The Latest Asbestos-Related Scientific And Medical Research

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1 JANUARY 2005 Raising the Bar in Asbestos Litigation 8 3 Miss. Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency PAGE 2 Asbestos Legislation in 2005 PAGE 4 A Fresh Look at Old Practices: The Changing Face of Mass Tort Pleadings PAGE 6 Sen. Specter Holds Hearing on Asbestos Trust Fund Bill; President Bush Pushes Tort Reform PAGE 66 The Latest Asbestos-Related Scientific And Medical Research 8 Ohio Court Finds Retroactivity of New Act Unconstitutional In 11 Lawsuits 14 Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement 13 Supreme Court Order Severing Mississippi Asbestos Claims Published 16 Court Denies Class Certification in Medical Monitoring Asbestos Lawsuit 19 Plaintiff Fails to Provide X-Rays Read by B-Reader, Claims Dismissed 20 Order Compelling Arbitration between CCR and Asbestos Plaintiffs Affirmed

2 COLUMNS January 2005 Vol. 5, No. 3 EDITORIAL STAFF Editorial Director Jeff Andrus Managing Editor John T. Hayes Associate Editor Kate McGovern Art & Production Manager Jennifer Hartman BUSINESS STAFF Chief Executive Officer Harry J. Hurley III President Brian F. Kirby Customer Service Representative Amanda Swanson CONTRIBUTING AND REGIONAL EDITORS National Medicine & Science Editor Donald S. MacLachlan, Esq. Regional Editors Cheryl Olesen, Esq. Beaumont-Houston Marte J. Bassi, Esq. San Francisco Contributing Editors W. Mark Lanier C. Paul Cavender Kathryn Morris Willis Editorial Correspondence Article submissions and news should be forwarded to Jeff Andrus, Editorial Director, HarrisMartin Publishing at the address below. HarrisMartin s COLUMNS Asbestos is published monthly by HarrisMartin Publishing LLC, 200 Berwyn Park Suite 210 Berwyn, PA $975 print & online annual subscription Questions or subscription requests can be directed to or call (800) Advertising Sales Questions or interest in advertising in COLUMNS Asbestos can be directed to Jennifer Hartman at (800) Copyright 2005 by HarrisMartin Publishing LLC. All rights reserved. All stories written by HarrisMartin editorial staff unless otherwise noted. Opinions expressed by contributors are their own and not necessarily those of HarrisMartin Publishing or its editorial staff. No part of this publication may be reproduced by any means, electronic or mechanical, including photocopying, without written permission from HarrisMartin Publishing. PERSPECTIVES Asbestos Legislation in by W. Mark Lanier, Esq. A Fresh Look at Old Practices:The Changing Face of Mass Tort Claim Pleading 4 by C. Paul Cavender, Esq. and Kathryn Morris Willis, Esq. BEYOND THE HEADLINES Sen. Specter Holds Hearing on Asbestos Trust Fund; Pres. Bush Pushes Tort Reform 6 T ABLE OF CASES A Regional Listing of All the Cases Covered in This Issue 7 COURTROOM NEWS 3 Miss. Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency 8 Ohio Court Finds Retroactivity of New Act Unconstitutional in 11 Lawsuits 8 Court Rejects Claims of Juror Misconduct; Motion for New Trial Denied 10 Court Reverses Assignment of Joint and Several Liability to CCR Members 11 High Court Remands Miners Asbestos Claims, Rules State Had Duty to Warn 12 Supreme Court Order Severing Mississippi Asbestos Claims Published 13 Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement 14 Asbestos Claims Prompts A.P.I. Industries to File For Chapter Court Reverses Summary Judgment, Finds Testimony Wrongfully Omitted 15 Court Denies Class Certification in Medical Monitoring Asbestos Lawsuit 16 Texas Court Affirms $150,000 Asbestos Verdict 17 Court Finds Appeal Timely, Claims Remanded for Determination of Benefits 18 Benefits Denied to Smoker Alleging Asbestos Aggravated Lung Condition 18 Plaintiff Fails to Provide X-Rays Read by B-Reader, Claims Dismissed 19 Summary Judgment Reversed, Court Claims Product Identification Triable Issue 20 Order Compelling Arbitration between CCR and Asbestos Plaintiffs Affirmed 20 VERDICT REPORT Essential Information about Recent Verdicts Reported by HarrisMartin 24 EXPERT WITNESS BANK A Listing of Plaintiff s and Defense Experts Who Have Testified at Recent Trials 32 DOCUMENTS Kelly-Moore v. Union Carbide;Texas 23 rd Dist. Ct., Brazoria Cty.; Order/Motion 39 Thornton v. A-Best Products, et al.; Ohio Ct. Comm. Pls., Cuyahoga Cty.; Order 47 JOURNAL TOP TEN The Latest Asbestos-Related Scientific Articles Published Around the World 66

3 PERSPECTIVES Asbestos Legislation in 2005 W. Mark Lanier, Esq. W. Mark Lanier is the founder of The Lanier Law Firm, where he serves as the firm s lead litigation counsel. Mr. Lanier is widely recognized as one of the top trial lawyers in the United States. He recently was named by The American Lawyer magazine as one of the top 45 attorneys in the nation under the age of 45. The publishers of Law & Politics Magazine and Texas Monthly magazine named Mr. Lanier as a Texas Super Lawyer in 2003 and 2004 based on nominations from other attorneys who were asked to identify the top lawyers in Texas. In 2002, Texas Lawyer newspaper named Mr. Lanier as one of the top 5 Go To personal injury plaintiff attorneys in Texas. Mr. Lanier s success in the courtroom has resulted in feature articles in The Wall Street Journal, The American Lawyer, Texas Lawyer, The New York Times, New York Lawyer, The National Law Journal, Los Angeles Times, Houston Chronicle, and Bloomberg, among others. In 1998, The National Law Journal recognized Mr. Lanier as one of nation s Top 10 Trial Attorneys. The NLJ also named him among the country s 40 top attorneys under the age of 40. Mr. Lanier has negotiated hundreds of millions of dollars in settlements in lawsuits filed across the United States. Mr. Lanier s $115 million verdict for 21 asbestos victims in February 1998 is one of the largest asbestos verdicts in U.S. history. Mr. Lanier earned his law degree from Texas Tech University School of Law in He remains active at the Texas Tech by serving on the Law School s Foundation Board. He also is the founder of the Christian Trial Lawyers Association, a nonprofit organization whose goal is to create a network of principled attorneys to minister to others through civic-minded endeavors. Mr. Lanier lives in Houston with his wife, Becky, and their five children. After the November 2004 elections, the Republicans increased control in the Senate, maintained control in the House, and captured the White House for another four years. As expressed during the election, part of the Republican agenda was tort reform. One of the tort reform areas prioritized in the Republican campaign agenda was asbestos reform. This article addresses the likelihood of asbestos legislation on a federal level following the Republicans victories in the November elections. PRE-ELECTION LEGISLATIVE EFFORTS OF 2004 During the last Congress, the U.S. Senate considered two basic approaches for asbestos legislation reform. These reform bills were before the Judiciary Committee. Former Oklahoma Sen. Jonathan Nichols proposed a Medical Criteria Bill. This bill sought to remove 80 percent as unimpaired plaintiffs. 1 Under Senator Nichols s bill, the 20 percent of cases that remain would be the most serious illnesses. These illnesses, without question, affect the life expectancy, as well as the day-to-day activities of the plaintiffs. Those people with these diseases would be allowed to proceed with their cases in an appropriate court. Those plaintiffs deemed unimpaired would have their cases held until their disease progressed to a point of impairment. Then, those cases would be allowed into the court system to address tort-feasor responsibility. Sen. Nichols s bill, although it had the support of some Democrats and even some trial lawyers, did not make it out of committee. Instead, the Judiciary Committee in the Senate passed the bill Sen. Orrin Hatch (R-Utah) proffered. 2 COLUMNS The Hatch bill was termed a Trust Bill. A number of companies supported this bill and sought to establish a trust fund for victims rather than a medical criteria docket. The trust fund approach centered on a massive infusion of funds (ranging from $100 to $140 billion) from business and insurance companies. In return for this money being put into trust, businesses and insurers would have complete protection against any future asbestos liabilities. This money was to be infused under different payment schedules on a sliding scale based upon how much these companies had previously paid in litigation. Asbestos victims would have access to this money, but would have no access to the court system. This money would either eliminate or severely limit any attorneys fees that would normally be taken out of a victim s recovery. It would also set up a new federal government organization to administer the trust. Ultimately, the trust effort never reached a vote on the Senate floor. The bill and its Republican sponsors could never get the 60 votes necessary for cloture. Ultimately, the bill did nothing more than find its way into fund raising letters to help enrich both the Republican and Democratic efforts at the 2004 election. The question on everyone s mind after the election was whether the increased number of Republicans in the Senate would provide enough votes for cloture so this bill would become law in POST-ELECTION DEVELOPMENTS The 2005 landscape is shaping up to be somewhat different than the 2004 landscape in more ways than the additional Republican Senators. Sen. Hatch is no

4 PERSPECTIVES longer Chairman of the Judiciary Committee. Senate rules limited his term as Chairman, and he has stepped down. In his stead, the next senior Republican has taken leadership of that committee, Sen. Arlen Specter (R-Pa.). Senator Specter is well-versed not only in the law, but also in matters pertaining to asbestos and other litigation and tort issues. Additional landscape changes have occurred because of the time spent in analyzing the trust approach itself. In order for the trust to assist those most severely injured, the trust would require almost a complete infusion of capital at the front end. Many recognize that the current claims in the court system alone would take up the first ten years of the trust s money. Therefore, someone who is diagnosed with mesothelioma and given eight months to live the day after the trust went into effect would be given very grim news. This soon-to-die victim would be told that their money, assuming the trust is still viable, would most likely come ten years down the road. Obviously, that is not sufficient for any type of experimental medical treatment or getting one s house in order for a death eight months later. Once these types of problems with the bill became apparent, the only possible solution included such massive upfront funding that insurers determined was unfair to insurance companies. Rather than have payments made over a protracted period, insurance companies were going to be required to front significant loads of cash into the trust, depleting not only the reserves set aside, but even resources beyond those reserves kept by the insurance companies. Therefore, as the trust approach was analyzed more and more, insurance companies began balking at the trust approach as a proper solution. As 2005 has unfolded, insurance companies have banded together to put into writing and vocally oppose the trust bill as it is being proffered. In addition to these insurance companies, however, there are a number of other companies that are now Realistically, however, it will be difficult for sufficient support to pass [Sen. Specter s] bill on the expedited basis that most Republican supporters would like to see. standing in opposition to this trust bill. Noteworthy companies such as Exxon Mobil, Federal Mogul, and others have put into writing a strong opposition to the trust approach as fatally flawed and unfair to most all concerned. This leaves Sen. Specter and his committee with a very difficult chore. While the White House apparently endorses the trust bill and a number of corporations still push the trust bill, support for this approach is draining away at a noticeable rate. The voices are starting to rise in chorus again that the fair resolution is to be found in a medical criteria bill. In an effort to see if there is any life left in the trust bill, Sen. Specter met with former Federal Judge Edward Becker toward the end of 2004 in an effort to sculpt a compromise trust bill that might satisfy enough parties to gain passage. As this article is being written, Sen. Specter has not yet issued his final edited trust bill. Sen. Specter has announced a very vigorous schedule to get the revised bill to committee, have hearings, and hopefully put the bill on the Senate floor by the end of January That aggressive schedule 3 ASBESTOS JANUARY 2005 shows Sen. Specter s commitment to faithfully carry the Republican torch on this issue. Realistically, however, it will be difficult for sufficient support to pass that bill on the expedited basis that most Republicans supporters would like to see. Should Sen. Specter s committee look to a medical criteria bill, most suspect that Sen. Nichols s initial draft would be the starting point. The language being discussed for a medical criteria bill would divide cases into multiple groups. Most agree that the most egregious injuries are the mesothelioma victims. This incurable cancer has a quick time fuse and the most glaring damage brought by asbestos exposure. In addition to the mesothelioma cancers, there are a number of other cancers associated with asbestos exposure. All of the cancer cases, whether mesothelioma or otherwise, under any medical criteria approach would be deemed court worthy and allowed to proceed. Those cases that might be put onto a holding docket are certain cases that involve the diseases of asbestosis and pleural plaque. Not all asbestosis or pleural plaque disease would necessarily be put on a holding docket. The holding docket would be reserved for those cases where the disease did not reach such significance in an individual as to cause that individual impairment. As noted earlier, impairment criteria are not well accepted. Generally, the criteria involve an inability to breathe under a forced vital capacity test of 80 percent of what is considered normal. That inability or other symptoms, such as rales in the lungs, clubbing in the fingers, or significant radiological changes on an x-ray, are the criteria that would be examined in determining whether asbestosis or pleural plaque cases were allowed to come to court. While there are no clear numbers of the exact amount of cases filed in America, it is generally recognized that a medical cri- Continued on Page 65

5 PERSPECTIVES A Fresh Look at Old Practices: The Changing Face of Mass Tort Claim Pleading By C. Paul Cavender, Esq. and Kathryn Morris Willis, Esq. About the Authors Paul Cavender is a partner in Burr & Forman s Birmingham, Ala., office where he focuses on products liability, mass tort, insurance and general litigation. He has tried a number of asbestos cases to verdict in various states. His undergraduate degree is in Natural Sciences from the University of South Florida. Prior to attending law school, Cavender was a chemist for one of the major oil companies. He graduated from the Cumberland School of Law at Samford University. Kathryn Morris Willis is an associate in Burr & Forman s Birmingham, Ala., office where she is a member of the litigation, labor and employment sections. She received her B.A. from the University of Alabama in 1999, and also graduated from the University of Georgia School of Law in Burr & Forman LLP is a 180-lawyer, southeastern-based, full service firm with offices in Birmingham, Atlanta, Jackson, Miss. and Montgomery, Ala., serving many clients on a regional and national basis. Editor s Note: This article originally appeared in the December 2004 issue of HarrisMartin Publishing s COLUMNS Silica. Multiple plaintiff/multiple defendant complaints alleging mass torts in broad generic terms have become the norm in many jurisdictions over the years. Changes to that landscape are appearing in at least three jurisdictions where these complaints were recently examined and found to be insufficient under both state and federal rules of civil procedure. Consider three recent decisions rendered in asbestos and silica cases, their common rationale, and the potential implications of such decisions: Recent Decisions Affecting the Asbestos Or Silica Plaintiff s Complaint Several courts have strictly applied the requirements of state and federal rules of civil procedure in order to dismiss or sever the mass tort claims of plaintiffs claiming exposure to asbestos and/or silica. The Supreme Court of Mississippi s August 2004 decision led the way for consideration of this approach to mass asbestos complaints, and other courts have conducted similar analysis and made similar rulings. Consider first the Mississippi decision and then the subsequent rulings which have identified common flaws in the mass tort complaints that were before them: Harold s Auto Parts, Inc., et al. v. Flower Mangialardi, et al., in the Supreme Court of Mississippi, No IA SCT Some 264 plaintiffs filed suit claiming asbestos exposure against 137 named defendants in the Circuit Court of Bolivar County. Plaintiffs complaint provided the names and social security numbers of the 4 COLUMNS plaintiffs, the fact that the plaintiffs were residents of Mississippi and/or other states, and alleged that these plaintiffs were exposed to asbestos products mined, designed, specified, evaluated, manufactured, packaged, furnished, supplied and/or sold from 1930 to the present. Defendants filed a Motion to Sever, arguing that it was nearly impossible to argue improper joinder because the complaint failed to provide basic information about each of the plaintiffs. In response, plaintiffs asserted that a need for the information did not exist at that time because the cases were to be tried separately. The trial court denied defendants Motion to Sever. The defendants then sought interlocutory appeal of the trial court s order, claiming that the joinder of multiple plaintiffs in this particular asbestos case violated Mississippi Rule of Civil Procedure According to the Supreme Court, both defendants and plaintiffs missed the mark. In a five-page opinion, the Court, in granting defendants petition for interlocutory appeal, pointed out that the complaint provides virtually no helpful information with respect to the claims asserted by the individual plaintiffs. Of particular note was that the complaint disclosed that 264 plaintiffs were exposed over a 75-year span to asbestos products associated with 137 manufacturers in approximately 600 workplaces. Miss. R. Civ. P. 20, however, was not the main reason that this issue should be before the Court. Instead, the Court opined, the complaint constituted a failure to comply with Mississippi Rules of Civil Procedure 8 (general rules of pleading), 9 (pleading special matters), 10 (form of pleadings), and 11 (signing of pleadings and motions). Rather than disclosing the core information concerning the nature and particularity of plaintiffs claims at the time the defen-

6 PERSPECTIVES dants requested, the complaint should have set forth this information when it was filed. Rule 11 was implicated, according to the Court, due to the fact that plaintiffs counsel should not have filed a complaint until sufficient information was obtained concerning the specific defendants against whom each plaintiff brought a cause of action. The complaint at issue also failed on joinder grounds under Miss. R. Civ. P. 20 because plaintiffs failed to provide information and assertions necessary to demonstrate the matters set out in the rule that their claims arose out of the same transaction or occurrence or that their claims involved some common question of law or fact. The Court cautioned that filing suit, then determining whose claims should not have been joined is not the appropriate course of action and constitutes a perversion of the judicial system unknown prior to the filing of mass-tort cases. What will satisfy the parties obligations under Miss. Rules of Civil Procedure 8, 9, 10, 11, and 20 is a complaint in which it appears that counsel for plaintiff has interviewed each plaintiff, investigated their claims, and developed the information necessary to file a complaint on their behalf. The Court noted that there are some complaints that satisfy these requirements, even where multiple plaintiffs and/or multiple defendants are present. This, however, was not one of those cases. The Court therefore reversed the trial court s order denying defendants Motion to Sever. The Court remanded the action to the trial court for transfer of each plaintiff to an appropriate court of venue and jurisdiction. Moreover, the Court directed the trial court to dismiss with prejudice the complaint of any plaintiff who failed to provide the defendants and the court with sufficient information for determination of venue and jurisdiction within 45 days of the date of the Order. Silica or asbestos, state or federal court, strict liability or negligence, it does not change the fact that at least three courts have recently rejected so-called shotgun complaints in mass tort actions. Mildred Armstead, et al. v. Georgia Pacific Corporation, et al., in the State Court of Cobb County Georgia, Civil Action NO. 03-A The issue of joinder first arose in the Georgia courts shortly before the Mangialardi decision, when 214 plaintiffs filed an Original Complaint naming over 150 defendant, alleging strict liability and negligence for asbestos exposure. Upon consideration of defendants Motion to Sever, the trial court ordered plaintiffs to file an Amended Complaint, setting forth only those claims sufficient to support joinder under O.C.G.A (a). 2 After filing of the Amended Complaint, defendants again raised their Motion to Sever. Defendants argued that the Amended Complaint, which also listed plaintiffs by name and social security number, failed to satisfy the applicable joinder requirements. In response to plaintiffs argument that joinder would be proper, if just for the purposes of discovery, defendants pointed out that plaintiffs claims could make defendants liable as premises owners, manufacturers, distributors, or installers of asbestoscontaining products, but that, as currently pled, the complaint did not allow defendants to ascertain their potential liabilities. 5 ASBESTOS JANUARY 2005 Defendants further contended that, according to the manner in which the Amended Complaint was pled, various products caused exposure at a number of different job sites, making it impossible for defendants to know which asbestos-related disease each plaintiff alleged. The defendants argument did not end there. The defendants relied heavily upon the Supreme Court of Mississippi s decision in Mangialardi, arguing that the Amended Complaint at issue was so similar to that filed in Mississippi (both alleged strict liability and negligence for asbestos exposure on behalf of some 100 plus plaintiffs) that the Court should adopt Mississippi s approach to such complaints. The defendants pointed out that Rule 20 of the Georgia Civil Practice Act mirrors the language of the same Mississippi Rule of Civil Procedure and, because plaintiffs Amended Complaint failed to allege facts sufficient to support any commonality, severance was appropriate. On Oct. 13, 2004, the State Court of Cobb County issued its ruling on the matter. The Court recited the history of the case, reiterating its previous Order in which it stated, [T]he Court is unwilling to allow joinder of plaintiffs among whom there is a lack of commonality and that joinder is limited to those arising out of the same transaction, occurrence, or series of transactions or occurrences. The Court noted that plaintiffs were given a brief extension of time in which to file their Amended Complaint. Nevertheless, the Amended Complaint was substantially identical to the initial Complaint and failed to show any commonality between the plaintiffs. Continued on Page 64

7 BEYOND THE HEADLINES Sen. Specter Holds Hearing on Asbestos Trust Fund Bill; President Bush Pushes Tort Reform WASHINGTON On Jan. 11, Sen. Arlen Specter (R-Pa.) presided over a Senate Committee on the Judiciary hearing on the The Fairness in Asbestos Injury Resolution Act, during which representatives from the National Association of Manufacturers, Department of Occupational Safety and Health, American Insurance Association, and the American Trial Lawyers Association all testified. The meeting came after a week in which President George W. Bush traveled to both Illinois and Michigan to discuss his administration s so-called tort reform agenda. During a speech given at the Macomb Community College in Clinton Township, Mich., President Bush called the huge mass of asbestos cases a national problem. Final details for Sen. Specter s legislation proposal still have yet to be finalized, with the amount of the trust fund still unclear. Last year, Congress adjourned without voting on a proposed trust fund measure that would have created a $140 billion trust to pay asbestos claims outside of the tort system. During the hearing, John M. Engler, president and CEO of the National Association of Manufacturers testified that while the discussion draft circulated by Sen. Specter does not address funding, the $140 billion price tag agreed on by Congress is sufficient. We believe that $140 billion is more than enough to pay all qualifying claims at fair values, Engler stated. The hearing was held just days after several asbestos defendants sent a joint letter to Sen. Specter, calling the senator s recent asbestos legislation proposal fatally flawed and expressing concern that his plan for a national trust fund is a step backward for efforts aimed at curtailing asbestos litigation. In the Jan. 3 letter, nearly 10 companies named as defendants in pending asbestos litigation outlined concerns with Sen. Specter s drafted proposal for an asbestos trust fund, specifically with the allocation of payment obligations on defendant participants, the separation of companies from their insurance coverage, the possibility of claims returning to the tort system, the imposition of joint and several liability, and the opportunity for asbestos claimants to assert other mixed dust claims. We continue to support efforts to reform the current asbestos litigation system in a manner that would address the needs of the truly sick, the defendants letter stated. However, in view of the dramatic number of current asbestosrelated claims by those who are not now and many never become sick, we remain concerned that the current discussion draft would result in a program that would set us back rather than forward. The letter was signed by E.I. du Pont de Nemours and Company, Exxon Mobil Corp., Federal-Mogul Corp. and the Official Committee of Unsecured Creditors of Federal 6 COLUMNS Mogul Corp., Foster Wheeler, Hopeman Brothers, IU North America, National Service Industries Inc. and Oglebay Norton Co. In a press release, Federal-Mogul said it cannot support a national trust that imposes a grossly disproportionate payment obligation on Federal-Mogul while providing a bailout to a small number of companies that are responsible for the lion s share of the most serious asbestos claims in the tort system. Under Sen. Specter s current proposal, the trust fund would impose payment obligations on companies that would exceed their asbestos-related costs, in addition to precluding those companies from insurance coverage, the letter claimed. Because of this, asbestos defendants would benefit more from continuing to litigate asbestos claims within the current judicial system, the defendants claimed. Additionally, the defendants argued that as currently written, the draft of the bill would falsely stress a final resolution of all asbestos suits, as claims could revert back to the tort system should funding for the trust run out. Finally, the defendants expressed concern that the draft legislation would allow plaintiffs to recast asbestos claims as silica or other mixed dust claims, leaving certain defendants such as premises owners subject to continuing litigation. We encourage you to consider alternative approaches, specifically medical criteria legislation, to resolve the issue without penalizing companies with minimal out-of-pocket asbestos-related costs and sufficient insurance to cover them, the letter concluded. Document is Available Call (800) or Search Federal-Mogul Letter Ref# ASB

8 TABLE OF CASES Northeast Region (First, Second, Third & D.C. Circuit Courts) In re: Mid-Valley Inc, et al., Misc. No (W.D. Pa.). Bankruptcy. Page 14 Root v. Eastern Refractories Co., et al., No (N.Y. Sup. Ct., App. Div., 4 th Dept.). Reversed. Page 20 Rourke v. Amchem Products, et al., No. 24-C /CN (Md. Ct. App.). Affirmed. Page 20 Seitz v. Jacobson & Company, No (N.Y. App. Ct., 3 rd Dept.). Remanded. Page 18 South/Southwest Region (Fourth, Fifth & Eleventh Circuit Courts) Borg-Warner Corp. v. Flores, No CV (Texas 13 th Dist. Ct. App.). Affirmed. Page 17 Bourgeois v. A.P. Green, No (La. 24 th Jud. Dist. Ct.). Denied. Page 16 Harold s Auto Parts, Inc. v. Flower Mangialardi, et al., No IA SCT (Miss. Sup. Ct.). Published. Page 13 Kelly-Moore Paint Co. v. Dow Chemical Co., et al., No (Texas 23 rd Dist. Ct., Brazoria Cty.). Denied. Page 10* Tutt v. International Paper Co., No. CA (Ark. Ct. App.). Affirmed. Page 18 Midwest Region (Sixth, Seventh & Eighth Circuit Courts) In re: All Kelley & Ferraro Asbestos Cases, No (Ohio Sup. Ct.). Reversed. Page 11 In re: A.P.I Inc., No (Minn. Bankr. Ct.). Bankruptcy. Page 15 Orr, et al. v. State of Montana, No MT 354 (Mont. Sup. Ct.). Remanded. Page 12 Thornton, et al. v. A-Best Products, et al., No. CV (Ohio Ct. Comm. Pls., Cuyahoga Cty.). Remanded. Page 8** Wright v. Leggett & Platt, et al., No. 04CA (Ohio Ct. App., 9 th Dist.). Affirmed. Page 19 West Region (Ninth & Tenth Circuit Courts) Biles v. Exxon Mobil Corp., No. A (Calif. Ct. App., 1 st Dist., Div. 2) Reversed. Page 15 * See page 39 for Kelly Order/Motion ** See page 47 for Thornton Order 7 ASBESTOS JANUARY 2005

9 COURTROOM NEWS Jurisdiction 3 Miss. Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency JACKSON, Miss. Three Mississippi Circuit Court judges have ordered thousands of asbestos plaintiffs to show they reside or were injured in the counties where their claims are filed or face dismissal. Last week, judges in Jefferson, Holmes and Hinds County circuit courts granted several pending motions to sever and ordered the severed plaintiffs to produce proof of residency or site of injury by specific dates. Sources said that Judge Lamar Pickard of Jefferson County on Dec. 20 gave 8,000 plaintiffs 20 days to respond, Holmes County Judge Jannie Lewis on Dec. 23 gave 4,000 plaintiffs a 60-day deadline and Judge Winston Kidd of Hinds County gave an estimated 1,300 plaintiffs 225 days to produce the information. Court sources said that the orders addressed severance issues only and that other pending motions in the cases will be addressed after the plaintiffs have complied with the order. Sources also indicated that Judge Billy Joe Landrum of Jones County Circuit Court has yet to issue a decision that would affect 16,000 plaintiffs with claims pending before him. Eventually, some 30,000 plaintiffs could be affected by similar orders, sources said. The order follows the Mississippi Supreme Court s Aug. 26 order in Harold s Auto Parts Inc. v. Flower Mangialardi (04-IA SCT), which required plaintiffs in a Bolivar County action provide information on the residency and place of exposure for each claimant. In that decision, the Supreme Court found fault with the plaintiffs failure to present information about underlying claims against an estimated 150 defendants. Complaints should not be filed in matters where plaintiffs intend to find out in discovery whether or not, and against whom, they have a cause of action, the Supreme Court stated in its decision. Absent exigent circumstances, plaintiffs counsel should not file a complaint until sufficient information is obtained, and plaintiffs counsel believes in good faith that each plaintiff has an appropriate cause of action to assert against a defendant in a jurisdiction where the complaint is to be filed. In finding that the plaintiffs claims failed to satisfy the requirements set forth in Mangialardi, Judge Lewis ordered each plaintiff to serve the defendants with a new pleading that contains facts as to the home address, social security number, job classification, and alleged disease of each plaintiff, and describes which plaintiff was exposed to which specific product manufactured by which specific defendant in which workplace (by name and address) and for what specific time periods and frequencies. In issuing the shortest time in which the plaintiffs have to define their claims, Judge Pickard stated that if the plaintiffs fail to meet the 20-day deadline, the Court will enter its own Order based upon the information that the Court has available to it, to transfer or dismiss, if warranted, all those instate Plaintiffs without original jurisdiction and venue to the appropriate court of venue and jurisdiction, and dismiss, without prejudice, all those out-of-state Plaintiffs without original jurisdiction and venue. The orders affect claims filed in Jefferson, Copiah, Claiborne, Holmes, Humphreys, Yazoo and Hinds Counties. Documents Are Available Call (800) or Search Pickard Order Ref# ASB Lewis Order Ref# ASB Legislature Ohio Court Finds Retroactivity of New Act Unconstitutional in 11 Asbestos Lawsuits CLEVELAND An Ohio Court has ruled that a medical criteria bill governing the types of asbestos claims that may proceed to trial does not apply retroactively to the claims of 11 asbestos plaintiffs, ordering that the claims of the plaintiffs should proceed to trial under the law prior to the Act. Thornton, et al. v. A-Best Products, et al., No. CV (Ohio Ct. Comm. Pls., Cuyahoga Cty.). In a Jan. 10 opinion, the Ohio Court of Common Pleas for Cuyahoga County found that the rights of the 11 plaintiffs had been impaired by the Act, which went into effect in September 2004, because it imposed higher standards for proving medical causation. Plaintiffs in the 11 lawsuits alleged that they have developed various cancers as a result of exposure to asbestos-containing products. The claims were slated for an October 2004 trial. However, on Sept. 2, 2004, Amended Substitute House Bill 292 took effect, prompting the defendants to move to take the 11 lawsuits off the trial list. House Bill 292 intended to give priority to those asbestos claimants who exhibit actual physical injury cased by asbestos and fits those plaintiffs into categories of claimants asserting claims based on non-malignant conditions, claimants who are smokers and suffer from lung cancer and plaintiffs asserting a wrongful death claim. The 11 plaintiffs in the instant action are smokers alleging the development of lung cancer as a result of asbestos exposure. The Common Pleas Court noted that the Act also requires a plaintiff to file a written 8 HARRIS M ARTIN COLUMNS

10 COURTROOM NEWS report and supporting test results that provides evidence of the impairment. The 11 plaintiffs argued that the Act should not apply retroactively to their claims. The defendants argued that a Savings Clause in the Act stipulates that the Court should apply an individualized retroactivity analysis. The Common Pleas Court noted that Section 28, Article II of the Ohio Constitution prohibits the passing of retroactive laws and protects vested rights from new legislative encroachments. The test for unconstitutional retroactivity requires the court first to determine whether the General Assembly expressly intended the statute to apply retroactively, the Common Pleas Court noted. If so, the court moves on to the question of whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial. The Court of Common Pleas opined that the General Assembly did intend for the Act to apply retrotactively, but not so that it would violate Section 28, Article II of the Constitution. For example, if this Court found that the Act impaired a substantive right of a claimant who filed a claim on September 1, 2004, the Act would be inapplicable, and the law that was in effect prior to the effective date of the Act would apply, the Court stated. Therefore, the Act cannot violate the Ohio Constitution on retroactivity grounds [emphasis original]. The plaintiffs first argued that the Act imposed higher medical standards that would dismiss the claims of the 11 plaintiffs. The defendants contended that Ohio law prior to the Act stipulated that a competent medical authority is required and that the Act simply establishes minimum medical requirements. The Court of Common Pleas disagreed, stating that the clearly, the Act imposes new or additional burdens, duties, obligations, or liabilities on the 11 claimants in the instant case. The Court noted that Ohio law prior to the Act does not define a competent medical authority, and that the plaintiffs in the instant action have conceded that their existing medical records no not contain causation reports required by the new law. Such an admission is irrelevant to the issue of medical causation if the imposition of new, higher medical standards for asbestosrelated claims is a substantive alteration of existing Ohio law which will have the effect of retroactively eliminating the claims of plaintiffs whose rights to bring suit previously vested, the Common Pleas Court claimed. The Court of Common Pleas, therefore, determined that because the Act imposes new burdens on the 11 plaintiffs, it is unconstitutionally retroactive, leaving the plaintiffs to bring their claims under the law that existed prior to the Act. The Common Pleas Court also found that the guidelines for establishing exposure to asbestos as a substantial contributing factor were also unconstitutionally retroactive. Under the new Act, a plaintiff must prove that exposure to asbestos was a substantial contributing factor to lung cancer, the Common Pleas Court noted. The new guidelines stipulate that the word substantial means both that exposure to asbestos is the predominate cause of the impairment and that a competent medical authority determines that without asbestos exposure, the impairment would not have occurred. Under prior law, however, the word substantial was used to denote the fact that the defendant s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called philosophical sense, which includes every one of the great number of events without which any happening would not have occurred. The Court of Common Pleas determined that the term substantial contributing factor as defined by the new Act would impose new burdens on the instant plaintiffs, therefore rendering it unconstitutional. Finally, the Court of Common Pleas found that the Act s interpretation of substantial occupational exposure imposed new burdens on the instant plaintiffs. Under the Act, the plaintiff must provide evidence of substantial occupational exposure or evidence that the exposure was at least 25 fiber per cc years. The Court of Common Pleas noted that under law prior to the Act, the plaintiff need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury. The Act imposes an additional burden on these 11 plaintiffs to demonstrate that they were exposed to asbestos-containing products on a regular basis and in close proximity to where the Plaintiffs actually worked, the Court of Common Pleas opined. The Court of Common Pleas further found that each of the 11 plaintiffs had sufficiently asserted claims under the law prior to the Act and ruled that the claims were set to proceed to trial. Document is Included See Page 47 or Search Order Ref# ASB ASBESTOS JANUARY 2005

11 COURTROOM NEWS Juror Conduct Court Rejects Kelly-Moore s Claims of Juror Misconduct; Motion for New Trial Denied ANGLETON, Texas A Texas court has denied Kelly-Moore Paint Co. s motion for a new trial in a landmark asbestos case in which jurors found that Union Carbide did not fraudulently conceal the dangers of asbestos it sold to the paint maker. Kelly- Moore Paint Co. v. Dow Chemical Co., et al., No (Texas 23 rd Dist. Ct., Brazoria Cty.). Sources said that Judge J. Ray Gayle III of the Texas 23 rd District Court for Brazoria County denied the motion on Jan. 5 after an evidentiary hearing. On Oct. 22, a jury found 11-1 that Union Carbide did not withhold information about the dangers of products it sold to Kelly- Moore. Specifically, Kelly-Moore claimed it relied on the supplier s representations in using the Union Carbide asbestos in tape joint compound products and other texture products. Kelly-Moore specifically alleged that Union Carbide had evidence that its product Calidria was linked to cancer and asbestosis, but promoted the product to Kelly-Moore as a safe alternative to deadly asbestos products. Union Carbide argued during trial that its product could be used safely and that comprehensive warnings were provided to Kelly- Moore regarding the dangers of asbestos. On Dec. 3, Kelly-Moore moved to overturn the landmark verdict, claiming that juror misconduct tainted their finding that Union Carbide did not fraudulently conceal the dangers of asbestos-containing products sold to the paint maker. Kelly-Moore claimed in the motion that jurors had access to a running documentary produced on the Internet by the defendant, discussed the case prior to jury deliberations, and one juror in particular misrepresented a possible connection with the defendant. Kelly-Moore first argued that juror affidavits revealed that a number of jurors reviewed a running documentary of the trial from a Dow Chemical-related computer, Kelly- Moore maintained. Union Carbide is a subsidiary of Dow Chemical. Access to this Web site and press releases that addressed the trial constituted improper contact between the jurors and the defendants and also could have exposed to the jurors to prejudicial information, including discussions about the trial and its impact on Dow Chemical, Kelly-Moore contended. The jurors review of the internet and media reports regarding the lawyers and gallery jurors in this case is also misconduct requiring a new trial, Kelly-Moore contended. Jurors should decide a case based on the evidence before them and their assessment of the credibility of the witnesses. Information they obtain about attorneys could easily influence their assessment of the credibility of the witnesses or create bias on the part of a juror for or against a litigant based upon what the jury has learned about the litigant s attorney. Such conduct interferes with jury s ability to decide the case based on the evidence and deprives the litigants of a trial based on the evidence presented to a neutral jury. In a response filed Dec. 21, Union Carbide claimed Kelly-Moore s assertions that jurors reviewed running documentary were unsupported and vague. The statements do not identify the jurors who supposedly discussed the Web site, when they did so, with whom they discussed it, how and when they accessed the Web site, or the content of the Web site, Union Carbide said. Courts regularly deny newtrial motions when a movant submits impermissibly vague or hearsay affidavits in support of a juror-misconduct claim. 10 HARRIS M ARTIN COLUMNS Union Carbide further claimed that Kelly- Moore failed to show that the testimony regarding the Web site involved in outside influence that affected the jury s verdict. It is ironic that Kelly-Moore seeks a new trial based primarily on its claim that jurors gained access to outside information about the trial, Union Carbide said. Coverage in the local and regional media was quite favorable to Kelly-Moore and its counsel. Juror affidavits also indicated that at least two of the jurors discussed the case during rides to trial, and prior to closing arguments, according to Kelly-Moore. Union Carbide refuted this contention as well, arguing that the affidavits presented by the plaintiff were vague and did not show that the jury was influenced by the discussions. Additionally, Kelly-Moore questioned a juror s statement that he had no connection with Dow, when in fact, the juror s vehicle title reveals that the lienholder for the truck is Texas Dow Employees Credit Union. Based on this information, Kelly-Moore requested that the court require the juror to give testimony regarding his relationship with Dow. This argument is embarrassingly weak, Union Carbide argued. [Kelly-Moore] has made no attempt to establish that [the juror] is actually an employee of Dow, Union Carbide stated. Thus, it has not come close to establishing that [the juror] lied. In fact, the undersigned counsel has discovered that one need not be a Dow employee, or even have any connection with Dow, to receive a car loan from TDECU. On the day the order was issued, Union Carbide also objected to Kelly-Moore s filing of additional juror affidavits, arguing that the affidavits constitute an untimely attempt by Kelly-Moore to amend its motion for new trial. Judge Gayle did not rule specifically on the objection. Kelly-Moore is represented by W. Mark Lanier, Kevin P. Parker, Eugene R. Egdorf

12 COURTROOM NEWS and Dara G. Hegar of the Lanier Law Firm in Houston; and Harvey G. Brown Jr. and Thomas C. Wright of Wright & Brown in Houston. The defendants are represented by John R. Gilbert of Gilbert & Gilbert in Angleton, Texas; Scott D. Lassetter of Weil, Gotshal & Manges in Houston; Harry P. Hap Weitzel of Mayer, Brown, Rowe & Maw in Houston; Deborah D. Kuchler and Sarah E. Iiams of Abbott, Simses & Kuchler in New Orleans; Randy E. Moore of the Moore Law Firm in Lake Jackson, Texas; Michael G. Terry of Hartline, Dacus, Barger, Dreyer & Kern in Corpus Christi, Texas; and Peter Bicks, Siobhan Handley and Morton Dubin of Orrick, Herrington & Sutcliffe in New York. Document Is Included See Page 39 or Search Order Ref# ASB Response Ref# ASB Motion Ref# ASB Objection to Affidavits Ref# ASB Settlement Ohio Supreme Court Reverses Assignment of Joint and Several Liability to CCR Members COLUMBUS, Ohio Ohio s highest court has reversed an appellate court decision, finding error with the assignment of joint and several liability to companies involved in a settlement agreement between the Center for Claims Resolution and an Ohio law firm. In re: All Kelley & Ferraro Asbestos Cases, No (Ohio Sup. Ct.). In a Dec. 30 decision, the Ohio Supreme Court found that the language in the settlement indicated that the parties contemplated the possibility that member companies would not be able to pay their share, therefore precluding the option of joint and several liability. The structure of the agreement further fortifies our conclusion that the member companies promised to be liable only for their respective shares, the Supreme Court stated. We hold that the settlement agreement creates only several liability among the CCR members, and, therefore, each member is responsible only for its individual share of liability payments. Because the appellate court interpreted the agreement as providing for joint and several liability, that decision is reversed. In 1999, an estimated 15,000 asbestos-related claims were settled for $120 million between plaintiffs represented by the law firm of Kelley & Ferraro and the Center for Claims Resolution, which acted on behalf of 19 companies. The Supreme Court noted that in 1999, CCR submitted a payment short nearly $1 million, claiming that asbestos defendants GAF failed to pay its allocated share. A trial court granted a motion filed by Kelley & Ferraro to enforce the settlement agreement, and the judgment was entered against all the CCR members. In doing so, the Court opined that because CCR entered into an agreement that a lump sum would be delivered to Kelley & Ferraro, the apportionment of the funds was an internal CCR dispute. The following payment was also short, this time by over $2 million, the Supreme Court noted. Kelley & Ferraro again filed a motion to enforce the settlement agreement, which was granted. CCR continued to submit deficient payments until June 2002, as many of the companies in the agreement had filed for bankruptcy. CCR then sent a letter to Kelley & Ferraro, suggesting it pursue an option in the agreement which stipulated that in the event that the CCR fails to make any of the payments because any one of the CCR member companies fails to make timely payments of its individual shares of such payment when such payment has become due the 11 ASBESTOS JANUARY 2005 claimant may either void the settlement agreement as to the defaulting member companies, or void the settlement agreement in its entirety. An Ohio appellate court consolidated CCR s numerous appeals of the trial court s settlement enforcement rulings, and then affirmed the rulings, stating that the agreement provided for joint and several liability among all the CCR members. CCR and its members appealed the decision. The plaintiffs argued that the settlement agreement indicated joint and several liability, while the CCR companies contended that the language in the settlement agreement provides that each company is liable for only their own share, and not for the entire amount of the settlement, nor the shares of other companies. The Supreme Court determined that the language in the settlement agreement indicates that the members intended to pay limited amounts toward the installments. The claimants assertion regarding the CCR s failure to properly make a final share allocation for each member prior to each installment is not well taken, the Supreme Court stated. The record shows they knew of and agreed with the share allocation procedure as set forth in the Producer Agreement and that they were aware that the Producer Agreement expressly conferred no rights to third parties. Further, the individual share allocation of a member does not affect the nature of the promises made by the member companies in paragraph 13 of the settlement agreement, as will be further developed. In the present case, the language can only be interpreted as imposing several liability upon the CCR member companies and manifests the parties intent that each member be responsible for only its individual share of the total settlement amount as calculated pursuant to the Producer Agreement, the state s high court continued.

13 COURTROOM NEWS The Supreme Court also opined that the parties intent to create several liability is apparent in language indicating what would happen should the parties fail to pay their allocated share. By providing these options for the situation where a member fails to pay its individual share, paragraph 13 demonstrates that the parties believed that the agreement created individual obligations among the members and that a company s failure to tender its allocated share would result in a deficient installment payment to the claimants, the Supreme Court stated. As pointed out by the CCR members, interpreting the settlement agreement to provide for joint and several liability would render these options essentially meaningless, as there would be little or not impetus for claimants to pursue the defaulting member individually, especially when default is due to insolvency. Counsel for the CCR companies are Patrick F. McCartan, Mark Herrmann and Mary Beth Young of Jones Day in Cleveland; David S. Cupps and Richard D. Schuster of Vorys, Sater, Seymour & Pease in Columbus, Ohio; Richard S. Walinski of Cooper & Walinski in Toledo, Ohio; Eric H. Zagrans of The Zagrans Law Firm in Elyria, Ohio; Frank J. Santoro, Karen M. Crowley and John M. Ryan Jr. of Marcus, Santoro & Kozac in Chesapeake, Va. The plaintiffs are represented by Michael V. Kelley and Thomas M. Wilson of Kelley & Ferraro in Cleveland; and Robert J. Fogarty, Andrew S. Pollis and Yuri R. Linetsky of Hahn, Loeser & Parks in Cleveland. Document is Available Call (800) or Search Order Ref# ASB Duty to Warn High Court Remands Miners Asbestos Claims, Rules State Had Duty to Warn HELENA, Mont. Montana s highest court has determined that the state owed a duty to warn miners of asbestos dangers in the workplace, and remanded the case for a determination of whether the state breached that duty. Orr, et al. v. State of Montana, No MT 354 (Mont. Sup. Ct.). On Dec. 14, the Montana Supreme Court released a divided opinion in which the majority found that the state had a duty to advise both the employer and the employees of the presence of asbestos. In the decision, Justice Patricia O. Cotter reversed a District Court decision dismissing the claims, and defended the reversal by stating that the plaintiffs still face the daunting task of establishing that the State breached its duty to them and in so doing, caused their damages and injuries. Justices Jim Regnier, James C. Nelson and W. William Leaphart joined the majority in the decision. The nine plaintiffs including an on-site carpenter, seven miners, and the wife of a miner alleged they all developed asbestosrelated diseases as a result of working in a Libby, Mont., vermiculite mine. The plaintiffs named W.R. Grace Co. in the initial filing. Justice Cotter noted that W.R. Grace bought the mine in 1963 and, since that time, a number of industrial hygiene studies have been conducted on the mine by the State Board of Health. Each inspection revealed that conditions were unsanitary and unhealthy, Justice Cotter said, adding that while the State reported the findings to W.R. Grace, those working in the proximity of the mine were never notified. 12 HARRIS M ARTIN COLUMNS W.R. Grace was dismissed from the case after filing for bankruptcy, prompting the plaintiffs to add the State of Montana to the lawsuit, specifically alleging that it owed a duty to protect the plaintiffs by informing them of the hazardous conditions. The State filed a motion to dismiss, arguing that it owed no duty to the miners. The District Court agreed, granting the motion to dismiss, and prompting the instant appeal. The miners first argued that the State owed a duty to make investigations and subsequently disseminate information regarding the asbestos hazards. While the State made the proper investigations, it did not convey the results of these investigations to the miners, the plaintiffs contended. The State countered by arguing that Montana industrial hygiene statutes do not impose a duty on the State to warn and protect miners and that such protection is the responsibility of the employer. The District Court agreed, opining that the statutes did not apply because they did not specifically include vermiculite mines. However, Justice Cotter found that the statutes need not be specific to the industry in order to apply. First, it cannot be disputed that vermiculite mining is an industry, Justice Cotter wrote. If the failure of the legislature to describe every industry to which its law applies is followed to its logical conclusion, then the law would cover no industries whatsoever. This is an absurd interpretation. The state had the mandatory obligation from 1907 through 1999 to gather public health-related information and provide it to the people. The legislature wrote this law broadly and chose not to limit it to specific industries, occupations or workers. Justice Cotter also rejected the State s contention that the protection of workers is the employers responsibility. In doing so, Justice Cotter opined that evidence instead indicated that the State knew that W.R. Grace was not warning employees. The state s argument that it owed no duty to the Miners ignores the State s statutory

14 COURTROOM NEWS obligation to make investigations, disseminate information, and make recommendations for control of diseases and improvement of public heath to persons, groups, or the public, Justice Cotter wrote. The provisions of this law bound the State to do something to correct or prevent workplace conditions known to be hazardous to health. Justice Cotter also rejected the State s argument that the Public Duty Doctrine precluded the plaintiffs claims. Justice Cotter found that the miners fit a special relationship exception to the Public Duty Doctrine. Justice Cotter noted that the District Court rejected the notion that a special relationship existed between the State and the miners, instead finding that the statutes governing special relationships were too general to protect such a specific class of persons from a specific type of harm. Justice Cotter disagreed. The numerous statutes discussed above were intended to protect workers from occupational diseases, Justice Cotter said. As we stated above, the lack of specificity in these statues does not render them meaningless. The statutes were designed to protect men and women working in the various industries in Montana from occupational disease. Libby Miners were undeniably members of this specific class of persons. Justice Cotter further opined that the Libby Miners presented affidavits indicating that the ambient dust was a concern. These affidavits also acknowledged that the miners also dismissed any health concerns, Justice Cotter stated. This conclusion was uniformly premised on the fact that the State had regularly inspected the Mine, but had never reported any danger to the Miners, Justice Cotter stated. Each miner declared that they relied on these State inspections and the State s lack of warning to continue working at the Mine. In Montana, reliance occurs when one is rightfully led to a course of conduct or action on the faith that the act or duty will be properly performed. The State s inspections rightfully led the Miners to believe that they were working in a safe environment. Justice Cotter also rejected the State s defenses of federal preemption and sovereign immunity, noting that although the District Court failed to address the arguments, the State would fail in these specific attempts upon remand. In rejecting the arguments, Justice Cotter first noted that no federal statutes governed mine-related activities prior to 1966, therefore leaving the State with no preemption defense. Justice Cotter also acknowledged that Montana has no sovereign immunity defense after 1972, when the law governing the commencement of a civil action was codified. Since the plaintiffs could not prove damage until after 1972, their claims are not precluded by the sovereign immunity defense, Justice Cotter found. In a dissenting opinion, Justice John Warner argued that the majority redefined the doctrine of sovereign immunity. By focusing on when the damage occurred, the Court forgets that at the time of the alleged breach of duty by the State, it owed no duty at all to the Miners, Justice Warner wrote. Sovereign immunity is not a bar to an action, it is a legal doctrine to the effect that the government had no duty to respond in damages to its citizens for its acts or omissions. When sovereign immunity was abolished, this changed, but by no stretch of logic or law can it be said that an act or omission done while the doctrine was in effect retroactively creates such a duty. Justice Warner, who was joined by Justices Karla M. Gray and Jim Rice in the dissent, also suggested that the majority unfairly imposed the duty of worker protection upon the State. According to the Court, the State had a duty to prevent any recurrence of an unhealthful condition upon pain of being liable in tort to any injured worker, Justice 13 ASBESTOS JANUARY 2005 Warner said. A large undertaking! Indeed, one I conclude borders on the absurd. Counsel for the plaintiffs is Jon L. Heberling of McGarvey, Heberling, Sullivan & McGarvey in Kalispell, Mont. The State of Montana is represented by Dana L. Christensen of Christensen, Moore, Cockrell, Cummings & Axelberg in Kalispell, Mont.; and Thomas G. Bowe, Assistant Attorney General in Helena, Mont. Document Is Available Call (800) or Search Opinion Ref# ASB Joinder Supreme Court Order Severing Mississippi Asbestos Claims Published JACKSON, Miss. An order applying new Mississippi mass tort standards to asbestos claims was designated for publication by the state s high court on Jan. 6. Harold s Auto Parts, Inc. v. Flower Mangialardi, et al., No IA SCT (Miss. Sup. Ct.). The Aug. 26 order from the Mississippi Supreme Court had called the joinder of 259 claims in the underlying case a perversion of the judicial system, and has prompted several Mississippi Circuit Courts to dismiss more than 13,000 asbestos claims since. See 3 Mississippi Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency in this issue. In the decision, the state s high court took issue not with the plaintiffs alleged failure to comply with Rule 20 s joinder requirements, but with their apparent failure to disclose core information about the underlying claims asserted against the nearly 150 defendants named in the case.

15 COURTROOM NEWS Complaints should not be filed in matters where plaintiffs intend to find out in discovery whether or not, and against whom, they have a cause of action, the court said. Absent exigent circumstances, plaintiffs counsel should not file a complaint until sufficient information is obtained, and plaintiffs counsel believes in good faith that each plaintiff has an appropriate cause of action to assert against a defendant in a jurisdiction where the complaint is to be filed. To do otherwise, the court said, is an abuse of the system and is sanctionable. The underlying case involved asbestos injury claims against 137 defendants by 264 plaintiffs, 220 of which have yet to identify any employment within the state of Mississippi, according to the Supreme Court. On June 23, the Bolivar County Circuit Court denied a defense motion to sever the claims, leading to the instant appeal, in which the defendants argued that given the lack of information about the underlying exposure provided by the plaintiffs in the case, it is impossible to argue that joinder was improper. The plaintiffs responded that given the defendants desire to have the claims severed and tried individually, specific information about the underlying claims wasn t necessary at this juncture in the case. The Supreme Court held, however, that both arguments missed the mark. Suspending any further briefing on the issue and proceeding directly to a consideration of the merits of the defendants petition for permission to appeal, the high court said that the matter should be before the court not on a violation of Rule 20, but for a failure to comply with Rules 8, 9, 10 and 11. Rule 20 allows joinder only where the plaintiffs make certain assertions which demonstrate the matters set out in the rule, the court said. In this regard, plaintiffs have wholly failed. Indeed, plaintiffs have not even attempted to provide the information. They presume that they are entitled to proceed with their suit, as filed, and they will demonstrate later that joinder is proper. The court added that it can only presume from the record that the plaintiffs have chosen to take such a course because they aren t aware whether joinder is appropriate. This is so, apparently, because they don t know the claims of each plaintiff. They don t appear to know when they were exposed, where they were exposed, by whom they were exposed, or even if they were exposed, the court noted. Presumably, when they learn this information, plaintiffs counsel intends to dismiss those who should not have been joined. This is a perversion of the judicial system unknown prior to the filing of mass-tort cases. The justices also pointed out that not all cases involving multiple parties which have come before the court have been filed in similar fashion. They noted cases where plaintiffs counsel appeared to have interviewed each plaintiff, investigated their claims and developed information necessary to file a complaint. Such was not the case in the instant matter, according to the court, which added that plaintiffs counsel continues to resist furnishing necessary information to the defendants and the court. In reaching its decision to sever the claims and remand to the circuit court for transfer to the appropriate venue and jurisdiction, the court noted its recent decision in Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004), where the court appeared to have carved out an exception for joinder of claims in so-called mature torts, such as asbestos. Even though asbestos litigation is, indeed, a mature tort, as discussed in dicta in Armond, this Court did not intend in that case, and we shall not proceed here, to exempt asbestos cases from the requirements of Rule 20, the Mississippi Rules of Civil Procedure, the court wrote. Document Is Available Search or Call (800) Opinion Ref# ASB HARRIS M ARTIN COLUMNS Bankruptcy Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement HOUSTON Halliburton has announced that two of its subsidiaries, DII Industries and Kellogg Brown & Root, have exited bankruptcy, marking the finalization of a $4.7 billion settlement of asbestos suits involving a reported 400,000 claimants. In re: Mid-Valley Inc, et al., Misc. No (W.D. Pa.). In a press release issued Jan. 3, the Houstonbased petroleum and energy provider said orders by the U.S. District Court for the Western District of Pennsylvania and the U.S. Bankruptcy Court for the Western District of Pennsylvania are now final and non-appealable. DII Industries and Kellogg Brown & Root can now operate without Bankruptcy Court supervision, Halliburton said. Halliburton s chairman, president and CEO Dave Lesar said in the press release that the asbestos chapter in Halliburton s history is closed. Halliburton s agreement was approved last year by Judge Judith Fitzgerald of the U.S. Bankruptcy Court for the Western District of Pennsylvania, and called for Halliburton to pay $2.3 billion in cash, notes worth $55 million and 59.5 million shares of common stock into trusts to pay victims, published reports indicated. The order was affirmed on July 26, 2004, by Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania. Halliburton said in its press release that it plans to fund the trusts for current and future asbestos and silica claimants by the end of the month. Documents are Available Call (800) or

16 COURTROOM NEWS Search District Court Order Ref# ASB Bankruptcy Court Order Ref# ASB Bankruptcy Asbestos Claims Prompts A.P.I. Industries to File For Chapter 11 MINNEAPOLIS Insulation contractor A.P.I Industries has filed for Chapter 11 bankruptcy protection, claiming that it has $63 million in liabilities. In re: A.P.I Inc., No (Minn. Bankr. Ct.). A.P.I Industries also filed a prepackaged bankruptcy plan Jan. 6 in the U.S. Bankruptcy Court for Minnesota. Published reports indicate that the subsidiary of A.P.I. Group has more than 700 asbestos claims asserted against the company. In addition to the $63 million in liabilities, A.P.I claims to have more than $34 million in total assets. In the prepackaged plan, A.P.I. says that all asbestos claims against the company shall be assumed by a trust, to which A.P.I will make 80 quarterly payments of $325,000. Counsel for the debtor are James L. Baillie, Faye Knowles and Heather B. Thayer of Fredrikson & Byron of Minneapolis, Minn. Documents are Available Call (800) or Search Petition Ref# ASB Reorganization Plan Ref# ASB Premises Liability California Court Reverses Summary Judgment, Finds Testimony Wrongfully Omitted SAN FRANCISCO A California Court of Appeal has reversed an award of summary judgment to ExxonMobil Corp. in an asbestos lawsuit, after finding that the trial court erroneously precluded testimony from the plaintiff s co-worker. Biles v. Exxon Mobil Corp., No. A (Calif. Ct. App., 1 st Dist., Div. 2) In a Dec. 14 decision, the 1 st District Court of Appeal found that the plaintiff had reserved the right to supplement or amend his interrogatory answers, and that his failure to do so immediately, did not constitute willful or purposeful behavior. In deciding this appeal we deconstruct a civil discovery urban legend that a responding party has an affirmative duty to supplement responses to interrogatories if and when new information comes into that party s possession, particularly if the party reserved the right to amend or supplement the earlier responses, the Court of Appeal stated. Plaintiff Ronald Biles claimed that he was exposed to asbestos during subcontractor work where he assisted in the construction of an oil refinery for a predecessor of Exxon. Subsequently, Biles claimed he developed asbestosis. During discovery, Exxon served Biles with special interrogatories asking for the identification of any individual who had knowledge of work specific to the oil refinery. Biles responded that no current information was available to satisfy the interrogatory, but he reserved the right to supplement or amend the response, the Court of Appeal noted. 15 ASBESTOS JANUARY 2005 Soon thereafter, Exxon filed a motion for summary judgment, arguing that the plaintiff was not exposed to a dangerous condition controlled by Exxon. After the summary judgment motion was filed, Biles submitted the deposition of Roger Bellamy who is represented in a separate action by the same counsel as Biles in which Bellamy claimed to have worked with Biles and witnessed air hoses blowing asbestos dust through Biles s worksite. Exxon objected to the admission of the Bellamy deposition, arguing that Bellamy was not identified in Biles s response to interrogatories. A trial court agreed, and granted Exxon s motion for summary judgment, prompting the instant appeal. The Court of Appeals first found that the trial court erred in its reliance on Thoren v. Johnston & Washer (1972), when finding that the Bellamy declaration was inadmissible. In Thoren, the defendants discovered at the start of trial that an expert had not been included in interrogatories, the Court of Appeal noted. The Court of Appeal found Thoren distinguishable because no trial date has been set in the instant proceedings. The trial court further erred when opining that Biles s counsel should have been aware of the possibility that Bellamy could testify on behalf of Biles, because no evidence indicated that Bellamy had mentioned Biles to the counsel, the Court of Appeals stated. Thoren provides authority for excluding evidence based on a willfully false discovery response, the Court of Appeals found. It does not stand for the proposition that evidence may be excluded based on the mere failure to supplement or amend an interrogatory answer that was truthful when originally served. The Court of Appeal also refrained from imposing discovery sanctions on the plaintiffs, stating that sanctions are not justified based on the mere failure to supplement a response promptly when no order compelling further answers has been sought or entered.

17 COURTROOM NEWS The appeals court further found error with the trial court s declaration that Biles had a duty to supplement his interrogatory responses when he received the Bellamy deposition. A rule precluding the use of evidence not previously disclosed in supplemental discovery responses to oppose a summary judgment motion would be inconsistent with case law holding that factually void discovery responses can be relied upon the shift the burden of proof to the opposing party, the Court of Appeal stated. The Court of Appeal also rejected the defendant s contention that even if the Bellamy deposition is admissible, it does not create a triable issue of fact against Exxon. In doing so, the Court stated that if an Exxon employee worked alongside, and injured, a contractor s employee, Exxon may be held liable for any injuries to the contractor s employee. Applying these principles, the Bellamy declaration clearly raises a triable issue of fact regarding whether Exxon may be liable in this case based on the affirmative acts of Exxon s own employees that contributed to Biles s asbestos exposure, the Court of Appeals stated. The Bellamy declaration creates a triable issue of fact as to whether the presence of asbestos dust in the air in Biles s vicinity was at least to some extent the result of the acts of Exxon s own employees. The plaintiff is represented by Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy and David Polin of Brayton Purcell in Novato, Calif. Counsel for Exxon is William H. Armstrong of Armstrong & Associates in Oakland, Calif. Document is Available Call (800) or Search Opinion Ref# ASB Medical Monitoring Louisiana Court Denies Class Certification in Medical Monitoring Asbestos Lawsuit GRETNA, La. A Louisiana State Court has denied class certification in an asbestos medical monitoring lawsuit, opining that the plaintiffs failed to satisfy the majority of the requirements governing a class action. Bourgeois v. A.P. Green, No (La. 24 th Jud. Dist. Ct.). In a Jan 5 oral decision, Judge Robert J. Burns of the Louisiana 24 th Judicial District Court ruled that class certification would not be proper, primarily because of the plaintiffs vague class membership criteria, sources stated. Sources said that three former employees of the Avondale Shipyard filed the lawsuit seeking medical monitoring for their alleged exposure to asbestos while working at Avondale. The lawsuit was filed as a class action, to be composed of all Avondale employees who worked at the shipyard before The defendants named in the lawsuit argued that Louisiana law does not recognize a medical monitoring cause of action, because plaintiffs who do not suffer from an asbestos-related disease are not entitled to damages. A trial court and the Louisiana 5 th Circuit Court of Appeal agreed, but their decisions were overturned by the Louisiana Supreme Court, which ruled that the plaintiffs could seek a court-supervised medical monitoring program if they could satisfied class certification requirements. Since the high court s decision, the Louisiana Legislature has passed a law that stipulates medical monitoring does not constitute damages unless the plaintiff currently suffers from an injury. The Legislature applied the law retroactively, but the Louisiana Supreme Court found the retroactive application to be 16 HARRIS M ARTIN COLUMNS unconstitutional. Currently, only cases alleging exposure prior to 1999 can seek damages for medical monitoring, even if the plaintiff is not currently injured. Under the Supreme Court s ruling, the plaintiffs in the instant action were free to seek damages for medical monitoring, provided class certification was proper. However, in determining whether class certification was proper, Judge Burns noted the plaintiffs proposed that class membership would be premised upon significant exposure to asbestos fibers. Judge Burns found, however, that it would be hard to discern exactly what significant exposure is. Individual questions pertaining to the plaintiffs would be more prevalent than common questions, Judge Burns found. Sources said that when denying the class certification, Judge Burns quoted defendant Viacom s brief in opposition to class certification, stating that the case at bar is really no different than the average asbestos personal injury case, except that the remedy sought, medical monitoring, is the same for each plaintiff. Judge Burns further found that the plaintiffs lacked typicality and that the representatives proposed to represent absent class members was not adequate. Judge Burns opined that it would be more efficient for plaintiffs to file individual claims, sources said. Judge Burns did note that the one requirement the plaintiffs appeared to satisfy was numerosity even so, the judge remarked that the requirement was doubtful because testimony was introduced indicating that there had been a lack of response or interest in joining the class. Counsel for the plaintiffs are Frank J. Swarr, Mickey P. Landry and David R. Cannella of Landry & Swarr in New Orleans. The defendants are represented by Leon Gary Jr. and William L. Schuette of Jones, Walker, Waechter, Poitevent, Carrere & Denegre in Baton Rouge, La.; Madeleine

18 COURTROOM NEWS Fischer of Jones, Walker, Waechter, Poitevent, Carrere & Denegre in New Orleans; Richard M. Perles of Lee, Futrell & Perles in New Orleans; Brian C. Bossier, Edwin A. Ellinghausen III and Erin H. Boyd of Blue Williams in Metairie, La.; Steven J. Irwin of Duncan, Courignton & Rydberg of New Orleans; Carl J. Hebert of Courtenay, Hunter & Fontana in New Orleans; Lynn Luker of Lynn Luker & Associates in New Orleans; and Robert H. Wood Jr. of Bernard, Cassisa, Elliott & Davis in Metairie, La. Verdict Texas Court Affirms $150,000 Asbestos Verdict CORPUS CHRISTI, Texas A Texas Court of Appeals has affirmed a jury verdict of $150,000, rejecting the defendant s contention that the plaintiff failed to prove that its asbestos-containing product released respirable asbestos fibers. Borg-Warner Corp. v. Flores, No CV (Texas 13 th Dist. Ct. App.). In a Dec. 16 decision, the Texas 13 th District Court of Appeals also affirmed the jury s finding that the defendant acted with malice, opining that as a manufacturer of asbestoscontaining products, the defendant should be held to the knowledge and skill of an asbestos expert. Plaintiff Arturo Flores was awarded more than $150,000 for injuries arising from exposure to asbestos-containing brake pads manufactured by defendant Borg-Warner Corp. A jury found Borg-Warner liable for negligence and strict liability, and also determined that the company acted with malice. Borg-Warner appealed the verdict. On appeal, Borg-Warner first argued that there was no evidence that asbestos fibers were released from its brake pads. Borg- Warner specifically asserted that the evidence was insufficient because it failed to show that the brake pads released respirable asbestos fibers. The Court of Appeals disagreed, stating that for an asbestos-related claim, the plaintiff needs only to provide evidence that the defendant supplied asbestos to which exposure occurred. According to Borg-Warner, the plaintiff in this case was required to prove the emission of respirable asbestos fibers because he was only exposed to a product containing asbestos and not to raw asbestos, the Court of Appeals stated. We find no support for this distinction in the case law cited by Borg- Warner. Furthermore, even if we were to conclude that the emission of respirable asbestos fibers is necessary to prove causation, the standard of review for legal sufficiency challenges would render Borg- Warner s complaint moot. We consider only the evidence that supports the verdict and the evidence is viewed in a light that tends to support the disputed fact. Specifically, the Court of Appeals noted that Flores inhaled dust created by a Borg-Warner asbestos-containing product which could have produced respirable asbestos fibers. The Court of Appeals also noted that because it rejected Borg-Warner s assessment of error associated with the jury s finding of negligence, Borg-Warner s contention that the jury s finding of strict liability was erroneous also fails. Next, Borg-Warner challenged the jury s finding of malice, arguing that there was insufficient evidence to prove that the plaintiff s use of brake pads posed an extreme risk of harm. The Court of Appeals, however, found that the evidence presented at trial was sufficient to support both the objective and subjective elements constituting malice. Even according to Borg-Warner s version of the record, medical and scientific literature dating as far back as 1898 published in the United States, Great Britain, and Germany documented the dangers of asbestos dust, 17 ASBESTOS JANUARY 2005 the Court of Appeals stated. This evidence is legally sufficient to establish the objective element of malice (i.e., likelihood of serious injury). In ruling that the evidence supported a finding of the subjective element of malice, the Court of Appeals ruled that as a manufacturer of asbestos products, Borg-Warner should be held to the knowledge and skill of an asbestos expert. Borg-Warner s failure to invest in research promoting health and safety would suffice to establish the subjective component of malice, the Court of Appeals stated. The Court of Appeals also rejected Borg- Warner s argument that the trial court erred in not granting motions for a directed verdict, JNOV and for a new trial. In doing so, the Court of Appeals said that it had already determined that there was more than a scintilla of evidence supporting the jury s finding of negligence and malice. Borg-Warner also argued that the trial court erred when admitting the testimony of Dr. Barry Castleman because it constituted hearsay. The Court of Appeals disagreed. Although Borg-Warner has argued persuasively that the trial court erred in admitting Dr. Castleman s book into evidence, it has failed to demonstrate that any such error probably caused the rendition of an improper judgment, the Court of Appeals stated. In fact, our independent review of the record shows the opposite. Dr. Castleman testified extensively regarding the content of his book, in particular chapter eight, and Borg-Warner was given the opportunity to cross-examine him. Thus, even if chapter eight was improperly admitted into evidence, we would be unable to conclude that such an error probably caused the rendition of an improper judgment. Finally, the Court of Appeals rejected Borg- Warner s contention that the trial court erred when failing to compel settlement information because it precluded Borg-Warner from obtaining a settlement credit. In doing so,

19 COURTROOM NEWS the Court of Appeals noted that the settlement credit amount can be established by the actual settlement agreement or some other evidence of the settlement amount. There is no requirement that the actual settlement agreement be submitted into evidence in order to establish the settlement credit amount, the Court of Appeals concluded. Counsel for Borg-Warner is Elizabeth L. Phifer of Smith, Underwood & Perkins in Dallas. Flores is represented by W. Scott Wert of Texas. Document is Available Call (800) or Search Opinion Ref# ASB Workers Compensation Court Finds Appeal Timely, Claims Remanded for Determination of Death Benefits NEW YORK A New York appeals court has determined that a Workers Compensation Board Panel erred when determining an asbestos claimant did not file a timely appeal, finding instead that the Panel overlooked an extension the plaintiff was granted in which to file the appeal. Seitz v. Jacobson & Company, No (N.Y. App. Ct., 3 rd Dept.). In a Dec. 30 opinion, the 3 rd Department of the New York Appellate Division reversed the Panel s dismissal of the claims, and remanded for a determination of whether the right to death benefits ceased when the exposed plaintiff s surviving spouse died. Claimant John Seitz argued that as a former sheet metal worker he was exposed to asbestos after which he developed metastatic small cell anaplastic lung cancer caused by asbestosis. Seitz died, prompting his wife to file a workers compensation claim. Seitz s wife also died and a Worker s Compensation Law Judge closed the case. Counsel for the Seitzs then requested that the case be reopened on behalf of the decedent s estate. The case was reopened, but a Workers Compensation Law Judge determined that the surviving spouse s claim for death benefits ceased when she died. The Seitz estate appealed the decision. The Board s Office of Appeals determined that the application for review failed to specify grounds on which the appeal was made. The Board then held the determination of the appeal would be held in abeyance for 30 days until the estate could produce a supplemental application. The Seitz estate filed a supplemental application, claiming that $50,000 in death benefits were owed to the estate. A Board Panel then found that the supplemental application was untimely, and refused to consider the application, prompting the instant appeal. In reversing the decision, the Appeals Court found that the initial petition was filed in a timely fashion and the supplemental application was filed within the 30-day parameter set by the Board. The Board established a time frame during which the estate s supplemental application for review could permissibly be filed it was an abuse of discretion for a Board panel to thereafter deny such application upon the ground that it was untimely and refused to consider the grounds for review set forth therein namely, the Appeals Court stated. Accordingly, the underlying decision is reversed and this matter is remitted to the Board for additional proceedings. The Appeals Court additionally noted that the Board s reliance on Matter of Dellauniversita v. Tek Precision Co., in support of the argument that the estate s claim 18 HARRIS M ARTIN COLUMNS abated upon the death of the decedent s surviving spouse, fails. Moreover, counsel for decedent s estate has cited a number of Board panel decisions in support of the estate s contention that the underlying death benefit claim did not abate upon the death of decedent s surviving spouse, the Appeals Court said. While the carriers are correct that such decisions are not binding upon this Court, the Board panel s apparent and unexplained departure here from prior Board precedents provides an alternative basis for reversal. Counsel for the Seitz estate is Frank Gulino of Brecher, Fishman, Pasternae, Popish, Heller, Rubin & Reiff in New York. The defendants are represented by Patrick M. Conroy of Stewart, Greenblatt, Manning & Baez of Syosset, N.Y. Document is Available Call (800) or Search Opinion Ref# ASB Workers Compensation Court Affirms Denial of Benefits To Smoker Alleging Asbestos Aggravated Lung Condition LITTLE ROCK, Ark. An Arkansas Court of Appeals has affirmed the denial of benefits in a workers compensation asbestos claim, finding that there was a lack of evidence indicating that asbestos exposure aggravated the claimant s smoking related lung condition. Tutt v. International Paper Co., No. CA (Ark. Ct. App.). In a Dec. 8 decision, the Court of Appeals agreed with a Workers Compensation Commission that the majority of the testifying experts were unable to conclude that

20 COURTROOM NEWS workplace irritants accelerated plaintiff John Tutt s injury by smoking. Tutt filed a workers compensation claim alleging that exposure to chemicals and asbestos while working more than 30 years at the International Paper Co. contributed to his chronic obstructive pulmonary disease. Tutt died in 1983, and his wife continued his claim. Pulmonologist James Adamson first opined that while Tutt s exposure to chemicals could have been a contributing agent to his chronic obstructive airway disease, smoking was by far the most common cause of the disease, according to the Court of Appeals. However, a second expert, Christopher John, M.D., opined that Tutt suffered from asbestosis and that his exposure to multiple chemicals aggravated his smoking-induced COPD and emphysema. The Court of Appeals noted that John s opinion was then challenged by another testifying expert, who stated that John did not identify chemicals that would cause or contribute to emphysema and at what dose these chemicals would be detrimental to Tutt s ailments. An additional expert also challenged John s diagnosis of asbestosis, arguing that there was no evidence of asbestos exposure and that Tutt did not exhibit symptoms consistent with asbestos exposure. Based on the testimony, the Workers Compensation Commission denied Tutt s claim, prompting the instant appeal. On appeal, Tutt argued that the Commission erred in its decision because sufficient evidence existed indicating that Tutt s occupational environment led to the aggravation and acceleration of his injury. The Court of Appeals disagreed, however, finding that expert testimony did not conclusively indicate that Tutt s condition was aggravated by workplace exposure to asbestos and other chemicals. We note that the evidence showed that Adamson was unable to conclude whether Tutt s employment with IP added to the cigarette risk as a cause of his lung disease, the Court of Appeals stated. [An additional expert] testified that he could not give an opinion about the aggravating effects of Tutt s exposure to chemicals at work without first determining the type of chemical, duration and exposure, and concentration of the chemical. Because the issue of aggravation is a fact question, and the requirement is that the Commission s decision be based on any medical evidence, we affirm. Further, because our decision is based on the Commission s implicit determination of credibility and the weight given to the physician s testimony, we affirm under both the clear and convincing and the preponderance of the evidence standards. The Court of Appeals also rejected the plaintiff s argument that the admission of Adamson s testimony violates the Arkansas Rules of Evidence, noting that such rules of evidence do not apply in workers compensation proceedings. Even so, the Court of Appeals opined that the plaintiff did not comply with procedure in cross-examining Adamson, and therefore was not entitled to challenge the expert s testimony. Document is Available Call (800) or Opinion Ref# ASB Evidence Asbestos Plaintiff Fails to Provide X-Rays Read by B- Reader, Claims Dismissed AKRON, Ohio An Ohio Appellate Court has upheld the dismissal of asbestosis claim of a plaintiff who did not present medical evidence interpreted by a B-reader. Wright v. 19 ASBESTOS JANUARY 2005 Leggett & Platt, et al., No. 04CA (Ohio Ct. App., 9 th Dist.). In the Dec. 15 decision, the 9 th District of the Ohio Court of Appeals agreed with the Workers Compensation Board finding that the claimant did not satisfy an Ohio resolution requiring plaintiffs to provide X-rays interpreted by a B-reader. Plaintiff Denzil Wright claimed that during his employment at Leggett & Platt Inc., he was exposed to asbestos, which eventually led to his development of asbestosis. Wright was denied his workers compensation claim, after a district hearing officer found that there was insufficient evidence indicating a causal connection between Wright s condition and his employment. In his decision, the officer also found that Wright did not comply with Ohio s Industrial Commission Resolution , which requires claimants to provide X-rays interpreted by a B-reader. Wright only supplied X-rays, the Court of Appeals noted. The Industrial Commission denied Wright s appeal. Wright then filed a notice of appeal in the Ohio County Court for Lorain County, the defendants moved to dismiss, arguing that Wright had failed to exhaust his administrative remedies. The trial court agreed, prompting the instant appeal. The Court of Appeals noted that fulfilling the requirements of Resolution is a condition precedent to a determination of whether a claimant is entitled to participate in the fund. Therefore, the Court of Appeals stated, since Wright neglected to satisfy the requirements of the resolution, a determination of whether Wright is entitled to benefits is unnecessary. As such, the trial court was correct in its finding that the order of the Industrial Commission was not appealable because it did not determine Appellant s right to participate, the Court of Appeals stated. Wright also challenged the validity of Resolution , arguing that it adds

21 COURTROOM NEWS requirements that are not contained in the normal rules of civil procedure. The Court of Appeals disagreed, stating that Wright s argument lacked merit, and that while administrative agencies cannot add substantive requirements, procedural requirements are allowed. Resolution dictates the specific quantum of evidence necessary to bring the matter before the Industrial Commission, the Court of Appeals stated. Further, it does not enact a new law, it merely administers a law currently in existence. Accordingly, this Court finds that the adoption of Resolution was a valid exercise of the authority granted to the Industrial Commission. The Court of Appeals also rejected Wright s contention that Resolution is invalid because it violates the Equal Protection Clause of the Ohio Constitution. In doing so, the Court of Appeals found that the Resolution was not irrelevant to achieving the state s purpose. The long period between initial contact with asbestos and its apparent effect and the difficulty in determining that the exposure is the cause of the disease gives rise to the need for an examination by a medical specialist, the Court of Appeals stated. In light of this difficulty and the sheer volume of asbestosis claims, the Commission adopted Resolution Given the above, this Court cannot say that the Industrial Commission lacked a rational basis for distinguishing asbestosis from other compensable diseases. Counsel for Wright is Anthony L. Ania of Northfield, Ohio. The defendants are represented by Lawrence C. Davison and Patrick J. Krebs of Taft, Stettinius & Hollister in Cleveland; and Timothy McGrail, Assistant Attorney General in Cleveland. Document Is Available Call (800) or Search Opinion Ref# ASB Testimony Summary Judgment Reversed, Court Claims Product Identification Triable Issue ROCHESTER, N.Y. A New York appellate court has reversed an award of summary judgment to an asbestos defendant, finding that the plaintiff had raised sufficient evidence in opposing the defendant s claims that their product was not sold at the alleged site of exposure. Root v. Eastern Refractories Co., et al., No (N.Y. Sup. Ct., App. Div., 4 th Dept.). In a Dec. 30 opinion, the 4 th Department of the New York Supreme Court Appellate Division found that the parties had each presented sufficient evidence to further their arguments about what products were present during the alleged asbestos exposure, warranting a trial. Plaintiff Paul Root asserted the underlying claims on behalf of Edward Root, who allegedly developed mesothelioma as a result of exposure to the asbestos-containing product ERCO-Mat while employed at Syracuse University. ERCO-Mat was distributed by defendant Eastern Refractories Co. Inc. Eastern moved for summary judgment, arguing that it did not supply any asbestos-containing product to Syracuse University during the times in which Edward Root was employed. In support of summary judgment, Eastern presented an affidavit of David Feinzig, who claimed that Eastern did not supply asbestos-containing materials at any Syracuse job sites. In opposition, Paul Root claimed that Feinzig had testified in a prior case that there was a transitional period in which he admitted that Eastern sold ERCO-Mat blankets to Syracuse. Paul Root also presented testimony from Edward Root indicating that the blankets contained asbestos. A Supreme Court granted the motion for summary judgment, 20 HARRIS M ARTIN COLUMNS effectively dismissing the complaint against Eastern. The Appellate Division reversed the ruling, however, finding that while Eastern had met its burden of establishing it sold no products to the Syracuse job sites, the plaintiff had demonstrated there are disputed facts warranting a trial. Decedent testified that he was exposed to asbestos while working at Syracuse University using ERCO-Mat blankets, the Appellate Court said. That testimony is sufficient to raise a triable issue of fact. Counsel for the plaintiff is Alani Golanski of Weitz & Luxenberg in Brooklyn, N.Y. The defendant is represented by Timothy D. Gallager of McMahon, Martine & Gallagher in New York. Document is Available Call (800) or Search Order Ref# ASB Arbitration Court Affirms Order Compelling Arbitration between CCR and Maryland Asbestos Plaintiffs ANNAPOLIS, Md. The Maryland Court of Appeals has affirmed an order compelling arbitration in an asbestos settlement dispute, rejecting the plaintiffs contention that a letter altering the settlement agreement precluded arbitration. Rourke v. Amchem Products, et al., No. 24-C /CN (Md. Ct. App.). In a Dec. 14 opinion, the Court of Appeals additionally declined to adopt the doctrine of offensive non-mutual collateral estoppel, ruling that it is unfair to the defendants.

22 COURTROOM NEWS In April 2000, two Maryland law firms claiming to represent nearly 900 asbestos plaintiffs entered into a settlement agreement estimated at $10 million with the Center for Claims Resolution. The Court of Appeals noted that at the time of the settlement, the CCR had 16 members. In compliance with the settlement agreement, CCR anticipated that the law firm of Ashcraft & Gerel would use the first installment to pay one-third of the plaintiffs in full. However, Ashcraft & Gerel determined that it would pay each plaintiff a portion of the total amount instead of paying a percentage of the plaintiffs in full. Because this was a violation of the settlement agreement, CCR Chief Claims Officer Michael Rooney agreed in an Oct. 31, 2000 letter that Ashcraft & Gerel could use the installments towards partial payments instead of full payments. The letter also stipulated that should the CCR fail to timely make any or all of the payments required by the Master Settlement Agreement, then in that event each settling plaintiff who has not received full payment may pursue a remedy in contract against the CCR members for any deficiency. This remedy in contract on the release will be the sole legal remedy of each plaintiff who has executed a release for the full consideration of his settlement but fails to receive timely payment in full. Upon receiving a subsequent installment, Ashcraft & Gerel determined that the payment was deficient and filed a declaratory action, arguing that the CCR members were jointly and severally liable for all payments. The CCR members responded by moving to compel arbitration and dismiss the declaratory action. The plaintiffs opposed the motion, arguing that in Rooney s Oct. 31 letter, he gave the plaintiffs a judicial remedy for breach of contract for any deficiency. The plaintiffs additionally argued that the Virginia Supreme Court has addressed a similar dispute arising between the CCR and Virginia asbestos claimants, in which the court ruled that the dispute was not subject to arbitration. Therefore, the plaintiffs claimed, the doctrine of collateral estoppel applied. The trial court s decision granting the motion to compel arbitration was upheld by the Maryland Court of Special Appeals, prompting the appeal to Maryland s high court. The Court of Appeals noted that the plaintiffs in the instant proceedings sought offensive non-mutual collateral estoppel, a doctrine the Court of Appeals has not embraced. This Court has gone so far as to recognize defensive non-mutual collateral estoppel, at least where the party sought to be bound by the existing judgment had a full and fair opportunity to litigate the issues in question, the Court of Appeals stated. We have acknowledged, however, that there are many situations where application of the doctrine of non-mutual collateral estoppel would be manifestly unfair, and we have yet to formally embrace offensive non-mutual collateral estoppel. The Court of Appeals opined that while defensive collateral estoppel may give a plaintiff cause to join all defendants, offensive collateral estoppel allows the plaintiff to rely on a prior judgment, but not be bound by that judgment. We hold that, in applying full faith and credit to the Virginia judgment, a Maryland court must treat the judgment precisely the same as it would be treated in a Virginia court, and that requires that we apply the preclusion rules that would be applied in Virginia, the Court of Appeals said. As the parties agree that Virginia continues to require mutuality as part of its collateral estoppel law and would therefore not give preclusive effect to its judgment in a second action by different plaintiffs, and clearly would not, and could not, give preclusive effect to it against defendants who are not parties, or in privity with parties, in the Virginia action, the Circuit Court and the 21 ASBESTOS JANUARY 2005 Court of Special Appeals were correct in not giving preclusive effect to it in this action. The Court of Appeals additionally ruled that the claims were subject to arbitration, citing an arbitration clause in the settlement agreement that stipulates arbitration is required when any dispute arises during the execution of the terms and conditions of the agreement. That provision is certainly broad enough to include a dispute over whether non-defaulting members of CCR are liable for the unpaid shares of defaulting members, the Court of Appeals stated. The Court of Appeals also rejected the plaintiffs contention that the Rooney letter supercedes the settlement agreement by stating that a remedy would by lawsuit or otherwise. Permitting a remedy in contract does not foreclose arbitration as the remedy, the Court of Appeals opined. The construction of the Rooney letter is favored not only by the requirement that all provisions of a contract be read together harmoniously, so that each can be given effect, but also by the ordinary mandate that, where an arbitration agreement exists, ambiguities as to arbitrability be resolved in favor of arbitration. In a dissenting opinion, Chief Justice Robert M. Bell stated that while I am inclined to believe, given the office of collateral estoppel and the fact that these appellees have once already litigated the identical issue, that the record in this case presents at least a good reason to apply the doctrine of offensive non-mutual collateral estoppel at the very least, I would remand the case to the Court of Special Appeals for its review, on the merits, unobscured by full faith and credit and other such concepts, of the trial court s refusal to apply the doctrine. Document is Available Call (800) or Search Opinion Ref# ASB

23 Send us your trial/settlement news for inclusion in the next issue of HarrisMartin s COLUMNS Asbestos. Fax this form, or submit online at. Questions? Call Jeff Andrus at Case Name: Court: Docket No.: Judge: Date of Verdict/Settlement: Amount Awarded (if applicable): Breakdown (if applicable): HARRISMARTIN P U B L I S H I N G Recent Verdict/Settlement Report Fax to Editor, COLUMNS Asbestos, at Plaintiff Defendant Name(s): Name(s): Attorney(s): Attorney(s): Expert(s): Expert(s): Plaintiff s Claim (injury, theory of liability, etc.) Defense Arguments: Use back of form for additional information. Your Name: Your Phone: _ 920 Cassatt Road 200 Berwyn Park, Suite 210 Berwyn, PA fax HARRIS M ARTIN COLUMNS

24 Recent Verdict/Settlement Report (cont.) additional information: Fax Front & Back to Editor, COLUMNS Asbestos, at Thank you! Plaintiff Defendant Additional information: Additional information: HARRISMARTIN P U B L I S H I N G 920 Cassatt Road 200 Berwyn Park, Suite 210 Berwyn, PA fax ASBESTOS JANUARY 2005

25 VERDICT REPORT California Court: Calif. Super. Ct., San Francisco Cty. Case Name: Kruger, et al. v. SeaRiver Maritime, et al. Docket No.:CGC Verdict: Defense Plaintiffs Experts: Barry Horn, M.D.; Sam Hammar, M.D.; Arnold Brody, M.D., William Longo, Ph.D.; Zachary Reynolds; William Ewing, CIH; Robert Johnson Defense Experts: Charles Cushing, Ph.D.; Howard Spielman, CIH; David Weiner Reported By HM: Dec, Vol. 5, p. 8 Court: Calif. Super.. Ct., Los Angeles Cty. Case Name: Treggett, et al. v. Alpha Inc., et al Docket No.:BC Verdict: Plaintiff, $36 Million Plaintiffs Experts: Arnold Brody, Ph.D.; Barry Horn, M.D.; Sam Hammar, M.D.; Eric Vallieres, M.D.; John Templin, CIH; William Longo, Ph.D.; David Fractor, Ph.D.; and Robert Neff, CPA. Defense Experts:Andrew Churg, M.D.; James Delaney; Donna Ringo, CIH; Carl Mangold, CIH; William Hughson, M.D.; and Robert Sawyer, M.D. Reported By HM: Nov, Vol. 5, p. 8 Court: Calif. Super.. Ct., San Francisco Cty. Case Name: Peterson v. John Crane Docket No.: Alleged Injury:Lung Cancer Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D.; John Templin, CIH; Barry Ben-Zion, Ph.D.; Barry Horn, M.D.; Richard Cohen, M.D.; Allan Smith, M.D. Defense Experts:Robert Morgan, M.D.; Michael Matteson, Ph.D.., Gerald Meyers, M.D.; Peter Barrett, M.D.; William Breall, M.D.; John Maddox, M.D. Reported By HM: Oct, Vol. 4, p. 6 Court: Calif. Super.. Ct., Los Angeles Cty. Case Name:Escamilla v. American Standard, Inc., et al. Docket No.: Alleged Injury:Lung Cancer Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D.; James Dahlgen, M.D.; Phillip John Templin, CIH Defense Experts:Charles A. Weaver, Ph.D.; William Hughson, M.D.; Allan Feingold, M.D.; William Dyson, Ph.D.; Paul Cherry Reported By HM: June, Vol. 4, p. 7 Court: Calif. Super.. Ct., Los Angeles Cty. Case Name: La Chapelle v. American Standard, Inc., et al. Docket No.: Alleged Injury:Mesothelioma Verdict: Plaintiff, $1 million Plaintiffs Experts: Barry Horn, M.D.; Arnold Brody, M.D.; Robert Cameron, M.D.; Phillip John Templin, CIH Defense Experts:William Dyson, Ph.D.; William Hughson, M.D., Ph.D.; Charles Weaver, Ph.D. Reported By HM: June.., Vol. 4, p. 8 Court: Calif. Super.. Ct., San Francisco Cty. Case Name: Ryan v. Asbestos Corporation Limited Docket No.: Verdict: Defense Plaintiffs Experts: John Kemplin, Ph.D., Richard Cohen, md., James Robb, M.D., Allan H. Smith, Ph.D., Charles Ay Defense Experts: Khalil Sheibani, M.D., Edward Cadman, M.D., Bernard Gee, M.D., Kathy Jones, CIH Reported By HM: Apr.., Vol. 4, p. 8 Court: Calif. Super.. Ct., San Francisco Cty. Case Name: Wise v. Kelly-Moore Paint Co., et al. Docket No.: Verdict: Defense Plaintiffs Experts: Donald Breyer, M.D., Allan H. Smith, Ph.D., Barry Ben-Zion, Ph.D., Gerald Abraham, M.D., Kenneth Cohel, CIH, Barry Castleman, Ph.D. Defense Experts: William G. Hughson, M.D., William Dyson, Ph.D., Thomas C. Thomas, Ph.D. Reported By HM: Apr.., Vol. 4, p HARRIS M ARTIN COLUMNS Court: Calif. Super.. Ct., San Francisco Cty. Case Name: Hoeffer v. Rockwell Automation, Inc.. Docket No.: Verdict: Plaintiff, $3 Million Plaintiffs Experts: Samuel Hammar, M.D.; Allan Smith, Ph.D.; Frank Ganzhorn, M.D.; Richard Cohen, M.D.; William Ewing, CIH; Barry Ben-Zion, Ph.D. Defense Experts: William Hughson, M.D.; Robert Morgan, Ph.D.; Sheldon Rabinovitz, CIH. Reported By HM: Dec.., Vol. 3, p. 6 Court: Calif. Super. Ct., Alameda Cty. Case Name: Soule v. Garlock, Inc., et al. Docket No.: Verdict: Plaintiff, $2.5 Million Plaintiffs Experts: William Salyer, M.D.; Barry Horn, M.D.; Allan Smith, M.D.; John Templin, CIH; Robert Johnson, Ph. D.; Charles Ay. Defense Experts: James DeLaney; Victor Roggli, M.D.; Douglas Fowler, CIH. Reported By HM: Oct., Vol. 3, p. 6 Court: Calif. Super. Ct., San Francisco Cty. Case Name:Andrews v. Asbestos Defendants Docket No.: Alleged Injury: Kidney Cancer Verdict: Defense Plaintiffs Experts: Arnold R. Brody, Ph.D.; Allan H. Smith, M.D., Ph.D.; Charles Ay; Donald Breyer, M.D.; Barry Ben-Zion; Richard Cohen, M.D., Ph.D Defense Experts: William Hughson, M.D. Reported By HM: Aug., Vol. 3, p. 9 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Jones v. Asbestos Defendants Docket No.: Alleged Injury: Lung Cancer Verdict: Plaintiff, $5 Million Plaintiffs Experts: Samuel Hammar, M.D.; Allan Smith, M.D., Ph.D.; Barry Horn, M.D.; Richard Cohen, M.D., Ph.D.; John Templin, CIH; Barry Ben-Zion Defense Experts: James Crapo, M.D.; Michael Graham, M.D.; Douglas Fowler, CIH Reported By HM: Aug., Vol. 3, p. 8

26 VERDICT REPORT Court: Calif. Super. Ct., San Francisco Cty. Case Name:Medley v. American Laundry Machinery, Inc. Docket No.: Alleged Injury: Asbestosis Verdict: Plaintiff, $1.1 Million Plaintiffs Experts: Alvin Schonfeld, D.O.; Donald Breyer, M.D.; Richard Cohen, M.D.; Alan H. Smith, M.D. Defense Experts: David Godwin, M.D. Reported By HM: June, Vol. 3, p. 7 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Lunsford v. Garlock, Inc. Docket No.: Verdict: Defense Plaintiffs Experts: Barry Horn, M.D.; William Smith, M.D., Ph.D.; Richard Cohen, M.D., FACPM, MPH; Barry Castleman, Ph.D.; Ken Cohen, CIH, Ph.D.; Charles Ay Defense Experts: Carl Mangold, CIH; Donna Ringo, CIH, MPH; Robert Sawyer, M.D., FACPM Reported By HM: March, Vol. 3, p. 11 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Sunderman v. Aqua-Chem, Inc. Docket No.: Alleged Injury: Asbestosis Verdict: Plaintiff, $150,000 Plaintiffs Experts: Kenneth Cohen, CIH; Charles Ay; Allan H. Smith, Ph.D.; Barry Ben-Zion, Ph.D.; James Srebo, M.D. Defense Experts: Gerald B. Levine, M.D.; Norman Moscow, M.D.; William Breall, M.D.; Robert Sawyer, M.D.; James Rasmuson, Ph.D., CIH Reported By HM: Dec., Vol. 3, p. 9 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Gunderson v. A.W. Chesterton Co., et al.. Docket No.: Verdict: Plaintiff, $11.5 million Plaintiffs Experts: Richard Hatfield; Barry R. Horn, M.D.; Barry Castleman, M.D.; Barry Ben-Zion, Ph.D.; Kenneth Cohen, Ph.D., CIH; Allen Smith, M.D., Ph.D. Defense Experts: William Hughson, M.D.; Howard Spielman, CIH Reported By HM: Dec., Vol. 3, p. 8 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Trinchese v. A.P. Green Industries, Inc. Docket No.: Verdict: Plaintiff, $4.2 million Plaintiffs Experts: Barry Castleman, Ph.D.; Samuel Hammar, M.D.; Barry R. Horn, M.D.; Barry Ben-Zion; Arnold Brody, M.D.; Kenneth Cohen, CIH, Ph.D.; Allan Smith, M.D., Ph.D. Defense Experts: Lawrence Birkner, CIH; John Craighead, M.D. Reported By HM: Aug., Vol. 2, p. 10 Court: Calif. Super. Ct., Alameda Cty. Case Name: Peterson v. Hill Brothers Chemical Co. Docket No.: Verdict: Plaintiff, $20 million; settlement before punitives Plaintiffs Experts: Barry Castleman, Ph.D.; Samuel Hammar, M.D.; Robert Johnson, Ph.D. Defense Experts: James Rasmusson, Ph.D.; John Craighead, M.D., William Hughson, M.D. Reported By HM: July, Vol. 2, p. 10 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Todak v. Asbestos Defendants Docket No.: Verdict: Plaintiff, $33.7 million Plaintiffs Experts: Allan Smith, Ph.D., Kenneth Cohen, CIH, Ph.D.; Charles Ay; Samuel Hammar, M.D.; Barry Horn, M.D.; Arnold Brody, Ph.D.; Richard Cohen, M.D. Defense Experts: John Morykon, Robert Sawyer, M.D.; Capt. Richard Silloway; Lawrence Birkner; Horton Hinshaw, M.D. Reported By HM: April, Vol. 2, p. 10 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Dressler v. Asbestos Defendants. Docket No.: Alleged Injury: Non-Hodgkin s Lymphoma Verdict: Defense (Bench Trial) 25 ASBESTOS JANUARY 2005 Plaintiffs Experts: Elliot Kagan, M.D.; Carolyn Ray, M.D.; Barry Ben-Zion, Ph.D. Defense Experts: Gerald Meyers, M.D.; Kahlil Shebani, M.D.; Eric Gershwin, M.D.; William Hughson, M.D.; Jerald Udinsky, Ph.D. Reported By HM: April, Vol. 2, p. 12 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Berning v. A.P. Green Industries, Inc. Docket No.: Verdict: Plaintiff, $1.125 million Plaintiffs Experts: Richard Hatfield; Barry R. Horn, M.D.; Richard Cohen, M.D.; Barry Ben-Zion, Ph.D. Defense Experts: William Hughson, M.D.; Sheldon Rabinovitz, Ph.D. Reported By HM: Feb., Vol. 2, p. 8 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Taylor v. John Crane, Inc.. Docket No.: Verdict: Plaintiff, $3 million Plaintiffs Experts: William Ewing C.I.H.; Samuel Hammar, M.D.; Barry Horn, M.D.; Robert Johnson; Richard Lemen, Ph.D.; William Longo, Ph.D.; James Millette. Defense Experts: Michael Mattison, Ph.D.; Victor Roggli, M.D.; Frederick Toca, Ph.D. Reported By HM: Feb., Vol. 2, p. 8 Court: Calif. Super. Ct., San Francisco Cty. Case Name: Laguna v. Calaveras Asbestos, Ltd. Docket No.: Alleged Injury: Asbestosis Verdict: Plaintiff, $2.3 million Plaintiffs Experts: Allan Smith, Ph.D.; Samuel Hammar, M.D.; Robert Fallat, M.D.; Kenneth Cohen; Barry Ben-Zion, Ph.D. Defense Experts: Leroy Balzer, Ph.D Reported By HM: Jan., Vol. 2, p. 9 Court: Calif. Super. Ct., Los Angeles Cty. Case Name: Lane v. Flexitallic, Inc. Docket No.: BC22481 Verdict: Plaintiff, $4 million Plaintiffs Experts: James R. Millette, Ph.D.;

27 VERDICT REPORT Robert W. Johnson; Arnold R. Brody, M.D., Ph.D. Defense Experts: John Spencer; David Egilman, M.D.; William G. Hughson, M.D. Reported By HM: Nov., Vol. 2, p. 9 Delaware Court: Del. Super. Ct., New Castle Cty. Case Name: Bargelski v. Garlock Inc., et al.; Kolb v. Garlock Inc., et al.; Jernigan v. Garlock Inc., et al., Docket No.: C.A. No. 00C ; C.A.. No. 00C ; C.A. No. 00C Verdict: Defense Plaintiffs Experts: Barry Castleman, Ph.D.; Christine Oliver, M.D., Arnold Brody, Ph.D.; Richard Lemen, Ph.D.; Samuel Hammar, M.D.; William Longo, Ph.D. Defense Experts: John Spencer, certified industrial hygienist; Stanley Field, M.D.; James Heffron; Bruce Ketcham. Reported By HM: Dec., Vol. 2, p. 10 Florida Court: Fla.Cir. Ct., Palm Beach Cty. Case Name: McConnell v. American Optical Corp., et al. Docket No.: CA Alleged Injury: Asbestosis Verdict: Defense Plaintiffs Experts: Robert Mezey, M.D. Defense Experts: Lee Sider, M.D., William Dyson, Ph.D. Reported By HM: July, Vol. 4, p. 9 Court: Fla.Cir. Ct., Miami-Dade Cty. Case Name: Fernandez v. ACandS, Inc., et al. Docket No.: Alleged Injury: Asbestosis Verdict: Defense Plaintiffs Experts: Robert Mezey, M.D.; Souglas Pohl, M.D. Defense Experts: Allan Feingold, M.D.; James Crapo, M.D.; Thomas Howard. Reported By HM: Oct, Vol. 3, p. 7 Court: Fla. Cir. Ct., Palm Beach Cty. Case Name: Kavanaugh v. Dow Chemical Corp. Docket No.: AD Verdict: Plaintiff, $1.2 million Plaintiffs Experts: Douglas Pohl, M.D. Defense Experts: Allen Gibbs, M.D.; William Dyson, Ph.D. Reported By HM: May, Vol. 3, p. 8 Court: Fla. Cir. Ct., Broward Cty. Case Name: Lagueuz v. Union Carbide Corp. Docket No.: Alleged Injury: Asbestosis Verdict: Plaintiff, $1.8 million Plaintiffs Experts: Alvin Shoenfeld, M.D. Defense Experts: Allen Feingold, M.D.; Lee Sider, M.D.; Thomas Howard, Ph.D. Reported By HM: Dec., Vol. 3, p. 8 Georgia Court: Ga. Super. Ct., Fulton Cty. Case Name: Flowers v. ACandS, Inc. Docket No.: 00VS Verdict: Defense Plaintiffs Experts: Steven Dikman, M.D.; Arnold Brody, Ph.D.; Richard Lemen, M.D., Ph.D.; William E. Longo, Ph.D. Defense Experts: Victor Roggli, M.D.; Billy Ray Vaughn; Jack Walsh Reported By HM: Dec., Vol. 3, p. 10 Illinois Court: Ill. Cir. Ct., Crawford Cty. Case Name: Yeager v. Marathon Oil Co., et al. Docket No.: 2002-L HARRIS M ARTIN COLUMNS Verdict: Defense Plaintiffs Experts: Samuel Hammer, M.D., Arnold Brody, Ph.D., Michael Ellenbecker, CIH Defense Experts: none Reported By HM: Sept., Vol. 4, p. 8 Court: Ill Cir., Cook Cty. Case Name: DeJohn v. Commonwealth Edison, et al. Docket No.: 98L13222 Verdict: Defense Plaintiffs Experts: Victor Roggli, M.D., William Ewing, C.I.H., Henry Anderson, M.D. Defense Experts: Thomas Howard, M.D., Howard Ayer, C.I.H. Reported by HM: July., Vol. 4, p. 8 Court: Ill. Cir., Vermillion Cty. Case Name: Nolan v. Weil-McLain Docket No.: 01-L117 Verdict: Plaintiff, $2.3 million Plaintiffs Experts: Dr. Eugene mark, Dr. Richard Lemen, William Ewing Defense Experts: Dr. Frederick Boelter, Dr. Robert Sawyer Reported by HM: Feb., Vol. 4, p. 8 Court: Ill. Cir. Ct., Madison Cty. Case Name: Whittington v. John Crane Corp., et al. Docket No.: n/a Verdict: Plaintiff, $250 million; Defense, John Crane Plaintiffs Experts: David Egilman, M.D., Arthur Frank, M.D., Myles Yanta, M.D. Defense Experts: Allan Feingold, M.D., William Dyson, Ph.D. Reported By HM: April, Vol. 3, p. 8 Indiana Court: Ind. Super. Ct., Marion Cty. Case Name: Bowers v. AC&S, Inc., et al.

28 VERDICT REPORT Docket No.: 49D MI Verdict: Plaintiff, $15 million Plaintiffs Experts: Michael Ellenbecker, Ph.D., CIH; Arnold Brody, Ph.D. Defense Experts: Victor Roggli, M.D. Reported By HM: June, Vol. 3, p. 7 Louisiana Court: La. Dist. Ct., Orleans Parish Case Name: Brunell v. A.L. Burbank Co. Docket No.: Verdict: Plaintiff, $1.3 million Plaintiffs Experts: Charles Ay; Richard Hatfield; Richard Lemen, Ph.D.; Victor Roggli, M.D. Defense Experts: Charles Cushing, Ph.D. Reported By HM: June, Vol. 1, p. 9 Maryland Court: Md. Cir. Ct., Baltimore Cty. Case Name: Saville v. Scapa, Inc. Docket No.: n/a Verdict: Plaintiff; $3.5 Million Plaintiffs Experts: Gerald Abraham, M.D.; Richard Lemen, M.D., Ph.D.; James Millette, Ph.D.; Steven Zimmet, M.D. Defense Experts: Victor Roggli, M.D.; David Mizel Reported By HM: Oct Vol. 3, p. 6 Court: D. Md. Case Name: Sachs, et al. v. Lorillard Tobacco Co., et al. Docket No.: Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D.; John Dement, Ph.D.; Samuel Hammar, M.D.; Jerrold Abraham, M.D. Defense Experts: Melvin First, ScD, CIH; Allen Gibbs, M.D.; Alexander Spears Reported By HM: May Vol. 3, p. 8 Court: Md.Cir. Ct., Baltimore Cty. Case Name: Hunter v. ACandS, Inc., et al. Docket No.: n/a Verdict: Plaintiffs, $6 million Plaintiffs Experts: Samuel Hammar, M.D., Andrew Ghio, M.D., Arnold Brody, M.D. Defense Experts: None Reported By HM: April, Vol. 3, p. 8 Court: Md.Cir. Ct., Baltimore Cty. Case Name: Wilson/Perky v. AC&S Docket No.: 24X / Verdict: Plaintiffs, $5.5 million Plaintiffs Experts: Arnold Brody, M.D., Ph.D.; Richard Lemen, M.D., Ph.D.; Richard Hatfield; James Millette, Ph.D.; Rudiger Breitnecker, M.D. Defense Experts: Thomas Howard, M.D.; Henry Buccigross; Frederick Toca, Ph.D.; Michael Mattison, Ph.D.; Victor Roggli, M.D.; Stanley Fiel, M.D.; John Spencer, CIH Reported By HM: Aug., Vol. 2, p. 10 Minnesota Court: Minn. Dist. Ct., Hennepin Cty. Case Name: Gartner v. API, Inc., et al. Docket No.: PI Verdict: Plaintiff, $1.69 Million Plaintiffs Experts: Samuel Hammar, M.D.; Barry Castleman,Ph.D.; Richard Hatfield; Arnold Brody, Ph.D. Defense Experts: Jack Peterson, M.D.; Ivan Russel; Alexander B. Levitov, M.D. Reported By HM: July, Vol. 3, p. 10 Court: Minn. Dist. Ct., Ramsey Cty. Case Name: Gutzwiller v. Briggs & Stratton Corp., et al. Docket No.: CI ASBESTOS JANUARY 2005 Verdict: Plaintiff, $350,000 Plaintiffs Experts: Steven Dikman, M.D.; Edwin Holstein, M.D. Defense Experts: John E. Reiter, CIH Reported By HM: July, Vol. 3, p. 10 Court: Minn. Dist. Ct., Ramsey Cty. Case Name: Akin v. A.P.I. Inc. Docket No.: 19-C Verdict: Plaintiff, $8 million Plaintiffs Experts: Arnold Brody, Ph.D.; Edwin Holstein, M.D.; John Dement, Ph.D.; Samuel Hammar, M.D. Defense Experts: n/a Reported By HM: June, Vol. 1, p. 8 Mississippi Court: Miss. Cir. Ct., Holmes Cty. Case Name: Johnson v. ACandS, et al. Docket No.: CV Alleged Injury: Pleural disease/asbestosis Verdict: Plaintiff, $150 million Plaintiffs Experts: David Egilman, M.D.; Glenda Glover, Ph.D.; Henry Glendmeyer, Ph.D.; Obie McNair, M.D. Defense Experts: Robert N. Jones, M.D.; Calvin Ramsey, M.D.; Alan Johnston; Charles Blake; Ewing Cook, M.D.; Robert Fraser, M.D. Reported By HM: Nov., Vol. 2, p. 8 Court: Miss. Cir. Ct., Jackson Cty. Case Name: Scordino v. Wheeler Protective, et al. Docket No.: Alleged Injury: Asbestosis Verdict: Hung Jury Plaintiffs Experts: n/a Defense Experts: n/a Reported By HM: Nov., Vol. 2, p. 8 Missouri Court: Mo. Cir. Ct., St. Louis Cty. Case Name: Ward v. Allied Signal, et al.

29 VERDICT REPORT Docket No.: Verdict: Defense Plaintiffs Experts: Arthur Frank, M.D.; Thomas Hyers, M.D.; Carroll Scroggins, M.D. Defense Experts: John Ritter, M.D. Reported By HM: July, Vol. 3, p. 8 Court: Mo. Cir. Ct., St. Louis Cty. Case Name: Foster v. A.P. Green Industries, Inc., et al. Docket No.: Verdict: Plaintiff, $5.1 million Plaintiffs Experts: Edwin Holstein, M.D., Keith Naunheim, M.D., Patrick L. Gomez, M.D. Defense Experts: James Rasmusson, Ph.D., Reported By HM: Nov., Vol. 3, p. 9 New York Court: N.Y. Sup. Ct., Niagara Cty. Case Name: Reynolds, et al. v. Amchem Products Inc., et al. Docket No.: Verdict: Plaintiff; $3.75 Million Plaintiffs Experts: Jerrold L. Abraham, M.D.; Mark J. Utell, M.D.; Arthur Frank, M.D., Ph.D.; and Richard L. Hatfield Defense Experts: John Spencer, CIH, and Stanley Fiel, M.D. Reported By HM: Nov., Vol. 5, p. 13 Court: N.Y. Sup. Ct., New York Cty. Case Name: Gadaleta, et al. v. ACandS, et al Docket No.: /02 Alleged Injury: Lung Cancer Verdict: Defense Plaintiffs Experts: Barry Castleman, Ph.D.; Louis Kyriakoudes; and Stephen Markowitz, M.D. Defense Experts: Melvin First, Sc.D., CIH; Carl Fuhrman, M.D.; and Dr. Alexander Spears. Reported By HM: Nov., Vol. 5, p. 13 Court: N.Y. Sup. Ct., New York Cty. Case Name: Mayer v. A.O. Smith, et al.; Marshall v. ACandS, Inc., et al. Docket No.: 03/106231; 02/ Verdict: Plaintiff, $22 million Plaintiffs Experts: Jacqueline Moline, M.D; Steven Markowitz, M.D.; Barry Castleman, M.D. Defense Experts: Michael Matteson, Ph.D.; Victor Roggli, M.D., Frederick Toca, Ph.D.; Paul Steward Reported By HM: Aug., Vol. 4, p. 7 Court: N.Y. Sup. Ct., New York Cty. Case Name: O Reilly v. Robert A. Keasbey Co. Docket No.: /02 Verdict: Defense Plaintiffs Experts: Elaine Panitz, M.D.; David Egilman, M.D.; Jacqueline Moline, M.D. Defense Experts: Morton Corn, Ph.D., CSP Reported By HM: Aug., Vol. 3, p. 8 Court: N.Y. Sup. Ct., New York Cty. Case Name: Tucker v. AC&S, Inc., et al. Docket No.: /02, /01 and /02, Lung Cancer Verdict: Plaintiffs $6 million/defense Plaintiffs Experts: Jacqueline Moline, M.D.; Steven Markowitz, M.D.; Barry Castleman, M.D.; William Longo, Ph.D.; Lori Todd, Ph.D. Defense Experts: Leroy Balzar, Ph.D.; Thomas Eagar, M.D.; Allan Feingold, M.D.; Michael Matteson, Ph.D.; Henry Buccigross; Victor Roggli, M.D. Reported By HM: July, Vol. 3, p. 9 Court: N.Y. Sup. Ct., New York Cty. Case Name: Croteau v. ACandS, Inc., et al. Docket No.: /2001 Verdict: Plaintiff, $47 million Plaintiffs Experts: David Egilman, M.D., Jacqueline Moline, M.D. Defense Experts: None Reported By HM: April, Vol. 3, p. 8 Court: N.Y. Sup. Ct., Niagara Cty. Case Name: Adamec v. Buffalo Insulation, et al. 28 HARRIS M ARTIN COLUMNS Docket No.: Alleged Injury: Lung Cancer Verdict: Plaintiff, $2 million Plaintiffs Experts: Gerald Abraham, M.D.; Mark Utell, M.D.; Mark Zaporoski; David Michaels, Ph.D.; Richard Hatfield Defense Experts: Allan Feingold, M.D. Reported By HM: July, Vol. 2, p. 12 Court: N.Y. Sup. Ct., New York Cty. Case Name: Matteson v. ACandS Inc., et al. Docket No.: , Lung Cancer Verdict: 2 Plaintiff, $19.5 million; one defense (lung cancer) Plaintiffs Experts: Jacqueline Moline, M.D.; Richard Horan; Albert Miller, M.D.; Steven Dickman, M.D., James Strauchen, M.D.; Barry Castleman, Ph.D. Defense Experts: John Craighead, Ph.D.; William Hughson, M.D.; Vitorio Argento, M.D.; Victor Roggli, M.D.; Michael Matteson, Ph.D.; Henry Buccigross. Reported By HM: July, Vol. 2, p. 10 Ohio Court: Ohio Comm. Pls., Cuyahoga Cty. Case Name: Blandford v. Garlock, Inc. Docket No.: Verdict: Plaintiff, $6.4 million Plaintiffs Experts: Richard Lemen, Ph.D.; Eugene Mark, M.D.; William Longo, Ph.D. Defense Experts: Larry Liukonen, CIH, Robert Sawyer, M.D. Reported By HM: Dec.., Vol. 3, p. 6 Court: Ohio Comm. Pls., Cuyahoga Cty. Case Name: Jarvis, et al. v. Consolidated Rail Corp. Docket No.: , , Alleged Injury: Asbestosis/Silicosis Verdict: Defense Plaintiffs Experts: Ray Harron, M.D.; L.C. Rao, M.D.; Paul Venizelos, M.D.; William Longo, Ph.D. Defense Experts: Peter Barrett, M.D.; Gregory Fino, M.D.; David Rosenberg, M.D.

30 VERDICT REPORT Reported By HM: July., Vol. 3, p. 8 Oregon Court: Ore. Cir. Ct., Multnomah Cty. Case Name: Nagl v. Aeronica, Inc., et al. Docket No.: Verdict: Plaintiff, $700,000 Plaintiffs Experts: Richard Cohen, Ph.D., Kenneth Cohen, C.I.H., Carl Andrew Brodkin, M.D., M.P.H., Arnold Brody, Ph.D., Bob Male, Ph.D. Defense Experts: Stephen Davis, Ph.D., Drew Van Orden, Gustavo Delgado, Ph.D. Reported By HM: July, Vol. 4, p. 8 Court: Ore. Cir. Ct., Multnomah Cty. Case Name: Emrick v. AC&S, Inc., et al. Docket No.: Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D.; Kenneth Cohen; Richard Hatfield; William Longo, Ph.D.; James Milette, Ph.D.; Samuel Hammar, M.D.; Allan Smith. Defense Experts: James Crapo, M.D.; Victorrio Argento, Ph.D.; John Craighead, M.D. Reported By HM: Jan., Vol. 1, p. 11 Pennsylvania Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Yencho v. Airco, et al. Docket No.: n/a Alleged Injury: Lung Cancer Verdict: Plaintiff, $500,000 Plaintiffs Experts: Paul Epstein, M.D Defense Experts: William G. Hughson, M.D. Reported by HM: May.,Vol. 4, p.9 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Amento v. Certainteed, et al. Docket No.: Verdict: Plaintiff, $20.5 million Plaintiffs Experts: Daniel Sterman, M.D., Leslie Litsky, M.D., Anna Tobia, Ph.D. Defense Experts: n/a Reported by HM: Feb.,Vol. 4, p.10 Court: Pa. Comm. Pls. Philadelphia Cty. Case name: Stackhouse v. AC&S, et al.; Joyce v. John Crane Inc. Docket No: Oct. Term ; Dec. Term Alleged Injury: Lung Cancer, Asbestosis Verdict: Defendants Plaintiffs Experts: Dr. Stanley Altschuler, Dr. Irwin Stoloff Defense Experts: Dr. Alan Pope, Dr. Michael Warhol. Reported by HM; Feb., Vol. 4 No. 4, p. 10 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Jackson v. Bell Asbestos Mines, et al. Docket No.: Alleged Injury: Esphageal Cancer Verdict: Plaintiff, $1.7 Million Plaintiffs Experts: Erwin Stoloff, M.D. Defense Experts: Paul Epstein, M.D. Reported By HM: Dec., Vol. 3, p. 6 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Rabold v. ACandS, et al. Docket No.: Dec Verdict: Plaintiff, $3.5 Million Plaintiffs Experts: Daniel DuPont, M.D. Defense Experts: Bruce Case, M.D.; Allen Gibbs, M.D.; Dittorio Argento, Ph.D. Reported By HM: Nov.., Vol. 3, p. 8 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Guila Andrews, executrix of the estate of Luke Andrews v. ACandS, et al. and Paula Box, executrix of the estate of Larry Box v. ACandS, et al. Docket No.: July and August Verdict: Phase I: Plaintiff, $6.6 Million and & $5.5 Million 29 ASBESTOS JANUARY 2005 Plaintiffs Experts: n/a Defense Experts: n/a Reported By HM: Nov., Vol. 3, p. 8 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Eck v. Congoleum Corp. Docket No.: Verdict: Plaintiff, $3.79 Million Plaintiffs Experts: n/a Defense Experts: n/a Reported By HM: Nov., Vol. 3, p. 8 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Marsilio v. Congoleum Corp. Docket No.: Verdict: Plaintiff, $4.8 million Plaintiffs Experts: n/a Defense Experts: n/a Reported By HM: Nov., Vol. 3, p. 8 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Lonasco v. A-Best Products Co. Docket No.: 1424 Sept. Term, 1991 Alleged Injury: Asbestosis Verdict: Phase I: $1,034,000; Phase II: Defense Plaintiffs Experts: Stanley Fiel, M.D.; Donna Ringo, CIH Defense Experts: Paul Epstein, M.D. Reported By HM: Oct.., Vol. 2, p. 11 Court: Pa. Comm. Pls., Philadelphia Cty. Case Name: Stutski v. Asbestos Corporation, Ltd. Docket No.: PCCP Feb. Term Verdict: Phase I: $175,000; Phase II: Defense Plaintiffs Experts: Yasunosuke Suzuki, M.D. Defense Experts: Bruce Case, M.D. Reported By HM: Oct.., Vol. 2, p. 10 Texas Court: Texas 23 rd Dist. Ct., Brazoria Cty.). Case Name: Kelly-Moore Paint Co. v. Dow Chemical Co., et al.

31 VERDICT REPORT Docket No.: No Alleged Injury: Fraud Verdict: Defense Plaintiffs Experts: David Egilman, M.D.; and Donald R. House, Ph.D. Defense Experts: James Crapo, M.D.; Allan Feingold, M.D.; Alan Gibbs, M.D. of Cardiff, Wales UK; Theodore R. Marmor; Dr. Fred Dunbar; and Thomas Howard, M.D. Reported By HM: Nov., Vol. 5, p. 8 Court: Texas Dist. Ct., Cass Cty. Case Name: Schiller v. Garlock Inc Docket No.: No. 2-C-220 Verdict: Plaintiff, $1.29 Million Plaintiffs Experts: Arnold Brody, Ph.D., Richard Lemen, M.D., Ph.D., William Longo, Ph.D., Samuel Hammar, M.D. Defense Experts: Frederick Boelter, CIH, Ph.D., Allan Feingold, M.D. Larry Liukonen, CIH Reported By HM: Oct., Vol. 4, p. 6 Court: Texas Ct. at Law #5, Dallas Cty. Case Name: Hicks, et al. v. Chrysler, et al. Docket No.: E Verdict: Plaintiff, $1.4 Million Plaintiffs Experts: John C. Maddox, M.D., Frank Parker, CIH, Defense Experts: Dennis Paustenbach, Ph.D., M. Jane Teta, Ph.D., Reported By HM: Sept., Vol. 4, p. 8 Court: Texas Ct. at Law #2, Dallas Cty. Case Name: Lacey v. Bondex International Inc., et al. Docket No.: Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D., John C. Maddox, M.D. Defense Experts: Alan Feingold, M.D. Reported By HM: July Vol. 4, p.9 Court: Texas Dist. Ct., Brazoria Cty. Case Name: Miller v. Ford Motor Co. Docket No.: Verdict: Plaintiff, $10 million Plaintiffs Experts: Arnold Brody, Ph.D.; Jacques Legier, M.D.; Jerry Lauderdale, CIH Defense Experts: Del Malzahn, M.S.; Charles Yarborough, M.D., M.P.H. Reported By HM: June Vol. 4, p. 7 Court: Texas Dist. Ct., Dallas Cty. Case Name: Tave v. Air Liquide America Corp., et al. Docket No.: CC Alleged Injury: Silicosis/Asbestosis Verdict: Defense Plaintiffs Experts: Vernon Rose, Ph.D.; Robert Springer, M.D. Defense Experts: Gail Stockman, M.D.; Robert M. Ross, M.D.; Alan Johnston, CIH; Dennis J. Seal, Ph.D., P.E. Reported By HM: June Vol. 4, p. 7 Court: Texas Dist. Ct., Galveston Cty. Case Name: Altimore v. ExxonMobile, et al. Docket No.: 03-CV-0588 Verdict: Plaintiff, $1.98 Million Plaintiffs Experts: Samuel Hammar, M.D.; Richard Lemen, Ph.D.; Jay Segarra, M.D. Defense Experts: Gerhard Raabe, D.Ph.; Neil Weaver, M.D.; James Hammond, Ph.D; Bruce Larson. Reported By HM: May Vol. 4, p. 8 Court: Texas Dist. Ct., El Paso Cty. Case Name: Gilcrease v. Garlock, Inc., et al. Docket No.: Verdict: Plaintiff, $3.5 Plaintiffs Experts: Arnold Brody, Ph.D.; John Maddox, M.D.; Susan Raterman, CIH. Defense Experts: Fred Boelter, CIH; Larry Liukonen, CIH; Alan Feingold, M.D. Reported By HM: May Vol. 4, p. 8 Court: Texas Dist. Ct., Tarrant Cty. Case Name: Verret v. American Biltrite, et al. Docket No.: , Verdict: Defense Plaintiffs Experts: William Longo, Ph.D, Edwin Holstein, M.D. Defense Experts: James Crapo, M.D., William Dyson, Ph.D. Reported By HM: Apr. Vol. 4, p. 8 Court: Texas Dist. Ct., Nolan Cty. Case Name: Dori v. Bondex International Inc. 30 HARRIS M ARTIN COLUMNS Docket No.: Verdict: Defense Plaintiffs Experts: Arnold Brody, Ph.D., Barry Castleman, Ph.D., Douglas Pohl, Ph.D., M.D. Defense Experts: Allan Feingold, M.D. Reported By HM: Apr. Vol. 4, p. 9 Court: Texas Dist. Ct., Dallas Cty.. Case Name: Prather v. Borg-Warner Corp. Docket No.: E Alleged Injury: Lung Cancer Verdict: Plaintiff, $79,000 Plaintiffs Experts: Rebecca Trailor, M.D., Barry Castleman, Ph.D., Gerald Abraham, M.D. Defense Experts: John Craighead, m.d., Gail Stockman, M.D., William Krebs, Ph.D. Reported By HM: Apr. Vol. 4, p. 9 Court: Texas Dist. Ct., Brazoria Cty. 23rd Dist. Case Name: Stephens v. Ametek, Inc., et al. Docket No.: BH02 Verdict: Plaintiff, $6 million Plaintiffs Experts: Jerry Lauderdale, CIH, Ph.D., Samuel Hammar, M.D., Barry Castleman, Ph.D., Alice Boylan, M.D. Defense Experts: none Reported By HM: Mar. Vol. 4, p. 8 Court: Texas Dist. Ct., El Paso Cty. Case Name: Ytuarte v. Quigley Co. Docket No.: Verdict: Plaintiff, $5.2 million Plaintiffs Experts: Richard Lemen, M.D., Ph.D., Hector Battifora, M.D., Eugene Mark, M.D. Defense Experts: none Reported By HM: Mar. Vol. 4, p. 8 Court: Texas Dist. Ct., Tarrant Cty. Case Name: Keefe v. American Standard, Inc. et al. Docket No.: Verdict: Defendants Plaintiffs Experts: Arnold Brody, Ph.D., Edwin Holstein, M.D. and Eugene Mark, M.D.

32 VERDICT REPORT Defense Experts: none Reported by HM: Feb. Vol. 4 No. 4, p.9 Court: Texas Dist. Ct. Dallas Cty., 113th Dist. Case Name: Davis v. Garlock Sealing Technologies Docket No.: Verdict: Defendant Plaintiffs Experts: Gary Friedman, M.D., George Delclos, M.D., Arnold Brody, Ph.D., William Ewing, CIH. Defense Experts: Allan Feingold, M.D., Dr. Frederick Boelter, Carl Mangold, Larry Liukonen. Reported by HM: Feb., Vol. 4 No. 4, p.9 Court: Texas Dist. Ct., Brazoria Cty., 239th Dist. Case Name: Lonas v. Fluor Corp. Docket No.: JG01 Verdict: Plaintiff, $130,000 Plaintiffs Experts: William Longo, Ph.D.; Richard Lemen, M.D., Ph.D.; Eugene Mark, M.D. Defense Experts: None Reported By HM: Oct, Vol. 3, p. 6 Court: Texas Dist. Ct., Tarrant Cty. Case Name: Clancy v. Kelly Moore Paint Co. Docket No.: Alleged Injury: Lung/Colon Cancer Verdict: Defense Plaintiffs Experts: Mark Colella, M.D. Defense Experts: John Craighead, M.D.; Allan Feingold, M.D. Reported By HM: July, Vol. 3, p. 8 Court: Texas Dist. Ct., Harris Cty. Case Name: Burnett v. AlliedSignal, et al. Docket No.: Verdict: Plaintiff, $9.63 Million Plaintiffs Experts: Gary K. Friedman, M.D.; David S. Egilman, M.D.; Samuel Hammar, M.D. Defense Experts: J. LeRoy Balzer, M.D.; Michael J. Warhol; Luan Tuong, M.D. Reported By HM: June, Vol. 3, p. 6 Court: Texas Dist. Ct., Montgomery Cty. Case Name: Roy v. Able Supply Company Docket No.: Alleged Injury: Lung Cancer Verdict: Defense Plaintiffs Experts: Mark Collela, M.D., Arnold Brody, Ph.D.; Jerry Lauderdale, CIH Defense Experts: Peter Barrett, M.D.; James Crapo, M.D.; J. Leroy Balzer, Ph.D. Reported By HM: May, Vol. 3, p. 8 Court: Texas Cty. Ct., No. 2, Dallas Cty. Case Name: Freeman v. Quigley Corp, et al. Docket No.: CC B Verdict: Plaintiff, $2.7 Million Plaintiffs Experts: Edwin Holstein, M.D. Defense Experts: James O. Rasmusson, Ph.D., Louis Kilian Reported By HM: Nov., Vol. 3, p. 8 Virginia Court: Va. Cir.Ct., Roanoke Cty. Case Name: McKee v. Norfolk Southern Railway Co. Docket No.: 770-CL Alleged Injury: Asbestosis, Mixed Dust Pneumoconiosis. Verdict: Defense Plaintiffs Experts: Dominic Gaziano, M.D., R. Leonard Vance, Ph.D. Defense Experts: James R. Castle, M.D.; David Rosenberger, M.D. Reported by HM: Mar. Vol. 4, p. 8 Court: Va. Cir. Ct., Newport News Cty. Case Name: King v. Allied Signal Docket No.: 24242C-03 Verdict: Defense Plaintiffs Experts: Douglas Pohl, M.D.; John Maddox, M.D.; Arnold Brody, Ph.D.; David Egilman, M.D.; Richard Hatfield. Defense Experts: James Crapo, M.D.; John Craighead, M.D.; Victor Roggli, M.D.; Graham Gibbs. Reported By HM: Dec., Vol. 3, p. 9 Court: Va. Cir. Ct., Roanoke Cty. Case Name: Alderman v. Norfolk Southern Corp. 31 ASBESTOS JANUARY 2005 Docket No.: 770CL Alleged Injury: Asbestosis Verdict: Defense Plaintiffs Experts: Richard C. Bernstein, M.D.; Frederick M. Dula, Ph.D.; Robert L. Vance, CIH Defense Experts: James Castle, M.D.; David Rosenberger, M.D.; Francis Weir, Ph.D. Reported By HM: Dec., Vol. 3, p. 9 Washington Court: Wash. Super. Ct., King Cty. Case Name: Sundberg v. AC&S Docket No.: SEA Alleged Injury: Non-Hodgkin s Lymphoma, Asbestosis, Colon Cancer Verdict: Plaintiff, $1.5 million Plaintiffs Experts: Elliot Kagan, M.D.; Eric Stern, M.D.; Kenneth Cohen; Carolyn Ray, M.D.; Richard Cohen, M.D.; and Barry, Ben-Zion Defense Experts: Elliott Hinkes, M.D.; Dorsett Smith, M.D.; James Rasmussen, Ph.D.; David Godwin, M.D. Reported By HM: May, Vol. 1, p. 10 West Virginia Court: W.Va. Cir. Ct., Kanawha Cty. Case Name: In Re: Asbestos Personal Injury Mass Litigation Panel Docket No: 01-C-9002 Alleged Injury: Multiple Verdict: Mixed; Plaintiffs $7 million, Two Defense Plaintiffs Experts: Herbert Abrams, M.D.; William Ewing, CIH Defense Experts: Morton Corn, Ph.D., CSP; Allan Feingold, M.D. Reported By HM: April, Vol. 1, p. 11

33 EXPERT WITNESS BANK Plaintiffs Experts Abraham, Gerald, M.D., environmental pathologist, Syracuse, N.Y.; July, Vol. 2, p. 12; May, Vol. 3, p. 8; Oct., Vol. 3, p. 6; Apr. Vol. 4, p.9; Nov., Vol. 5, p. 13 Adams, Herbert, M.D., occupational medicine; April, Vol. 2, p. 11 Altschuler, Stanley M.D., pulmonologist. Feb. Vol. 4, p. 10 Anderson, Henry, M.D., treating physician, Milwaukee; Sept., p. 12; July, Vol. 4, p. 8 Ay, Charles; state of the art, Garden Grove, Calif.; April, p. 10; June, pp. 9, 10; Aug., p. 12; April, Vol. 2, p. 10; Dec., Vol. 3, p. 9; March, Vol. 3, p. 11; Aug., Vol. 3, p. 9; Oct., Vol. 3, p. 6; Apr, Vol. 4 p. 8 Battifora, Hector, M.D., pathologist, Los Angeles; Sept., p. 10, 11; March Vol. 4, p. 9 Ben-Zion, Barry, Ph.D.; economist, Santa Rosa, Calif.; April, p. 9; May, p. 10; June, p. 9; Aug., p. 12; Nov., Vol. 2, p. 10; Jan., Vol. 2., p. 9; Feb., Vol. 2, p. 8; April, Vol. 2, p. 12; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8, 9; Aug., Vol. 3, p. 8, 9; Dec., Vol. 3, p. 6. Apr, Vol. 4, p. 9; Oct., Vol. 4, p. 6 Bernstein, Richard, M.D., pulmonologist, Charlottesville, Va.; Nov., Vol. 3, p. 9; Dec., Vol. 3, p. 10 Bonderevsky, Ernesto, M.D.; pulmonologist, San Antonio, Texas; March, p. 11 Boylan, Alicc, M.D.; treating physician/mesothelioma researcher, Charleston, S.C. March Vol. 4, p. 9 Breitenecker, Rudiger, M.D.; pathologist, Baltimore; April, p. 8; Aug., Vol. 2, p. 10 Breyer, Donald, M.D.; radiologist, Highland Hospital, Oakland, Calif.; Premier, p. 10; Feb., p. 10; June, p. 9; June, Vol. 3, p. 7; Aug., Vol.. 3, p. 9; Apr. Vol. 4, p. 9 Brodkin, Carl Andrew, M.D., M.P.H. (ret.); occupational medicine, Seattle; July, Vol. 4, p. 8 Brody, Arnold, Ph.D.; cellular biologist, pathologist, Tulane University, New Orleans; Premier, page 10, 11; Dec., p. 9; Jan., p. 11; March, p. 11, 12; April, p. 8, 9; May, p. 8, 9.; June, p. 9; Aug., p. 11, 12, 13; Sept., p. 11, 12; Oct., p. 8; Nov., Vol. 2, p. 9; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 8; April Vol. 2, p. 10; May, Vol. 2, p. 10; July, Vol. 2, p. 12; Aug., Vol. 2, p. 10, 11; Dec., Vol. 3, p. 9, 10; April Vol. 3, p. 8; May, Vol. 3, p. 8; June, Vol. 3, p.6; July, Vol. 3, p. 10; Aug., Vol. 3, p. 9, Feb. Vol. 4, p.9, p. 10; Apr., Vol. 4 p. 9; May, Vol. 4, p. 8; June, Vol. 4, p. 7, 8; July, Vol. 4, p. 8, 9; Sept., Vol. 4, No. 11, p. 8; Oct., Vol. 4, p. 6; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p. 8 Bukowsky, Donna, M.D.; pulmonologist, Austin, Texas; July, Vol. 2, p. 22 Cameron, Robert, M.D.; oncologist, Los Angeles; June, Vol. 4, p. 8 Castleman, Barry, Ph.D.; historical state of the art, Baltimore; Premier, p. 10; April, p. 8; May, pp. 8, 9; June, p. 9; Aug., p. 13; Nov., Vol. 2, p. 10; Dec., Vol. 2, pp. 11; Jan. Vol. 2, p. 8; July, Vol. 2, p. 10, 11, 22; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8; March, Vol. 3, p. 11; July, Vol. 3, p. 9, 10; March, Vol. 4, p. 9; Apr. Vol 4, p.9, p. 10; Nov. Vol. 5, p. 9 Cohen, Kenneth; industrial hygienist, El Cajon, Calif.; Jan., p. 11; Feb., p. 10; April, p. 9; May, p. 10; Aug., p. 12; Oct., p. 8; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8; April, Vol. 2, p. 10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8; Dec., Vol. 3, p. 9; March, Vol. 3, p. 11; Apr. Vol. 4 p. 9; July, Vol. 4, p. 8 Cohen, Richard, M.D.; epidemiologist, Palo Alto, Calif.; Feb., p. 10; May, p. 10; Aug., p. 12; Nov., Vol. 2, p. 10; April, 32 HARRIS M ARTIN COLUMNS Vol. 2, p. 10; March, Vol. 3, p. 11; June, Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9; Dec., Vol. 3, p. 6.; Apr. Vol. 4 p. 8; July, Vol. 4, p. 8; Oct., Vol. 4, p. 6 Colella, Marc, M.D.; radiologist, Natrona Heights, Pa.; May, Vol. 2, p. 10; May, Vol. 3, p. 8; July, Vol. 3, p. 8 Corson, Joseph, M.D.; pathologist, Boston; Dec., Vol. 2, p. 11 Dahlgen, James, M.D.; June, Vol. 4, p. 7 Darcay, Dennis, M.D.; occupational medicine, Durham, N.C.; Nov., Vol. 2, p. 9 Davis, Earl; retired executive vice president from Tyler Pipe, Tyler, Texas; Premier, p. 11 Delclos, George M.D., pulmonolgist, Houston; Feb. Vol. 4, p. 10 DeLiere, Emil, M.D., pulmonologist, Pittsburgh; Sept., p. 10 Dement, John, Ph.D.; environmental science, Duke University; April, p. 8; June, p. 9; Aug., p. 11; May, Vol. 3, p. 8 Deutsch, David, M.D.; chest surgeon, Long Beach, Calif.; Aug. p. 12 Dikman, Steven, M.D.; pathologist, Mt. Sinai Hospital, New York; Premier, p. 11; July, Vol. 2, p. 10; Dec., Vol. 3, p. 10; July, Vol. 3, p.10 Dodson, Ronald; cellular biologist, Tyler, Texas; May, p. 9 Dolan, Brian, M.D., internist; Berkeley, Calif.; June, p. 9 Dula, Fred, M.D.; certified B-reader and board certified radiologist, Georgia; Premier, p. 11; Dec., Vol. 3, p. 10 DuPont, Daniel, M.D.; pulmonologist, Upland, Pa.; May, p. 10; Nov., p. 8 Eggleston, Alan; environmental consultant; Premier, p. 11

34 EXPERT WITNESS BANK Egilman, David, M.D.; epidemiologist, Brown University; Providence, R.I; Premier, p. 11; March, p. 12; Sept., p. 10; Nov., Vol. 2, p. 9; March, Vol. 2, p. 10; April, Vol. 3, p. 8; June, Vol. 3, p. 6; Aug., Vol. 3, p. 8, Nov., Vol. 5, p. 8 Ellenbecker, Michael, Ph.D., CIH; industrial hygiene, Lowell, Mass.; June, Vol. 3, p. 6; July, Vol. 3, p.8; Sept., Vol. 4, No. 11, p. 8 Epstein, Paul, M.D.; pulmonologist, Philadelphia; Aug., p. 11; Oct., Vol. 2, p. 11 Evans, Donnie, M.D.; pulmonologist, Houston; March, p. 11 Ewing, William, CIH; industrial hygienist, Atlanta; Sept., p. 12; Feb., Vol. 2, p. 8; April, Vol. 2, p. 11; Dec., Vol. 3, p. 6. Vol. 4, p. 9, p. 10; July, Vol. 4, p. 8; Dec., Vol.5, p. 8 Fallat, Robert, M.D.; pulmonologist, California Pacific Medical Center, San Francisco; Premier, page 10; June, p. 9; Jan., Vol. 2., p. 9 David Fractor, Ph.D., economist; Nov. Vol. 5, p. 8 Frank, Arthur, M.d., occupational medicine, Drexel University, Philadelphia; April, Vol. 3, p. 8; July, Vol. 3, p. 8; Nov., Vol. 5, p. 13 Friedman, Gary K., M.D., occupational medicine, pulmonologist, Houston; March, Vol. 2, p. 11; June, Vol. 3, p. 6, Feb. Vol 4 p. 10 Gabrielson, M.D.; pathologist, Baltimore; May, p. 9 Ganzhorn, Frank, M.D.; pulmonologist, Salinas, Calif.; Dec., Vol. 3, p. 6. Gass, David G., M.D.; plaintiff treater, Tyler, Texas; Premier, p. 11 Gaziano, Dominic, M.D.; pulmonologist, Charleston, W.Va. Mar. Vol. 4 No. 5 p. 8 Ghio, Andrew, M.D.; pulmonologist, Chapel Hill, N.C.; April, Vol. 3, p. 8 Glendmeyer, Henry, Ph.D.; 3M expert, New Orleans; Nov., Vol. 2, p. 8 Glover, Glenda, Ph.D.; economist; Nov., Vol. 2, p. 8 Godleski, John, M.D.; pathologist, Boston; Dec., Vol. 2, p. 11 Gomez, Patrick L., M.D.; oncologist, Springfield, Mo.; Nov., Vol. 3, p. 9 Hammar, Samuel, M.D.; pathologist, Bremeton, Wash.; Premier, page 10; Jan., p. 11; April, pp. 8, 9, 10; May, pp. 8, 9; June, p. 9; Aug., p. 11; Oct., p. 8; Dec., Vol. 2, p. 11; Jan., Vol. 2., p. 9; Feb., Vol. 2, p. 8; April, Vol. 2, p. 10; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9; April, Vol. 3, p. 8; May, Vol. 3, p. 8; June, Vol. 3, p. 6; July, Vol. 3, p. 10; Aug., Vol. 3, p. 8; Dec., Vol. 3, p. 6.; Mar.., Vol. 4, p. 9; May, Vol. 4, p. 8; Sept., Vol. 4, No. 11, p. 8; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p. 8 Hannah, Hamner, M.D.; thoracic surgery, Kansas City, Mo.; April, p. 8 Harford, Paul, M.D.; plaintiff treater, Tyler, Texas; Premier, p. 11 Harper, Charles, Ph.D.; economist, Saratoga, Calif.; May, p. 9 Harron, Ray, M.D.; Bridgeport, W.Va.; July, Vol. 3, p. 8 Hatfield, Richard; industrial hygienist, dust sampling, materials analyst specialist, Norcross, Ga.; Premier, page 10; Dec., p. 9; Jan., p. 11; March, p. 12; June, pp. 9, 10; Aug., p. 11; Sept., p. 10; Nov., Vol. 2, p. 10; Feb., Vol. 2, p. 8; July, Vol. 2, p. 12; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8; July, Vol. 3, p. 10; Nov., Vol. 5, p. 13 Holstein, Edwin, M.D.; occupational medicine, Boston; Dec., p. 9; May, p. 8; June, p. 9; Oct., p. 8; May, Vol. 2, p. 10; Nov. Vol. 3, p. 8, 9; July, Vol. 3, p. 10, Feb. Vol. 4, p.9, Apr. Vol. 4 p. 8 Horan, Richard; naval architect expert; Maine; July, Vol. 2, p. 10 Horn, Barry, M.D.; pulmonologist, Berkeley, Calif.; Feb., p. 10; April, p. 10; May, pp. 8, 9; Aug., p. 12; Nov., Vol. 2, p. 10; Feb., Vol. 2, p. 8; April, Vol. 2, p. 10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8; March, Vol. 3, p. 11; Aug., Vol. 3, p. 8; Oct, Vol 3, p. 6; June, Vol. 4, p. 7; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p. 8 Donald House, Ph.D.; accountant, Bryan, Texas; Nov., Vol. 5, p. 8 Hyers, Thomas, M.D.; pulmonologist, Kirkwood, Minn.; July, Vol. 3, p. 8 Johnson, Robert, Ph.D.; economist, Mt. View, Calif.; April, p. 8; May, p. 8; Nov., Vol. 2, p. 9; Feb., Vol. 2, p. 8; July, Vol. 2, p. 10; Oct., Vol. 3, p. 6; Dec., Vol. 5, p. 8 Kagan, Elliot, M.D.; pathologist, Washington, D.C.; May, p. 10; April, Vol. 2, p. 12 Karelenstein, Daniel, M.D.; thoracic surgeon, Mt. Sinai Medical Center, New York; Feb., p. 10 Katz, Richard, M.D.; pulmonologist, Philadelphia; May, p. 10 Kelly, Chris; certified fraud examiner/economist, Dallas; Premier, p. 11 Kemplin, John, Ph.D., N/A, Apr. Vol. 4 p. 8 King, William, Ph.D.; economist, Lansing, Mich.; Dec., Vol. 2, p ASBESTOS JANUARY 2005

35 EXPERT WITNESS BANK Klepper, Mark, M.D.; pathologist, pulmonologist, Austin, Texas; Premier, p. 11; March, p. 11 Kuenemann, Charles; safety engineer, Tyler, Texas; Premier, p. 11 Kuhanjda, Francis, M.D.; pathologist, Johns Hopkins University, Baltimore; April, p. 8 Louis Kyriakoudes, tobacco historian; Nov. Vol. 5, p. 9 Laman, David, M.D.; pulmonologist, Pittsburgh; Sept., p. 10 Lauderdale, Jerry, CIH; industrial hygienist, Austin, Texas; May, Vol. 2, p. 10; Mar. Vol. 4 p. 9; June, Vol. 4, p. 7 Laufe, Marc, M.D.; pulmonologist, Pittsburgh; Sept., p. 10; May, Vol. 3, p. 8 Legier, Jacques, M.D., pathologist, Newport News, Va.; June, Vol. 4, p. 7 Lemen, Richard, M.D., Ph.D.; former U.S. Assistant Surgeon General, epidemiologist and state of the art, Atlanta; Premier, p. 11; Dec., p. 9; March, p. 11; June, p. 10; Sept., p. 10, 11; Nov., Vol. 2, p. 9; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8; March, Vol. 2, p. 11; July, Vol. 2, p. 11, 12; Aug., Vol. 2, p. 10; Nov., Vol. 3, p. 9, 10; Dec., Vol. 3, p.6.; Oct., Vol. 4, p. 6 Lemen, Richard M.D., Ph.D; epidemiologist/state of the art, Atlanta; Oct., Vol. 3, p.6; Oct., Vol. 3, p. 6, Vol. 4, p. 9; March Vol. 4, p. 9; May, Vol. 4, p. 8 Liebermann, Philip, M.D.; retired pathologist, New York; April, p. 8 Litzky, Leslie, M.D., pathologist, Philadelphia; February p. 8 Longo, William E., Ph.D.; exposure analysis, material scientist, electron microscopist, Norcross, Ga.; Premier, p. 11; Jan., p. 11; April, p. 8; May, pp. 8, 9; Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8; July, Vol. 2, p. 11; Dec., Vol. 3, p. 9; July, Vol. 3, p. 8, 9; Oct., Vol. 3, p. 6; Dec., Vol. 3, p. 6; Apr., Vol. 4, p. 8; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p. 8 Lunn, William, M.D.; plaintiff treater, Tyler, Texas; Premier, p. 11 Maddox, John, M.D.; pathologist, Newport News, Va.; March, p. 12; May, Vol. 4, p. 8; July, Vol. 4, p. 9; Sept., Vol. 4 No. 11, p. 8 Male, Bob, Ph.D.; economist, Clackamas, Ore.; July, Vol. 4, p. 8 Mark, Eugene, M.D.; pathologist, Boston; Aug., Vol. 2, p. 11; Oct., Vol. 3, p. 6, Vol. 4, p. 9; MarchVol. 4, p. 9 Markowitz, Steven, M.D.; internal and occupational medicine, Queens, N.Y.; July, Vol. 3, p. 9; Nov., Vol. 5, p. 9 Marshall, Hal, M.D.; pathologist, Kansas City, Mo.; April, p. 8 Mason, Gene; vice president to the Delaware Corporation; Premier, p. 11 Mazza, Frank, M.D.; pulmonologist, Austin, Texas; Nov., Vol. 2, p. 9 McNair, Obie, M.D.; pulmonologist, Jackson, Miss.; Nov., Vol. 2, p. 8 Meseroll, William, M.D., radiologist, Petaluma, Calif.; June, p. 9; Aug., p. 12 Mezey, Robert, M.D.; pulmonologist, Phoenix; Oct, Vol. 3, p. 7; July, Vol. 4, p. 9 Michaels, David, Ph.D., Washington, D.C.; July, Vol. 2, p. 12 Millette, James, Ph.D.; state of the art, Baltimore; Jan., p. 11; May, p. 9; Aug., p. 12; Nov., Vol. 2, p. 9; Feb., Vol. 2, p. 8; Aug., Vol. 2, p. 10; Dec., Vol. 3, p HARRIS M ARTIN COLUMNS Millette, James, Ph. D.; pathologist, Durham, N.C.; Oct., Vol. 3, p. 6 Moline, Jacqueline, M.D., occupational specialist, Mt. Sinai, New York; July, Vol. 2, p. 10; April, Vol. 3, p. 8; July, Vol. 3, p. 9; Aug., Vol. 3, p. 8 Mostoufi, Mahparah, M.D.; pathologist, Pittsburgh; Sept., p. 10 Murphy, Everett, M.D.; pulmonologist, Kansas City Mo.; April, p. 8 Myron, Mark, M.D.; oncologist, Kansas City, Mo.; April, p. 8 Naunheim, Keith, M.D.; thoracic surgeon, St. Louis University Hospital, St. Louis; Nov., Vol. 3, p. 9 Robert Neff, CPA, accountant; Nov., Vol. 5, p. 8 Nicholson, William, Ph.D.; risk analysis, New York; April, p. 8, 10; May, p. 9 Oliver, Christine, M.D.; occupational medicine, Boston; Dec., Vol. 2, p. 11 Paige, Jerome, Ph.D.; economist, Washington, D.C.; April, p. 8 Panitz, Elaine, M.D.; occupational medicine, Mass.; Feb., p. 10; March, Vol. 2, p. 10; Aug., Vol. 3, p. 8 Parker, Frank, CIH, industrial hygienist, Magnolia, Texas; Sept., Vol. 4, No. 11, p. 8 Peters, Ed, M.D.; pulmonologist, Austin, Texas; March, p. 11; July, Vol. 2, p. 11 Petroff, Peter, M.D.; certified pulmonologist; Premier, p. 11; March, Vol. 2, p. 11 Pohl, Douglas, Ph.D., M.D.; pathologist, Central Maine Medical Center, Lewiston, Maine; Feb., p. 9; March, p. 12; March, Vol. 2, p. 10; May, Vol. 3, p. 8; Oct., Vol. 3, p. 7; Apr., Vol. 4 p. 9

36 EXPERT WITNESS BANK Raffensperger, M.D.; pulmonologist, Allegheny General Hospital, Pittsburgh; July, p. 11 Raterman, Susan, CIH; industrial hygiene; May, Vol. 4, p. 8 Ray, Carolyn, M.D.; pulmonologist, San Francisco; May, p. 10; Aug., p. 12; April, Vol. 2, p. 12 Reidbord, Howard, M.D.; pathologist, Pittsburgh; Sept., p. 10 Reynolds, Zachary; naval architect; Petaluma, Calif.; Dec., Vol. 5, p. 8 Robb, James, M.D.; pathologist, Miami; Aug., p. 13; July, Vol. 2, p. 11; Aug., Vol. 2, p. 11; April, Vol. 4,. p. 8 Roggli, Victor, M.D.; pathologist, Duke University; Feb., p. 9; April, p. 9; June, p. 10; Aug., p. 10; Sept., p. 12; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 8, 9; July, Vol. 2, p. 12; July, Vol. 4, p. 8 Rubin, Louis, M.D.; clinician, Columbia, Md.; May, p. 9; Aug., p. 11 Rusch, Valerie, M.D.; pathologist from Sloan Kettering, New York; April, p. 8 Salyer, William, M.D.; pathologist from Berkeley, Calif.; Oct, p. 6 Schonfeld, Alvin, D.O.; Los Angeles; Sept., p. 12; June, Vol. 3, p. 7 Schwartz, David, M.D.; pulmonologist/radiologist, Durham, N.C.; Nov., Vol. 3, p. 9 Scroggins, Carroll, M.D.; treating physician, St. Louis; July, Vol. 3, p. 8 Segarra, Jay, M.D.; pulmonologist, Ocean Springs, Miss.; May, p. 8; Oct., p. 8; May, Vol. 4, p. 8 Sharpe, Stuart, M.D.; oncologist, Danville, Va.; Feb., p. 9 Shoenfeld, Alvin, M.D.; pulmonologist, Chicago; Dec., Vol. 3, p. 8 Sims, William, M.D., pulmonologist, Pittsburgh; Sept., p. 10 Smith, Allan H., Ph.D.; epidemiologist, University of California, Berkeley; Calif; Premier, page 10; Jan., p. 11; April, p. 9; June, p. 9; Aug., p. 12; Nov., Vol. 2, p. 10; Jan., Vol. 2., p. 9; April, Vol. 2, p. 10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8, 9; June, Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9; Oct., Vol 3, p. 6; Dec., Vol. 3, p. 6.; Apr. Vol. 4 p. 8, 9; Oct., Vol. 4, p. 6 Spector, Harvey, M.D.; pathologist, Crozer-Chester Medical Center, Upland, Pa.; July, p. 11; Aug., p. 11 Srebo, James, M.D.; cardiologist, Napa, Calif.; Dec., Vol. 3, p. 9 Stern, Eric, M.D.; radiologist, Seattle; May, p. 10; June, p. 9 Sterman, Daniel, M.D.,pulmonologist, Philadelphia. February p. 8 Stoloff, Erwin L., M.D.; oncologist, Philadelphia; May, p. 10; Dec., Vol. 3, p. 6. Feb. Vol..4, p. 10 Strauchen, James, M.D.; pathologist, New York; July, Vol. 2, p. 10 Sullivan, Brian, Ph.D., economist, Philadelphia; Aug., p. 11 Suzuki, Yasunosuke, M.D.; pathologist, New York; March, Vol. 2, p. 10; Oct., Vol. 2, p. 10 Templin, John, CIH; industrial hygiene, Los Angeles; Aug., Vol. 3, p. 8; Oct., Vol 3, p. 6; June, Vol. 4, p. 7, 8; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8 Tierstein, Al, Ph.D.; chief of pulmonary medicine, Mt. Sinai, New York; Feb., p. 10 Tobia, Anna, Ph.D., psychologist; Philadelphia. Feb., p. 8 Todd, Lori, Ph.D.; industrial hygiene, Chapel Hill, N.C.; July, Vol. 3, p. 9 Trailor, Rebecca, M.D., pulmonologist, Austin, Texas. Apr. Vol. 4, p. 10 Mark J. Utell, M.D., an environmental pathologist, Rochester, N.Y.; Nov., Vol. 5, p. 13 Eric Vallieres, M.D., thoarcic surgeon; Nov., Vol. 5, p. 8 Vance, R. Leonard, Ph.D. industrial hygienist, Richmond, Va. Mar. Vol. 4 No. 5 p. 8 Ward, John, Ph.D.; economist, Prairie Village, Kan.; April, p. 8 Wilson, David, M.D., pulmonologist, Pittsburgh; Sept., p. 10 Zimmet, Stephen, M.D.; pathologist, Arlington, Va.; April, p. 8; Oct., Vol. 3, p. 6 Defense Experts Abrino, Donald; NARCO corporate representative; Jan., Vol. 2, p. 9 Akers, Stephen, M.D.; pulmonologist, Philadelphia; May, p. 10 Argento, Victorrio, Ph.D.; industrial hygienist, Austin, Texas; Jan., p. 11; July, Vol. 2, p. 9; Nov., p. 8 Ayer, Howard, C.I.H., industrial hygiene, Cincinnati; July, Vol. 4, p. 8 Balzer, J. Leroy, Ph.D.; industrial hygienist, state of the art, San Francisco; April, p. 9; Aug., p. 12; Jan., Vol. 2., p. 9; May. Vol. 3, p. 8; June, Vol. 3, p. 6; July, Vol. 3, p ASBESTOS JANUARY 2005

37 EXPERT WITNESS BANK Barrett, Peter, M.D.; radiologist, epidemiologist; Aug. p. 11; Nov., Vol. 3, p. 9; May, Vol. 3, p. 8; July, Vol. 3, p. 8; Oct., Vol. 4, p. 6 Birkner, Lawrence R.; industrial hygienist, Thousand Oaks, Calif.; May, p. 9; April, Vol. 2, p10; Aug., Vol. 2, p. 10 Blake, Charles; environmental consultant; Nov., Vol. 2, p. 8; Jan., Vol. 2, p. 8 Boelter, Frederick; certified industrial hygienist, Chicago; Dec., Vol. 2, p. 11; May, Vol. 3, p. 8 Feb., Vol. 4. p. 9, p. 10; May, Vol. 4, p. 8; Oct, Vol 4, p. 6 Breale, William, M.D.; cardiologist, San Francisco; Aug., p. 12; Dec., Vol. 3, p. Buccigross, Henry; engineer, Cambridge, Mass.; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10; July, Vol. 3, p. 9; Oct., Vol. 4, p. 6 Cadman, Edward, M.D., oncologist, Honolulu, Hawaii; Apr. Vol. 4, p. 8 Cagle, Phillip, M.D.; pathologist, Houston; Premier, p. 11; Sept., p. 12; July, Vol. 2, p. 11 Case, Bruce W., M.D.; pathologist, Montreal; April, p. 8; May, p. 9; Aug., p. 12; Oct., Vol. 2, p. 10 Castle, James R., M.D.; pulmonologist, Roanoke, Va.; Dec., Vol. 3, p. 10, Mar. Vol. 4, p. 8 Chatfield, Eric, M.D.; materials analyst, Ontario, Canada; May, p. 9 Churg, Andrew, M.D.; pathologist, Vancouver, British Columbia; April, p. 8; March, Vol. 2, p. 10; Nov., Vol.5, p. 8 Cohen, Joel, industrial hygiene, San Mateo, Calif.; Aug., p. 12 Cook, Ewing, M.D.; pulmonologist, New Orleans; Nov., Vol. 2, p. 8 Corn, Morton, Ph.D.; industrial hygienist; Jan., Vol. 2, p. 9; April, Vol. 2, p. 11; Aug., Vol. 3, p. 8 Craighead, John, M.D.; pathologist, Burlington, Vt.; Jan., p. 11; March, p. 12; Sept., p. 10; Jan., Vol. 2, p. 8, 9; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10; July, Vol. 3, p. 9; Apr. Vol. 4 p. 10 Crapo, James, M.D.; pulmonologist, Denver; Jan., p. 11; March, p. 12; May, p. 9; Aug., p. 12; March, Vol. 2, p. 10; Nov., Vol. 2, p. 9; May, Vol. 3, p. 8; Aug., Vol. 3, p. 8; Oct., Vol. 3, p. 7; Apr. Vol. 4, p. 8.; Nov., Vol. 5, p. 8 Cushing, Charles, Ph.D., naval architect, N.Y.; Dec., Vol. 5, p. 8 Davis, Stephen, C.I.H., industrial hygiene, Malibu, Calif.; July, Vol. 4, p. 8 DeLaney, James; state of the art, Hawaii; Oct., Vol. 3, p. 6; Nov., Vol. 5, p. 8 Delgaldo, Gustavo, Ph.D.; cellular/lab analysis, Hayward, Calif.; July, Vol. 4, p. 8 Donaldson, Scott, M.D.; pulmonologist, Dallas; Nov., Vol. 2, p. 9 Drucker, Marjorie, CIH; industrial hygiene; Nov., Vol. 2, p. 10 Dyson, William, Ph.D.; industrial hygiene, Greensboro, N.C.; April, p. 9; May, p. 9; July, Vol. 2, p. 11; April, Vol. 3, p. 8; May, Vol. 3, p. 8; Apr. Vol. 4, p. 8; June, Vol. 4, p. 7, 8; July, Vol. 4, p. 9 Dr. Fred Dunbar, economist, N.Y.; Nov., Vol. 5, p. 8 Eagar, Thomas, Ph.D.; engineering, Cambridge, Mass.; July, Vol. 3, p. 9 Epstein, Paul, M.D.; pulmonologist, Philadelphia; May, p. 10; June p. 13; Dec., Vol. 3, p. 6 Feingold, Allan, M.D.; pulmonologist, Miami; Feb., p. 9; May, p. 9; Aug. p. 10; 36 HARRIS M ARTIN COLUMNS Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p. 11; April, Vol. 2, p. 11; July, Vol. 2, p. 12; Aug., Vol. 2, p. 11; Nov., Vol. 3, p. 9; Dec., Vol. 3, p. 8; April, Vol. 3, p. 8; July, Vol. 3, p. 8, 9; Oct., Vol. 3, p. 7 Feb, Vol. 4 p. 10; Apr. Vol. 4 p. 9; May, Vol. 4, p. 8; June, Vol. 4, p. 7; July, Vol. 4, p. 9; Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8 Fiel, Stanley, M.D.; pulmonologist, Philadelphia; Dec., Vol. 2, p. 11; Aug., Vol. 2, p. 10; Oct., Vol. 2, p. 11; Dec., Vol. 3, p. 9; Nov., Vol. 5, p. 13 Fino, Gregory, M.D.; pulmonologist, Pittsburgh; Sept., p. 10; July, Vol. 3, p. 8 Melvin First, Sc.D., CIH, industrial hygienist, Boston; Nov., Vol. 5, p. 9 Fowler, Douglas, Ph.D.; industrial hygienist, Redwood City, Calif.; Sept., p. 11; Aug., Vol. 3, p. 8; Oct., Vol. 3, p. 6 Fraser, Robert, M.D.; radiologist, Birmingham, Ala.; Nov., Vol. 2, p. 8 Carl Fuhrman, M.D., radiologist, Pittsburgh; Nov., Vol. 5, p. 9 Gee, Bernard M.D., pulmonologist New Haven, Conn. Apr. Vol. 4 p. 8 Gibbs, Allen, M.D.; pathologist, Cardiff, Wales; May, Vol. 3, p. 8; Nov., Vol. 5, p. 8 Godwin, David, M.D.; radiologist, Seattle; May, p. 10; June, p. 9; June, Vol. 3, p. 7 Goodman, Michael, M.D.; epidemiologist, Davis, Calif., Aug., p. 12 Graham, Michael, M.D.; pathologist, St. Louis; April, p. 8; Aug., Vol. 3, p. 8 Hammond, James, Ph.D., industrial hygiene, deceased; May, Vol. 4, p. 8 Hinshaw, H. Corwin, M.D.; state of the art expert, San Francisco; March, p. 11; April, Vol. 2, p. 10

38 EXPERT WITNESS BANK Howard, Thomas, M.D.; pathologist, Ocala, Fla.; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8; Oct., Vol. 3, p. 7; July, Vol. 4, p. 8; Nov. Vol. 5, p. 8 Hughson, William G., M.D.; occupational medicine, pulmonologist, San Diego; April, p. 10; June, p. 9; Nov., Vol. 2, pp. 9, 10; Feb., Vol. 2, p. 8; April, Vol. 2, p. 12; July, Vol. 2, p. 10; Dec., Vol. 3, p. 8; Aug., Vol. 3, p. 9; Dec., Vol. 3, p. 6.; Apr. Vol. 4, p. 9; June, Vol. 4, p. 7, 8; Nov., Vol. 5, p. 8 Jackaki, Edwin; vice president of U.S. Gypsum, Chicago; March, p. 11 Jenkins, Doug, M.D.; pulmonologist, San Antonio; Nov., Vol. 2, p. 9 Johnston, Alan; air sampling/industrial hygiene; Nov., Vol. 2, p. 11; Sept., Vol. 2, p. 13 Jones, Kathy, industrial hygienist, Los Angeles. Apr. Vol. 4, p. 8 Jones, Robert N., M.D.; pulmonologist, New Orleans; Nov., Vol. 2, p. 8; Sept., Vol. 2, p. 13 Kaplan, Peter, M.D., pulmonologist, Pittsburgh; Sept., p. 10 Killian, Louis; Quigley corporate representative; Nov, Vol. 3, p. 8 Krebs, William, Ph.D.; industrial hygienist, Grosse Pointe Park, Mich.; April, p. 8; Apr. Vol. 4 p. 10 Larson, Bruce; industrial hygiene, Paulsboro, N.J.; May, Vol. 4, p. 8 Levine, Gerald B., M.D.; pulmonologist, San Francisco; Dec., Vol. 3, p. 9 Levitov, Alexander B., M.D., internal medicine, St. Paul, Minn.; July, Vol. 3, p. 10 Liukonen, Larry, CIH; industrial hygiene, Baltimore; Dec., Vol. 3, p. 9; Dec., Vol. 3, p. 6 Feb. Vol. 4 p. 10; May, Vol. 4, p. 8; Oct., Vol. 4, p. 6 MacDonald, Charles, M.D.; San Francisco; June, p. 9 John Maddox, M.D.; pathologist; Newport News, Va; Oct., Vol. 4, p. 6 Malzahn, Del, M.S.; industrial hygiene, Detroit; June, Vol. 4, p. 7 Mangold, Carl, CIH; industrial hygiene, Bellevue, Wash.; Dec., Vol. 3, p. 9: March, Vol. 3, p. 11, Feb. Vol. 4, p. 10; Nov., Vol. 5, p. 8 Theodore R. Marmor, a Professor of Public Policy and Management and Political Science at the Yale School of Management in New Haven, Conn.; Nov., Vol. 5, p. 8 Mattison, Michael, Ph.D.; chemical engineer, Atlanta; Aug., p. 12; Feb. Vol. 2, p. 8; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10; July, Vol. 3, p. 9; Oct., Vol. 4, p. 6 Meyers, Gerald, M.D.; pulmonologist, Berkeley, Calif.; April, p. 10; June, p. 9; Aug., p. 12; April, Vol. 2, p.12; Oct., Vol. 4, p. 6 Mizel, David; paper expert, Argento, Md.; Oct., Vol. 3, p. 6 Morgan, Robert, M.D.; epidemiologist, Fort Lauderdale, Fla.; June, p. 9; Dec., p. 6; Oct., Vol. 4, p. 6 Morykon, John; Westinghouse Materials; April, Vol. 2, p. 10 Moscow, Norman, M.D.; radiologist, Berkeley, Calif.; Feb., p. 10; Aug., p. 12; Dec., Vol. 3, p. 9 Paustenbach, David, Ph.D., epidemiologist, San Francisco; Sept., Vol. 4, No. 11, p ASBESTOS JANUARY 2005 Peterson, Jack, Ph.D.; industrial hygiene, Berkeley, Calif.; July, Vol. 3, p. 10 Pope, Alan, M.D.; pulmonologist, Philadelphia; July, p. 11; Aug., p. 11, Feb. Vol. 4, p. 10 Raabe, Gerhard, D. Ph.; epidemiologist, New Hope, Pa.; May, Vol. 4, p. 8 Ramsey, Calvin, M.D.; general practitioner; Nov., Vol. 2, p. 8 Rabinovitz, Sheldon, Ph.D.; industrial hygienist, Feb., Vol. 2, p. 8; Dec., Vol. 3, p. 6. Rasmusson, James, Ph.D.; industrial hygienist, Wheat Ridge, Colo.; May, p. 10; June, p. 9; Aug., p. 12; July, Vol. 2, p. 10; Nov., Vol. 3, p. 8, 9; Dec., Vol. 3, p. 9 Reiter, John E., CIH, industrial hygiene, Menomonee Falls, Minn; July, Vol. 3, p. 10 Repsher, Lawrence, M.D.; pulmonologist, Wheat Ridge, Colo.; April, p. 8 Ringo, Donna; certified industrial hygienist, Louisville, Ky.; Dec., Vol. 2, p. 11; Oct., Vol. 2, p. 11; March, Vol. 3, p. 11; Nov., Vol. 5, p. 8 Ritter, John, M.D.; pathologist, St. Louis, Mo.; July, Vol. 3, p. 8 Roggli, Victor, M.D.; pathologist, Duke University; March, p. 12; April, p. 10; Feb., Vol. 2, p. 8; July, Vol. 2, p. 10; Aug., Vol. 2, p. 11; Dec., Vol. 3, p. 10; June, Vol. 3, p. 6; July, Vol. 3, p. 9; Oct., Vol. 3, p. 6; Oct., Vol. 3, p. 6 Rosenberger, David, M.D.; general medicine, Case Western Reserve University, Cleveland; Dec., Vol. 3, p. 10; July, Vol. 3, p. 8; Mar. Vol. 4 p. 8 Ross, Robert, M.D.; pulmonologist, Houston; March, p. 11; May, p. 8; March, Vol. 2, p. 10; May, Vol. 2, p. 10

39 EXPERT WITNESS BANK Rubin, Emanuel, M.D.; pathologist, Philadelphia; Aug. p. 11 Sawyer, Robert, M.D.; pulmonologist, Charlottesville, Va.; April, Vol. 2, p10; Dec., Vol. 3, p. 9; March, Vol. 3, p. 11; Dec., Vol. 3, p. 6. Feb., Vol. 4, p. 9; Nov., Vol. 5, p. 8 Schauble, Thomas, M.D.; pulmonologist, Pittsburgh; Sept., p. 10 Schwarting, Roland, M.D.; pathologist, Jefferson Medical College, Philadelphia; July, p. 11 Sheibani, Khalil, M.D.; pathologist, Orange County, Calif.; Premier, p. 10; April, Vol. 2, p. 12; Apr. Vol. 4, p. 8 Sider, Lee, M.D.; radiologist, New York; July, Vol. 4, p. 9 Silloway, Capt. Richard; U.S. Navy; April, Vol. 2, p. 12 Smith, Dorsett, M.D.; pulmonologist, Everett, Wash.; May, p. 10 Dr. Alexander Spears, expert in cigarette filter design and testing; Nov., Vol. 5, p. 9 Spencer, John, CIH; industrial hygiene; Nov., Vol. 2, p. 9; Dec., Vol. 2, p. 11; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9; Nov., Vol. 5, p. 13 Spielman, Howard; industrial hygienist; May, p. 8; Dec., Vol. 3, p. 8; Dec., Vol. 5, p. 8 Stockman, Gail, M.D.; pulmonary physician, Longview, Texas; Premier, p. 11; Apr. Vol. 4, p. 10 Thomas, Thomas C. Ph.D. economist. Mountain View, Calif.; Apr. Vol. 4, p. 9 Truong, Luan, M.D.; pathologist, Houston; June, Vol. 3, p. 6 Udinsky, Gerald, Ph.D.; economist, Berkeley, Calif.; April, p. 8; April, Vol. 2, p. 12 Van Orden, Drew; lab analysis, Pasco, Wash.; July, Vol. 4, p. 8 Walker, Alexander, M.D.; Ph.D., epidemiologist, Boston; March, Vol. 2, p. 10 Warhol, Michael J., M.D;, pathologist, Philadelphia; June, Vol. 3, p. 6 Warren, Thomas; president and CEO of Flexitallic, Inc., Philadelphia; March, p. 11 Weaver, Charles A., Ph.D., memory expert, Waco, Texas; June, Vol. 4, p. 7, 8 Weaver, Neil, M.D.; occupational medicine specialist, Arlington, Va.; May, Vol. 4, p. 8 Weg, John, M.D.; state of the art, University of Michigan; Dec., p. 9 Weiner, David, economist; Dec., Vol. 5, p. 8 Weir, Francis, Ph.D.; CIH, industrial hygienist, Houston; April, p. 9; Aug., p. 12; Nov., Vol. 2, p. 9; March, Vol. 2, p. 10 Wick, Mark, M.D.; pathologist, St. Louis; Dec., p. 9 Wong, Otto, M.D.; epidemiologist, Calif.; April, p. 10 Yarborough, Charles, M.D., M.P.H., pathologist, New York; June, Vol. 4, p. 7 Toca, Frederick, Ph.D.; state of the art and industrial hygiene, Princeton, N.J.; March, p. 11; May, p. 9; Aug. p. 11, 12; Feb., Vol. 2, p. 8; Aug., Vol. 2, p HARRIS M ARTIN COLUMNS

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63 Yes! REGISTRATION FORM Register me for your Vioxx Litigation Conference, February 10-11, 2005, at the Four Seasons Hotel, Philadelphia, PA, as follows: Individual Registration: $950 Additional Registration from same firm: $850 Please use a separate Registration Form for each person attending. Registrations will be confirmed within 24 hours via . Please provide address below. Name (print) Title Firm/Company Street City State Zip HOTEL RESERVATIONS Four Seasons Hotel One Logan Square Philadelphia, PA Toll-Free: Tel.: Fax: To reserve a room at the HarrisMartin discounted rate of $230 plus tax for a single or double, please call the hotel and identify yourself as an attendee to the HarrisMartin Conference. To guarantee availability and the special rate, reservations must be made by January 10, After that date our reserved block is released for general sale and rates and availability cannot be guaranteed. Phone Fax Amount Paid Check enclosed (Payable to HarrisMartin Publishing) IMPORTANT! Credit Card: Visa MasterCard Amex Discover State(s) requested for CLE credit: Card # Exp. Date Name on Card Signature Payment must be received by the start of the conference on February 10, Registration cannot be confirmed until payment is received; however, on-site registrations will be accepted. Mail to: HarrisMartin Publishing, 920 Cassatt Road, Suite 210, Berwyn, PA You may also register by phone at , or online at. Thursday February 10, :00 a.m. 8:30 a.m. Continental Breakfast & Registration 8:30 a.m. 9:00 a.m. Welcome and Introduction Sol Weiss, Conference Chair 9:00 a.m. 10:30 a.m. Session: Update on the Litigation Christopher Seeger of Seeger Weiss, New York, NY Andy D. Birchfield of Beasley, Allen, Crow, Methvin, Portis & Miles, Montgomery, AL Carlene Rhodes Lewis of Goforth Lewis Sanford, Houston, TX 10:30 a.m. 10:45 a.m. Refreshment Break David Jacoby of Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley, Philadelphia, PA Ann Ritter of Motley Rice, Mt. Pleasant, SC 3:15 p.m. 3:30 p.m. Refreshment Break 3:30 p.m. 5:00 p.m. Session: Medical Roundtable John E. Markis, M.D., Harvard Medical School, Boston, MA Eric H. Weinberg of Wilentz, Goldman and Spitzer, New Brunswick, NJ *Garrett FitzGerald, M.D., Department of Pharmacology, University of Pennsylvania School of Medicine, Philadelphia, PA *Curt Furberg, M.D., Wake Forest University Medical School, Winston-Salem, NC (*) Invited Speakers, to be confirmed. REGISTRATION FEES Registration fees include admission to all sessions, two continental breakfasts, Thursday luncheon, refreshment breaks, a networking cocktail reception Thursday evening and all course materials. Individual registrations are $950. Additional registrations from the same firm, made at the same time, are $850 each. Note: Registration cannot be confirmed until payment is received. CANCELLATION POLICY Full tuition refund minus a $50 cancellation fee will be made upon request provided it is before January 10, No refunds will be issued after January 10, A person canceling after that date may apply the registration fee, minus the $50 cancellation fee, toward a HarrisMartin subscription or future conference. Substitutions may be made at any time. 9:00 a.m. 9:45 a.m. Session: Impact of Direct-to-Consumer Advertising Christopher M. Placitella of Wilentz, Goldman & Spitzer, New Brunswick, NJ 9:45 a.m. 10:00 a.m. Refreshment Break 10:00 a.m. 12:00 noon Session: How to Prepare and Try a Vioxx Case Thomas R. Kline of Kline & Specter, Philadelphia, PA Sol Weiss of Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley, Philadelphia, PA Edward F. Blizzard of Blizzard, McCarthy & Nabers, Houston, TX 10:45 a.m. 12:15 p.m. Session: Background for History of Acute Heart Attacks and Ischemic Strokes Barry Hill of Hill Toriseva & Williams, Wheeling, WV David Lenrow, M.D., Hospital of the University of Pennsylvania, Philadelphia, PA 12:15 p.m. 1:30 p.m. Lunch 1:30 p.m. 3:15 p.m. Session: Liability Theories David R. Buchanan of Seeger Weiss, New York, NY 5:00 p.m. 7:00 p.m. Networking Cocktail Reception Friday February 11, :00 a.m. 8:00 a.m. Continental Breakfast 8:00 a.m. 9:00 a.m. Session: Case Selection Criteria Steven G. Wigrizer of Wapner, Newman, Wigrizer & Brecher, Philadelphia, PA Troy Rafferty of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, Pensacola, FL 12:00 noon Adjourn Photo courtesy of the Philadelphia Convention and Visitors Bureau.

64 VIOXX LITIGATION CONFERENCE COMING TO PHILADELPHIA Save the date! HarrisMartin s VIOXX Litigation Conference February 10-11, 2005 Four Seasons Hotel Philadelphia, PA Make plans now to join us for this in-depth look at Vioxx litigation and where it s headed. To register, mail or fax the completed Registration Form (left) or sign up online at Merck & Co. pulled Vioxx off the market because data from a clinical trial found an increased risk of heart attack and stroke. The increased risk of heart attack and other cardiovascular complications began 18 months after patients started taking Vioxx. To get a handle on the legal and medical ramifications resulting from Merck s decision to pull Vioxx from the market, please join us at our Vioxx Litigation Conference in Philadelphia at the Four Seasons Hotel Feb , You ll get an overview of the current status of Vioxx cases. You ll learn the pharmacology of Vioxx, how it causes heart attacks and strokes and if it s different from other Cox- 2 Inhibitors. You ll learn the impact of direct-to-consumer advertising. You ll be given a review of the clinical studies, hear discussions on liability theories, warnings issues and causation arguments. And you ll learn how to prepare and try a Vioxx case. Our Conference Chair is Sol Weiss, Esq., of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley in Philadelphia. To register or for more information, call HarrisMartin s Conference Department at

65 PERSPECTIVES A Fresh Look at Old Practices: The Changing Face of Mass Tort Claim Continued from Page 5 The Court addressed other Georgia cases in which asbestos cases were permitted to remain joined and rejected the argument that allowing such claims to remain joined promotes judicial economy. The Court noted the burden placed on the Court and the clerk s office by such filings and quoted Howard Motor Co. v. Swint, 448 S.E.2d 713 (Ga. App. 1994): if joinder is not authorized by the plain language of the statute, no amount of judicial economy can justify it. Accordingly, the Court severed the claims as unrelated actions to be established by separate case numbers. The Court ordered that plaintiffs who wished to proceed with their claims must file a Restated Complaint which specifically named the defendant(s) alleged to have injured the plaintiff within 30 days. Any Restated Complaints not refiled within the 30-day period would be dismissed with prejudice. Sidney S. Chancellor & John L. Parker v. Air Liquide America Corp., et al., in the United States District Court for the Northern District of Alabama, Case No. CV-04-BE-2554-S. This action originated in the Circuit Court of Jefferson County, Alabama, with three plaintiffs claiming products liability, negligence, and fraud for silica exposure against approximately one hundred defendants. The Court dismissed the case without prejudice pursuant to Alabama Rule of Civil Procedure 41, with two requirements: (1) that, if any of the plaintiffs were to re-file their claims at any time, their claims were to be filed in the Circuit Court of Jefferson County and assigned to the same judge; and (2) plaintiffs must provide defendants with the social security numbers, addresses, dates of birth, employers, and positions held at the worksites where plaintiffs claimed silica exposure within seven days of entry of the Order. Though the stricter enforcement of pleading and joinder requirements may in some respects result in an increased burden in prosecuting and defending asbestos/silica exposure actions, all sides of the mass tort claim equation may benefit. The action took a different turn when it was re-filed in the U.S. District Court for the Northern District of Alabama. The Court, sua sponte, entered an Order dismissing the case without prejudice on Oct. 8, The Court concluded that the Complaint did not meet the requirement of a short and plain statement of the claim showing that the pleader is entitled to relief. 3 According to the Court, neither it nor the defendants were able, from the allegations in the Complaint, to surmise what each defendant allegedly did to injure the plaintiffs and when, where, and how. Were defendants to answer this Complaint, said the Court, they would have to answer with abandon, pleading each conceivable affirmative defense, while taking the risk of inadvertently omitting the one defense that would relate to an as-yet-unknown specific claim against them. The Court also found that that the Complaint contained other inadequacies, including failure to plead fraud with particularity, failure to name spouses while bringing claims for loss of consortium, and failing to allege facts showing that, if the spouses were named as plaintiffs, the court would have jurisdiction on the basis of diversity. 64 COLUMNS The Court, citing its duty to dispose of shotgun complaints at the earliest opportunity, 4 encouraged plaintiffs to be mindful of the Eleventh Circuit s position when refiling their claims: [i]f use of an abusive tactic is deliberate and actually impedes the orderly litigation of the case, to-wit: obstructs justice, the perpetrator could be cited for criminal contempt. 5 The Common Thread Silica or asbestos, state or federal court, strict liability or negligence, it does not change the fact that at least three courts have recently rejected so-called shotgun complaints in mass tort actions using analysis that has broad application. Whether by relying or statute or rule, caselaw or code, these decisions reflect the same basic premise: that mass-produced complaints lacking specific factual allegations will not withstand scrutiny on joinder grounds. Each court recognized that by: (1) multiple plaintiffs naming multiple defendants; (2) alleging that defendants caused plaintiffs to be exposed to a toxic tort in their role as premises owners, manufacturers, distributors, or installers of asbestos or silica products; and (3) contending that plaintiffs suffered some respiratory ailment, without designating which plaintiff suffered a particular ailment, joinder requirements cannot and will not be met. Certainly, the state and federal rules requiring plaintiffs to adduce a short and plain statement of the facts as to why the pleader is entitled to relief, as well as pleading certain claims with particularity requirements, factor into the courts decisions. However, it is joinder that is the prevailing theme in such decisions. In dismissing and/or severing such claims, the courts primary goal is to require plaintiffs to designate which defendants injured them, how and when they were injured, and which plaintiffs suffered a particular ailment. Then, the courts will be able to accurately discern whether these multiple plaintiff complaints demonstrate the requisite commonality to remain joined.

66 PERSPECTIVES The Potential Implications What, if anything, do these decisions mean for mass torts? Of course, it is highly unlikely that every jurisdiction will adopt such an approach to these types of complaints. Still, practitioners in Mississippi, Alabama, and Georgia may expect stricter enforcement of procedural rules governing pleadings when filing and defending mass tort claims. Discovery will not always be the viable option it once was in ascertaining the particulars of individual plaintiff s claims. Practitioners representing plaintiffs in silica or asbestos actions will be required to be ever-mindful of Rule 11 violations. Defense counsel, though now potentially armed with grounds to sever and/or dismiss multiple plaintiff mass tort actions, will not be able to rely upon blanket denials of allegations in plaintiffs complaint, assuming that the more specific pleading requirements are enforced. Though the stricter enforcement of pleading and joinder requirements may in some respects result in an increased burden in prosecuting and defending asbestos/silica exposure actions, all sides of the mass tort claim equation may benefit. Certainly, courts will be faced with less administrative burden where claims are culled in size to more specifically allege the facts upon which particular plaintiffs claims rest. Defendants would likely be named in fewer cases and be able to see a more realistic count of claims pending against them. Finally, if such claims are more specifically pled, there may be a greater likelihood that the parties are able to streamline some existing discovery procedures and work together to reach an appropriate resolution of such claims. Conclusion Practitioners in Mississippi, Alabama, and Georgia may expect stricter enforcement of procedural rules governing pleadings when filing and defending mass tort claims. Though certainly not a universal position, the Mississippi, Georgia, and Alabama courts recent decisions present a new challenge in asbestos and silica litigation. Pleading requirements, particularly joinder, will need to be at the forefront for counsel and for litigants. Whether stricter enforcement of pleading requirements will continue to be enforced and extended to other jurisdictions remains unseen at present. If it does, there would likely be more profound effects, yet the elastic and enduring nature of the litigation has repeatedly shown a remarkable ability to adapt to every change and continue to defy all predictions of its endpoint or extent. Endnotes 1 Miss. R. Civ. P. 20 states in pertinent part: (a) All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transaction or occurrences, and if any question of law or fact common to all these persons will arise in the action.(b) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or to make other orders to prevent delay or prejudice. 2 O.C.G.A is part of Georgia s Civil Practice Act and contains identical language to that in Mississippi Rule of Civil Procedure See Federal Rule of Civil Procedure 8(a); see also Hoshman v. Esso Standard Oil Co., 263 F.2d 499, 501 (5th Cir. 1959). 4 Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001) (discussing dangers of shotgun complaints, including obstruction of justice, the potential for extortion, and watering down the ability of the parties to litigate efficiently). 5 Id. at ASBESTOS JANUARY 2005 Asbestos Legislation in 2005 Continued from Page 3 teria bill would put close to 80 percent of the asbestos docket into a holding pattern, eliminating a huge financial drain or financial obligation on behalf of the defendants. For example, there are only two to four thousand mesothelioma cases a year in America. Not all of those cases find their way into the court system. As a result, the largest number of cases in the courts are asbestosis and pleural plaque cases. Estimates indicate that four out of five of those cases would probably fall into the category of unimpaired under a medical criteria bill. CONCLUSION Crystal ball gazing is hazardous for most anyone, especially when the subject matter is legislation from Washington, D.C. The state of asbestos legislation is very fluid and changes quite rapidly. Between drafting this article and its publication, the landscape could be different entirely. For that matter, between publication and the time your eyes read this article, the landscape could change dramatically. With such warnings in mind, this article is offered for purposes of helping people understand what seems to be a most likely scenario for future asbestos legislation. 1 Many view the use of the term unimpaired with this group as an unfair misnomer. Whether one is impaired, itself, is up to debate.

67 JOURNAL TOP TEN 1 TITLE: "Distinct DNA methylation profiles in malignant mesothelioma, lung adenocarcinoma, and non-tumor lung." SUMMARY: Malignant mesothelioma (MM), an aggressive cancer strongly associated with asbestos 1exposure, can be difficult to distinguish from adenocarcinoma of the lung when limited material is available. In an attempt to identify molecular markers for MM and adenocarcinoma, the authors of the study examined the DNA methylation status of 14 loci. The study reveals observations that support the strong potential of methylation markers as tools for accurate diagnosis of neoplasms in and around the lung. JOURNAL: Lung Cancer Feb;47(2): AUTHORS: Tsou JA, Shen LY, Siegmund KD, Long TI, Laird PW, Seneviratne CK, Koss MN, Pass HI, Hagen JA, Laird- Offringa IA. WEB SITE: 2 TITLE: "Asbestos induces tissue factor in Beas-2B human lung bronchial epithelial cells in vitro." SUMMARY: Asbestos has been implicated in the pathogenesis of interstitial lung diseases including asbestosis. Tissue factor (TF) initiates blood coagulation in vivo contributing to inflammation and tissue remodeling via extravascular fibrin deposition and signaling for profibrogenic mediators. The authors of the study hypothesized that asbestos could induce TF expression by lung epithelial cells. The results demonstrated that asbestos induces TF expression in lung epithelial cells in vitro, representing a newly recognized potential 2mechanism by which asbestos may modulate epithelial cell responses germane to lung remodeling. The mechanism involves alterations in steady-state TF mrna that do not involve posttranscriptional regulation, implicating control of TF gene expression at the transcriptional level through Sp1 or other transcription factors. JOURNAL: Lung. 2004;182(4): AUTHORS: Iakhiaev A, Pendurthi U, Idell S. WEB SITE: 3 TITLE: "Assessment of autoimmune responses associated with asbestos exposure in libby, Montana, USA." SUMMARY: According to the authors, systemic autoimmune responses are associated with certain environmental exposures, including crystalline particles such as silica. Positive antinuclear antibody (ANA) tests have been reported in small cohorts exposed to asbestos, but many questions remain regarding the prevalence, pattern, and significance of autoantibodies associated with asbestos exposures. The results of the study support the hypothesis that asbestos exposure is associated with autoimmune responses and suggests that a relationship exists between those responses and asbestos-related disease processes. JOURNAL: Environmental Health Perspectives Jan;113(1): WEB SITE: AUTHORS: Pfau JC, Sentissi JJ, Weller G, Putnam EA. 4 TITLE: "Mesothelioma pathogenesis, facts and expectations." SUMMARY: The author of this study went back to 1960 to find published data demonstrating a relationship between mesothelioma occurrence and exposure to asbestos fibres in the Cape Province, in South Africa. From that time, epidemiological and toxicological investigations were performed in order to better define the occupational and environ- 66 COLUMNS mental background of this pathology, to identify the fibre 4parameters accounting for the toxic effects, and to understand their mechanisms of action. Improvements in the knowledge in these areas benefited to health issues, by preventing risks associated with exposure to mineral fibres and by recognising the disease.while mesothelioma benefited to fibre toxicology and allowed to improve the management health related issue, the researcher concludes that it would be a just return if the present advances in different scientific areas will permit a rapid eradication of the disease. JOURNAL: Pathologie- Biologie (Paris) Jan;53(1):41-4. AUTHOR: Jaurand MC. WEB SITE: science/journal/ TITLE: "Proposed criteria for mixeddust pneumoconiosis: Definition, descriptions, and guidelines for pathologic diagnosis and clinical correlation." SUMMARY: The authors of the study defined mixed-dust pneumoconiosis (MDP) pathologically as a pneumoconiosis showing dust macules or mixed-dust fibrotic nodules (MDF), with or without silicotic nodules (SN), in an individual with a history of exposure to mixed dust. The definition also including that the latter arbitrarily was a mixture of crystalline silica and nonfibrous silicates. Typical occupations associated with the diagnosis of MDP include metal miners, 5 quarry workers, foundry workers, pottery and ceramics workers, and stonemasons. Irregular opacities are the major radiographic findings in MDP (ILO 1980), in contrast to silicosis, in which small rounded opacities predominate. Clinical symptoms of MDP are nonspecific. MDP must be distinguished from a variety of nonoccupational interstitial pulmonary disorders.

68 JOURNAL TOP TEN JOURNAL: Human Pathology Dec;35(12): AUTHORS: Honma K, Abraham JL, Chiyotani K, De Vuyst P, Dumortier P, Gibbs AR, Green FH, Hosoda Y, Iwai K, Williams WJ, Kohyama N, Ostiguy G, Roggli VL, Shida H, Taguchi O, Vallyathan V. WEB SITE: 6 6 TITLE:"Environmental and occupational health hazards associated with the presence of asbestos in brake linings and pads (1900 to present): A "state-of-the-art" review." SUMMARY: No abstract available JOURNAL: Journal of Toxicology and Environmental Health. Part B, Critical Reviews Nov-Dec;7(6):481-2 AUTHORS: Paskal SS. WEB SITE: TITLE: "Phase II trial of vinorelbine 7 and oxaliplatin as first-line therapy in malignant pleural mesothelioma" SUMMARY: The researchers note that the incidence of malignant pleural mesothelioma (MPM) is increasing. Treatment options are limited, although recently published data have offered cause for optimism. The quality of life assessed by Rotterdam symptom checklist 7was associated with stabilization or improvement of psychological well-being and lung symptoms in the majority of patients, but deterioration in physical symptoms. JOURNAL:: Lung Cancer Feb;47(2): AUTHORS: Fennell DA, C Steele JP, Shamash J, Sheaff MT, Evans MT, Goonewardene TI, Nystrom ML, Gower NH, Rudd RM. WEB SITE: 8 TITLE: "Primary malignant pericardial mesothelioma temporarily reduced by radiation therapy: a case report" SUMMARY: In this case study, a computed tomography, echocardiography, and magnetic resonance imaging showed a mass on the pericardium. Exploratory surgery revealed a solid tumor invading the pericardium over the aortic arch and main pulmonary artery. Histological examination indicated primary malignant pericardial mesothelioma. After 58 Gy radiation, the size of the tumor was temporarily reduced and the patient's symptoms disappeared. However, the tumor enlarged and her symptoms reappeared 7 months after temporary improvement. Eighteen months after the development of cough, the patient died suddenly JOURNAL: The American Journal of Cardiology Dec;44(6): AUTHORS: Tsuda T, Nakata T, Inoue T, Kamishirado H, Sakuma M, Tohara S, Takayanagi K, Hayashi T, Morooka S. WEB SITE: 9 TITLE: "Abdominal computed tomography scans in the selection of patients with malignant peritoneal mesothelioma for comprehensive treatment with cytoreductive surgery and perioperative intraperitoneal chemotherapy." SUMMARY: Until recently, the treatment options for malignant peritoneal mesothelioma were very limited and ineffective, according to the authors. The new comprehensive approach of cytoreductive surgery 67 ASBESTOS JANUARY 2005 with perioperative intraperitoneal chemotherapy offers improved survival rates at a cost of considerable 9morbidity and mortality as in other peritoneal surface malignancies. Because adequate cytoreduction is necessary to achieve prolonged survival, CT scans became an accurate prognostic radiologic test for patient selection for comprehensive treatment. JOURNAL: Cancer Jan 6; [Epub ahead of print] AUTHORS: Yan TD, Haveric N, Carmignani CP, Chang D, Sugarbaker PH. WEB SITE: : 10 TITLE: "Statistical validation of the EORTC prognostic model for malignant pleural mesothelioma based on three consecutive phase II trials." SUMMARY: Malignant pleural mesothelioma (MPM) carries a poor prognosis due to chemoresistance. The European Organisation for Research and Treatment of Cancer (EORTC) prognostic model was reported to predict survival in MPM. This study validates the EPS system as a robust tool for stratifying small trials into low- and high-risk subgroups. EPS should facilitate patient selection and analysis in randomized clinical trials. JOURNAL: American Journal of Clinical Oncology Jan 1;23(1): AUTHORS: Fennell DA, Parmar A, Shamash J, Evans MT, Sheaff MT, Sylvester R, Dhaliwal K, Gower N, Steele J, Rudd R. WEB SITE:

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