Best of asbestos
Looking for some million dollar lungs
In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. It wasn't the price tag alone that stunned asbestos experts–victims of asbestos-related conditions have gotten huge settlements for years. What made jaws drop was that the plaintiffs weren't even sick–their X-rays just showed they stood an increased chance of getting sick. "Most of these guys have not missed a day of work in their lives," their lawyer said.
It's been 25 years since asbestos use was banned and almost 20 years since major producer Johns- Manville Corp. filed for bankruptcy. But asbestos claims have exploded in recent years, pushing nine major corporate defendants, including W. R. Grace and Owens Corning, into bankruptcy since January 2000. In the past year more than 50,000 new asbestos claims were filed. And because so many original defendants are already bankrupt, plaintiffs' lawyers have been expanding their target list until it now includes firms in at least half of all U.S. industries–including winemakers. "Less and less culpable companies are being drawn into the process," says a recent Rand study.
To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: "Find out if YOU have MILLION DOLLAR LUNGS!"
Examining claims against one large defendant, Rand found that 30 percent of "victims" didn't even claim they had a disabling lung disease; the seriousness of an additional 50 percent of claims was clearly debatable. A 1990 study found that only 16 of the X-rays of 439 tire workers diagnosed with asbestos-related injury held up under closer scrutiny. Trial lawyers say state statutes of limitation force them to bring suits on behalf of clients who are not yet ill.
No relief. Weak cases are taking awards that might have gone to legitimate victims. "It means that more and more of my clients are not getting compensated," says Steven Kazan, an Oakland, Calif., attorney who limits his asbestos practice to victims of mesothelioma, a fatal asbestos-related lung disease. Firms forced into bankruptcy suspend payments, often for years, and victims get nothing in the interim. Kenna Hall's husband, Larry, who owned a tire shop near their Auburn, Calif., home, died at age 54 of mesothelioma last year. Her case against auto-parts maker Federal-Mogul is stalled, since the firm filed for bankruptcy in October.
One defendant is fighting back. After asbestos claims forced the parent company of GAF Materials Corp., the largest U.S. roofing materials company, into bankruptcy this year, it sued three law firms. The complaint reads like a Sopranos episode, alleging that the trial lawyers threatened to crush any company pushing for asbestos tort reform under an avalanche of new claims. It also alleges that doctors reading X-rays for one law firm received sexual favors from female paralegals and secretaries.
The law firms say those charges are trumped up. But the real smoking gun is a memo that GAF alleges law firm Baron & Budd used to prepare witnesses. The memo details facts that all clients, regardless of their actual experience, should testify to and comments all should avoid. For example: "Do NOT say you saw more of one brand [of asbestos-containing product] than another." The reason? "All the manufacturers sued in your case should share the blame equally!" Partner Fred Baron says few people were shown the document: "A paralegal did a memo she should not have done." -P.S.
Source: US News & World Report, the Issue of Dec. 17, 2001
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