Mesothelioma Lawyers Blog

The $3 million verdict awarded to the family of a man who died of mesothelioma was reduced by more than $1.3 million after a Kansas judge imposed damage caps, per state law.

Our Boston mesothelioma lawyers know that this is yet another unfortunate example of the effect that tort reform has had on asbestos litigation.

Pushed hard by deep-pocketed companies – including those that manufactured products made with asbestos – tort reform is designed to limit the amount that an injured person can collect from the wrongful party. Advocates frame it as a way to dissuade frivolous lawsuits or outrageously high damages. However, the real impact is that the awards determined to be fair by juries and judges, who have heard all of the facts laid out in detail, are not honored.

In Massachusetts, non-economic damages are capped at $500,000. Non-economic damages would be those not quantifiable, such as negligence or loss of consortium. In other words, it’s not the amount you have or will expect to pay in medical expenses or shoulder for lost wages. It’s the amount of damages you are owed for your pain and suffering.

However, there are exceptions to this cap in Massachusetts when the plaintiff can provide proof that he or she was substantially disfigured or suffered some permanent loss or impairment or when there were some other special circumstances where limiting that award would deprive the plaintiff of just compensation. A strong argument for exception can be made in cases of mesothelioma, a terminal disease with the only known cause being asbestos exposure.

Still, caps continue to be imposed in asbestos cases.

Here, with McCormick v. A.W. Chesterton Company, the plaintiff was a mesothelioma cancer patient, who died after the lawsuit was filed. He had worked for years on a number of boiler systems at an Air Force base in Kansas.

Years later, he was diagnosed with mesothelioma and sued the manufacturer of those boilers, Cleaver Brooks Co., Inc. (later purchased by A.W. Chesterton Company). This was a firm that manufactured and supplied dozens of asbestos-containing boilers that were used on base. Claims against other defendants were dropped.

Co-workers of the plaintiff testified that the defendant inhaled asbestos dust routinely while working to install, repair and replace the boilers.

It was alleged that the manufacturer was well aware of the damages its products posed, yet did nothing to warn users of that. The company, meanwhile, attempted to heap the blame on the Air force and other firms with asbestos-laden products used on the base.

The jury sided with the plaintiff, finding he should be awarded $3 million – $1.5 million for economic damages and another $1.5 million for wrongful death. However, due to tort reform and damage caps, that award was slashed down to $980,000 – $480,000 in economic damages and $500,000 in non-economic damages.

That amount isn’t final, though, as the judge agreed to stay the final judgment to allow the defense time to file additional motions.
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The New York Supreme Court has ruled that a trial court will have to determine whether an asbestos defendant purposely structured a $1 billion settlement in order to force its reinsurers to cover a disproportionate share.

Our Boston mesothelioma plaintiff lawyers know that the case, United States Fidelity & Guaranty Company vs. American Re-Insurance Co., is noteworthy and closely watched by virtue of the fact that it is one of the longest-running, most complex litigation actions in asbestos claim history – and also because of the high sums involved.

It’s a question of the degree to which an insurance company contracted with a firm later found negligent in asbestos exposure litigation can recoup losses from its reinsurers, or the firms that buy policies from original insurers as a risk management strategy.

In most cases, asbestos plaintiffs file suit directly against the company itself. If the plaintiff wins and damages are awarded, the firm must pay. But the firm can then turn and file suit against the insurance company to help mitigate the cost. The insurance company, in turn, goes after its reinsurers.

Ultimately, spreading out the cost doesn’t really impact the original plaintiff, and it may even prevent the company from filing bankruptcy, thereby extending its ability to continue to pay out future claims.

Of course, reinsurance companies are fighting back vigorously, as most did not anticipate the sheer volume of asbestos litigation that these firms would be facing when they first wrote the policies decades ago.

On that front, at least, the insurance companies may not have a strong argument. In this case, an appellate court last year affirmed the reinsurance companies’ responsibility to cover nearly half of the $1 billion settlement, about $420 million, upholding a 2010 ruling by a lower court. The justices found that reinsurance companies were bound by a doctrine called, “follow the fortunes,” which essentially means that reinsurance firms legally take on some of the burdens of insurance companies with which they are contracted.

In this situation, the insurance company first wrote a policy in 1948 for a company that was then known as Western Asbestos Co., later renamed Western MacArthur and purchased by Travelers Co. Then in the 1970s, people began to sue for damages for negligent asbestos exposure. Ultimately, Travelers paid out $1 billion to cover those claims. But then in 1993, the company filed suit against three of its insurance companies. A settlement was reached in 2002 and Western MacArthur filed for bankruptcy as a result. But now, the firm’s insurance companies are after the reinsurers to recoup a big portion of their losses.

Reinsurance companies are responsible, the court found, but the question now is whether the initial insurance firms wrote the original $1 billion settlement in such a way that it unfairly placed a heavy burden on the resinsurers. The allegation from the reinsurers is that the firm intentionally lowered the value of certain claims and inflated the value of others in order to increase the amount that the resinsurance firms would have to pay.

The state supreme court, finding there was no matter of law to be decided, ruled that the question of whether those allegations are true will have to be answered in a trial, if the firms don’t independently reach a settlement.
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Following Ohio’s passage of an asbestos claim “transparency” bill, requiring those claiming illness due to asbestos to disclose all current and previous defendants, Mississippi is now jumping on the bandwagon.

Our Boston mesothelioma lawyers are troubled by this trend, as it is being pushed by asbestos defendants in an effort to limit individual liability. The fact that these bills are being characterized as a way to increase “transparency” is unfortunate and misleading. In reality, the ultimate aim here is to disenfranchise mesothelioma sufferers and force them to jump through more hoops in order to obtain the compensation they are rightfully owed.

Further, this is not something only Ohio and Mississippi claimants should be concerned with. In addition to the fact that other state legislatures may be considering similar measures, a federal law was proposed last year. HR 4369 (112th), the Furthering Asbestos Claim Transparency Act of 2012, would have amended Title 11 of the U.S. Code by requiring public disclosure of asbestos trusts, established by section 524(g), to file quarterly reports with detailed information regarding all asbestos injury claims, to federal authorities. Again, the purpose is to limit a plaintiff’s ability to collect damages from multiple sources. However, we are well aware, many of our clients were indeed exposed to asbestos by multiple sources, and as such, have a right to claim damages from each. HR 4369 died in committee.

The Mississippi bill, HB 529, would mandate that anyone filing an asbestos-related claim provide a sworn statement detailing all existing claims made either by them or on behalf of them. Those statements would have to include any and all material pertaining to those claims and would have to be disclosed within a month of the discovery phase of the case. If subsequent claims are made after that time, the plaintiff would have a month to disclose those as well. If the defendant found there to be any conflicting information (as it no doubt will, given the common defense propensity to throw up any possible roadblock to drag out the process), it would have 75 days in which to request a halt to the proceedings. And that’s not all. If a claimant files a claim with an asbestos trust after a judgment has already been found in another case, the court would actually be allowed to re-open the original case and reduce the damages awarded.

If it is passed, the measure would be applicable to all filings after July 1 and any that are pending but haven’t yet proceeded to trial.

The U.S. Government Accountability Office estimates there are some 8,500 firms that are or have been defendants in asbestos cases. Currently, trusts have amassed about $40 billion in assets to pay out these claims. Mississippi legislators say too many are being unfairly penalized by plaintiffs who file claims against multiple firms.

However, we would posit that asbestos claimants deserve compensation from each of the companies that knowingly and negligently exposed people to this deadly substance. The relevance of other exposures channels is limited.
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Efforts by court administrators to reduce the number of out-of-state mesothelioma cases being filed there have reportedly been successful – which is not great news for potential plaintiffs here in Boston.

Our Boston mesothelioma attorneys know that effective changes made to Philadelphia Court of Common Pleas actually took place last year. However, we are just now learning about the chilling impact.

First, some background:

There were actually multiple reasons why Philadelphia was such a hub for cases of asbestos litigation.

For starters, it is in this location where hundreds of thousands of soldiers have served over the years in the Philadelphia Naval Shipyard. It was actually the first naval shipyard in the country. The site is now home to a booming industrial complex. But for years, it was a site were countless workers were exposed to inordinate amounts of asbestos – the material containing fibers that cause mesothelioma.

This alone makes it unsurprising that many mesothelioma lawsuits were later filed there.

Secondly, it is no secret that the city had become known for high jury awards in cases where plaintiffs were successful. But this was only part of it. The fact is, mesothelioma cases were far more likely to actually be heard than in many other parts of the country. The city was renowned for its effective handling of mass tort cases through the creation of the Complex Litigation Center.

This was a separate court system founded in the early 1990s and equipped to handle a flood of incoming asbestos litigation. The general idea had been that having a separate division of the court, staffed with its own full-time judges familiar with the complex legal issues and complicated science that consumed these cases, would be far more effective.

And they were right. The court was renowned nationwide for its phenomenal ability to process a large number of highly technical cases through the system quickly and efficiently. It worked so well that the Complex Litigation Center began taking on the influx of pharmaceutical cases as well.

So it’s no wonder out-of-state attorneys sought to have their cases heard there – in hopes they might actually be heard. But the local courts contended they were being overburdened. As such, a number of changes were made.

Among those changes, punitive damages in mesothelioma cases are automatically deferred. For a while, all discovery in mesothelioma cases was required to actually take place in Philadelphia – a clear deterrence to out-of-state lawyers – though that requirement has since been reversed. And finally, asbestos cases were consolidated into groups of eight with similar medical issues, with only three in each group at any given time allowed to proceed at trial. It’s expected the rest will then either be settled or regrouped for a later trial date.

Court administrators note that these changes have resulted in a reduction of mass tort filings in the area from nearly 2,700 in 2011 to about 815 last year.

What our Boston mesothelioma legal team wants to ensure our clients recognize that such measures won’t deter us from filing out-of-state if we feel that is in the best interest of the client and/or the case. We also want to assure those with legitimate mesothelioma claims that you and your family ARE entitled to compensation, and that we are fully committed to helping you obtain it, regardless of the hurdles laid before us.
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The Supreme Court of Virginia has ruled that a legal error by a judge in a mesothelioma trial means the case will have to be retried.

Our Boston mesothelioma attorneys believe in the importance of closely following such litigation across the country because it allows us to sharpen our own strategy and avoid similar potential pitfalls.

In this case, Minton v. Exxon Mobil, the court justices ruled 5-2 that the circuit court judge erred by barring evidence revealing a shipbuilding company had for years been aware of the dangers of asbestos and yet failed to take cautions to warn or protect workers. This was important because the company that was being sued, Exxon Mobile, contended that even though its ships, which were regularly repaired at the shipyard, contained asbestos, it could not be held liable to the extent that it was because it was the shipbuilding company – the plaintiff’s employer – that bore the lion’s share of responsibility for protecting and warning workers.

The circuit court judge, however, deemed this fact irrelevant and forbid Exxon from arguing it at trial. Subsequently, a jury sided with the plaintiff, awarding him $17.5 million. But Exxon appealed. Now, the supreme court has ruled a different outcome might have been reached had Exxon been allowed to present this evidence.The plaintiff is now deceased, and now his widow must contend with the ordeal of a second trial.

According to court documents, the plaintiff worked at the shipyard for 37 years, starting in 1956 and ending in 1993. Eleven years of that time was spent as a repair supervisor. There was asbestos, asbestos-containing materials and asbestos dust all over the grounds, to which the plaintiff was regularly exposed. But he never contended Exxon was responsible for this.

What he alleged was that during the years that Exxon frequently brought some 200 ships to the yard for repairs (1966 through 1977), the plaintiff was in charge of inspections of those vessels. In the course of those inspections, he was exposed to a large amount of asbestos present in the ships’ boiler rooms, engine rooms and other compartments. Exxon was aware of the dangers this exposure meant, the plaintiff said, and yet provided no protective materials and didn’t even warn workers about the danger.

Specifically, the plaintiff sued Exxon under the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 905(b). This act requires that ship owners must use “ordinary care” in the maintenance of their ship and its equipment in order that experienced workers can safely unload and load cargo. If a vessel owner’s negligence causes a worker injury, that person or company may be liable for damages.

When Exxon appealed, they did so based on numerous points of law. While the court did agree with the oil company on this critical judicial error, the court rejected the following arguments:

• That there was insufficient evidence to show Exxon actively controlled the activities/materials on its boats. The plaintiff was able to sufficiently show that even though asbestos substitutes were available as early as 1971 – specifically because of the known hazards – Exxon chose to continue to use the product anyway.
• That the plaintiff failed to prove Exxon had a duty to warn because it wasn’t proven that Exxon knew about the danger – only that it should have known. The court found this simply false, saying evidence was ample indicating that Exxon had actual knowledge of the dangers, and yet continued to use asbestos anyway.
• That the level of asbestos exposure attributable to Exxon’s ships was not necessarily enough to have caused the plaintiff’s mesothelioma and that his illness was more probably attributed to early exposure. The court ruled that there was sufficient evidence for a jury to conclude that the plaintiff’s exposure to asbestos on Exxon ships was substantial enough that it could easily have been a contributing factor in his mesothelioma.

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The Environmental Protection Agency and its local affiliates have a host of laws to ensure workers who handle, remove or transport asbestos are safe in the process.

Our Boston mesothelioma attorneys know these kinds of protections came only after years of complaints and scores of deaths directly caused by the fiber.

But now, legislation introduced by Democrat Bill Owens of New York could undermine such progress. H.R. 204, which was presented to Congress on Jan. 4, 2013, would allow the EPA to waive any asbestos standard or requirement under section 112 of the Clean Air Act (42 U.S.C. 7412) with regard to demolition of renovation of a building that has been condemned when there is a reasonable belief that the building may collapse. It’s called, “The Common Sense Waiver Act.”

On his official House of Representatives website, Owns said he was moved to action after, in 2011, he was contacted by local officials in a small village regarding an old restaurant that had fallen into disrepair. The legal owner of the structure had long since gone and could not be located. The leaders wanted to tear it down, as it seemed near collapse, but they could not afford to do so because of the high cost of the asbestos abatement required by the EPA.

On one hand, we can understand where Owens is coming from. If an asbestos-laden building has been abandoned by its owner and ends up collapsing, the dust this could cause might pose a health hazard to the public at-large.

Owens reasons that owners abandon these structures for the same reason local governments have trouble tackling them: It’s expensive. Asbestos abatement, when you follow all the EPA’s rules, can be time-consuming, tedious and costly. So these structures are left to essentially deteriorate.

However, workers safety shouldn’t be compromised under any circumstances. Owens contends that asbestos abatement, in these situations, needn’t be carried out by an experienced, licensed contractor. He goes on to say to a local reporter that while he “hopes” workers will appropriately wrap the material and take it to a proper disposal site, his bill would not make it a requirement.

Everyone from public officials to contractors has said this is a terrible idea. One solid waste department official said that while such work can be cost-prohibitive, the health risks that are incurred by those who handle asbestos are far too great to take chances by bending EPA requirements.

Asbestos abatement contractors said flat-out it would be bad – and not so much for the purposes of their livelihood but for the safety risks that workers would face. Asbestos is a known cancer-causing material. To let just anyone in to start tearing down walls could prove disastrous – not only for the workers, but for the public if the asbestos is not properly handled and safely disposed.

The Common Sense Waiver Act has thus far not gained a great deal of support among Owens’ colleagues. We think that may be a good thing.
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It’s logical that companies trying to settle a large number of mesothelioma claims are going to argue for the least possible payout.

But our Boston mesothelioma lawyers know that such offers fall far short when you calculate the sheer number of people sickened and the devastating impact that this lung disease has on those affected.

In a federal bankruptcy court in Pittsburgh, a judge is sifting through a weeks’ worth of testimony – 17 hours from each side – to close the gap in the disparity of how much both sides think proven and legitimate victims should get now and in the future.

It’s called an estimation hearing, and it stems from a Chapter 11 bankruptcy petition filed three years ago by three companies that specialized in making an asbestos-containing joint compound for at-home projects and renovations. In all, the companies were facing down some 15,000 claims of liability from people who said they suffered illness after using these products. Nearly 3,000 of those claims were from people who had developed mesothelioma. Others developed chronic lung ailments, such as asbestosis.

Filing for bankruptcy allows these companies to insulate themselves from a barrage of lawsuits. But they don’t get to simply walk away. They have to establish what is known as a 524(g) trust fund, from which future claims meeting certain criteria can be filed and paid.

The American Bar Association reports that in 2011, there were 56 asbestos trusts paying out hundreds of millions of dollars in claims annually, with the number of claims and the amount of reward steadily increasing each year. It’s estimated that the total assets of these trusts is right now somewhere in the neighborhood of $35 to $60 billion – and growing.

A recent study by the A.M. Best ratings firm calculated that the entire industry could be expected to shell out approximately $85 billion in asbestos cases when all is said and done.

At issue here is that the defendants claim they’ve essentially already had to pay more than is reasonable. Nearly 15 years ago, when a flood of mesothelioma claims began to be filed, many companies chose to file bankruptcy and create trusts. These companies did not.

As a result, in certain districts that employ methods of liability known as joint and several, the businesses that had not filed bankruptcy but were sued alongside those that had were stuck paying the whole amount of damages in civil cases they had lost. In other words, they had paid for the liability of other companies, as well as their own.

So now, they are attempting to argue that they shouldn’t have to set aside as much as other firms have in the past.

Additionally, they are trying to argue that the type of asbestos they used, called Chrysotile asbestos, isn’t as deadly as other forms (despite ample evidence to the contrary). Another aspect of their argument is that the number of pending claims when compared to their market share doesn’t add up. In other words, they say it’s improbable that so many people got so sick using their product just a few times.

This last argument is sometimes known as the “safe exposure” theory, which purports that the level of your sickness is relative to how much asbestos you came in contact with. However, as the federal Occupational Health and Safety Administration has repeatedly pointed out, there is no safe level of exposure when it comes to asbestos.
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