Asbestos Trust And Tort Litigation Compensation In Delaware: A Call For Transparency

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1 MEALEY S TM LITIGATION REPORT Asbestos Asbestos Trust And Tort Litigation Compensation In Delaware: A Call For Transparency by Peter S. Murphy, Esq. Eckert Seamans Cherin & Mellott, LLC Wilmington, Delaware A commentary article reprinted from the December 19, 2012 issue of Mealey s Litigation Report: Asbestos

2 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 Commentary Asbestos Trust And Tort Litigation Compensation In Delaware: A Call For Transparency By Peter S. Murphy [Editor s Note: Peter S. Murphy is an attorney in the Wilmington, Delaware office of Eckert Seamans Cherin & Mellott, LLC. Copyright # 2012 by Peter S. Murphy. Replies to this commentary are welcome.] l. Introduction Asbestos litigation in the United States can be described like asbestos fibers themselves as ubiquitous, indestructible and potentially toxic. 1 The litigation began in the early 1970s and quickly grew to become the longest-running and most expensive mass tort in U.S. history. A 2005 RAND Institute for Civil Justice report estimates that, through 2002, approximately 730,000 people filed asbestos lawsuits in the United States, against 8,400 individual defendants. Gross compensation to claimants is estimated at $49 billion. Total spending on asbestos litigation has topped $70 billion. 2 The same report predicts there are 1 to 3 million more claims to be filed. 3 Estimates indicate that the ultimate costs arising from U.S. exposure to asbestos could range from $200 billion to $265 billion. 4 Simply put, asbestos litigation in the U.S. may be only halfway over. Since 1977, the Delaware Superior Court has maintained a sizable asbestos docket. 5 Typically, cases were filed on behalf of Delaware residents alleging exposure to asbestos within the State of Delaware. The year 2005 brought a significant change in that out-of-state law firms filed a large number of cases on behalf of plaintiffs that neither lived in Delaware, nor claimed any exposure to asbestos in Delaware. 6 Naturally, many defendants moved to dismiss the cases on the grounds that Delaware was an inconvenient forum for litigating of out-of-state claims. The Superior Court denied the motions to dismiss finding that, among other things, the same liberal forum non conveniens standards that apply to corporate and commercial litigation in Delaware, should be applied to mass tort cases. 7 Since 2005, Delaware has joined the ranks of Illinois, California, Texas, New York, and Pennsylvania to become a popular jurisdiction to file asbestos lawsuits. 8 As the national litigation aged, the dynamics of compensation to asbestos claimants changed. Traditionally, compensation came in the form of settlements and verdicts against defendants who were sued in state and federal courts. Starting in the early 1980s, defendants with substantial asbestos liabilities began filing for bankruptcy protection and established personal injury trusts through Section 524(g) of the bankruptcy code to pay current and future asbestos claims. 9 With major defendants exiting the litigation through bankruptcy, the focus shifted to smaller, more peripheral defendants. Currently, asbestos claimants are recovering significant compensation from personal injury trusts as well as a greater and greater variety of solvent defendants, most of whom have had little or no connection to asbestos manufacturing. The rise of asbestos bankruptcy trusts as a vehicle for plaintiff compensation has raised important questions regarding the interaction between the trust and the tort systems. Solvent defendants contend that a lack of coordination between the trusts and the tort system 1

3 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos allows a plaintiff to recover twice once in the tort system and again from personal injury trusts for the same injury. More importantly, defendants argue that a plaintiff s claim of exposure to the products manufactured by now bankrupt defendants most of which are considerably more toxic is critical evidence that must be considered by the jury when assessing a plaintiff s exposure history, and ultimately, liability among the solvent defendants. Part II of this article provides background on the history and current state of asbestos litigation in the United States, including Delaware in particular, and an introduction to asbestos bankruptcy trusts. Part III analyzes the two major problems that arise due to the lack of integration of the trust and tort claims filed in state and federal courts namely, the inability to: (1) fashion a verdict that takes into account compensation from trust claims either received or to be received, and (2) obtain evidence of exposure to products made by bankrupt entities. Part IV reviews the approaches taken by various state and federal courts, and legislatures, to address these issues, including Delaware s current approach as set forth in the superior court s Master Trial Scheduling Order, and makes recommendations. Finally, Part V provides a brief conclusion. II. Background A. Brief History Of Asbestos Litigation In The United States Asbestos is a natural fiber that is inexpensive to mine and was widely used in the United States in a variety of industrial products. Asbestos durability, 10 insulating and fireproofing properties made it an ideal ingredient for insulation, roofing and building materials. Once hailed as the miracle mineral and celebrated in popular culture, 11 asbestos in now one of the most feared contaminants on the planet. By the 1970s, inhalation of asbestos fibers was linked to the development of various diseases, including mesothelioma, lung cancer and asbestosis. 12 In 1973, the U.S. Court of Appeals for the Fifth Circuit found asbestos manufacturers strictly liable to workers alleging exposure to asbestoscontaining insulation in the landmark case Borel v. Fibreboard. 13 With the identification of asbestos as a potentially lethal material, dark clouds gathered over asbestos manufacturers. The unique characteristics of asbestos exposure suggested a mass-tort perfect storm was on the horizon. Specifically, the combination of asbestos toxicity, widespread use and the long latency period between exposure and development of asbestosrelated disease practically guaranteed an enduring litigation. 14 Despite a significant reduction in asbestos use in the U.S., since its peak in 1973 of 1 million metric tons, it is estimated that more than 100 million people in the U.S. were occupationally exposed to asbestos during the twentieth century. 15 Throughout the 1980s and 1990s the litigation evolved. The distinguishing feature of asbestos litigation has been its tendency to reshape itself over time. 16 Claims migrated from federal courts to state courts; and then further to specific state jurisdictions uniquely equipped to handle asbestos caseloads. Law firms who largely controlled the early litigation were replaced by spinoffs and new firms with sophisticated marketing models and litigation strategies. The list of defendants also changed. As discussed below, companies with substantial asbestos liabilities, such as those who mined raw asbestos or manufactured insulation products for use in shipbuilding or petrochemical facilities, filed for bankruptcy. As the original defendants disappeared from the tort system, plaintiffs filled the void by naming a greater number of peripheral defendants who were perceived to have little to no exposure to asbestosrelated liability yet found themselves at the center of the litigation. 17 In the face of predictions by many that asbestos claims would decline by the end of the 20th century, the last ten years have seen an increase in the number of malignancy cases (i.e., mesothelioma and other cancers) filed nationwide. For example, in 2000, there were seventy-eight (78) asbestos-related lawsuits filed in Delaware. In 2010, two hundred thirty-six (236) suits were filed, and over two hundred (200) were malignancy cases. 18 Plaintiffs attorneys have become more aggressive and technologically savvy in their pursuit of companies with an even incidental connection to asbestos-containing materials. The Internet and social media 19 marketing have become an essential part of the plaintiffs attorney s toolkit. An analysis of Googleä keywords revealed that mesothelioma is the most expensive word on the internet for attorneys, with firms paying over $79 per click of the mouse by people researching the term. 20 Firms also sponsor informational websites, such as to 2

4 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 facilitate the gathering of asbestos claims, which are then packaged and sold to other firms for filing in state and federal courts throughout the country. B. Asbestos Manufacturers Seek Protection Through Bankruptcy For many defendants, bankruptcy was inevitable. The snowball of cases that began to roll downhill in 1973 had become an avalanche 21 by In that year, Johns-Manville Corporation filed the first major asbestos bankruptcy. Chapter 11 of the bankruptcy code applies to reorganization bankruptcies and allows a company to remain in business while paying its creditors (here, anyone with a current or future asbestos claim) over an extended period of time. Manville s reorganization plan called for the establishment of the first asbestos bankruptcy trust, the Manville Personal Injury Settlement Trust, to pay current and future asbestosrelated injury claims. The Manville bankruptcy became a model for others and led to the amendment of Section 524 of the bankruptcy code in As liabilities mounted, several other manufacturers followed suit and filed for bankruptcy protection. Section 524(g) allows a bankrupt entity to channel its current and future asbestos liabilities to a trust if certain conditions are met in the entity s reorganization plan. S ome commentators view bankruptcy as the only generally recognized legal vehicle currently available for imposing finality on a defendant s asbestos liability. 23 Defendants exited the litigation via bankruptcy, and asbestos plaintiffs had fewer solvent defendants to pursue through litigation. With fewer solvent defendants, there has been an upward pressure on demands for claim settlements from the remaining solvent defendants. 24 Moreover, with the departure of traditional target defendants there has been a dramatic increase in the total number of defendants named in asbestos complaints. 25 Today, nearly all the major manufacturers have declared bankruptcy leaving plaintiffs with only peripheral companies i.e., those that played only minor roles in asbestos production and use to be named as defendants in lawsuits. 26 Former asbestos plaintiffs attorney Richard Scruggs has called the litigation the endless search for a solvent bystander. 27 As of this writing, the financial liability imposed by the litigation has resulted in the filing of ninety-six (96) bankruptcies and the establishment of fifty-four (54) personal injury trusts to pay current and future asbestos claims. 28 The largest twenty-six (26) active trusts account for more than 99 percent of claim payments made through 2008, or $10.9 billion. 29 These trusts also account for 98 percent of the $29.9 billion in initial trust assets. At least nine more asbestos trusts are in the process of being established. 30 C. Delaware As A Microcosm Of The National Experience Asbestos litigation in Delaware is a microcosm of the national experience. The phenomenon now known as the asbestos litigation first arrived in Delaware in the mid-1970s. Since then, Delaware has maintained a steady asbestos docket that has ranged in size from approximately 500 to 2000 pending cases at any one time. 31 As of 2005, Delaware has become a preferred jurisdiction for out-of-state asbestos litigants due to Delaware s highly-respected judiciary, 32 liberal forum non conveniens rules and efficient asbestos case management system. 33 In 1977, a general docket number was established forthefilingofmotions,ordersorothermaterials applicable to all pending asbestos cases e.g., a defendant s answers to master discovery. A single Superior Court judge oversees the litigation on a two-year rotating basis. Over the years, the Court issued various Orders to aid in the management of the asbestos caseload. 34 Plaintiffs and defendants are organized through the appointment of coordinating counsel who speaks on behalf of the parties on issues of common interest. In 1983, the court issued the first of what would become a series of Standing Orders to expedite the proceedings in all asbestos actions. The Standing Order governs, among other things, the coordination of discovery, scheduling of motions and other pretrial proceedings. As recently as March 9, 2011, the Court issued an Order amending its Standing Order. The current Standing Order contains only one reference to claims against bankrupt entities, but it is an important one. 35 At } 7(l) the Order provides: Copies of all claim forms and related materials related to any claims made by plaintiff to any insurance carrier, employer, governmental agency, trust, entity or person related to or in any way involved with asbestos claims, or 3

5 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos other agency, entity, or person wherein plaintiff directly or indirectly asserts, suggests, advocates, or requests investigation into potential entitlement to compensation or benefits of any type as a result of exposure to and/or injury related to asbestos. This shall include, but is not limited to, copies of all materials related to applications for Social Security disability benefits, and claims made to trusts for bankrupt asbestos litigation defendants. 36 Therefore, as an initial premise, Delaware, like other asbestos litigation hot spots, requires pretrial disclosure of claims made to bankruptcy trusts. 37 This provision is comprehensive and evidences a policy of total disclosure of all nonlitigation claims for compensation. But what about claims anticipated or intended, but not yet made? While Delaware s Standing Order mandates prompt disclosure of filed claim forms, it is silent on the issue of when during litigation if at all the trust claims must be actually filed. Court-ordered disclosure of filed trust claim forms is of little consequence if trust claims have not been filed. 38 Accordingly, there is an incentive for plaintiffs attorneys to delay filing any trust claims until a case has been resolved through settlement or verdict. Timing trust submission in this manner, however, is ethically problematic, as it may constitute concealment of material of evidentiary value in violation of Delaware s Rules of Professional Conduct. 39 Moreover, this tactic completely sidesteps the policies underlying the Standing Order s mandatory disclosure and undermines the integrity of the judicial process. III. Analysis Asbestos litigation is routinely the subject of criticism and calls for reform. 40 As the number of asbestos bankruptcy filings has increased, much of this criticism has focused on the lack of transparency between the trust and tort systems. 41 Trust claim forms are critical to defendants for two reasons. The first is to account for all sources of compensation a plaintiff has already received, or is likely to receive, outside of litigation. Defendants want to ensure that a plaintiff is not able to recover twice for the same harm i.e., double dipping. The second and more substantive reason is to determine all sources of asbestos exposure. That is, to establish a total exposure history from which an individual defendant s conduct can be fairly measured. A Delaware jury is entitled to a complete picture of the plaintiff s alleged exposure to all asbestos-containing materials before rendering a verdict for or against any individual defendant who may be left in the case. A. The Compensation Inquiry: Double Dipping Kananian And Beyond Plaintiffs and their counsel have a powerful incentive to prevent disclosure of the amounts an asbestos claimant has received (or anticipates) from personal injury trusts; and not just from solvent defendants embroiled in litigation. There is an equally strong urge to keep each bankruptcy trust in the dark as it relates to claims made to other trusts. 42 By isolating each source of payment, a claimant can craft alternate realities in which each defendant (bankrupt or solvent) is solely responsible for his exposure and subsequent injury. In other words, a claimant can simultaneously argue that Companies X, Y and Z are solely and independently responsible for his asbestos exposure knowing that no company will communicate with the other that they have paid on his claim. Moreover, it does not matter if a claimant s theories of exposure contradict, as there is no fact checking of an individual s claims across the individual trusts or tort system. Meaning, not only is there lack of transparency between the trusts and the tort system, there is little to no flow of information among the trusts themselves. Oddly enough, this practice is actually facilitated by the trust disbursement procedures ( TDPs ) that govern the administration of the trust. 43 In practice, plaintiff s firms work closely and negotiate with the debtor to arrive at an agreement whereby the debtor receives the required 75 percent approval [of the bankruptcy plan] and plaintiff s counsel receives favorable trust distribution procedures. 44 Unsurprisingly, this invites fraud. The classic story of abuse of trust claims occurred in the state of Ohio in the case of Kananian v. Lorillard Tobacco Company. 45 The plaintiff, Harry Kananian, died of mesothelioma in He filed suit against Lorillard claiming his injury was caused by asbestoscontaining Micronite filters used in Kent cigarettes that he smoked during the 1950s. He also filed claims with several asbestos bankruptcy trusts, including Johns-Manville, Eagle Pitcher, Celotex and UNR 4

6 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 trust, claiming exposure to their products caused his mesothelioma. When Kananian s claim forms were finally turned over to Lorillard over his lawyer s objections it became clear that his story did not ring true. The forms contained conflicting information when compared to pleadings filed in Ohio and the evidence presented during his deposition and trial. For example, in his submission to UNR trust, Kananian claimed he handled Unibestos insulation while working at the San Francisco Naval Shipyard at the same time he was serving as a rifleman who merely passed through the shipyard on his way to board a troopship. 46 Some forms, such as the one submitted to Celotex, were deemed outright fabrications. Ohio trial judge Harry A. Hanna was outraged by the conduct of Kananian s lawyers and ordered that the trusts produce the claims information and permitted the defendant to introduce evidence of Kananian s inconsistent claims and trust recoveries to the jury. Judge Hanna declined to dismiss the case, finding no evidence that the Kananian family was complicit in deceit, but revoked the pro hac vice privileges of Kananian s out of state counsel. 47 Such conduct is not limited to Ohio. In 2011, Delaware Superior Court Judge Peggy Ableman was outspoken in her disgust over the dishonesty in bankruptcy trust claim filings. In a Delaware asbestos suit in which the plaintiff, June Montgomery, claimed exposure solely from contact with her husband s work clothes i.e., take home exposure it was revealed that her Texas counsel Brent Coon had filed trust claims alleging direct exposure through Mrs. Montgomery s employment at Samuel Ward Manufacturing in Boston, Massachusetts. 48 Coon s firm had referred the Montgomery s to the Florida firm Levin Papantonio. Mere days before trial, June s son Brian Montgomery, who represented her estate after her death, disclosed two other bankruptcy trust payments to his Florida counsel, who claimed ignorance of the claims submitted by Coon. In all, the Montgomery s estate had settled with the Keene, Celotex and Johns-Manville bankruptcy trusts, and another 17 trust claims remained pending. At a November hearing, Judge Ableman described the practice as dishonesty at its highest level. She continued stating [t]his is really seriously egregiously bad behavior... This is misrepresenting. This is trying to defraud... I don t like that in this litigation, and it happens a lot. And I am going to put an end to it. This is an example of the games that are played. 49 In January 2012, Judge Ableman s term as Delaware s asbestos judge came to a close and she was replaced by the Honorable John A. Parkins, Jr. After a February hearing before Judge Parkins, the parties agreed to dismiss the Montgomery s case. Apart from exposing fraud, the complete disclosure of compensation received or anticipated from trusts is important to establish a solvent defendant s right to setoffs and/or credits against a judgment. Delaware, like most states, has adopted the Uniform Contribution Among Tort-feasors Law. This statute provides that the release i.e., settlement of one joint tort-feasor reduces the claims against the other tort-feasors in the amount of the consideration paid for the release. That is, in multi-defendant litigation, any judgment against a nonsettling defendant is reduced, or setoff, by the amounts received in settlement. While it is uncertain if such a setoff exists for bankruptcy trust payments in Delaware, several states, including Illinois, New York, and West Virginia allow setoffs for pre-verdict trust payments. 50 In failing to disclose, or delaying the filing of bankruptcy claims until after trial, plaintiffs attorneys are gaming the system to permit double and triple recoveries for a single indivisible injury. B. The Evidence Inquiry: The Truth, But Not The Whole Truth An even more alarming concern is the ability of plaintiffs attorneys to keep evidence of alternative exposures to asbestos out of the trial record to maximize recovery against solvent, nonsettling defendants. By delaying the filing of bankruptcy claims until after trial or settlement, claimants are able to filter out all allegations of exposure to products manufactured by bankrupt companies many of which are substantially more hazardous than those made by solvent defendants and base their entire case, and recovery, on only those solvent defendants pursued through litigation. In essence, it allows the manipulation of causation evidence to fit the specific defendants named in the complaint. For instance, a claimant may have viable claims against several bankrupt manufacturers of asbestos insulation yet only names auto manufacturers in his tort case alleging exposure to asbestos in automotive brakes, 5

7 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos clutches and gaskets. The case proceeds through discovery and it is never revealed, or the fact is deliberately concealed, that the claimant also worked with highly toxic asbestos insulation made by Johns-Manville, Celotex, Owens-Corning and others. At trial the causation evidence is limited by the record as developed through discovery, which is of course devoid of any evidence of alternative exposures to insulation. The result is a verdict designed to fully compensate the claimant for his/her injuries, yet based on a limited set of facts. Arguably, this is analogous to a lung cancer case in which the plaintiff withholds evidence that he was a heavy smoker. The end result is that the jury is deprived of critical facts that would almost certainly influence their verdict. And once the case has been resolved, the claimant turns to the bankruptcy trust system for further compensation. Some plaintiffs attorneys argue that it is their ethical obligation to their client to delay the filing of any information, as in the example above, because it would assist the defendants in assigning liability to bankruptcy entities. 51 Withholding relevant information, however, presents other ethical issues under Delaware s Lawyers Rules of Professional Conduct, specifically, Rule 3.4 (Fairness to Opposing Party and Counsel). That rule provides: A lawyer shall not: (a) unlawfully obstruct another party s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act Any affirmative steps by plaintiffs counsel to prevent disclosure, or conceal evidence of alternative sources of asbestos exposure would seem to directly violate this rule as it constitutes an obstruction to material having evidentiary value. Proving such an obstruction, however, is nearly impossible given the post-trial timing of the claim submissions and the layers of confidentiality built into the disbursement procedures of many trusts. Concealing evidence of alternative exposures by delaying the filing of bankruptcy claims may also violate Rule 3.3 (Candor Toward the Tribunal). At section (a)(3) that rule provides that [i]f a lawyer, the lawyer s client, or a witness called by the lawyer, has offered evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 53 The alleged falsity in the above example is where a plaintiff testifies to the spectrum of his possible asbestos exposures yet leaves out his work with products manufactured by bankruptcy entities. A plaintiffs attorney who is aware of other alleged exposures yet permits his/her client to testify that the only known exposures are to products at issue in the litigation has an obligation to take remedial measures to correct that testimony or otherwise alert the court to its falsity, since, after all, the attorney and his client will offer evidence of these other exposures in obtaining a recovery post-litigation through bankruptcy filings. IV. Recommendations Asbestos litigation has historically been a state court malady. States with significant asbestos dockets have adopted various approaches to address the problems noted above. Recently, however, federal legislators have proposed reforms that specifically target the lack of transparency between asbestos bankruptcy trusts and tort compensation. A review of both the state and federal approaches is useful in fashioning a Delawarespecific solution. A. Furthering Asbestos Claim Transparency Act Of 2012 ( FACT ) On April 17, 2012, Rep. Benjamin Quayle (R-AZ) with the support of Rep. James Matheson (D-UT) and Rep. Dennis Ross (R-FL) introduced H.R to amend section 524(g) of the bankruptcy code to require asbestos bankruptcy trusts to publicly disclose detailed information concerning the receipt and disposition of personal injury claims based on asbestos exposure. 54 The bill is known as the Further Asbestos Claim Transparency ( FACT ) of 2012 and mandates quarterly filings that describe demands received by asbestos trusts including the name, exposure history and basis for payment for each claimant. Furthermore, FACT requires, if requested, disclosure of detailed claim information to any party in litigation concerning asbestos exposure. 55 In a statement, shortly after the bill was introduced, Rep. Quayle said that such legislation is necessary because the opaque and unsupervised way in which the system operates leaves it open to fraud and abuse which endangers the very existence of asbestos trusts. 56 Moreover, the [U.S. Government Accountability Office] has confirmed asbestos bankruptcy trusts operate without real oversight and do not compare their claims to prevent fraud. 57 On May 10, 2012, Senator Tom Coburn, M.D. (R-OK) introduced a companion bill (S. 3076) in the United 6

8 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 States Senate stating the lack of transparency... has resulted in a system where claimants could file inconsistent claims among the numerous trusts or against trusts and solvent companies in the tort system. 58 As expected, the proposed amendments are welcome news to asbestos litigation defendants, and industry and insurance associations, but cursed by plaintiffs attorneys and pseudo-environmental organizations that lobby on their behalf. 59 What seems lost, however, is the simple fact that the limited disclosure proposed by the FACT Act benefits both asbestos defendants and asbestos claimants. Transparency ensures that limited trust funds needed to compensate future asbestos claimants are not squandered away by current abusive practices. Unfortunately, however, the Act does not and perhaps cannot address the problems that arise when claimants delay the filing of trust claims until after litigation. Even if FACT passes, by filing claims post-litigation, claimants can avoid disclosure of both alternative compensation and sources of alternative asbestos exposure. B. State Approaches: West Virginia, New York City And Montgomery County, Pennsylvania State courts and legislatures have also made strides toward transparency in asbestos trust/tort compensation. Similar to FACT, above, two state legislatures Oklahoma and Ohio have bills pending that require disclosure of all trust claims within 30 days of the filing ofthecomplaint,otherwiseaplaintiffmayberefuseda trial date. 60 Naturally, some states have been more successful than others. For example, attempts by asbestos defendants in Madison County, Illinois to obtain pretrial disclosure of trust claims made, or to be made, have been routinely rejected. Three specific jurisdictions, however, have been much more progressive and have adopted case management rules that can serve as helpful guides: West Virginia, New York City and Montgomery County, Pennsylvania. All three jurisdictions have addressed, head on, the need for prompt disclosure of trust claims during litigation, as well as the consequences for delaying the filing of trust claims until after litigation. 1. West Virginia Perhaps the most progressive approach is that taken by West Virginia. On March 3, 2010, the Kanawha County Circuit Court issued a case management order applicable to all asbestos actions set for trial after October The order reads: a claimant shall provide to all parties a statement of any and all existing claims that may exist against asbestos trusts. 61 And, furthermore, the statement must contain an affidavit of the Plaintiff or Plaintiff s counsel that the statement is based upon a good faith investigation of all potential claims against asbestos trusts. 62 As to claims already submitted to trusts, the claimant must produce claim forms and all supporting materials, including work histories and medical documentation. Regarding future claims, the order provides that should information obtained subsequent to the submission of the statements that supports the filing of additional claims... the claimant shall update the statement... within thirty (30) days of receipt of the information but in no event later than the commencement of trial. 63 Finally, to ensure there is no potential for double recovery, the West Virginia order provides for a separate hearing to determine a defendant s entitlement to set-offs or credits of the value of trust claims against any judgment entered against them. At this hearing, the court may require each claimant to disclose the total amount received or reasonably expected to be received from the bankruptcy proceedings New York City Similarly, New York City has had a filing deadline for trust claims. 65 The NYCAL Case Management Order ( CMO ) has required: Any plaintiff who intends to file a proof of claim form with any bankrupt entity or trust shall do so no later than ten (10) days after plaintiff s case is designated in a FIFO Trial Cluster, except in the in extremis cases in which the proof of claim form shall be filed no later than ninety (90) days before trial. 66 There have been challenges to the requirement and defendants contend that plaintiffs attorneys do not regularly comply with the order. 67 The latest word on this issue came last month in a decision from New York Administrative Judge Sherry Klein Heitler. Pursuant to the CMO, certain defendants sought relief from New York Special Master Laraine Pacheco with respect to claims that Plaintiffs were not complying with the CMO s provisions related to mandatory disclosure of bankruptcy trust submissions and related information. 68 The Special Master ordered all plaintiffs to produce all materials filed with asbestos bankruptcy trusts, but permitted redaction of trust claim identification numbers and settlement amounts. 69 Plaintiffs objected to the Special Master s directive on the grounds that: (1) trust submission are made in the course of settlement discussions 7

9 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos and therefore confidential and inadmissible; (2) any requested non-party affidavits are protected as attorney work product; (3) the trust disbursement procedures and all related trust documents are subject to the jurisdiction and interpretation of the federal bankruptcy courts, and (4) the CMO provision that mandates disclosure is overly broad and unconstitutional under the Supremacy Clause of the United States Constitution. 70 The court carefully considered, and rejected, each of the plaintiffs grounds for refusing to disclose trust claims and related information. Most importantly, the court upheld the CMO requirement that trust claims must be filed no later than ten (10) days after assignment of a case to a trial group. Plaintiffs cited to several cases in support of their position, including McGhee v. AT&T, Inc., 71 in which the Delaware Superior Court ruled it could not force a plaintiff to say whether he/she would make a claim against a trust. 72 Judge Heitler distinguished the out-of-state cases cited by plaintiffs on the grounds that the CMO requires plaintiffs to file intended claims with various trust within the time limitations, and not claims they may or may not anticipate filing. 73 The court concluded that the time limitations on trust submissions under the CMO have been in effect since 2003 and to strike this provision would diminish the effectiveness of the CMO as a whole Montgomery County, Pennsylvania Finally, on February 22, 2010, Court of Common Pleas Judge William Furber, Jr. issued an order applicable to all asbestos suits filed in Montgomery County, Pennsylvania which provides that [n]o later than one hundred twenty (120) days prior to trial, each plaintiff shall have filed any and all Asbestos Bankruptcy Trust claims available to him or her. 75 Additionally, the order mandates production to defendants of all affidavits, medical records and employment records that accompany bankruptcy claim filings. C. Delaware Must Modify Its Case Management Order To Ensure Transparency The Delaware Superior Court has long been aware of the potential for abuse in asbestos bankruptcy filings and the lack of transparency between the trust and tort compensation systems. Years before Judge Ableman addressed the issue in Montgomery, above, and promised to put an end to the dishonesty surrounding asbestos trust claims, the defense bar urged the court to modify its rules. In 2007, President Judge James T. Vaughn, Jr. appointed a committee of five lawyers to examine the procedures used by the Superior Court to manage toxic tort litigation and report back to the President Judge with comments and recommendations. 76 The examination was spurred by the American Tort Reform Foundation s listing of Delaware as a potential Judicial Hellhole given the growing number of asbestos cases being filed in Delaware by plaintiffs with no connection to Delaware. The committee s report specifically addressed Disclosure Issues including complaints from defense counsel that plaintiffs should disclose all [trust] claims made or to be made for compensation. 77 The report reads: As to the second request that plaintiffs be made to certify all compensation claims made or to be made, some explanation is required. The Special Committee understands that some plaintiffs are entitled to seek compensation from the various asbestos trusts. Disclosure of those claims is appropriate, both to be sure there is no double recovery and to insure a plaintiff has consistently presented the facts to support a claim. There seems to be no serious disagreement on that point by a party. The only disagreement is whether plaintiffs must disclosure [sic] claims that they may make in the future, particularly after the litigation is concluded. It is thought by some defendants that plaintiffs are delaying making claims to asbestos trusts because there is no effective limitation on when those claims may be made and those plaintiffs intend to seek a double recovery for the same illness or otherwise not tell the truth... The Special Committee suggested that defendants seek this to-bemade claim discovery by interrogatories that, of course, must be answered under oath. 78 Unfortunately, the forthrightness the Special Committee assumed would be characteristic of Delaware s asbestos litigation was not borne out in the years that followed, hence Judge Ableman s findings and comments in Montgomery. Instead, as the litigation evolved, more sophisticated means of insulating trust claims from disclosure have developed. As in Montgomery, 8

10 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 some firms employ a system by which feeder firms make first contact with potential asbestos claimants and handle all bankruptcy filings. Claimants are then referred to independent trial counsel who will pursue tort litigation on their behalf and can ethically claim ignorance of any trust claims. Alternatively, other firms, particularly when handling a high value case, avoid any mention of trust claims until the litigation has concluded given the likelihood that a defendant would receive a set-off for amounts received from trusts. More realistically, the Special Committee s suggestion to resort to interrogatories to find out whether future claims may be made does not work in practice. Any interrogatory related to the filing of future asbestos trust claims is invariably objected to on the basis of attorneyclient privilege and/or responded to with no claims are contemplated at this time. After all, a defendant cannot move to compel something that does not yet exist. To achieve true transparency between trust and tort compensation, Delaware s case management order Standing Order No. 1 must be modified. Consistent with the trends in West Virginia, New York City and Montgomery, Pennsylvania, the Delaware Superior Court should modify Standing Order No. 1 to require disclosure of all claims of exposure to products manufactured by bankrupt entities (whether made or to be made) by the close of fact discovery. While the current Standing Order does require the production of claim forms within 30 days of filing a complaint, it does not address the key issue: the delay in filing claims in a manner that distorts the discovery record and ultimately the administration of justice in asbestos suits. By ignoring the issue of timing, the Court has allowed plaintiffs attorneys to manipulate the discovery record for maximum benefit at trial against solvent, peripheral asbestos defendants by withholding evidence of alternative exposure to products made by bankrupt and often more culpable defendants. Moreover, delaying trust claims allows maximum recovery from tort defendants by preventing defendants a judgment reduction in the form of credits or set-offs for amount paid by the trusts. The Court can easily close this loophole by requiring, as a prerequisite to obtaining a trial date, the following mandatory disclosures: (1) A claimant should provide a statement that identifies all asbestos bankruptcy trusts against which he/she has made, or intends to make, a claim for compensation, including any claims in which a request for deferral, delay or tolling the claims process has been made. In the event information is obtained after the submission of the above statement, which supports the filing of additional claims, the claimant should update the statement by amendment. All statements should be accompanied by an affidavit from plaintiffs counsel that the statement is based upon a good faith investigation of all potential claims against asbestos trusts. (2) With respect to trust claims already made, a claimant should produce all proofs of claim and all supporting materials related to claims, including work histories, employment records, statements, depositions and/or other product identification testimony. This is already part of Delaware s Standing Order No. 1 but some plaintiffs firms regularly ignore it. (3) A claimant should identify any pending bankruptcies in which he/she has asserted or plans to assert a claim for compensation. (4) A claimant should identify any other attorney or firm, other than counsel of record, who represents or has previously represented him/her in connection with efforts to recover for asbestos-related injuries. Only then can we say an asbestos claimants exposure history is complete. There is no additional burden or unfairness imposed upon asbestos claimants in ordering disclosure of the above information. In filing a lawsuit, a claimant places his health and employment/exposure history at issue, and it is his/her counsel s duty to investigate all sources of exposure to maximize recovery for his/her injuries. Delaware should adopt an approach that holds asbestos claimants to a complete, and consistent, theory of asbestos exposure encompassing all possible sources. A Delaware jury is unable to fashion an equitable verdict if critical exposure evidence, evidence that goes to the very heart of plaintiff s claims against solvent defendants, is carved out of the record. Moreover, the Court should expressly provide for setoffs or a credit of the value of trust compensation (received or to be received) against any judgment rendered against defendants at trial. The Court should 9

11 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos require disclosure of the total amount received or anticipated from asbestos bankruptcy trusts, as well as amounts from settling defendants. In the event that a judgment has been rendered before a claimant has received payments from trust claims, the right to unpaid bankruptcy claims should be assigned to the defendants against whom judgment was entered. V. Conclusion There is no doubt that the lack of transparency between tort and trust compensation in asbestos litigation creates enormous potential for abuse and fraud. Trial courts, including those in Ohio and Delaware have seen firsthand misconduct by plaintiffs attorneys in the processing of trust claims, including outright misrepresentation as it relates to allegations of asbestos exposure. As Ohio Judge Hanna said regarding the Kananian case, In my 45 years of practicing law, I never expected to see lawyers lie like this... He added, It was lies upon lies. And more, recently, Delaware s Judge Ableman described the practice as dishonesty at its highest level and that in this litigation... it happens a lot. Such strong language from the judiciary cannot be ignored. Federal and state legislators and state courts have taken notice and are trying to implement safeguards that ultimately will benefit those seeking compensation for asbestos exposure. It is ironic that those who are most vigorously challenging reform are those who represent the intended beneficiaries of this reform asbestos claimants. Transparency ensures that trust funds will be available to pay asbestos claimants today and those who have yet to develop asbestos-related illnesses. Transparency prevents plaintiffs attorneys from presenting one set of facts to a civil jury and a different set of facts in support of bankruptcy trust claims. Moreover, transparency guarantees that verdicts against solvent defendants are fairly rendered on a complete record of alleged exposure. In short, transparency ensures honesty. After all, sunlight is the best disinfectant. Modest reforms of Delaware s Standing Order No. 1, such as those proposed, would be welcome first steps toward greater transparency. Endnotes 1. The United States Supreme Court has described the litigation as an elephantine mass and a crisis. Ortiz v. Fibreboard, 527 U.S. 815, 821 (1999); See also Amchem Prods Inc. v. Windsor, 521 U.S. 591, 597 (1997). 2. CARROLL, HENSLER, ET AL., ASBESTOS LITIGATION, xxvi, 79 (Rand Corp. 2005). Total spending represents the amount defendants spent after reimbursement from insurers plus the amount insurers spent after reimbursement from reinsurers. 3. Id. at Jennifer L. Biggs, et al., Overview of Asbestos Claims Issues and Trends,2007 AM.ACADEMY OF ACTUARIES In re Asbestos Litigation, 929 A.2d 373, 378 (Del. Super. Ct. 2006). 6. Id. 7. Id. at 382, LLOYD DIXON ET AL., ASBESTOS BANKRUPTCY TRUSTS AND TORT COMPENSATION, xii (Rand Corp. 2011); Carroll, supra note 2, See generally James L. Stengel, The Asbestos End-Game, 62 N.Y.U. ANN. SURV. AM. L. 223, (2006) ( Between 1982 and 1999 there were approximately thirty-one asbestos-related bankruptcies. A number of these cases resulted in compensation trusts created pursuant to confirmed plans of reorganization modeled on the Johns-Manville Trust or 524(g). ). 10. The word asbestos in Greek means inextinguishable (a-, not ; sbestos-, extinguishable ). See James E. Alleman and Brooke T. Mossman, Asbestos Revisited, SCIENTIFIC AMERICAN (July 1997) (describing early history of asbestos use). 11. The 1939 New York World s Fair featured a prominent exhibit from Johns-Manville that celebrated asbestos service to humanity, and included a giant Asbestos Man to greet visitors to the company s pavilion. Alleman, supra note 9, at Mesothelioma is a cancer of the linings of the pleural (lung), pericardial (heart) or peritoneal (abdomen) cavities. Roggli, Oury, et al., PATHOLOGY OF ASBESTOS- ASSOCIATED DISEASES, 104 (2d ed. 2004). Other 10

12 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 cancers have been associated with asbestos, but unlike mesothelioma, they all have other causes besides exposure to asbestos. The most common malignancy (i.e., cancer) other than mesothelioma attributed to asbestos is lung cancer. The risk of lung cancer is aggravated by other factors, such as smoking. Carroll, supra note 2, 13. Asbestosis is a form of pneumoconiosis (accumulation of excessive amounts of material in lung tissue) related to excessive amounts of asbestos fibers in the lungs. Roggli, Oury, et al., PATHOLOGY OF ASBESTOS-ASSOCIATED DISEASES, 71 (2d ed. 2004) F.2d 1076 (5th Cir. 1974). 14. LLOYD DIXON ET AL., ASBESTOS BANKRUPTCY TRUSTS: AN OVERVIEW OF TRUST STRUCTURE AND ACTIVITY WITH DETAILED REPORTS ON THE LARGEST TRUSTS 1-2 (Rand Corp. 2010). 15. Biggs, supra note 4, at Carroll, supra note 2, at Id. at In Delaware, the last three years have seen a sharp increase in the number of lung cancer (particularly smoking lung cancer) cases, which now grossly outnumber mesothelioma filings. 19. Both the Sokolove Firm and James F. Early, LLC maintain Facebook pages under the names Ban Asbestos Now! and Mesothelioma Resource Center without identifying the firms as the sites sponsors. 20. Daniel Fisher, Lawyers Outspend Obama On The Web, Study Finds, FORBES, Feb. 29, 2012, / 29/lawyers-outspend-obama-on-the-web-study-finds/. Pay per click (PPC) is an advertising model used by search engines and website owners to direct Internet traffic to sponsored links or sites. Websites that utilize PPC ads will display an advertisement when a keyword query matches an advertiser s keyword list. Such advertisements are called sponsored links or sponsored ads,and often appear adjacent to or above organic results. 21. In re Combustion Eng g., Inc., 391 F.3d 190, 200 (3d Cir. 2004). 22. The creation of a trust to manage asbestos liabilities was a new approach. Manville, however, grossly underestimated the number of claims that would be filed. By 1992, more than 190,000 claimants sought compensation from the Manville Personal Injury Settlement Trust. Claim-processing procedures were revised and a future claim representative (FCR) position was created to protect the interest of claimants who had not yet filed claims. These, and other, modifications were codified into bankruptcy law as part of the Bankruptcy Reform Act of 1994 (Pub. L , 111); Dixon, supra note 14, at Dixon, supra note 14, at Biggs, supra note 2, at Bates, Mullin and Marquardt, The Naming Game, 24 No. 15 MEALEY S LITIG. RPTR: ASBESTOS 1(Sept. 2, 2009). In a study on filings in Alameda County, California a jurisdiction with a well-established history of asbestos litigation researchers found the number of defendant named in a typical complaint rose, on average, from fewer than 30 in the 1990s to more than 60 between 2003 and Dixon, supra note 14, at 3, 5; Biggs supra note 2, at 5-7; see also Bates, supra note Victor E. Schwartz, Mark A. Behrens and Rochelle M. Tedesco, Addressing the Elephantine Mass of Asbestos Cases: Consolidation Versus Inactive Dockets (Pleural Registries) and Case Management Plans that Defer Claims Filed by the Non-Sick, 31PEPP. L. REV. 271, 280 (2004) (citing Medical Monitoring and Asbestos Litigation A Discussion with Richard Scruggs and Victor Schwartz, 17No.3MEALEY S LITIG. RPTR: ASBESTOS 19 (Mar. 1, 2002) (quoting Mr. Scruggs)). 28. Dixon, supra note 14, at Id. at 30, fn. 7, Id. at 30. The 2010 RAND Report projects that initial assets of the proposed but not yet established trusts are significant. The projected initial assets of eight trusts, for which estimates could be calculated, totaled $14.5 billion. The average time from filing to confirmation of the bankruptcy plan is 3.9 years. Since 2009, eleven 11

13 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos traditional target defendants including General Motors Corp. and Garlock Sealing Tech. filed for bankruptcy. 31. In re Asbestos Litigation, 929 A.2d at US Chamber of Commerce State Liability Rankings Study, See Mark A. Behrens, What s New in Asbestos Litigation, 28 REV. LITIG. 501, 541 (2009) (discussing the increase in filings in Delaware and noting the difficulty faced by Delaware corporations in obtaining dismissal on forum grounds). 34. There are three Orders that work together in governing and managing asbestos cases in Delaware: General Scheduling Order No. 1 (amended March 9, 2011); Standing Order No. 1 (amended March 9, 2011) and the Master Trial Scheduling Order (regularly amended, most recently Nov. 7, 2012). 35. Neither the General Scheduling Order nor the Master Trial Scheduling Order makes reference to claims filed with bankruptcy trusts. 36. In re Asbestos Litigation, STANDING ORDER NO. 1, at } 7(l) (Del. Super. Ct. March 9, 2011) (emphasis added). 37. Dixon, supra note 8, at Illinois, California, New York, Pennsylvania, West Virginia and Texas all require pretrial disclosure of trust claims that have been filed. Only Montgomery County, Pennsylvania and New York City, however, mandate the filing of trust claims before trial. 38. Dixon, supra note 8, at See DEL. R.PROF. C. 3.3, See Schwartz, supra note 29; Eric Roston, The Asbestos Pit, TIME, Mar. 11, 2002, me/magazine/article/0,9171,214107,00.html. 41. See William P. Shelly, Jacob C. Cohn and Joseph A. Arnold, The Need for Transparency Between the Tort System and Section 524(g) Trusts, 17 NORTON J. BANK. LAW AND PRAC. 257 (2008). 42. A September 2011 report from the U.S. Government Accountability Office revealed that 65 percent of asbestos bankruptcy trusts include disbursement procedures intended to prevent production of exposure allegations and other claims information. U.S. Government Accountability Office, Asbestos Injury Compensation: The Role and Administration of Trusts, GAO (Sept. 2011), products/gao at pg John B. Manning, Impact of Bankruptcies on Asbestos Litigation, ASBESTOS MEDICINE, November 2009 at 42. ( It is the in plaintiffs interest to keep trust submission information guarded. User-friendly TDPs provide quick and easy access to trust funds. For example, many trusts provide a quick-pay option, whereby a claimant can forego submission of typically required documentation, such as medical evidence, but still receive a nominal payment from the trust. ). 44. Id. 45. Case No. CV (Ohio Ct. Cm. Pl. Cuyahoga County Jan. 18, 2007). 46. Daniel Fisher, Double-Dippers, FORBES, Sept.4, 2006, print.html. 47. Case No. CV , slip op. at 19 (Ohio Ct. Cm. Pls., Cuyahoga County Jan. 18, 2007). 48. John O Brien, Del. Asbestos Judge Disgusted With Bankruptcy Trust Secrecy; Company Says Coon Kept Claims Info From Attorneys, May22,201,http://www.setex asrecord.com/news/ del.-asbestos-judge-dis gusted-with-bankruptcy-trust-secrecy-company-sayscoon-kept-claims-info-from-attorneys. 49. Id. 50. Dixon, supra note 8, at Id. at DEL. R. PROF. C. 3.4 (a). The comment to Rule 3.4(a) captures the problem at the center of this debate. It reads [t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by the 12

14 MEALEY S LITIGATION REPORT: Asbestos Vol. 27, #22 December 19, 2012 prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. (emphasis added). 53. DEL. R. PROF. C. 3.3(a)(3). 54. Furthering Asbestos Claim Transparency (FACT) Act, H.R. 4369, 112th Cong. (2012). At section 2, the bill provides the following amendments to section 524(g): (8) A trust described in subsection (2) shall (A) file with the bankruptcy court and the United States Trustee, not later than 60 days after the end of every quarter, a report that shall be made available on the court s public docket and with respect to each such reporting period (i) describes each demand the trust received from, including the name and exposure history of, a claimant and the basis for any payment from the trust made to such claimant; and (ii) does not include any confidential medical record or the claimant s full social security number; and (B) upon written request, provide in a timely manner any information related to payment from, and demands for payment from, such trust, subject to appropriate protective orders, to any party to any action in law or equity if the subject of such action concerns liability for asbestos exposure. 55. Id. 56. Press Release, Rep. Benjamin E. Quayle, Quayle Introduces the Furthering Asbestos Claim Transparency Act (April 18, 2012), news-amp-events/quayle-introduces-the-furtheringasbestos-claims-transparency-act/. 57. Id. 58. Press Release, Sen. Tom Coburn, M.D., Coburn Introduces Furthering Asbestos Claim Transparency (FACT) Act (May 10, 2012), senate.gov/public/index.cfm/pressreleases?content Record_id=2005cb48-3b2e-40f8-a543-b82947aaf ad0&contenttype_id=d741b7a cb9378aa03a&Group_id=20b0ff81-cc2b bec8-343b33c3e See e.g., 60. H.B. 380, 129th Gen. Assem. (Ohio 2012), HB_ 380; S.B. 1792, 53rd Leg. (Ok. 2012), legiscan.com/gaits/view/ In re Asbestos Personal Injury Litigation, Civ. No. 03- C-9600, Case Management Order, at } 22(A)(2)(W. Va. Cir. Ct., Kanawha Cty. Jan. 6, 2012) (emphasis added). 62. Id. (emphasis added). 63. Id. at} 22(A)(4). 64. Id. at} 22(E). 65. See In re New York City Asbestos Litig., No /99, at XV.E.l (N.Y. Sup. Ct. Sept. 20, 1996, amended as of May 26, 2011). 66. Id. 67. Dixon, supra note 8 at 20; Mark Behrens, et al., Asbestos Litigation Magnet Courts Alter Procedures: More Changes On The Horizon, 27No.8MEALEY S LITIG. RPT.: ASBESTOS 8 (May 16, 2012). Prominent plaintiffs firm Weitz & Luxenberg challenged the legality of the discovery obligations under the NYCAL management order, see infra. Weitz & Luxenberg is represented at 11 asbestos bankruptcy trusts that have $13.4 billion in assets. 68. In re: New York City Asbestos Litigation, No /88, slip op. at 5 (N.Y. Sup. Ct. filed Nov. 15, 2012) (Heilter, J.). 69. Id. 70. Id. at No. 10C (Del. Super. Ct. June 7, 2012). 72. Transcript of Oral Argument at , McGhee v. AT&T, Inc., et al., No. 10C (Del. Super. Ct. June 7, 2012) ( I know you could find out, in my 13

15 Vol. 27, #22 December 19, 2012 MEALEY S LITIGATION REPORT: Asbestos courtroom anyway, whether the plaintiff was exposed to asbestos in connection with other entities which are now in bankruptcy, but beyond that, I don t think I can force them to say whether they contemplate making a claim, and in fact, they may not know. ). 73. In re: New York City Asbestos Litigation, No /88, slip op. at 18 (N.Y. Sup. Ct. filed Nov. 15, 2012) (Heilter, J.). 74. Id. 75. Rose A. Thibeault, et al. v. Allis Chalmers Corp. Product Liability Trust, No (Pa. Comm. Pls., Montgomery Co. Feb. 26, 2010). 76. Special Committee on Delaware Superior Court Toxic Tort Litigation, Report and Recommendations (May 9, 2008) (on file with author). 77. Id at 26 (emphasis added). 78. Id. at n 14

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