May 13, 2008

More reaction to Trial Lawyers Inc. -- Asbestos

Blog coverage includes Bill Childs/TortsProf, Secular Apostate, Dan Pero/American Courthouse, and Tyson Wynn (lauding report principal author John Wylie II). And the Chamber-backed West Virginia and Southeast Texas Record explore local angles. Earlier here, here, here, and here, and the report is here.

May 12, 2008

Trial Lawyers Inc. -- Asbestos makes more waves

This weekend the Boston Herald weighed in with a strongly worded editorial based on the report's findings:

What is also needed, and rarely discussed, is a way to make judges control these cases rather than sit back and watch the plaintiff bar effectively extort cash from the defendants because it's cheaper to settle for a few thousand dollars each than to investigate thousands of cases filed at once.

And to correct a misimpression left by my earlier post: while Jim Copland was the one at the Manhattan Institute who directed the report's preparation, its principal author was John M. Wylie II, who had earlier investigated asbestos-suit scandals for the Reader's Digest (Jan. 2007 issue). Now Wylie contributes the latest "Think Tank Town" column to the Washington Post:

...Tragically, real victims -- workers who actually face serious future health problems due to asbestos exposure -- are often duped into signing away future rights for a pittance in order to pad current attorney fees, and are then left with no recourse if they actually become sick. And workers falsely diagnosed as sick face a lifetime of worry and problems getting insurance.

This project has been gut-wrenching for me. As a lifelong Democrat, I long have harbored grave doubts about many tort reform measures because I believed they hurt working men and women. In this field of the law, however, the need for reform has become blatantly obvious. ...

[Both mass screenings and new filings declined after the widely publicized episode in which Judge Janis Graham Jack exposed bogus claims in her courtroom] But when no prosecutions, disbarments and serious sanctions for the lawyers materialized, new attorneys predictably decided to get into the game. In the past six months, a Texas law firm has conducted two new mass screenings in my native Oklahoma. More are sure to follow.

When a few key doctors are stripped of their medical licenses and jailed, when a few key attorneys are disbarred, when a few overly compliant judges are voted or kicked out of office, it will send a strong message. Until then, lawyers have little incentive not to return to the business model that has earned them billions before.

And Quin Hillyer is covering the study for the Examiner, with sidebars on fast facts, recommended reforms, and the views of Stanford lung specialist Dr. David Weill .

May 9, 2008

Asbestos Ruling: Rhode Island is Not Canada

Restraint imposed on asbestos litigation today in a welcome ruling by the Rhode Island Supreme Court in Kedy v. A.W. Chesterton Co..

Thirty-nine Canadians filed suit in Rhode Island against U.S. companies licensed to do business there, alleging exposure to asbestos in Canada. The connection to Rhode Island was...well...we should be able to sue there. The issue in this appeal was whether the state would recognize the standard doctrine of forum non conveniens, that is, that the forum is simply not well suited to hear the case because neither the parties, witnesses nor other elements necessary to the trial are in Rhode Island.

Today the court agreed that the case should be dismissed under that doctrine, which it ruled was part of the state's "jurisprudential landscape." The court adopted a two-pronged test that takes into consideration the adequacy of an alternative forum if the case is dismissed in Rhode Island, and a balancing of private and public interests affected by the litigation. The opinion allows a case to be dismissed even if the alternative forum provides fewer remedies or other advantages for the plaintiff, and the court gave less weight to a plaintiff's choice of forum when it is motivated by forum-shopping objectives. A court may also consider the extent to which its own judicial system will be burdened by the inappropriate forum shopping.

The court's opinion is here.
The National Association of Manufacturers has submitted an amicus in the case, which is available here.
The American Tort Reform Association issued a news release praising the decision.

May 8, 2008

Jim Copland at Overlawyered

He's guestblogging over there about the Manhattan Institute's new asbestos report.

Trial Lawyers, Inc., Responds Deflects

The American Association for Justice has issued a news release respondi....well, not responding to the new Manhattan Institute report, "Trial Lawyers, Inc.: Asbestos." More like calling names and changing the subject.

• The scene setter: "Manhattan Institute's latest attack on the civil justice system follows the mold of its previous reports: fictitious, imaginative and laughable." OK, that's a soundbite. Not substantive, but a soundbite.
• An attack on the Institute's Jim Copland, director of the study, for comments taken out of context on Vioxx. Wait, Vioxx? And that's relevant, how?
• A paragraph from an 11-year-old newspaper story about the Manhattan Institute's funding.

Slurs and misdirection. That's part of the business model, isn't it?

In other reaction to the report, Dan Popeo of the Washington Legal Foundation argues in The Examiner that the legal profession must do more to police itself and instill a sense of ethics. ATRA's Sherman "Tiger" Joyce sees more evidence accruing for the need to have Congressional hearings.

May 7, 2008

Trial Lawyers Inc. -- Asbestos

The Manhattan Institute's Trial Lawyers Inc. project came out yesterday with its latest, and one of its strongest, reports on the business of mass litigation: Trial Lawyers Inc. -- Asbestos, directed by my colleague Jim Copland, the principal author being John M. Wylie II. I've been writing about asbestos litigation for years on this site and elsewhere, and even devoted a chapter to it in my book The Rule of Lawyers, so I figured I'd seen it all. Wrong: this report has all sorts of fresh and arresting material, well organized and clearly written. As Carter notes in his laudatory post at Shop Floor, it makes a particularly good explanatory resource for new readers seeking a first approach to what is almost certainly the most complicated and costly body of injury litigation in history. It also makes a compelling case that our legal system has failed badly to curb the various devices -- from mass screening resulting in medically dubious diagnoses, to mass forum-shopping in search of favorable courts, through group trial and mass settlement of cases -- by which some law firms convoy spurious claims of asbestos injury to victory along with the genuine.

In its first day the report has already made a considerable splash, with the ABA Journal taking note, Jim publishing an op-ed in today's Examiner, ATRA calling for Congressional hearings on the subject, and the Chamber-backed Legal NewsLine and sister publications covering as well. The report, once again, can be found here.

More: Edited May 12 to clarify authorship of report; see followup posts here, here, and here.

April 8, 2008

One day of asbestos exposure?

In the mail: David Frum's much-discussed new book Comeback: Conservatism That Can Win Again, which contains the following mention of our topics on pp. 71-72:

Litigation abuse has transformed the American judicial system into a lottery where most find only delay and frustration, but a lucky few win amazing prizes. George Priest of Yale Law School likes to tell the story of the plaintiff who was exposed to asbestos for one day when his church was renovated, and won a $4.5 million settlement.

Further details are earnestly solicited from Prof. Priest, if he's reading this...

April 7, 2008

BREAKING: WR Grace settles

Plaintiffs asked for $6 billion; WR Grace said the asbestos claims were worth only $500 million because of extensive fraud. According to Bloomberg, the parties settle for "$1.8 billion," though this amount consists of in-the-money options and payments over 15 years beginning in 2019, so is substantially inflated in present value--depending on the discount rate one uses, the total is more like $600 to $900 million. I haven't yet explored the filing in detail to see what audit protections the settlement will have: will the plaintiffs' lawyers have a blank check to divvy up funds, or will allocations be decided by a neutral administrator as in the Vioxx settlement? And, alas, the settlement means we won't get a federal judge making authoritative pronouncements on the extent of fraud by the asbestos plaintiffs' bar, though the fact that the plaintiffs are settling for less than a quarter on the dollar (well under $1.3 billion of the $5.5 billion in dispute) is telling. More: the 8-K filing; Reuters; Thomson/CNN/Money.

March 23, 2008

Superior Scruggs gossip

...about old but not forgotten Mississippi asbestos-fee-dispute cases, at Folo (& YallPolitics).

March 8, 2008

WSJ on Grace asbestos strategy

The paper enthusiastically backs the company's unprecedented effort to get a bankruptcy judge to declare most of the claims against it nonmeritorious. Some background here and here.