1 The Lack of Transparency in Asbestos Litigation Paper: Janice Robinson Pennington San Diego, California Presentation: Brian Weinstein, Esq. Weinstein Couture PLLC Seattle, Washington
2 BASF Catalysts, LLC, (Engelhard) produced talc used in a number of industrial applications. Georgia Pacific, LLC made asbestos containing joint compound. Crane Co. manufactured asbestos-containing valves and pumps for use in U.S. Navy vessels.
3 BASF Catalysts, LLC, (Engelhard) produced asbestos contaminated talc used in a number of industrial applications.
4 The Lock on Truth 1979 BASF (Engelhard) sued in mesothelioma case 1983 Lab Director Hemstock admits asbestos in talc during deposition Cahill, Gordon and BASF lawyers defend deposition Case settles BASF Demands CONFIDENTIALITY
5 The 27-Year Lack of Transparency BASF General Counsel orders Hemstock to gather all talc related documents including Hemstock s Depostion and & Warehouse them.
7 Create Sham Ashton Affidavit Talc Asbestos Free BASF lawyers use Sham Affidavit to dismiss 1000 s of lawsuits
11 The Train Wreck 2009 Former BASF chemist s daughter gets mesothelioma from visiting dad at work and asbestos he brought home on his clothes Research round-up revealed
12 Chemist testifies that tests he had performed on talc revealed it had asbestos Chemist exposed Hemstock s directions to sequester and remove all documents concerning the BASF talc product
15 Question: You have in front of you an affidavit filed by a Mr. William Ashton. Have you ever seen that before? Answer: I believe so. Question: This is dated May 8th, Correct? Answer Yes.
16 Question: Okay. And this affidavit was used by the lawyers for Engelhard/BASF to convince people to dismiss their cases because there was no evidence of asbestos in your talc. Correct? Answer: I believe this was part of the documentation that was submitted.
17 Question: Page 2 of the affidavit says, "From the 1940s through the 1980s, talc mined in Vermont and specifically, the talc mined by Engelhard Corporation (and its predecessors) from the talc mine located in Johnson, Vermont (the 'Johnson' mine) has been considered to be talc free from contamination by asbestos." Correct? Answer: That's what the document says.
18 Question: That's not true though, is it? Question: I can only read what the document says
19 Question: Based upon everything we've gone through this afternoon and all the tests that you conducted internally, is this a true statement, that it's "free from contamination by asbestos"? Answer: There were tests that showed there was contamination by asbestos.
20 20 +years of lying by an industry demanding plaintiffs be more transparent
22 Georgia Pacific, LLC made asbestos containing joint compound until 1977 containing chrysotile asbestos In 2005 GP funds studies to aid in defense of asbestos related lawsuits which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer.
23 To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of his in-house counsel, who also was significantly involved in the prepublication review process.
24 Holmes co-authored nearly all of the studies. On the two articles he did not co-author, he and GP s counsel participated in lengthy WebEx conferences in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP s in-house counsel had reviewed the manuscripts before they were submitted for publication.
25 Two articles falsely stated that GP did not participate in the design of the study, analysis of the data, or presentation of the manuscript.
26 For articles lead authored by David Bernstein, Ph.D., and co-authored by Holm, the only disclosure was that the research was sponsored or supported by a grant from GP.
27 The articles did not disclose that Holm was specially employed by GP for the asbestos litigation or that he reported to GP s inhouse counsel. Furthermore, there were no grant proposals. Bernstein was hired by GP on an hourly basis.
28 Holm spills the beans in deposition. Plaintiffs request correspondence AND underlying data. Special Master and Trial Court require in camera review and disclosure of data On appeal, NY appellate court rules against GP on TWO critical issues:
30 First, in camera review of GP s internal correspondence based on crime/fraud exception to attorney-client privilege. The foregoing constitutes a sufficient factual basis for a finding that the relevant communications could have been in furtherance of a fraud it is of concern that GP's in-house counsel would be so intimately involved in supposedly objective scientific studies, especially in light of GP's disclosures denying such participation.
31 Second, production of underlying data for all published joint compound studies. GP should not be allowed to use its experts' conclusions as a sword by seeding the scientific literature with GP-funded studies, while at the same time using the privilege as a shield by withholding the underlying raw data that might be prone to scrutiny by the opposing party and that may affect the VERACITY of its experts' conclusions.
32 This is all from a company who is demanding more transparency This is all from a company owned by the Koch Brothers that funds ALEC and demands more transparency from people dying of mesothelioma.
33 Lack of Transparency: SPOLIATION OF EVIDENCE Anthony Pantaleoni Pantaleoni designated PMK for asbestos litigation. Pantaleoni interviewed Crane employees with knowledge. Pantaleoni took notes.
34 Lack of Transparency: SPOLIATION OF EVIDENCE Pantaleoni trashed notes. Didn t know notes would be subject to discovery and saw no reason to keep them. Crane lawyers with Panteleoni during interviews.
35 Lack of Transparency: WITHHOLDING REQUESTED DISCOVERY Former shipyard worker with mesothelioma requested drawings from Crane concerning specific ships. Pantaleoni: Just can t locate USS Saratoga drawings. Plaintiff s counsel then gave Pantaleoni the Saratoga drawings in deposition. EXCUSE FOR LACK OF PRODUCTION: After Crane receives drawings from Plaintiffs counsel, then Crane will produce drawings in subsequent cases.
36 Former shipyard worker with mesothelioma requested drawings from Crane concerning specific ships. Pantaleoni: Just can t locate USS Saratoga drawings. BUT Plaintiff s counsel gave Pantaleoni the Saratoga drawings in deposition last year?
37 EXCUSE FOR LACK OF PRODUCTION: I FORGOT! Pantaleoni has testified in over 200 cases and JUST CAN T REMEMBER every ship in every case. Pot-Kettle Award
38 When a mesothelioma victim at his last gasp makes a mistake or can t remember the details of his exposure to asbestos 40 years ago, he s accused of fraud. Panteleoini s is the PMK. It s his job to remember.
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