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The tragedy of asbestos continues to play out. The ensuing litigation has no counterpart in our history. Over 10,000 companies have been named as defendants, leading to 100 bankruptcies (and counting). While the litigation continues apace, it has undergone radical changes from the 1985-2003 period, when millions of nonmalignant asbestos claims, mostly of asbestosis, surged through the civil justice system. U.S. District Court Judge Janis G. Jack painstakingly documented that the litigation screenings which had generated approximately 90% these claims were permeated with fraud. As stated by Judge Jack:
"it [was] clear that the lawyers, doctors and screening companies were all willing participants [in a scheme] to manufacture. . . [diagnoses] for money."
Malignancies, most especially mesothelioma and lung cancer, account for a substantial percentage of the billions being paid out currently. Because of the unique nature of asbestos etiology and bankruptcies, trusts with assets of approximately $30 billion have been created from the assets of reorganized companies to compensate current and future victims of asbestos exposures.
Asbestos claimants today have two separate sources from which to seek compensation: claims against the trusts and suits against solvent defendants in the tort system. In “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014), Professor Lester Brickman has examined the interplay between trust payments to claimants and tort claims. He presents evidence that plaintiffs and their counsel have routinely failed to identify exposures to the products of reorganized companies when suing defendants in the tort system even though they state, under oath, that the claimants had “meaningful and credible exposures” to the very products that plaintiffs have denied having exposed to in interrogatories, depositions, and trial testimony. Plaintiffs’ counsel steadfastly maintain that with a sole exception, there is no evidence that plaintiffs or their counsel have engaged in unethical or illegal conduct.
Recently, U.S. Bankruptcy Judge George R. Hodges, in In re Garlock Sealing Techs., 504 B.R. 71 (Bankr. W.D.N.C. 2014), found a “startling pattern of misrepresentation” “of exposure evidence,” thus sustaining Professor Brickman’s expert testimony in the Garlock bankruptcy. The committee representing the interests of plaintiffs and their counsel have appealed Judge Hodges’ Order.
The significance of Judge Hodges’ Order is yet to be determined. Already, Garlock has filed RICO actions against several of the law firms that obtained substantial payments from Garlock. Insurers and defendants are undoubtedly conducting investigations based on the revelations in Garlock and newly emerging evidence that may result in additional lawsuits being brought against plaintiffs’ counsel. If so, we may be entering a new era in litigation.
- Prof. Lester Brickman, Yeshiva University, Benjamin N. Cardozo School of Law
- Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.