 “The situation has reached critical dimensions, and is becoming a disaster of major proportions … the worst is yet to come.” U.S. Senate Judicial Conference on Asbestos |
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MORE STATES BLOCK
“UNIMPAIRED” CLAIMS
With Congress at a 26-year impasse in attempts to reform runaway asbestos litigation, the states have begun legislative efforts to curb abuses in the system which may see claims pass the million mark in 2007. Experts estimate as many as 900,000 of those claims are submitted by “uninjured victims”--- claimants with no apparent injury or disease caused by exposure to asbestos.
Ohio passed a landmark reform law in 2004. Texas and Florida followed in 2005. Kansas, South Carolina and Mississippi joined the reformers this year. Some form of asbestos or mass tort reform legislation has been introduced in at least nine more states, with indications of proposals coming next year in several more.
Court orders in other states have mandated new procedures that restrict massive filings of claims by judicial decree. The Michigan Supreme Court banned the ‘bundling” of asbestos claims this year to end what many asbestos defendant companies have decried as an abusive practice of adding multiple claims for uninjured clients to a few claims for seriously injured victims in mass tort filings geared to pressure defendants to settle all cases without individual review.
NEW SENATORS LINKED TO ASBESTOS LAWYER LOBBY
Democrats’ pledge to reform Congress and end influence-peddling was cast in doubt by disclosure of the overwhelming financial role played by a single special interest group in the election of six of the seven new senators elected in November.
Public records and candidate filings required by FEC law reveal a startling pattern in the campaign contributions to the freshman class of victorious Democrats: Sherrod Brown (D-OH), Ben Cardin (D-MD), Bob Casey (D-PA), Amy Kobuchar (D-MN), Claire McCaskill (D-MO) and Ben Tester (D-MT).
The leading industry in contributions to all six - Lawyers & Law Firms. The leading sector for all six - Lawyers & Lobbyists. The leading individual contributors for all six - lawyers, law firms and trial lawyer organizations. One sub-group was identified as dominant in all three categories: asbestos plaintiff lawyers and law firms.
Total lawyer-related contributions exceeded $7 million, more than the total amount received from all other groups combined.
“Lies Upon Lies Upon Lies”
ACT Press - Cleveland, OH
Ohio asbestos court Judge Harry Hanna blasted a nationally prominent asbestos firm for misconduct and barred the firm from future appearance in the court in a ruling issued January 18th.
Judge Hanna cited Brayton, Purcell of California and partner Christopher Andreas for a litany of offenses, including: “lied to the court ...distorted...lied to the court...refused to obey the court’s orders...intentionally withheld...disrespectful, obstructive and untruthful...misleading...fraud...patently false...designed to deceive...shocking obstructionist tactics...endless web of deceit” and reached an unequivocal conclusion in his harshly worded opinion: “They have not conducted themselves with dignity. They have not honestly discharged the duties of attorneys in this case. Therefore, they have forfeited their privileges to practice before this Court.”
The ruling came in relation to one of a series of claims submitted by Brayton, Purcell asserting various contradictory causes of asbestos disease for a single plaintiff In order to secure redundant compensation from an assortment of asbestos trusts and defendants. “Double-dipping” claims are unethical and unlawful but are believed to widespread in current asbestos litigation.
Senator Murray
Re-Launches Ban
Asbestos Bill
Senator Patty Murray (D-Washington) introduced legislation for a 100% ban on asbestos and asbestos products, similar to a bill first proposed in 2001 and again in subsequent Senate sessions. The Ban Asbestos in America Act of 2007 would also provide funds for medical research aimed at asbestos-related diseases and treatment of asbestos victims. Previous versions of the bill were stalled in committee.
Murray is now chairman of the Senate HELP Subcommittee on Employment and Workplace Safety and may be in position to guide the new version of the bill to the floor of the Democrat-controlled Senate. The bill is co-sponsored by 13 senators, all Democrats: Barbara Boxer, Max Baucus, Sherrod Brown, Hillary Clinton, Richard Durbin, Russ Feingold, Dianne Feinstein, Tom Harkin, John Kerry, Edward Kennedy, Patrick Leahy, Harry Reid, Maria Cantwell.
At a press conference to announce the bill, Murray claimed that 10,000 Americans die from asbestos exposure every year and that asbestos is still used in numerous consumer and industrial products in spite of known hazards.
EAVESDROP SCANDAL ROCKS TOP FIRM
ACT Press - Seattle, Washington
Allegations of eavesdropping on jury in an asbestos case in King County, Washington have prompted an investigation by the Washington State Bar Association and suspension of court privileges for high-powered Dallas firm, Waters & Kraus, “until the matter is resolved.” If the WSBA determines there was misconduct by the lawyers involved, Waters & Kraus could be permanently barred from the King County court and face similar disciplinary action in other jurisdictions. Defendants in at least one other asbestos case brought by Waters & Kraus in Los Angeles County have notified the Superior Court there of “concerns” related to the Washington incident.
Superior Court Judge Sharon S. Armstrong, chief asbestos judge in the district, notified Waters & Kraus in a December 18th letter that she had requested the WSBA investigation in the wake of startling developments in the case of Lott v. Saberhagen, et al. involving attorneys Scott L. Frost of Waters & Kraus and Mark H. Iola of Stanley, Mandel & Iola (Dallas).
"It appears that Mr. Frost may have been eavesdropping on the jury deliberations,” the judge wrote in her letter, “That he may have overheard the jury's agreement to a defense verdict, immediately advised Mr. Iola of the jury's decision, and Mr. Iola then settled the case. If this is true, both Mr. Frost and Mr. Iola engaged in misconduct."
Armstrong reported that a witness had seen Frost sitting near the door to the jury room for about an hour on the afternoon of Friday, November 17th, as the jury neared completion of deliberations. At about 3:30 pm, Frost “leapt up (her expression) and hurried out of the courtroom.” Minutes later, attorney Iola contacted defense attorneys with a proposal to settle the case, allegedly for a fraction of the $800,000 the firm had insisted was a minimum acceptable amount. At 3:45, the judge was notified that attorneys for both sides had re-opened negotiations. Waters & Kraus attorneys have confirmed that a settlement was reached that day.
The jury foreman later informed Judge Armstrong that the jury had reached a verdict for the defense at 3:30 pm on Friday, November 17th. In a discussion immediately after, jurors decided to wait until court resumed the following Monday morning to announce their verdict. When Armstrong questioned Frost about the strange coincidence, he apparently confirmed that he had overheard something that afternoon, but he assured her it was only “general noise.”
Armstrong gave no credence to Frost’s explanation in the subsequent letter, citing “what appears to be misconduct by members of your firm during trial.”
Waters & Kraus has announced it is “working diligently to determine the facts so that we can respond…” A partner with the firm has confirmed that Frost’s application for admission pro hac vice to an asbestos case in Los Angeles has been withdrawn. Neither Frost nor Iola have responded to requests for comment.
“TRIAL LAWYERS
ON TRIAL”
Criminal Probes, Charges, Client Backlash Cloud Future for the Asbestos Super Firms
ACT Press - Federal prosecutors in Manhattan issue subpoenas to three of the most prominent asbestos-specialty law firms in the nation. A Miami attorney is charged for bilking 4,000 clients out of millions in asbestos award payments. An Illinois firm is forced to dissolution in the wake of a $32 million malpractice judgment. A top asbestos litigator is sued by a leading victims’ advocate, accused of betraying clients in secret deals with defendant companies. A prestigious firm and two attorneys are indicted in Los Angeles. A Texas grand jury probes for fraud in asbestos and silicosis cases. A leading Ohio firm is rocked by a bitter feud and $3.5 billion lawsuit. FBI agents investigate bribery and influence peddling that reach to the state’s highest court. Medical expert witnesses linked to Top 10 asbestos firms invoke Fifth Amendment protection when summoned to testify in Congress.
After two decades of consistently winning battles against corporate defendants for billions of dollars in asbestos injury claims, a growing number of trial lawyers are being forced on the defensive in civil and criminal cases and investigations by state and federal prosecutors, grand juries and the FBI. The allegations of misconduct include malpractice and conflict of interest on the civil side and, in some cases, criminal charges of fraud, bribery, evidence tampering, conspiracy and racketeering, all related to the asbestos litigation system that has grown into the largest and costliest mass tort in U. S. history. [See Asbestos Crimes link]
“The next shoe to drop may be in federal court in New York. If indictments are forthcoming—and lawyers who sponsored the mass screenings and collected billions of dollars in fees are among those indicted—the ensuing process could shine a floodlight on a fraudulent scheme so massive as to qualify non-malignant asbestos litigation for entry into the pantheon of … great American frauds.” So says law professor Lester Brickman, a legal ethics expert who has called on Congress to launch a full scale investigation into patterns of “wholesale fraud, bribery and racketeering” in the asbestos litigation.
NIOSH OFFERS ROADMAP FOR ASBESTOS RESEARCH
ACT Press Washington, D.C.
The National Institute for Occupational Safety and Health (NIOSH) has proposed a new, comprehensive effort to expand scientific research into the risks and effects of asbestos exposure. In calling for peer review of its preliminary proposal, Asbestos and Other Mineral Fibers: A Roadmap for Scientific Research, NIOSH acknowledged that current “scientific literature has various inconsistencies and inconclusive evidence which have led to uncertainties…” that affect development of proper regulatory guidelines for the health and safety of workers and the general public.
The report identifies many areas of concern requiring scientific clarification, including: relative hazards of variant asbestos types, biopersistence and biomedical response to fiber inhalation, environmental factors, trends in asbestos disease and mortality rates and other areas where additional research is needed.
The NIOSH proposal responds to the growing concern in medical and scientific communities that asbestos science has been tainted by bias and fraud in recent years, prompted by the influence of ongoing asbestos litigation. With billions of dollars at risk, plaintiff and defendant lawyers spend vast sums to procure “preferred” expert testimony, medical and scientific evidence to support or oppose injury claims, now approaching one million.
In concert with the full complement of available federal and private sector partners, the NIOSH effort could lead to major advances in understanding asbestos hazards, effective treatment of asbestos disease and eradication of “pay-to-play” pseudo-science.
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