Malignant Mesothelioma -
Pleural Mesothelioma
PROF ROTHSTEIN: In teaching torts, which I teach at Georgetown, I find that the students love to see tort suits as David vs. Goliath. And I also see that in the press and the public and they see this asbestos litigation as David vs. Goliath. A lot of injured little people suing big giant corporations.
To some extent the public and the students love a good drama, a good stage play. And cold hard facts like we have seen today from the excellent presenters, don't make good drama. No one would buy a Broadway ticket to see that. But it is the truth and I think what emerges is that the asbestos litigation, the asbestos problem is not David v. Goliath, but it is David v. David. Some Davids against other Davids.
The present claimants, many of whom are not sick at all, are taking from a pot which should be reserved for other Davids later who become very sick. They are also taking from the pot of all of us, all of us little people that make up this country because of all the bad effects on the economy and the ruining of our industrial base both domestically and in international markets and the products and services that don't get produced when companies are afraid or reduced to bankruptcy, the jobs that are missing, all of the economic effects, that is affecting all the little Davids in our society. That's point one.
Another point I wanted to make is something that you have seen said about baseball fields and super highways. Build them and they will come. Build them and the people will come. I think in large measure that's what ha been wrong with the asbestos compensation system. The judges, all in good faith have been trying to move the paper, because they are overwhelmed by these cases and so they make it a lot easier to process the claims and then that encourages more claims to be filed. And it is a never ending spiral.
I don't think the judges are in bad faith. They are doing what judges are supposed to do. I don't think even the plaintiff's lawyers are in bad faith. They are doing what they are supposed to do, the role they are assigned by society. Yes, they are making money out of it, but so are the lawyers on the other side and the businessmen and it is good for society if people get paid for helping others in some way, in one way or another. No one is going to help others very much without getting paid for it. And these processes may work well in the normal small tort case, but when some of these processes are applied in legal mechanisms to the gigantic asbestos problem, it causes a great distortion of the system and it doesn't function well.
So, that leads me to my last point which is that I think only a global solution is possible, something done by Congress. I don't think courts and judges have the ability to do it or are even supposed to do it. Because the judges are looking at it and are meant to look at only the case before them, it is kind of parochial. They are also looking after the injured claimants in their particular jurisdiction, and they are not looking at the big picture. They are not looking at the fact that there are - and they can't really, that there are other claims around the country and that they are ruining our industrial base, that the whole totality of claims is having a deleterious affect on the economy as I think we have been shown here today. They can't look at whether it causes bankruptcy and how many bankruptcies around the country it is causing, to look at their particular case in a kind of parochial way.
They are most particularly not able to, and not supposed to do a general societal cost benefit analysis, like we have been talking about here today. That's not the job of a particular judge, but that is the job of Congress to do and it is Congress that has to do it. And I will just give one example of this.
The punitive damages notion, there are multiple punitive damages being awarded in very large mass product lawsuits, asbestos being a prime example. Punitive damages are to be paid as kind of punishment and deterrents. If a company pays a huge amount of punitive damages in one law suit, that's supposed to reflect how bad they were, how much they should be deterred, but then some other court in another state with other claimants against the same company, awards another punitive damages award without regard to the fact that maybe the punitive component of this has already been paid and it just does not make any sense, it is an example of how judges cannot, do not and under the role they have been assigned probably should not look beyond their own jurisdiction in the courtroom.
And so once again, just emphasizing, those of you who are here from government and have any influence over congress, I think the ball is in congress' court, congress must do a global and a sensible and a rational settlement that takes account of what this is doing to the whole country, something a judge is ill equipped to do, with all due respect to the judge.
Thank you.
MS. PENDELL: I have a question for Judge Trafelet relative to devices that the courts have used in the past, but relatively infrequently to sort through the claimants, some of whom in a masse filing are seriously, clearly seriously injured and some of whom are unimpaired.
The late Carl Ruben from Cincinnati, I know, once had a large number of cases before him. He hired several neutral court appointed medical experts and had them sift through the medical records and divide them into three groups, the first group being people who were clearly exposed to and seriously injured form asbestos, those people proceeded to trial. The second unclear whether they were serious injured by asbestos, they proceeded to discovery and the third group not evidence of either exposure or injury, and those plaintiffs were told that they could come back to the court at some point in the future and that he would waive the statute of limitations, but that they were not to come back again until they had evidence. And a very large percentage of those plaintiffs in his court fell under the third group.
Why isn't that sort of device used more often? And why haven't the courts been able to separate out the plaintiffs in these ways?
JUDGE TRAFELET: We attempted to do that in Cook County with the establishment or creation of a plural registry. If I can go very briefly to some background on it, a claimant who has a medical diagnosis of a disease that is on the lower end of the spectrum, if you will, but the doctor has told that patient/claimant that this is some condition that must be monitored and watched over the years, but presently, although the condition can be identified and there can be a causation because of his work history and exposure to asbestos, he is not presently impaired.
He then seeks an attorney's advice and as soon as that is done that triggers a statute of limitations that forces the attorney within let's say a two year period of time that he has to do something with this claim that he knows, he knows has very little value in the tort system at the present time. So, he must file the claim. And when he files that claim, he starts getting into transactional costs, he files it against twenty or thirty defendants and each one of them must file, each one of them must retain counsel, so the costs are just driven up enormously over claims everybody knows has very little, if any, value t the present time.
What we try to do is take that claim, get rid of the statute of limitations by agreement of the parties and to take that claim and park it until that disease either got worse or manifested through other disease such as mesothelioma. That worked, it was voluntary.
Why did that not catch on in other jurisdictions to the extent that I thought that it would? My feeling of that is that on the federal level, all the cases were sent to Philadelphia under an MDL, they were parked there, they are still parked there and the idea was that they would all be able to settle under one jurisdiction. That never occurred.
Around the country, I think where we find these hot spots and why an asbestos pool or registry or something similar to that has not taken on is because of local politics and the closeness between the -- or the lack of independence is probably a more politically correct way to say it, between the judiciary and the plaintiff's counsel that are practicing in the area.
DR. HENSLER: Yes, I would like to add to that. One of the things that has happened in state jurisdictions that have adopted plural registries and there are several of them besides the Illinois example, is that plaintiffs attorneys observing what the judges have done with cases that have been filed there, just go elsewhere to jurisdictions where there aren't plural registries.
One has to understand of course that when a case is placed on a plural registry, because a payment has not been made, there is no payment that is made to the plaintiff's attorney and plaintiffs' attorneys also argue that at least some of those plaintiffs, if not all of them are being precluded from getting payments that might pay them for some kind of medical monitoring.
So, there are arguments about plural registries, but I think the reason that they have not been more successful in the sense of affecting more of the asbestos caseload is that they are not financially attractive to the plaintiff's attorneys who lead this litigation and in our federal system those attorneys can take their cases elsewhere to jurisdictions that don't have such registries.
MS. PENDELL: Questions from the audience. Prof. Brickman.
PROF. BRICKMAN: I have a question for Judge Trafelet. During your tenure as a judge in Chicago, having established a plural registry there, approximately how many people were on the registry during your tenure there and perhaps more importantly, of that number, how many came off the registry to sue for mesothelioma or lung cancer or asbestosis?
JUDGE TRAFELET: As I recall, I left the bench in 1998, and I think in the last four to five years, my recollection is that we had on average about seven or eight cases that would come off of the registry. Virtually all of those being mesothelioma cases. The registry, I think, started with, well, let me skip over that, because I am not quite sure, I think that it reached a number somewhere in the area of around 2,500, 2,800 - Margaret, do you recall?
MARGARET: Claimants in Chicago are a little different because there is no (unintelligible) people that there are in other places. Thousands of people at any time would be on the plural registry by agreement of the parties, the plaintiffs' counsel would fill out a form, it came to their attention that these people had some diagnosis of a condition, but there were certain criteria to come off and it was very few and far between that a cases was attempted to be moved from the plural registry, that there was not a diagnosis of people. It was very rarely disputed about a case legitimately coming off the registry.
Well, one of the comments about the culture of the plaintiff's bar and the nature of the cases that are pending in Cook County Illinois as opposed to other places is the plaintiffs firms there primarily represent the insulators union and they are seeing cases third generation families of insulators and so you are going to have heavy duty long term, your typical asbestosis, legitimate asbestosis case. I mean, these asbestosis cases, the few that did come off had extreme, you know, 2/3s, we are talking about significant medical findings.
I also recall one time a case of a true pleural thickening causing impairment that actually went to trial back in the mid 90's, but, you know, they were also pursuing these cases against insulation manufacturing companies, not these 8,200 new defendants. I mean, that is one of the reasons that the system worked there, is because there were not hundreds and thousands of people being sued. I mean, I think, Judge Trafelet can comment that there was a weekly call and all the parties would come into the courtroom every week and whatever issues needed to be addressed were addressed. Well, there wouldn't be a courtroom big enough for that with 8,400 people being sued. I mean, that was just not what happened. And that's why the system worked, because the plaintiffs' counsel there were not suing everybody in every kind of case.
MS. PENDELL: Another question back here.
MR. DERKER: I am Bob Derker of the Circuit court in St. Louis. I have run the asbestos docket three for the last ten years and I just have a couple of comments, if I can trespass on your patience.
MS. PENDELL: No, please, do, Judge.
MR. DERKER: Prof. Rothstein, I agree in substance with much of what you say about the role of the judiciary, but I think the judiciary is very good at evolving rules of liability that expand the frontiers of liability and then create these problems that the legislature has to try to extricate us from.
I think 402A, the restatement for 402A is a prime example of how the judiciary has created a liability principle that has now created in its turn this state of litigation. But your program intrigued me because I had made a decision to terminate our asbestos docket because my observation was that the nature of the claims had changed and that we were getting a large quantity of cases that represented people who were not impaired and, in addition, our docket was so efficient that we were attracting cases that were being used as a bargaining chip in other jurisdictions and particularly in our nearby Madison County, Illinois, which I am sure Judge Trafelet is familiar with.
But the question, I guess the one question I had was if anybody had ever studied what appeared to me to be a market in the settlement of these cases that mesotheliomas were worth X and lung cancers worth X minus and pleuraplax were down at the bottom. It would seem to me that here was a nationwide market in settlements and I was just curious if any of the economists had ever studied that.
Mesothelioma Information
Malignant mesothelioma is a rare type of cancer affecting the serous tissue lining of the pleura (pleural mesothelioma), peritoneum (peritoneal mesothelioma) or pericardium (pericardial mesothelioma). Asbestos exposure is the only known cause of malignant mesothelioma. If you have or a loved one has mesothelioma, you may be entitled to compensation. Contact a mesothelioma lawyer to get information regarding asbestos litigation to find out more.