Asbestos Lawyer - Mesotheliomia Attorney
And I guess my second question to Judge Trafelet would be, would he endorse the idea of discontinuing specialized asbestos docket, in view of the changing nature of the claims?
DR. HENSLER: I am not an economist, but I will comment on the market. There clearly is a market in claims and it is a market that takes account of differences in severity and there are understandings about the ratio and is often talked about in terms of the ratio of these different injury categories and that's the basis of most of the settlements that are negotiated around the country.
Now, that's not the only factor that enters into the valuation of the claims, who the lawyer is is an important part of that calculus, some lawyers are known to be more aggressive more successful, more likely to go to trial, more likely to succeed if they go to trial, they get more money. Other lawyers are known to be interested in quick and easy settlements, they get less money per.
There are issues about jurisdiction, there are still some issues about where you can actually get jurisdiction and venue and that clearly affects the going rate for cases.
I think one of the things that in my view was missed in the very hot controversy over the MCAM settlement and the Fiberboard settlement that because the Ortiz case, was that there was a great deal of commentary, certainly among legal academics, but also among legal practitioners about the nature of the settlements that were proposed there because they were essentially attempts to create administrative schemes within the context of class actions. And people who didn't understand how asbestos litigation was being managed in the United States, criticized those settlements for not taking proper account of the need for individualized due process and individualized outcomes.
But long before Georgene was proposed and the Fiberboard settlement was proposed, asbestos litigation had become an administrative process, characterized by settlements that are shaped, as I said in my presentation by a small number of verdicts and other developments in this country. And one of the problems, I think, in our policy debate, to the extent that we are ready to have the debate that Prof. Rothstein invites us to have, a congressional solution or some kind of legislative solution is that proposed options are evaluated against this fantasy that asbestos cases are being pursued on an individualized basis and in what we imagine court processes to look like. Instead what we have is a financial transactional system.
One of the things that as happened in the last few years that has led to this heightened tension and some of the consequences that the other speakers presented, is that the assumptions underlying those settlements fell apart, okay, and defendants who thought they understood the nature of their exposure found that that exposure had changed.
Some people believe that what we are in is a period of transition and particularly those who would like the current system to continue more or less the way it is, argue that we will reach another plateau and everybody will understand what the rules of the game are. But I think it is important to understand that this is a marketplace in which claims are being traded and it is also worth saying that the claims that have more value and that some of us think deserve more of the money that is being spent are being discounted in order to provide funds for this large flood of claims in which people at least currently have less need.
MS. PENDELL: Do any of the economists have something to add?
DR. DAVID: Well, I was going to add that we have developed models that try to identify what are the factors that drive the size of individual settlements and individual judgments. And one factor that was left out is the characteristics of the defendants as well. Obviously, some have developed a reputation for settling quicker than others, others have more funds that are simply available to pay.
And, also, the timing. Early on obviously settlements were larger before it was estimated how many would finally come out. So, there has been decline perhaps over time in some cases.
DR. DAVID: And you are getting a layering too, because you are getting your first wave of target defendants are out of the picture now and the plaintiffs are now looking for second level, the second level moves out going through reorganization and people keep moving up the ladder.
PROF. ROTHSTEIN: It has been noted that the parties on both sides of these cases are getting more and more peripheral. That is their connection with asbestos is getting more and more attenuated, that the plaintiffs are less ill as time goes on and the defendants have had less to do with asbestos. They are now things like universities and mom and pop businesses that may have some asbestos on their premises, or that they made something at one time that had some asbestos.
And at the same time that that is happening, the threshold of what an injury is has been lowering, as we have noted. And concurrent with that has been the tendency of some courts to recognize things that aren't even present physical injuries at all, like cancer phobia, compensation for cancer phobia, you know, fear that you will get sick, although you are not sick now or compensation for loss of chances of being well, the chance of getting sick has increased even though you are not sick. So, that is sort of the evil triumvirate, the low threshold of injury, cancer phobia and loss of chances and combined with that is the notion of medical monitoring that you can now get the court to order that you be watched to see if you are going to get sick.
And I just wondered if either of the judges that has spoken, if in their jurisdictions some of these quite novel legal devices, like lawsuit for cancer phobia or loss of chances, whether you have had any experience with that in your jurisdiction?
JUDGE TRAFELET: We did, we did not allow any such action. We were, however, a two disease state. In other words, somebody who had asbestosis, or anything less than cancer could settle or go to trial and get a verdict for that disease and then come back for a separate cancer disease, because we felt, and it was upheld by the Supreme Court, that there was sufficient medical evidence to support the two diseases standing distinct. They still could come from the exposure to the same product.
Could I add one little thing here. Prof. Hensler, in her presentation estimated that there were 27 million workers that were exposed. And if we were to take that number alone and say that all of those were unimpaired at the lowest level that we are dealing with and that this is people and as part of the judiciary, it has got nuisance value. We can't handle the transactional costs, we want to close our books on it, let's get rid of them at $2,500. We might do that very simply without blinking an eye, if we are an auto case, a soft tissue auto case.
But if we take $27 million and if my math is correct, times $2,500, we are at $67.5 billion. There is a tremendous, tremendous impact, not on the asbestos litigation as a whole, I think, but what is occurring through the unimpaired claims in our tort system. And it is a very big debate, very big.
MR. DERKER: I would like to respond to the professor's question. Missouri law is not particularly hospitable to being afraid you are going to get cancer, so we have had a few claims of that sort, but very few. What we have experienced, I mean, you pretty much have to have a diagnosable physical or mental condition to be able to pursue the claim and the juries have not, even in redistributionist city of St. Louis, we have not been, the jury has not been too sympathetic to those sorts of claims. So, most of the asbestos related claims that have gone to trial in St. Louis, in fact, all but two that I can remember were cancers or mesotheliomas and the two pleuraplax that went to trial were modest verdicts.
JUDGE TRAFELET: The asbestos is not very popular. I tore this out within the last few weeks and I am sorry, this is not very academic on my part, but the source of this was Decision Quest, it was a survey and the gist of this is, of jurors that were perspective jurors that were surveyed, on a tobacco case, where would their tenancies be. For somebody that was being sued for an illness caused by smoking, the blame would be put on the tobacco companies, 28% of the time, a pharmaceutical company being sued for side effects caused by a prescription drug, 46.7% would favor the plaintiff, would find against the defendant. An airline being sued for hijacking 30% would be in favor of finding against the defendant. But an asbestos company being used for injuries caused by exposure to asbestos is 64%.
So, over the years I think, I get a sense, with my years of experience with asbestos litigation is that there is a higher level of education on what the asbestos industry was all about, the exposures and what has happened in the court system, then there had been years ago. And that is certainly favoring the perception that the public has about the asbestos or anybody that manufactures it.
MS. PENDELL: Judge Trafelet, I think there is an outstanding question to you about whether or not you think it makes sense or desirable to eliminate asbestos dockets in the courts?
JUDGE TRAFELET: My answer would be, no, I would disagree with you. My reason would be, let's keep it going. I don't know the reason for it, Your Honor. To me, if doing that, you are going to back up your docket.
MS. PENDELL: Questions? Wait, let's give it to someone who hasn't asked a question yet over here.
MR. DERKER: I'm sorry. Well, I was going to respond that my reason for terminating, my chief judge may overrule me, is that the people who are not functionally impaired, they are really glorified rear end collision cases and my secondary reasons was we are attracting cases that would not otherwise be filed in St. Louis, because we are so up to date. We were getting cases to trial in less than a year and we actually had to slow it down. Well, I am talking about putting them back on our regular dockets to be reached in the ordinary course as opposed to the specialized docket which has reached, and this is not me crowing, but we were very efficient in disposing of them and then we got more of them as a result. So, that's the reasoning, but I understand your position.
DR. HENSLER: I just want to add, while we are talking about this interesting docket question, that we have several things going around the country, are around the country in terms of asbestos dockets. We have these plural registries that we have been talking about in some courts. In other courts we have so-called expedited dockets and expedited dockets for asbestos have generally been focused on the more serious injury cases that are put at the front of the trial line because somebody may, in fact, be approaching death.
As you look at what has happened to litigation values around the country, I think you can make a pretty compelling case that expedited dockets have, in fact, contributed to the rising value of asbestos cases, because it made it possible for cases to get to trial that up until the rise of these dockets had not been getting to trial. Juries in many jurisdictions awarded more money than not only the defendants had expected, then the plaintiffs attorneys had expected.
And so it just highlights, I think the importance of judicial management strategies in shaping the course of the litigation, including affecting the outcomes.
MS. PENDELL: Okay, question here.
MS. BENNETT: Cathy Bennett with Pfizer. Professor, I had the honor of being one of your students at Georgetown at one time. You mentioned the concept of a global solution in enacted by Congress, what are the elements of such a solution as you would see that?
PROF. ROTHSTEIN: Well, I think and I don't want to cause a riot here, but bottom it is well redistribution problem. There is some class of people who are seriously ill or will become seriously ill and then there are those who are not. It is good for society to see that they get something that restores them to some kind of functioning status in society or their families given what is needed for them to survive. And it should - the companies that are only peripherally related to asbestos and even those that have made asbestos and are directly related to asbestos aren't really anymore at fault than anybody else in our society. It is strict liability, which means no fault.
So, it is a slim argument to say that those companies that have some relation to asbestos have done something wrong and ought to pay and we have all benefited from asbestos, the whole country has, so I think it should come out of the -
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But that hasn't deterred anybody else with worthy claims for money, asking the government for money for their causes and so if I had my druthers, that's what I would have. And I would think it would be a limited amount of compensation, not a huge amount for each particular person.
I know the judge is actually against the global settlement.
JUDGE TRAFELET: The question that disturbs me or the question that raises itself when you say that is, you know, who is next in line to come before congress and say, get me out of this jam. And that's the disturbing thing I have.
PROF. ROTHSTEIN: Well, asbestos is of a different kind, because it is so huge. I think that's a different thing. If the president had to pick between North Korea and Iraq to hit, we have to pick what is the most pressing and take care of it.
DR. DAVID: Just to add, I mean, it is a very special case, in my opinion. I mean, you think of a typical product liability case, taking an example, a tire maker who doesn't make a high quality product, people sue right away, the workers and managers of that firm bear the cost of not creating a good product or it is relatively close in.
Asbestos with this huge latency period, you have managers who made decisions years ago, decades ago and the costs are now being borne by the managers and workers at the firm today. So, in many ways, I mean, that's something tat also has to be considered. It is a different kind of product, it is a different kind of issue and is it really, in my opinion, an extreme form of the need for some reform or tort reform. And you can sort of, regardless of people who think there should be or shouldn't be tort reform, you can say, you know what, this is an extreme case and the system from our work and I think from the work of others on the panel, suggests that it isn't working and should be reexamined and made more efficient. And you can do that without addressing all the other issues that folks like to raise, and it can be a sort of specialized case, in my opinion. But I am not a lawyer.
Asbestos Lawsuits
If you or a loved one has contracted an asbestos-related disease, you may be entitled to compensation. If you are the executor of estate of a loved one who has passed away from an asbestos-related disease, you have to file a wrongful death asbestos claim before the statutory deadline passes. Contact an asbestos lawyer or mesothelioma attorney.