Overlawyered

Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein's discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers' injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the "Sumner-Simpson papers," which "described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and--most important--to keep that knowledge from the public and workers." These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court's decision "requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur."

In 1982, the New Jersey Supreme Court threw out the "state of the art" defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, "The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. "

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: "The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants' costs had topped $1 billion." But these early years were just the beginning...

Yesterday, I had the privilege to do a brief interview with Lester Brickman, a professor of law at Cardozo School of Law in New York. Professor Brickman is one of the nation's leading legal ethicists and the national adacemic expert on asbestos litigation. The discussion is available as a podcast, downloadable here.

When American Airlines instituted a $2 per bag charge for skycap service at Boston's Logan Airport, the workers' tip income dropped, some travelers seeing the change as a reason to stop tipping. A lawyer representing the workers sued American and a month ago a federal jury awarded them more than $325,000. In addition, the Massachusetts legislature recently enacted a law providing that businesses can be hit with triple damages in wage/hour disputes. Now American Airlines has decreed a complete ban on tipping at check-in at Logan, while also ordering its contractor to raise the skycaps' wages from the former nominal $5.15 an hour to $12-$15, well above the minimum wage but well below what they had been getting in tips. The workers' lawyer is of course charging retaliation and has asked a judge to forbid the change. (AP/Boston Herald, Boston Globe; Boston Herald editorial).

A New York woman who took her family to visit the Maritime Aquarium has filed a $100 claim against the city, saying her child's shoes, along with the entire outing, were ruined when her 1-year-old stepped in dog feces early last month outside the Maritime Garage.

Norwalk officials will deny the claim, city attorney M. Jeffry Spahr said.

"The official response is her claim is denied and poop happens," he said.

The claim by Mahopac, N.Y., resident, Kelly DeBrocky was filed with the city clerk on April 7. It came across Spahr's desk yesterday.

...

Spahr said he has seen some frivolous claims, but the feces claim reeks.

"Some wacky stuff comes across. I don't know if people are more litigious. My opinion is two things are at play. No. 1, people are resistant to taking responsibility for their own actions and No. 2, they feel there always has to be somebody to blame," he said.

Other claims without merit, Spahr said, include a boater who blamed the city after his boat, docked at the city marina, filled up with water in a heavy rainstorm and sank, and parents who hold the city responsible when their children fall and injure themselves on playground monkey bars.

Spahr also cited a suit by boxer Travis Simms two days before he won the super-welterweight title in January 2007.

Simms said that a 2005 injury he suffered during a basketball game at Benjamin Franklin School due to city negligence sidelined his boxing career for two years.

The city is waiting to see whether Simms will drop the case amicably.

Spahr said that long after that is resolved, lawyers in his office will still be talking about the feces claim.

"That's kind of way up there in a take-the-cake kind of thing," he said.

The mother claims she had to discard her toddler's clothes and shoes and return home after the incident, and wants reimbursement. Spahr's response: "I'm also having a tough time picturing why (the child) had to be bathed after stepping in this unless he thought it was some kind of poop sandbox." (Alexandra Fenwick, "City: Mom's claim stinks", Stamford Advocate, May 8 (via Romenesko)).

In October 2006, we reported on a $20 million jackpot justice verdict:

Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley's insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn't pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate's claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields's claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.

The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted "with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will." A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn't allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn't suing his attorney.

Today, the Court of Appeals of Indiana reversed.

I'm happy to see that my initial post -- which doesn't really include any details of yet -- has already begun to spark debate in the comments. I have thoughts on the views expressed, but I'll begin with some background. This information might be old hat to those familiar with the asbestos mess, but it's essential for those with little knowledge. This summary largely follows the account from the introduction to our Trial Lawyers, Inc.: Asbestos report.

Asbestos manufacturing in the United States was ubiquitous. At one point, asbestos-related industries employed as many as 2.5 million Americans. Asbestos commercial mining began in the U.S. in 1874, and after the Johns-Manville corporation was founded in 1890 with a patent for a process that blended short asbestos fibers with magnesia, asbestos manufacturing exploded: "asbestos consumption went from only 956 metric tons in 1890 to a peak of 803,000 tons in 1973."

While asbestos ultimately proved deadly, it was originally thought to be a "magic mineral," as it was dubbed at the 1939 World's Fair. The word asbestos itself is derived from the Greek for "indestructible," and the product is an incomparable flame retardant: it insulated generations of schoolchildren from fire and indeed fireproofed our World War II Pacific fleet.

But asbestos has also long been known to be dangerous when inhaled--as far back, perhaps, as the days of Pliny the Elder. In the early 20th century, asbestos was deemed as dangerous as lead and mercury (two products that have themselves spawned much litigation). In 1918, the U.S. Department of Labor declared that there was an "urgent need for more qualified extensive investigation" into the harms of asbestos, and in 1938, the U.S. Public Health Service issued a "good-practice" guideline for Threshold Limit Values of asbestos exposure.

Thus, asbestos was known publicly to be dangerous when virtually everyone suffering from asbestos-related illness was exposed. The extent of the danger, however, was not known definitively until 1964, when a seminal study by Mount Sinai Hospital's Irving Selikoff established a definitive link between asbestos exposure and lung cancers and asbestosis.

Subsequently, evidence indicated that asbestos manufacturing companies knew more about asbestos' dangers than they originally let on, and indeed in some cases hid that information from the public. Still, as my colleague Peter Huber pointed out in his review of Paul Brodeur's Outrageous Misconduct, a much-cited book that harshly criticizes the asbestos industry, the asbestos companies' early knowledge about asbestosis--asbestos-related lung injury that is rarely fatal, and was generally known--should not be confused with knowledge of the deadly lung cancer mesothelioma, which was exposed by the Selikoff study: "In his account of who knew what when--the core of his cover-up theory--Brodeur systematically obscures the difference between asbestos-related cancer and asbestosis, usually a much less serious disease, and understood and discussed in the Manville boardrooms much earlier."

In any event, the original asbestos manufacturers like Johns-Manville have long been bankrupt due to litigation exposure. (Johns-Manville, ranked 181 on the Fortune 500 with over $2.2 billion in sales, declared bankrupcty in 1982 due to its looming caseload of 16,500 cases, and projections of up to 200,000 in the future.) The story of how that litigation evolved will be the subject of my next post.

His future in private practice? (NBC Saturday Night Live, dubiously safe for work; via Turkewitz).

I can't say how excited I am to be here as a guest at overlawyered -- the first legal blog still in existence! I'll never be the indefatigable blogger that is my colleague Walter, or my friend and fellow legal reformer Ted, but I jumped at the opportunity to come over here to Mr. Olson's "other" blog (he and Ted are also the mainstays of the Manhattan Institute's PointofLaw.com, to which I occasionally contribute).

Overlawyered's long-time readers have doubtless read a lot about asbestos. And we've covered asbestos litigation very extensively over at Point of Law. But there's a lot of new material in the Manhattan Institute's just-released Trial Lawyers, Inc.: Asbestos, as well as a lot of background for those new to the subject. Over the next week, I'll be going through both.

I'd urge anyone interested to read the entire report, available here. Those who want a quicker review of some of the newer material should read my column in the Washington Examiner, which ran yesterday. And there's a good overview of my thoughts in an on-line interview available here.

I'll be back shortly to begin my walk-through of the report, looking at the underpinnings of the trial lawyers' big asbestos machine.

How many errors can you spot in the Jeannette Borzo/California Lawyer magazine story on legal blogging and its sentence about this weblog?

As best as most people can tell, the history of legal blogs began in July 1999 when two lawyers-a senior fellow at the Manhattan Institute and another attorney from New Jersey-launched Overlawyered (www.overlawyered.com).

As a judge considers whether to impose sanctions on attorney Clifford Shoemaker for hitting investigative blogger Kathleen Seidel with an intimidating subpoena, one of Shoemaker's attorneys asks the court for more time "to gather the material I would need to show the Court the justification for the Subpoena and its scope," which prompts Eric Turkewitz to wonder (May 6): "Why is it necessary to look for justification for the subpoena after it was issued?" And: "Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It's only Shoemaker's rationale that matters to the sanctions motion."

In another indication that heavy-handed pursuit of a blogger might not have worked out very well as a legal strategy, Shoemaker's own clients, the Sykes family, have now voluntarily dropped their vaccine-autism suit against Bayer, which was the basis for the subpoena (Seidel, Orac).

Perhaps-ominous sequel: Seidel points out in a new post that Shoemaker's legal papers accuse her of arguably tortious conduct in her comments on autism litigation, including interfering with "witnesses' professions, professional relationships, and economic opportunities", and that the witnesses in question in the Sykes suit, Dr. Mark Geier and David Geier, have previously pursued long and costly litigation against four scientists and the American Academy of Pediatrics over an article in Pediatrics which disputed the Geiers' findings. The suit -- which was eventually dismissed without prejudice as to the scientists, and dismissed with prejudice as to AAP -- contended that damages were owing because the article in question had cut into the Geiers' potential income as expert witnesses.

Maybe it's better sometimes not to stand on all your legal rights? "Jeffery Ely ran over a dog and then sued its owners for the cost of repairing his vehicle. Ely claims in court filings that he suffered $1,100 in damages after Fester, a brain-damaged miniature pinscher, ran in front of his 1997 Honda Civic in January." (USA Today, May 7).

Yesterday the Manhattan Institute released a new report by my colleague Jim Copland, "Trial Lawyers Inc. -- Asbestos". As I note at Point of Law, even as a longtime observer of asbestos litigation I found it quite an eye-opener. I'm happy to announce that Jim Copland will be joining us tomorrow for a guestblogging stint to explain some of his findings.

According to the would-be class action on behalf of Take Five ticket buyers, those supposed chances of "winning" are inflated by counting a free play as a win. "The lawsuit says merchants who sell the tickets should be held liable since they were in on the fraud." (Thomas Zambito, "A lotto nonsense, says $5M lawsuit", New York Daily News, May 6; Kati Cornell, "You've Gotta Sue To Win", New York Post, May 6; Lottery Post).

You knew it was coming dept.: Roy Pearson wants $1 million for being deprived of his District of Columbia judgeship. (Emil Steiner blog/Washington Post, Kerr @ Volokh, Laconic Law Blog; earlier).

Via Kaus, I'm pleased to see someone making this issue crystal-clear:

Earlier on POL: Jan. 24; Jun. 21; Feb. 2, 2007.

"Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the 'Chow, Baby!' name was likely to cause confusion with Purina's CHOW trademarks and would dilute the distinctive quality of those marks. ... According to the dictionary, 'chow' is defined as food, a meaning that dates back to 1860." (Carolyn Elefant, Legal Blog Watch, May 2). More from Ron Coleman:

But companies such as Purina are not interested in discussing the matter. Brand management isn't a seminar. They are interesting in executing and maintaining a policy of complete domination of not only their brand equity space, but a comfortable semiotic buffer all around that space to the full extent that they can get away with it. Judges simply do not award fees or otherwise penalize brand owners for overreaching under the Lanham Act, though the Act empowers them to do so (the exceptions are notable and hence reportable). For this reason it is worth it to Purina and companies like it -- it is a rational economic and corporate choice -- to litigate these cases at the small risk of actually getting to a final adverse judgment regarding a trademark they have no right to anyway, as weighed against the much higher possibility that the other side will surrender $10,000, $25,000 or even $100,000 worth of fees into the process -- dollars that are orders of magnitude more significant to the defendant (or declaratory judgment plaintiff) than for a corporation that probably has counsel on a retainer anyway.

An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan "Bush Lied, They Died" along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son's name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit's Amended Complaint does little to advance the dignity of its cause with assertions like, "Most respectfully, this is a concept that even a mentally-challenged monkey could grasp." (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason "Hit and Run", May 6; The Smoking Gun, Apr. 23).

The presumptive GOP nominee has announced a list of 45 or so names; the academic contingent encouragingly includes Profs. Volokh, Calabresi, Rotunda, McGinnis, and Kerr. (Hotline, May 6). More: the Obama campaign responds (via Kerr @ Volokh):

The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

But won't California lawmakers have to consider an exception for emotional support animals? (Steve Geissinger, San Jose Mercury News, May 6)(more).

The Damage Control comedy team has done parody ads under the titles Neglect, Nursing Home, Personal Injury, Sexual Harassment, and Sue Somebody. (h/t: Nicole Black).