IADC MID-YEAR MEETING MAUI, HAWAII PRESENTATION JULY 8, 2013

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1 IADC MID-YEAR MEETING MAUI, HAWAII PRESENTATION JULY 8, 2013 JOINT MEETING OF PRODUCTS, INTERNATIONAL, TOXIC AND HAZARDOUS SUBSTANCES, AND CLASS ACTIONS AND MULTI-PARTY LITIGATION COMMITTEES FROM AMOSITE TO NANOTECHNOLOGIES HOW ASBESTOS HAS SHAPED LITIGATION ON DANGEROUS SUBSTANCES NEVA G. LUSK SPILMAN THOMAS & BATTLE, PLLC CHARLESTON, WEST VIRGINIA Asbestos litigation management was an experiment that failed. Thirty or more years ago, trial judges saw their dockets being clogged with asbestos cases and believed that asbestos litigation would end if they created a streamlined manner of dealing with the litigation. So, they ordered plaintiffless, product defect-only trials with punitive damages multipliers and severely limited plaintiff-specific discovery. They refused or, due to volume, were unable to rule on motions in limine and dispositive motions. They demanded that defendants settle rather than try cases. The trial judges created a litigation atmosphere, particularly by threatening that the punitive damages multiplier set by a product defect jury would apply to all individual plaintiffs cases, which made the risk of trying cases too great to bear. However, this management did not end asbestos litigation; this management fueled more asbestos litigation. Plaintiffs lawyers with no trial experience became claims managers who left the trial advocacy work-up to a few asbestos plaintiffs lawyers who were capable of trying a case and rode those coattails to the inevitable settlement. Thus, these claims manager plaintiffs lawyers collected, and continue to collect, settlement after settlement without doing any real lawyering. What a great gig. These lawyers created data bases of asbestos plaintiffs and use those data bases to send letters advertising every new product or toxic tort on the horizon. Plaintiffs just sign up and do not have to do anything except collect a check at the end of the day. And, the claims manager lawyers in new product and multi-plaintiff litigation use the same method for gaining settlement dollars convince the trial judge that streamlined management akin to the asbestos model will lead to more cost effective litigation, ride the coattails of the trial lawyers who do the work, settle on the courthouse steps without doing any real work and pocket big contingent fees. Then go onto the next product or toxic tort du jour. What else did not work about the asbestos model?

2 Page 2 Plaintiffs file complaints naming dozens of defendants without making any attempt to identify particular products or the defendants who are proper parties. In each case in which there are defendants that are not proper parties, those defendants must participate in discovery for months or years before reaching a point when a dispositive motion is ripe. At that point, due to lack of product identification, most plaintiffs will voluntarily dismiss the improper party, but that defendant has spent thousands of dollars defending a case in which it should not have been named. This practice is exacerbated in complaints wherein there are dozens of plaintiffs who make no specific allegation against any defendant, and dozens of defendants who have no idea which plaintiffs have a claim against them. In other litigation, this lack of investigation prior to filing a complaint with no good faith basis for naming a particular defendant and a we ll sort it out later attitude would be sanctionable. However, in asbestos litigation, the burden is essentially shifted to the defendants to prove to the plaintiffs that they should not be named and to seek voluntary dismissal after discovery. Plaintiffs have no accountability for doing product identification research prior to filing their complaints. Litigation management orders that mirror asbestos orders often get out in front of science. Remember the breast implant litigation? Connie Chung scared the women of America who had silicone breast implants. But, there was no science to support her scare. Breast implant manufacturers were sued millions of times and eventually settled their claims. At the end of the day, the National Science Panel found no association between silicone breast implants and connective tissue disease and silicone implants are marketed today. But before the National Science Panel report was released, millions of dollars were spent defending and settling the claims. Asbestos litigation has created a class of lesser-proven causation claims not for mesothelioma, but for lung cancer and other cancer-related diseases. Many asbestos lung cancer claimants are life-long smokers, yet the lack of plaintiff-specific discovery hampers defendants from attacking causation of plaintiffs diseases. What can we do to keep our clients litigation from becoming the next asbestos litigation?

3 Page 3 If the product or toxic tort is an emerging tort, the defendant must vigorously defend the litigation to deflect being the next asbestos. This means spending the money necessary to ward off plaintiffs. It may mean conducting an epidemiology study. We must attack causation with plaintiffs lack of science. We need to be aggressive in discovery, particularly of individual plaintiffs medical history. We must hire the best experts available, and it is imperative that we try a case and win. Plaintiffs lawyers who are seeking the next asbestos want to settle cases. They do not want to try cases. An early trial win for the defense is of utmost importance. An early trial win often dissuades plaintiffs counsel from filing additional law suits and also places the defendants in a position to settle favorably. We must insist that product identification be provided before any other discovery is conducted. There is no reason that plaintiffs counsel cannot gather plaintiffs pharmaceutical records or other medical records, or show their clients the same product identification notebook that is used in depositions and narrow the list of defendants to the proper parties. Many judges will agree to this critical first step which saves the defendants precious resources. Early product identification discovery also will clear the path to removal to United Stated District Court in cases in which a diversity-defeating defendant is not a proper party based upon lack of product identification. Consider seeking a Lone Pine order 1 in which plaintiffs must show the identity of the manufacturer that caused their alleged injury, the specific disease, illness, or injury caused by the substance, and a causal link between exposure to the substance and the plaintiff s injury. Some Line Pine orders may require each plaintiff to provide the amount of substance to which plaintiff was exposed, expert opinions excluding other causes and dates of exposure. If the plaintiff cannot provide identity, causation and injury, the court should dismiss plaintiff s case without extensive discovery and expense to the defendants. If causation is the main trial issue, we might consider entering into a joint defense agreement so that energy is spent defending causation instead of finger-pointing among 1 Lore v. Lone Pine Corp., L , 1986 WL (N.J. Super. Ct. Law Div. Nov. 18, 1986).

4 Page 4 defendants. I have seen this work very successfully. After the verdict or settlement, the defendants are free, pursuant to their agreement, to litigate among themselves. If damages are the main issue, we can attempt to secure an order in which damages discovery is conducted before product defect or liability discovery. Attempt to pull the claims manager plaintiffs lawyers into a more working role one in which they are not capable or comfortable because they do not want to try cases. And, if they are pushed onto the front line, they have to engage another law firm to act as trial counsel and give up part of their fees to trial counsel. This may provide an opportunity for early, more favorable settlement. Silica litigation is another example of a mass tort that tried to emulate asbestos, but through investigation by the defendants, thousands of silica plaintiffs were uncovered who had filed and settled asbestos claims and then were trying to use the same x-rays to advance silicosis cases. The defendants discovered that plaintiffs expert, Dr. Ray Harron, had read the same plaintiffs x-rays sometimes finding the impossible that plaintiffs each had silicosis and asbestosis. The thorough investigation of the defendants uncovered the fraud and resulted in silica litigation nearly dying. In medical monitoring matters, mass plaintiffs seek to require defendants to fund the medical monitoring of asymptomatic plaintiffs and then, when a plaintiff receives a diagnosis based upon medical monitoring funded by the defendant, plaintiff files a personal injury law suit against the defendant. Thus, medical monitoring funds often shift the cost of medical testing from plaintiffs and plaintiffs counsel to the defendants. When a plaintiff seeks medical monitoring, he must prove that he was exposed to a substance that is known to cause a particular disease and that plaintiff is at greater risk of developing the disease than the general public. Also, medical monitoring plaintiffs must be asymptomatic. If a plaintiff already has been diagnosed with the disease, that plaintiff needs to be medically managed, not medically monitored, and should not be a medical monitoring plaintiff. The exposure factors are different for individual plaintiffs and may lead to the defendants being able to avoid a mass trial format. Asbestos case management has created a plethora of problems for other products, toxic tort and multi-party litigation. We must be diligent to distance our new cases from the asbestos

5 Page 5 model. Our mantra must be, This is not asbestos. When the defendants suggest by proposed orders or otherwise that the litigation is too big to handle or cannot be handled on a case-by-case and plaintiff-by-plaintiff basis, the defendants essentially are asking that the litigation be treated like asbestos. No other litigation should follow in the footsteps of asbestos litigation.

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