Pernikoff’s office to Unterreiner’s home in Highland established sufficient contact with Illinois.

“Cheryl could have returned the defendants’ phone call from any number of jurisdictions, including Missouri,” Justice Stephen Spomer wrote.

“A rule of law that allowed personal jurisdiction over a physician on the basis of a single phone call would effectively ensure that no physician ever delivered instructions over the telephone, or via email, for that physician could never know with certainty where they might eventually be haled into court as a result of those instructions,” he wrote.

“The defendants have never advertised for clients in Illinois and have never owned or leased any real or personal property in Illinois,” he wrote.

“The defendants’ contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction,” he wrote.

Justices James Donovan and James Wexstten agreed.

Unterreiner underwent a heart valve replacement in 2002, and for the next six years she took Warfarin as an anticoagulant.

She traveled to Missouri for appointments at Pernikoff’s office.

In 2008, an employee left a phone message that her anticoagulant levels were low.

Unterreiner returned the call, and an employee told her to keep taking Warfarin and return in a month.

Within a month, Unterreiner suffered a stroke resulting in serious injuries.

She and husband Kim Unterreiner sued two years later, and Pernikoff moved to dismiss.

Matoesian denied the motion last December, but now he must grant it.

Spomer wrote, “Before an Illinois court may exercise jurisdiction over a nonresident defendant, that court must ensure its exercise of jurisdiction comports with traditional notions of fair play and substantial justice.

“A plaintiff may not lure a nonresident defendant into a jurisdiction, and the mere unilateral action of the plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the jurisdictional requirement of minimum contacts.”

He wrote that Unterreiner sought out Pernikoff and traveled to Missouri for treatment.

He wrote that he couldn’t equate a solitary phone call with voluntary invocation of the protections and benefits of Illinois laws.

Lisa Howe and Thaddeus Eckenrode represented Pernikoff.

Drew Baebler and Philip Denton represented the Unterrreiners.

On October 19, 2011, the the U.S. Government Accountability Office (GAO) issued the report “Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts”

From the GAO website:

Summary
Asbestos litigation arose out of millions of Americans’ lengthy occupational exposure to asbestos which is linked to malignant and nonmalignant diseases. To date, about 100 companies have declared bankruptcy at least partially due to asbestos-related liability. In accordance with Chapter 11 and 524(g) of the federal bankruptcy code, a company may transfer its liabilities and certain assets to an asbestos personal injury trust, which is then responsible for compensating present and future claimants. Since 1988, 60 trusts have been established to pay claims with about $37 billion in total assets. GAO was asked to examine asbestos trusts set up pursuant to 524(g). This report addresses: (1) How much asbestos trusts have paid in claims and how trusts are administered, (2) How trust claim and payment information is made available to outside parties, and (3) Stakeholder–plaintiff and defense attorneys, trust officials, and other interested parties–views on whether more trust and claimant information should be made available to outside parties and efforts to change the trust system and processes. GAO analyzed trust agreements for 44 of 60 trusts and trust distribution procedures for 52 of 60 trusts, as well as financial reports for 47 of 60 trusts for 2009 and 2010. GAO also interviewed U.S. Bankruptcy Court judges and the trustees, general counsels, or directors from 11 trusts.

From 1988 through 2010, GAO’s analysis of available trust payment data show that trusts have paid about 3.3 million claims valued at about $17.5 billion and that each trust has trust distribution procedures (TDP) that govern its administration and establish the process for assessing and paying claims. Typically, TDPs include sections related to the intake and evaluation of claims, payment processes, and audit programs. Claims that meet the TDP’s criteria for a particular disease are paid in the amount specified in the TDP. Most asbestos trusts we reviewed publish for public review annual financial reports and generally include total number of claims received and paid. Other information in the possession of a trust, such as an individual’s exposure to asbestos, is generally not available to outside parties but may be obtained, for example, in the course of litigation pursuant to a court-ordered subpoena. The 44 trust agreements GAO reviewed all required that trusts submit annual financial reports to the U.S. Bankruptcy Court of jurisdiction. Although TDPs typically provide that the trusts will make claim and payment information available to claimants and other parties, each trust ultimately determines what information it will make available. Of the 47 trust annual financial reports for 2009 and 2010 that GAO reviewed, all included the total amount of payments made and most included the total number of claims received and paid. One trust’s financial report contained claimant names and amounts paid to these individuals. Of the 52 trust TDPs GAO reviewed, 33 (64 percent) included sections related to protecting the confidentiality of claimants’ information and these sections often state that the trusts will only disclose information to outside parties with permission of the claimant or in response to a valid subpoena. Views differ on whether more trust and claimant information should be made available and there have been efforts to change the trust system. Plaintiff attorneys and trusts oppose proposals that would require additional disclosure of claimant information, such as amounts paid to individual claimants, stating that such information is available to the defense through subpoenas and that disclosure otherwise could compromise the confidentiality of claimants’ private information. Defense attorneys support additional disclosure, stating that such information could be used to offset asbestos defendants’ settlements in court and reduce fraudulent claims. In recent years, there have been various proposals to require additional disclosure of claimant information. One of these proposals was recently brought before the Judicial Conference of the United States, the primary policy making body of the U.S. courts. In commenting on a draft copy of this report, the Department of Justice and the Administrative Office of the U.S. Courts provided technical clarifications, which GAO incorporated where appropriate.

The highlights of the report can be found here

The full report can be found here

A link to a recent article quoting Segal McCambridge shareholder Jason Kennedy

Our article is here

The entire article at Inside Counsel can be found here

The Daily Docket: Garlock Loses Bid to Look into Old Asbestos Bankruptcies.

Judge Denies Garlock Bid To Revisit Old Asbestos Bankruptcies

Jacqueline Palank 10 October 2011

A judge denied Garlock Sealing Technologies LLC’s bid to obtain legal documents from decade-old asbestos bankruptcies, warning the consequences of doing so would upend previously struck resolutions to billions of dollars in claims.

U.S. Bankruptcy Judge Judith K. Fitzgerald on Friday denied Garlock’s request to reopen old bankruptcies and to page through documents in which law firms disclosed their clients in those cases, according to court papers.

The judge decided that Garlock failed to provide a valid reason to support its request, which she warned would result in “enormous” consequences if granted.

“The negative publicity with the likely effect on stock and bond prices for those publicly traded entities, employee morale, resulting management issues and administrative burdens…cannot be justified in these circumstances where Garlock did not appear or participate in while the cases were open and active and did not seek access to the 2019s during the life of the cases,” Fitzgerald wrote.

An attorney for Garlock couldn’t be reached for comment Monday.

Garlock sought to pull records from and intervene in bankruptcies filed between 2000 and 2004 by 12 manufacturers that, like Garlock, had been hit with hundreds or even thousands of personal-injury claims by individuals exposed to asbestos in their products.

Until the “bankruptcy wave” began, Garlock said it was able to defend itself from many of these claims by arguing that its products didn’t release “medically significant” amounts of asbestos into the air. Instead, Garlock argued, plaintiffs were likely more harmed by the larger amounts of asbestos contained in other manufacturers’ products.

But once those other manufacturers sought court protection, all pending litigation against them ground to a halt. Since Garlock wasn’t in bankruptcy, plaintiffs were free to continue pursuing litigation and settlement talks against it.

Garlock now questions the resulting settlements it struck with plaintiffs, arguing that law firms and plaintiffs may have lied about whose products exposed them to asbestos in order to collect what they could from Garlock rather than take their chances in bankruptcy.

That’s why Garlock sought the client lists filed in the bankruptcies of such manufacturers as Armstrong World Industries Inc., Pittsburgh Corning Corp., USG Corp. and W.R. Grace & Co. Garlock, which filed for Chapter 11 protection in June 2010, thought the documents could possibly show evidence of plaintiffs’ exposure to asbestos through the bankrupt manufacturers’ products, potentially reducing Garlock’s liabilities.

Fitzgerald, however, discredited this argument as “disingenuous” and said the harm Garlock is alleging it suffered is “imagined.”

“To date [Garlock] has not identified a creditor in its case who also was a creditor in one of these bankruptcy cases and whose exposure evidence was allegedly concealed,” Fitzgerald wrote.

Garlock, of Palmyra, N.Y., manufactures hydraulic and metallic gaskets, conveyor belts and other products. It has been a defendant in asbestos personal-injury lawsuits for more than three decades.

From LegalNewsline.com

The science of asbestos: A survey of experts

WASHINGTON (Legal Newsline) – There are some who say all forms of asbestos are unsafe and to be exposed to any amount is hazardous, while others say that one form of asbestos can be handled safely. Then there are some who are not sure.

Some of the leading scientific researchers, experts in the field of mesothelioma research and occupational medicine, have divergent opinions on the nature of the hazards caused by asbestos.

Four scientists were asked four questions about asbestos. Each one of them has distinguished themselves in some way in the field of asbestos science.

One of them was an American Cancer Society Research Scholar. One was the recipient of the Collegium Ramazzini’s Irving Selikoff Award and recently made a discovery in the field. One is an official with the National Institute of Environmental Health Sciences. One received an award by the American Thoracic Society.

The questions asked of the researchers were:

-Is it true that there is no general consensus that chrysotile causes mesothelioma?

-Is it true that there is controversy that crocidolite is the most dangerous type of asbestos in terms of causing mesothelioma?

-Is it true that much of the science, about asbestos and its toxicity, has been influenced by the litigation? Have studies funded by companies and or lawyers or politically ideological groups been tendentious because of the money involved? and

-Is it possible to reconstruct how someone who has mesothelioma was exposed to asbestos by working with brake shoes or in some other occupationally related manner, if it occurred several decades earlier?

None of the scientists interviewed currently participate in asbestos litigation for defendants or for plaintiffs.

The scientists interviewed are:

-Michele Carbone, M.D., PhD. He is the Director of the Cancer Research Center of Hawaii, University of Hawaii, Honolulu. He was an American Cancer Society Research Scholar in 2004;

-Joseph R Testa, PhD, FACMG, is the Chair in Human Genetics and the Chair of the Mesothelioma Working Group at Fox Chase Cancer Center, Philadelphia. He was the 1999 recipient of the Collegium Ramazzini’s Irving Selikoff Award. He received the award for “outstanding contributions in understanding the origins of mesothelioma.”;

-Brooke T. Mossman, PhD., is the Director of the Environmental Pathology Program, University of Vermont, College of Medicine. She was the recipient of the 2008 Wagner Award from the International Mesothelioma Interest Group Meeting, Amsterdam, NL, for Historic Contributions to Mesothelioma Research. She was also awarded Career Achievement Recognition Award for Scientific Accomplishments by the American Thoracic Society in 2007; and

-Dr. Aubrey Miller, MD, MPH, is the Senior Medical Adviser at the National Institute for Environmental Health Sciences. A medical epidemiologist and a captain in the U.S. Public Health Service, he has worked as a Senior Medical Officer and Regional Toxicologist for the U.S. Environmental Protection Agency.

Here are their responses:

Is it true that there is no general consensus that chrysotile causes mesothelioma?

Prof. Carbone: There is unanimity that amphibole causes mesothelioma. There is no agreement that chrysotile causes mesothelioma.

Prof. Testa: Regarding chrysotile, there is much controversy about whether it causes mesothelioma. I am not sure the controversy is based on strong science. Based on my reading of the literature, there seems to be considerable evidence that chrysotile can cause mesothelioma based on epidemiological and rodent studies.

Prof. Mossman: Correct. The majority of scientists acknowledge that chrysotile is less pathogenic than crocidolite or amosite (amphibole) types of asbestos and must be inhaled at larger amounts to cause mesothelioma, as supported by lung fiber burden studies (see data by A. Churg and V. Roggli), but the difficulty is that we all have chrysotile (the most common type of asbestos) predominately in our lungs and the workers who have mesothelioma have been largely exposed to mixed types of asbestos fibers.

Dr Miller: I would say that is not true in terms of government and public health people from our standpoint at the National Institute of Environmental Health Sciences and the Center for Disease Control it is clear that it does.

Is it true that there is controversy that crocidolite is the most dangerous type of asbestos in terms of causing mesothelioma?

Prof. Carbone: Crocidolite is the most dangerous of the asbestos minerals in terms of causing mesothelioma.

Prof Testa: I don’t think that there is much controversy that crocidolite is the, or at least one of the, most dangerous forms of asbestos in terms of causing mesothelioma. Crocidolite and other types of amphibole asbestos are thought to be more carcinogenic than chrysotile.

Prof. Mossman: No, I think the vast majority of scientists believe this is true

Dr. Miller: I would ask what is the most dangerous? We have seen more in those exposed to crocidolite. The animalsstudies indicate that crocidolite is the worse.

Is it true that much of the science has been influenced by the litigation? Have studies funded by companies been tendentious? Have studies been ideological?

Prof. Carbone: Some of the scientific literature has been influenced by the litigation. Read the acknowledgment section of many papers and see who financed the study, check whether the writer is a true scientist, someone with NCI or NIH or ACS or other credible peer-reviewed funding, whether the author has ever published anything important in a high impact journal (as defined by impact factor journal). (These are) all things easy to spot if you are in science but difficult to spot if you are not.

Prof. Testa: I think that it is likely that a small amount of science has been influenced by asbestos litigation. I have read that some studies funded by asbestos companies are biased, but I have no personal experience about this. As to whether some studies have been ideological, it is possible, given the enormous amount of money at stake, between product sales and asbestos litigation.

Prof. Mossman: Absolutely, this is why I have never participated as an expert witness in this arena. The legal community attends, advertises at, and supports a number of scientific meetings on asbestos. The Collegium Ramazinni meeting on the “Third Wave of Asbestos Diseases” held in NYC and organized by Philip Landrigan in the early 1990s… was supported by the plaintiff bar, labor unions and asbestos removal companies. It was questioned in a Science article.

Dr. Miller: Science which is funded by biased interests give biased results. We try to bring the best science to bear to find the effects of exposures. But clearly asbestos is one of those areas which has a lot of interest groups. Findings are questionable based on influences and biases.

Is it possible to reconstruct how someone who has mesothelioma was exposed to asbestos by working with brake shoes or some other occupationally related manner if the exposure occurred several decades earlier?

Prof. Carbone: If I ask you how many hours you spent working on a given task some 40-60 years ago, how accurate would your answer be? Now, imagine if you ask the question to the wife or friends of the subject because he is deceased. Imagine you ask my mom and my high school friends if when I grew up if I was exposed to asbestos, how accurate would the answer be? In short, these kinds of questions have some value when you look at a cohort, but individually? Well unless you are lucky to have good records, that almost never are available, then you are guessing.

Prof. Testa: With regard to your question about reconstructing how someone who has mesothelioma was exposed to asbestos occupationally several decades earlier, I would say the following: If a person were working occupationally with an amphibole fiber, and that type of fiber were persistent in the lung 40 years later, one could deduct that there was a causal connection. For chrysotile, the physical parameters of the fiber are such that they may not be found in the lung after several decades, but a carcinogen does not have to remain in the lung to cause mesothelioma. It could cause the initial genetic damage and disappear.

Prof. Mossman: No.

Dr. Miller: It is not difficult. We reconstruct exposure history all the time. This is how it is done for epidemiology studies.

After having read the answers of four distinguished scientists to four questions that are often at the center of asbestos litigation, one learns that there is near unanimity on some issues. But while there is unanimity on some things there are also divergent opinions on others – such as the gravity of the danger caused by chrysotile and if exposure history can be reconstructed.

While these are not scientists who work for or are funded by special interests groups, the same cannot be said uniformly about advocacy groups. Industry organizations that favor the use of asbestos, such as the Chrysotile Institute, will be criticized in the media as being biased.

The same type of scrutiny and the same standards could also be applied to those groups that oppose the use of asbestos.

For example, the website of the Asbestos Disease Awareness Organization – “the voice of the victims” – listed its 2011 conference sponsors. The list included, Shein Law Center, Simmons Attorneys at Law, the law firm of Belluck and Fox, the law firm of DeLuca and Nemeroff, and the Canadian Autoworkers Union.

But as the responses by the four scientists interviewed for this article indicate, even science has its controversies about asbestos.

Several stories on the removal of the trial court judge who oversaw the $322 million dollar verdict in Mississippi

Judge taken off asbestos case, bringing proceedings to a halt
The Mississippi Supreme Court has ordered a Smith County judge to step down from further proceedings in an asbestos case that resulted in a $322 million verdict.

In an order issued Thursday, Presiding Justice Jess H. Dickinson said all proceedings in the case will be halted until a new judge is appointed.

Union Carbide had asked the Supreme Court to determine whether Circuit Judge Eddie H. Bowen should have presided over the case.

In May, attorneys for Union Carbide said Bowen neglected to notify defense lawyers his parents had been involved in similar asbestos litigation and had settled a case against Union Carbide. When Bowen didn’t respond to the petition, Union Carbide went to the Supreme Court.

On May 4, a jury in Smith County awarded $300 million in punitive damages and $22 million in actual damages to Thomas C. Brown, who claimed he had inhaled asbestos dust while mixing drilling mud sold and manufactured by Chevron Phillips Chemical Co. and Union Carbide.

Allen Hosselly, a Dallas attorney who represented Brown, has said he thought both the plaintiff and defense were treated fairly by the judge during the trial. He said if there was some conflict involving the judge the defense “didn’t raise it until after the verdict came down.”

In a statement, Union Carbide said Bowen made “offhand comments” during the trial about how his father might have been exposed to asbestos at Ingalls Shipyard in Pascagoula. Union Carbide said Howard J. Bowen, identified as the judge’s father, had sued Union Carbide and others in 1989 and 1992.

Bowen, according to the motion, was a practicing attorney when his father and mother sued Union Carbide seeking $1 million for emotional distress, and at least one case is still outstanding. Union Carbide settled with the elder Bowens.

Union Carbide $322 Million Asbestos Verdict Put on Hold
A $322 million jury verdict against Dow Chemical Co. (DOW)’s Union Carbide unit and Chevron Phillips Chemical Co. was put on hold while the Mississippi Supreme Court considers whether the trial judge should be disqualified.

Union Carbide claims Circuit Court Judge Eddie Bowen, who presided in the Raleigh, Mississippi, trial over a former oil worker’s claim he was sickened by asbestos, should have bowed out of the case because the judge’s father suffered from asbestosis, a disease caused by the mineral.

Union Carbide said the companies were denied a fair trial. Bowen might be biased, the company said in its petition to the state high court, citing his father’s illness, “improper comments on the evidence,� and rulings during the trial.

The May 4 award is the largest ever made to a single asbestos case plaintiff, according to data compiled by Bloomberg. A state punitive-damages cap would erase at least $260 million.

The Mississippi court stopped proceedings in the case in an order signed by Chief Justice William L. Waller Jr. The ruling means the award won’t be enforced until the allegations are resolved.

“If there’s a disqualification, you would have to retry it with a different judge,� said Carl Tobias, a University of Richmond law professor in Virginia. “That’s the way most courts would handle it.� The state Supreme Court might reject the motion to disqualify the judge, he said..

Oil Worker
The plaintiff, Thomas Brown, developed asbestosis after being exposed to the toxic fibers while mixing drilling mud on oil rigs in the Gulf of Mexico. He said Union Carbide and Chevron Phillips Chemical knew asbestos is toxic and didn’t warn him. Brown is on oxygen 24 hours a day, said his attorney, D. Allen Hossley.

Chevron Phillips Chemical is a joint venture of Chevron Corp. and ConocoPhillips. (COP)

The jury verdict included $300 million in punitive damages, awarded equally against Union Carbide and Chevron Phillips Chemical. Mississippi law would limit the punitive award to $40 million, or $20 million per defendant.

The judge didn’t respond immediately to a message left in his chambers.

Bowen’s father settled claims with asbestos defendants, including Union Carbide, the company’s filing said.

“If this is not an appearance of impropriety, I don’t know what an appearance of impropriety is,� W.G. Watkins, a Union Carbide lawyer, said in an interview.

‘Fair Trial’
While the judge’s father was involved in asbestos litigation, “it happened 20 years ago and neither defendant was ever sued,� Hossley, Brown’s attorney, said today in a phone interview. “Everybody got a fair trial.�

Watkins said company lawyers are investigating whether the judge had other possible conflicts. Yesterday’s ruling is a “statement that the Supreme Court takes the recusal seriously,� he said.

The case is Brown v. Phillips Co., 2006-196, Circuit Court, Smith County, Mississippi (Raleigh).