recent developments in asbestos litigation · mississippi asbestos lawyer •asbestos litigation is...
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Recent Developments in Asbestos Litigation
Richard O. Faulk Chair, Litigation Department Gardere Wynne Sewell LLP
Houston, Dallas, Austin, Mexico City [email protected]
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Do You Know This Man?
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Dickie Scruggs: Mississippi Asbestos Lawyer
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Dickie Scruggs: Mississippi Asbestos Lawyer
• Asbestos litigation is the “endless search for the next solvent bystander.”
• Accused and convicted of attempting to influence or secure judicial misconduct.
• Judge Glen H. Davidson imposed his sentence and quoted the Scottish philosopher William Barclay: “The Romans had a proverb that money was like sea water. The more you drink the thirstier you become.”
• In December 2012, a federal judge granted Scruggs' motion to be released from prison on bail pending his appeal of the 2009 conviction
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Tort Reform
• Tort reform in some states has improved the asbestos litigation climate and reduced the caseload.
• “Inactive dockets” preclude litigation of cases unless true asbestos-related illness is shown.
• Has resulted in dismissal or abatement of millions of alleged “asbestosis” cases nationally.
• Also resulted in a relative increase in filings of cases involving malignancies, such as lung cancer and mesothelioma.
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Tort Reform
• Ohio H.B. 380 – Effective March, 2013
- requires plaintiffs to disclose and account for settlements with asbestos bankruptcy trusts before trial.
- creates presumption that materials disclosed are admissible evidence.
- trial courts can order plaintiffs to file claims with trusts that were not filed previously.
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National Trends: Migration of Dockets
• As the laws changed, and as the judiciaries in some states became more conservative, cases moved to other states.
• Texas, once home to one of the largest concentrations of
cases, now has an extremely reduced docket. • Federal asbestos litigation similarly reduced through
“inactive docket” orders and consolidation in multi-district proceedings.
• States that did not approve comprehensive asbestos
litigation reform attracted more filings by “forum shoppers” – e.g., New Jersey, New York, California, West Virginia, Delaware, etc.
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National Trends: Lung Cancer
• The bulk of asbestos cases will continue to focus on malignancy claims. Non-malignancy cases will continue to decline.
• Increasing number of lung cancer claims. Alternative causes (e.g., smoking) are no longer deterring filing.
• Not all states bar recovery when alternative claims are not “ruled out.” Many reduce recovery for smokers on the basis of contributory negligence.
• For the defense, scientific advances in genetic testing can distinguish non-smoking and smoking lung cancers, but defendants must be prepared for motions to exclude the testimony as unreliable.
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National Trends: Alternative Causes of Mesothelioma
• 10-20% of mesothelioma cases are not caused by asbestos exposure – but other causes have been difficult to identify.
• Possible alternatives include genetics, carbon nanotubes,
radiation, talc, vermiculite contaminated with eronite. • Eronite is major focus. Known human carcinogen.
Deposits in various states and more than 200 times more potent than asbestos.
• Tissue testing essential – if available – in cases pending in
Western states like California, Arizona, Oregon.
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National Trends: Alternative Diagnosis
• High-volume expert witnesses are being more closely examined by counsel who are allowed to spend the time to review their publications and clinical/pathological findings.
• Because of high verdict risks and potential exhaustion of insurance coverage, many companies are pressuring insurers to do more detailed discovery and more thorough research into medical records and experts.
• Asbestos pathologists, even the most experienced, make mistakes
and may even miss diagnostic markers that rule out mesothelioma.
• Samuel Hammer, noted pathologist and regular plaintiffs’ causation
witness, recently rejected by jury when he admitted that he misread diagnostic tests.
• Opinions actually contradicted his own textbook.
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National Trends: Secondary Exposure
• Texas courts of appeal reverse verdicts for household exposure when risk was unknown to defendant at time of exposure.
Alcoa. Inc. v. Behringer (Tex. App. – Dallas 2008); ExxonMobil v. Altimore (Tex. App. – Houston 2009). • California appellate court reverses judgment because
manufacturer had “no duty” to protect family members. Campbell v. Ford Motor Co. (2012).
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National Trends: Recent Decisions
• Pennsylvania Supreme Court:
- rejects “any exposure” to asbestos as causal. Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 (Pa. 2012).
- accepts “two disease” argument for lung cancer and mesothelioma, allowing same plaintiff to recover in two cases for different diseases. Daly v. A.W. Chesterton, 27 A.3d 1175 (Pa. 2012)
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National Trends: Recent Decisions
• California Supreme Court:
- Rejects arguments that a valve manufacturer can be held liable for replacement parts containing asbestos that it did not manufacture or supply. O’Neill v. Crane Co., 53 Cal. 4th 335, 266 P. 2d (2012).
- Shifts responsibility from manufacturers to component parts suppliers – but not all states agree.
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National Trends Summary: Good News
• Less total cases – but more serious ones. • Caseloads are migrating to more “friendly” states. • More emphasis on medical issues in mesothelioma cases
to challenge diagnosis and focus on alternative causes. • Some progress in defeating secondary exposure claims in
some states – but situation remains unsettled in other jurisdictions.
• Major progress in defeating liability for manufacturers in
cases where they did not supply or manufacture replacement parts.
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National Trends Summary: Bad News
“It ain’t over ‘til it’s over!”
-Yogi Berra