Asbestos Litigation: Where We Have Been; Where We Are Now; Where We Are Going

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1 ASBESTOS LITIGATION Asbestos Litigation: Where We Have Been; Where We Are Now; Where We Are Going Edward J. McCambridge I. INTRODUCTION Did the plaintiff s attorney realize that he was unleashing the longest running mass tort litigation in U.S. history when he filed the case of Borel v. Fibreboard Paper Products Corp.? 1 After the Fifth Circuit affirmed the judgment of $68,000 for Mr. Borel s asbestosis, the rush to file cases was on. In the ten years following that decision, a total of 25,000 cases were filed across the country. 2 That was only the tip of the iceberg as over 730,000 claims would be filed during the pendency of the litigation. 3 The original lawsuits related to the use of thermal insulation products. Either the plaintiff was an insulator who worked directly with the product or was a shipyard employee who worked in close proximity to those products. 4 The primary defendant in the early cases was Johns-Manville Sales Corporation, which was the largest manufacturer of asbestos-containing F.2d 1060 (5th Cir. 1973) 2 Michelle J. White, Asbestos and the Future of Mass Torts, 18 J. ECON. PERSP. 183 (2004), available at 3 Id. 4 See e.g., Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076 (5th Cir. 1973); Keene Corp. v. United States, 700 F.2d 836 (2d Cir. 1983). 409

2 FDCC QUARTERLY/SUMMER 2007 Edward J. McCambridge is a founding shareholder of Segal McCambridge Singer & Mahoney, Ltd. Since receiving his Juris Doctor in 1975, he has concentrated his trial practice in the areas of Toxic Tort and Products Liability Litigation. He is a member of the bar in Illinois, Michigan, and numerous federal districts. He has been admitted to try cases across the United States. He was the original President and Founder of the Chicago Area Asbestos Defense Group and has been involved in asbestos litigation for thirty years. He has presented numerous lectures on asbestos litigation and has been Program Chairman of Mealey s Asbestos Litigation Seminars. He also sits on Mealey s Toxic Tort Advisory Counsel. He is a member of the Defense Research Institute and the Illinois and Michigan Bar Associations. He has been listed as an Illinois Super Lawyer for the past three years. He has acted as counsel for the defense in mock trials for the American Industrial Hygiene Association and he has taught courses in trial advocacy. products in the world. 5 The remaining defendants were generally manufacturers of similar thermal insulation products. These included such companies as Owens Corning Fiberglass, Owens Illinois, Keene Corporation, Eagle Pitcher Industries, Armstrong and Raybestos Manhattan. 6 The early cases were on behalf of workers who had massive daily exposures to asbestos dust. Johns-Manville filed for bankruptcy in August, 1982, and the persona of asbestos litigation was changed forever. 7 Plaintiffs learned how to identify the viable companies that were still remaining. One by one the thermal insulation manufacturers closed their doors or went into bankruptcy. 8 Many felt that asbestos litigation would die off once the insulators had filed their suits. However, a resourceful plaintiffs bar aggressively screened all construction tradesmen 5 STEPHEN J. CARROLL ET AL., RAND INST. FOR CIVIL JUSTICE, ASBESTOS LITIGATION (2005), available at [hereinafter RAND LITIGATION]. 6 See Susan L. Barna, Note, Abandoning Ship: Government Liability for Shipyard Asbestos Exposures, 67 N.Y.U. L. REV. 1034, n.80 (1992). 7 Manville Filing Spurs Study of Bankruptcy Act by Senate, WALL ST. J., Aug. 30, Michelle J. White, Why the Asbestos Genie Won t Stay in the Bankruptcy Bottle, 70 U. CIN. L. REV. 1319, n.8 (2002) (listing Forty-eight firms [that] filed for bankruptcy due to asbestos claims between 1982 and 1999, and an additional thirty firms [that] filed between 2000 and 2002 ). 410

3 ASBESTOS LITIGATION to determine if they had signs of asbestos-related disease. 9 This second wave of asbestos litigation began in the late 1980 s and fueled massive filings across the country. 10 Now, the remaining defendants were defending cases brought by plasterers, painters, bricklayers, ironworkers, sheet metal workers, electricians, plumbers, and other skilled craftsmen. 11 These workers in many instances never actually worked with thermal insulation but claimed exposure to it from the jobsites where they worked. Many thought that asbestos litigation would dry up when that group of workers had filed all of its cases. Not so. In 1991, under the auspices of Dr. Irving Selikoff, The New York Academy of Science published The Third Wave of Asbestos Disease, Exposure to Asbestos in Place Public Health Control, 12 which identified maintenance workers and those who might come in contact with asbestos located in buildings. Again, the number of claims filed soared. Cases were filed in nearly every state. 13 Over the course of the litigation, we have seen the development of plaintiffs attorneys firms that handle only asbestos cases across the country. 14 We have seen a substantial increase in the awards in the cases and the development of an entire asbestos litigation industry. 15 The economic effects of asbestos litigation have prompted much debate and have caused many defendants to seek salvation from the federal government. Senate Bill 852 The Fairness in Asbestos Injury Resolution Act of is still pending before the Senate seeking to create a trust fund to effectively end litigation in the court system. Many companies now find themselves in the asbestos litigation for the first time. They did not manufacture asbestos products and many only used asbestos components based on principals of engineering and design. Still other companies find themselves in the litigation because their product might have been used in conjunction with an asbestos product. If this litigation continues until 2050, as some epidemiologists and authors predict, 17 how are the current defendants and new defendants to manage the litigation effectively? 9 RAND LITIGATION, supra note Marc Galanter, Case Congregations and Their Careers, 24 LAW & SOC Y REV. 371 (1990). 11 See Lester Brickman, An Analysis of the Financial Impact of S. 852: The Fairness in Asbestos Injury Resolution Act of 2005, 27 CARDOZO L. REV. 991 (2005). 12 THE THIRD WAVE OF ASBESTOS DISEASE: EXPOSURE TO ASBESTOS IN PLACE (Philip J. Landrigan & Homayoun Kazemi eds., 1991). 13 See Michael Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78 IOWA L. REV. 1 (1992) 14 See DEBORAH HENSLER ET AL., RAND INST. FOR CIVIL JUSTICE, ASBESTOS LITIGATION IN THE U.S.: A NEW LOOK AT AN OLD ISSUE (2005), available at [hereinafter RAND New Look]. 15 RAND LITIGATION, supra note 5, at tbl S. 805, 109th Cong. (2005). 17 See RAND NEW LOOK, supra note

4 FDCC QUARTERLY/SUMMER 2007 The purpose of this article is to review where we came from in the asbestos litigation, where we are now and what the future of the litigation might bring. My goal is to help people responsible for managing this litigation assess their litigation plan for the next forty years. By 2002, 730,000 individuals had filed a claim for asbestos-related injury. 18 Also, by 2002, 8,400 entities had been named as a defendant in the various suits. Gross compensation for plaintiffs totaled approximately $49 billion. Defense costs accounted for $21 billion or approximately 31% of the total spending. Total spending on asbestos litigation rose to $70 billion by That is a sharp contrast to respected analysts who had predicted a total expenditure of $38 billion for that period. Jury Verdict Research reports that in the period of time from April, 1995 through April, 2005, asbestos injury case/trials awards ranged from $35,920 to $50 million. 19 The award mean was $4,090,869 and the award median was $1,500,000. Fifty-eight percent of all verdicts in asbestos injury litigation exceeded $1 million. A comparison of these results compared with the results of other product liability verdicts can be found in Table 1. Table 1 20 COMPENSATORY VERDICT AWARDS Award Award Award Awards Range Mean Median in excess of $1 million Asbestos $35,920-50,000,000 $4,090,869 $1,500,000 58% Building Materials 50,000-58,000,000 4,898, ,000 29% Chemicals 1,149-7,500,000 1,068, ,000 32% Electrical Equipment 400,000-55,000,000 6,483,714 2,000,000 75% Heavy Equipment, Overall 80,000-50,000,000 3,510,096 1,495,474 59% Machines, Overall 21,560-80,000,000 3,351,866 1,050,000 52% Tools, Overall 14,800-32,780,00 1,854, ,000 30% Commercial Products, Overall 2,000-16,970,000 1,818, ,252 40% Products Liability, Overall 1-285,000,000 4,463,001 1,000,000 51% 18 RAND LITIGATION, supra note JURY VERDICT RESEARCH, PRODUCT LIABILITY CLAIMS: AN OVERVIEW OF JURY AWARDS AND SETTLEMENTS (LRP Publications, 2005). 20 Id. 412

5 ASBESTOS LITIGATION The mean or average verdict for asbestos injury litigation sits at the high end of all product liability injury recoveries. It is clear that awards in excess of $1 million are no longer uncommon. This confirms the conclusion that verdicts in general continue to spiral up. Table 2 21 PLAINTIFF S RECOVERY PROBABILITIES FOR PRODUCTS LIABILITY CASES INVOLVING INDUSTRIAL, CONSTRUCTION, COMMERCIAL AND FARM PRODUCTS Asbestos Products 71% Electrical Equipment 60% Chemicals 58% Heavy Construction Equipment 56% Ladders Scaffolds 50% Machines 50% Tools 48% Commercial Products 38% Farm Products 54% Products Overall 46% Jury Verdict Research reports that in the period April, 1995, through April, 2005, the plaintiff was successful 71% of the time in asbestos injury cases. 22 When you compare that to plaintiffs recovery probabilities in other suits, you can appreciate the attraction that this litigation presents to the plaintiffs bar. The RAND 2005 report further breaks plaintiffs probability out by injury. 21 Id. 22 Supra tbl

6 FDCC QUARTERLY/SUMMER 2007 Table 3 23 Table 3 demonstrates why mesothelioma cases drive the litigation, as three out of four will result in a plaintiff s verdict. 23 RAND LITIGATION, supra note 5, at tbl

7 ASBESTOS LITIGATION Table 4 24 Number of Claimants by Claimed Injury Year Mesothelioma Other Cancer Nonmalignant Total Pre ,431 4, ,415 4, ,881 4, ,984 4, ,579 4, ,822 6, ,202 7,681 9, ,964 12,675 15, ,997 17,087 21, ,266 3,292 24,713 29, ,411 6,376 45,151 53, ,275 2,386 21,357 25, ,451 19,322 22, ,569 26,343 29, ,151 23,005 25, ,207 2,536 20,702 24, ,306 3,624 43,283 48, ,312 2,887 43,824 48, ,347 3,132 28,978 33, ,387 2,828 38,539 42, ,520 2,863 40,815 45, ,776 2,623 52,055 56, ,893 3,639 89,308 94, ,856 3,148 50,112 55,116 Furthermore, the breakout of the average award shown in Table 5 demonstrates that the average mesothelioma case has an award of almost $3.8 million. 24 Id. at tbl

8 FDCC QUARTERLY/SUMMER 2007 Table5 25 When one examines the number of mesothelioma cases filed up to 2002 as shown in Table 4 and considers the average award, one is looking at in excess of $7 billion in potential awards every year. Verdicts in all product liability cases continue to rise. 26 The million dollar verdict is no longer an oddity but a norm. 27 Should that be surprising considering how the American public has become accustomed to a million dollars? It is no longer an amount that only a few can appreciate. Approximately fifty percent of all product liability jury verdicts from April, 1985, through April, 2005, resulted in an award in excess of $1 million. 28 The average American is assaulted everyday with how much money he or she can win in the lottery. The amount of money you can win is just a ticket away as seen by Table Id. at tbl Id. at tbl See supra tbl See JURY VERDICT RESEARCH, supra note

9 ASBESTOS LITIGATION Table 6 29 MILLION DOLLAR JACKPOT MENTALITY? POWERBALL AWARDS MEGA MILLIONS AWARDS 8/5/06 $204,000,000 8/1/06 $31,000,000 6/17/06 100,000,000 7/18/06 49,000,000 5/17/06 114,000,000 6/16/06 34,000,000 4/12/06 220,000,000 6/2/06 47,000,000 2/18/06 365,000,000 5/16/06 94,000,000 12/4/05 112,000,000 4/18/06 265,000,000 10/19/05 340,000,000 2/28/06 267,000,000 12/30/05 88,000,000 11/15/05 310,000,000 9/16/05 250,000,000 If a person can win $300 million in the Lotto, is it so hard to imagine that a juror can award $10 million to a poor widow who has seen her husband die from a horribly painful cancer? I have watched jurors intently when a plaintiff s attorney requests $20-30 million in damages during the closing statement. The jurors don t flinch and they are not offended by that amount. The average total compensation package of a Chief Executive Officer ( CEO ) of a Standard and Poors 500 Company as of 2007 was $14.8 million. 30 U.S.A. Today routinely reports CEO salaries and bonus packages for major companies. For 2002, they reported a high for the Wells Fargo CEO of $7.9 million with the Coca-Cola CEO at the bottom of the top ten with $5.5 million. 31 Forbes reports CEO compensation packages showing the top ten 29 Powerball Jackpot History, (last visited June 15, 2007); Mega Millions Jackpot History, (last visited June 15, 2007). 30 Travis E. Poling, CEO Options a Great Ride, SAN ANTONIO EXPRESS-NEWS, May 13, 2007, at 1K. 31 USAToday.Com, How CEO Salary and Bonus Packages Compare, companies/management/ ceo-comp-chart-salary-bonus.htm (last visited June 15, 2007). 417

10 FDCC QUARTERLY/SUMMER 2007 in It reported Yahoo s CEO package was $230.6 million to the low of the Capital One Financial CEO of $56.7 million. Putting this information in perspective, if the compensation package of the Coach Purse CEO is shown to be $86.5 million, should not a sixty year old dying of painful peritoneal mesothelioma be entitled to at least $10 million? Constant media coverage of bad corporate conduct surely has caused an increase in the amounts of awards given by jurors. Profiteering by CEO s as shown in situations such as Enron and the huge profits of the oil industry have left a bad taste in perspective jurors mouths relating to corporations. I have conducted numerous mock jury exercises to determine jurors attitudes regarding corporations. These results are not surprising in today s culture. They clearly indicate the disadvantage any company has in trying a lawsuit against a person with a serious disease such as cancer Forbes.Com, Executive Pay, (last visited June 15, 2007). 33 Created by the firm of Segal McCambridge Singer & Mahoney. 418

11 ASBESTOS LITIGATION Id. 35 Id. 419

12 FDCC QUARTERLY/SUMMER Id. 37 Id. 420

13 ASBESTOS LITIGATION Id. 39 Id. 421

14 FDCC QUARTERLY/SUMMER 2007 All these factors have influenced jury compensation awards. Even simple injuries can score big dollars as shown in Table 7. Table 7 40 INJURY CATEGORIES AS A RESULT OF INDUSTRIAL, CONSTRUCTION, COMMERCIAL, AND FARM PRODUCTS LIABILITY Injury % of Total Award Median Asbestos injuries 21% $1,000,000 Death 19% 2,100,000 Finger/Thumb 7% 600,000 Arm 5% 1,108,567 Burns 5% 1,927,792 Hand 4% 1,449,000 Leg 4% 784,451 Brain 3% 1,844,800 Foot 3% 583,000 Lung 3% 1,000,000 Other 26% Table 7 demonstrates various injuries in product cases from 1995 to 2005 and the percentage of the type of case in relation to all product cases and the award median. You can see in comparing these results to the asbestos injury result how much more valuable asbestos cases are in relation to all other products cases. 40 See JURY VERDICT RESEARCH, supra note

15 ASBESTOS LITIGATION II. EFFECTS OF AGING JURY POOL As time marches on, the ability to convince jurors of certain defenses in asbestos litigation will diminish. The defense in every case relies in whole or in part on the concept of the state-of-the-art, that is, what was known or what was not known at any given point in time relating to the dangers of asbestos. The success of that defense relies on jurors accepting that asbestos was considered safe and a benefit to man at one time. When the litigation started in the 1970 s, a fifty year old juror at that time would have remembered how asbestos was considered the magic mineral. Those jurors remembered how asbestos was used in everything from ironing board cover pads to barbecue mitts. Many remembered how asbestos was a strategic material used in the war. Those jurors understood that asbestos was not always considered a hazardous substance. What has happened to those jurors? If you were fifty in 1979, you are seventy-eight in Not many seventy-eight year olds are being called for jury service. If one or two slip through, they are usually excused for medical reasons. The best candidates for jury service who would have knowledge of the history of asbestos are approaching a point where they are too old for jury service as seen in Table 8. Table 8 THE LAST OF THE OLD JUROR Born Went to Work Retired Age

16 FDCC QUARTERLY/SUMMER 2007 The first emergency Occupational Safety and Health Administration ( OSHA ) regulation relating to asbestos became effective in The standard assumes that asbestos is a hazardous substance that can cause injury. Since 1971, every American has been protected by the OSHA asbestos standards. For the past thirty-six years asbestos has been portrayed in these standards as bad. Consider how this view of asbestos fits into the mind of prospective jurors even before they are called for service. If you were born in 1953, you are now fifty-four years old. If you went to work at age eighteen, you entered the workforce in That means that your entire work life of thirty-six years has been regulated by OSHA. During that period of time, asbestos has been considered a health hazard. You have never heard anything good about asbestos and in the 1980 s you probably heard the scary stories of asbestos in schools. In fact, you were in your thirties and probably had children in school when the health hazards of asbestos were considered a serious threat for school children. Any juror younger than fifty-four carries this baggage and will start out in any asbestos case with the belief that everyone knew asbestos as a substance that is bad and causes injury. Consider how this group born in 1953 will age over the next four decades of asbestos litigation. Within the next twenty years, every potential juror will start out with the knowledge that asbestos causes injury. If plaintiffs win three out of four cases now, the changing demographics of the jury pool might push those odds even higher in plaintiffs favor. III. THE LITIGATION CONTINUES Cases continue to be filed in jurisdictions identified by plaintiffs counsel as favorable. These jurisdictions can be found in California, Florida, Illinois, Maryland, Mississippi, New Jersey, New York, Ohio, Pennsylvania, Texas, and West Virginia. 42 Trials going to verdict are again on the rise. 43 Table 9 shows that defendants continue to litigate these cases in the face of the overwhelming odds in plaintiffs favor. Nearly forty percent of all cases tried involve a claim for cancer Occupational Exposure to Asbestos 59 FR 40,964 (Aug. 10, 1994) (to be codified at 29 C.F.R. pts. 1910, 1915, 1926). 42 RAND LITIGATION, supra note 5, at tbl See infra tbl See infra tbl

17 ASBESTOS LITIGATION Table 9 45 Table RAND LITIGATION, supra note 5, at tbl Id. at tbl

18 FDCC QUARTERLY/SUMMER 2007 Many of the new defendants to the litigation have taken aggressive stands regarding claims against their products. 47 Many of them incorporated an asbestos-containing product into their finished product (e.g., a valve company that used an asbestos-containing gasket). These defendants contend that exposure to asbestos is insufficient to cause disease (low dose defense) or that the fiber type used was incapable of causing mesothelioma (chrysotile fiber type defense). Their success for the long term remains to be seen. Seventy-three corporate asbestos defendants have either dissolved or filed for bankruptcy protection under Chapter 11 as of December of Since 2000, as many bankruptcies of companies manufacturing asbestos products have been filed as had been at any time before that. Many of the current defendants were distributors of products manufactured by the bankrupted companies or incorporated the bankrupt s finished products into their own. In most jurisdictions, these new defendants walk into the shoes of the bankrupt and end up assuming the responsibility for the bankrupt s products and, to make matters worse, are unable to recover indemnity from the product manufacturer. IV. GAZING INTO THE FUTURE What s past is prologue. What can we expect to happen from here until asbestos litigation runs its course? How you will manage your litigation over the next thirty years (assuming the litigation lasts that long) requires understanding of the predictions regarding injury trends. Mesothelioma will continue to drive the litigation. Today, we see more plaintiffs attorneys firms becoming mesothelioma boutiques, that is, firms handling only mesothelioma cases and refusing pleural changes or asbestosis cases. 49 Many studies, such as RAND, rely on the estimates prepared by others. 50 Their prediction seems to be fairly accurate as we review what has actually happened in the last twenty years. This prediction assumes: 47 See, e.g., Cadlo v. Superior Court of San Francisco County, No. A109193, 2005 Cal. App. Unpub. LEXIS 1685 (Cal. Ct. App., 2005). 48 RAND LITIGATION, supra note See RAND NEW LOOK, supra note RAND LITIGATION, supra note

19 ASBESTOS LITIGATION Table11 51 Projected Excess Deaths from All Asbestos-Related Cancers in Selected Occupations and Industries, United States, , Based on Study by Nicholson et al. (1982) Years Mesothelioma Lung Cancer Gastrointestinal All Cancers and Other Cancers ,505 11,720 4,280 20, ,410 16,430 5,170 27, ,125 21,840 5,950 34, ,875 25,275 6,850 41, ,990 27,360 7,475 46, ,740 27,485 7,470 48, ,845 26,295 7,125 48, ,300 23,465 6,370 45, ,995 19,605 5,275 39, ,305 14,935 4,060 32, ,410 10,540 2,820 23, ,475 6,270 1,700 15, ,585 3, , , ,870 50, , ,770 54,580 14, , , ,450 65, ,465 For the period of time between 2005 and 2009, under Nicholson s prediction, one would expect to see 2,999 mesothelioma cases per year. 52 Assuming verdicts continue to rise, the average/mean verdict could be as high as $4 million. 53 That would generate approximately $12 billion in potential verdicts in each of those years. 51 Id. at tbl See supra tbl See supra tbl.5; RAND LITIGATION, supra note 5, at tbl

20 FDCC QUARTERLY/SUMMER 2007 All predictions accept the fact that the number of mesothelioma cases will begin to decline resulting from asbestos regulations that went into effect in the early 1970 s and the discontinuation of the use of asbestos over the years. 54 Between 2010 and 2014 under Nicholson s theory, it is predicted that there will be approximately 2,661 excess deaths from mesothelioma per year. 55 If you assume an average verdict of $4 million, you are looking at a potential verdict pool of over $10 billion a year. Between 2015 and 2019 under Nicholson s theory, one would see an average of 2,082 cases per year with a yearly verdict pool potential of slightly over $8 billion. Between 2020 and 2024, it is predicted that there would be 1,495 cases per year with a jury verdict pool potential of just under $6 billion. Between 2025 and 2029, the number of cases will fall to 917 per year with a jury verdict pool potential of just over $3.5 billion. Some authors and defendants contend that the Nicholson estimates are high and the actual number of mesothelioma cases will be much lower. 56 Many rely on Price and Ware to project a lower number of cases running out through 2049 as shown in Table RAND LITIGATION, supra note 5, at Figure A See supra tbl See infra tbl

21 ASBESTOS LITIGATION Table12 57 Projected Cases of Mesothelioma, United States, , Based on a Study by Price and Ware (2004) Years Males Female Total ,874 2,310 11, ,640 2,385 12, ,040 2,460 12, ,960 2,535 12, ,472 2,610 12, ,018 2,685 11, ,274 2,760 11, ,242 2,835 10, ,212 2,910 9, ,286 2,985 8, ,508 3,060 7, ,818 3,135 6, ,554 7,155 35, ,790 25,515 89, ,344 32, ,014 The Bates White Report prepared in opposition to the proposed federal legislation predicts that the peak number of mesothelioma injuries occurred between 1995 and 2000 topping out at approximately 2,750 per year. 58 They predict that by 2010, the number will be 2,250; less than 1,500 in 2020; less than 500 in 2030 and return to near baseline by RAND LITIGATION, supra note 5, at tbl CHARLES E. BATES, PH.D. & CHARLES H. MULLIN, PH.D., BATES WHITE, LLC, ANALYSIS OF S. 852 FAIR- NESS IN ASBESTOS INJURY RESOLUTION (FAIR) ACT, exhibit 9 (2005), available at com/news/pdf/2005_bates_fair_act_report.pdf. 429

22 FDCC QUARTERLY/SUMMER 2007 Nicholson, et al., predicted that between 2005 and 2029, there would be 50,770 mesothelioma cases. 59 You will note that does not run out the string of cases as estimated by other authors. Price, et al., predicted 89,305 cases from 2005 through and the Bates Report predicts 49,000 cases through Clearly, all three prognosticators would agree that there will be a substantial number of cases to be litigated through V. EVALUATING YOUR DEFENSE Considering there are billions of dollars at stake and the actual existence of many companies becomes an issue, how are you going to manage the litigation in an era of dwindling insurance coverage and self-insured status? The litigation will not go away and requires an educated assessment of each potential defendant s situation. Hard questions must be asked about the management of the litigation. With that in mind, I pose a number of questions that every claims supervisor or manager must ask to ensure that they have set up an effective system to manage the litigation. First, you must determine if there is a legitimate defense to any asbestos injury relating the product you sold. Is there a low dose defense? Was the asbestos bound, encapsulated, or isolated in the product so that exposure, if any, would be minimal? Is the nature of the exposure short, intermittent, or long term? What are the time and motion characteristics of working with the product during potential exposure? If exposure is low and the duration of exposure is short, you are in a position to put on a legitimate scientific defense. Are there circumstances that indicate you will have trouble putting on a defense? Do you have bad documents that could give rise to punitive damages? Do you have documents that indicate that your company was aware of the risks of asbestos exposure with the product and did nothing (not even a warning) to prevent potential injury? Did you use a bad fiber (amphibole) associated with mesothelioma? Have you coordinated your discovery response process? Do you have answers to interrogatories filed in jurisdictions across the country that conflict with each other? Has your document production been inconsistent or spotty? Do you have a coordinated defense strategy for the attorneys handling your cases? Is every attorney pursuing the defense strategy in such a manner that the plaintiffs attorneys will not be able to make claims based on the inconsistencies of approach? Do you have a National Coordinating Counsel for the purpose of coordinating and streamlining? 59 See supra tbl See supra.tbl See BATES, supra note

23 ASBESTOS LITIGATION Do you have an expert team in place? Have they prepared studies that prove your theory? Are the experts jury friendly? What is their trial availability considering they might be needed to testify in multiple cases on a monthly basis? Do you have a strategy for handling or countering the plaintiffs experts? Do you have an expert database where you track everything those experts might have said about asbestos science in general or your product in particular? Do you have a trial strategy to be employed with each expert? Is that strategy being coordinated by the National Coordinating Counsel? Do you have a trial team or trial teams? What is each team member s experience and knowledge regarding the science of asbestos? Do plaintiffs attorneys respect your trial team? How will your trial team play in all jurisdictions? Do you have a sufficient number of members for the trial team to handle multiple trials should that be necessary? Does you local counsel have experience and background in handling asbestos litigation? Are they well situated with the local court? Can they abide by the limitations and rules given to them by National Coordinating Counsel? Can they report properly and promptly? Do you have a person in-house who is dedicated to the defense? Does that person have the knowledge and experience of asbestos science to have meaningful discussion with National Coordinating Counsel and insurance carriers? Does that person have the ability to track all of the data for evaluation of your asbestos program s success? Is this person a good claims handler? Due to the sheer volume of cases, it is clear that you cannot try every case. Do you have a settlement strategy or settlement plan to dispose of the vast majority of the cases? This settlement plan must include a strategy for minimizing your risk and controlling your transaction costs. Do you have a method to identify the cases that need to be settled in their early stages as opposed to working the case up in its entirety and then attempting to settle? Who is controlling your litigation? Is it you or your insurance carrier? Is your litigation being handled in such a manner to maximize your coverage so that it will last as long as possible? If the answer to that question is no, then you must determine what needs to be done to change that situation as soon as possible. That might require separate coverage counsel to deal with your carrier. Is the insurance carrier keeping you advised of everything that is going on in the litigation? Is a good database being maintained to track all cases from cradle to grave? It is essential that the database be maintained even if a carrier is controlling the litigation. If and when the policy limits exhaust, you will need that information to manage your docket. Finally, do you have an overall plan for the management of the litigation for the next forty years? More importantly, is your management committed to the plan and are the carriers committed to that plan so that everyone is working towards the same goal? 431

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