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• Grace Bets On Winning Asbestos Lawsuits  

W.R. Grace followed the same tack for a while. But pushed into bankruptcy, it now is trying the novel approach of asking a bankruptcy judge to declare many of the roughly 100,000 claims it faces to be invalid.

The company is making the request as part of its effort to emerge from bankruptcy. In order for Grace to exit bankruptcy, the judge must rule on what liabilities the company faces, and that means deciding how many of the claims are valid and what they might total. The judge's decision does not resolve the individual claims, but it could set a standard for further litigation.

The trial started two weeks ago, and already Judge Judith Fitzgerald has allowed the company to introduce testimony purporting to show that diseases were over-diagnosed in many cases. . . .

"This case and this trial present the first opportunity for a federal court to set a standard on the basis of which the tens of thousands of asbestos claims that are being pursued can be resolved based upon their merit," said David Bernick, a lawyer representing Grace who has a long history defending companies against similar lawsuits. . . .

Asbestos lawsuits have been a prominent battleground for the competing claims of trial lawyers and corporations over the years, a debate that has played out over weight loss pills, tobacco, silicon breast implants and other products.

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• [Donna Silbersack, Personal Representative of the Estate of Dominic Casino, et al. v. AC and S, Inc., et al., No. 53, September Term 2007. 

This case has a complex history, but the issue before us is a simple one. No final judgment, as we have consistently defined that term, has been entered in the case by the Circuit Court. There are still claims pending against nine defendants who are in bankruptcy. Appellants asked the court to enter a judgment, under Maryland Rules 2-601 and 2-602(b), and the court declined to do so. Appellants acknowledge that such a decision is both a discretionary and interlocutory one and that no appeal ordinarily lies from it. Their case, they believe, calls for a different result. They insist that, in their case, the court’s refusal to exercise its discretion in their favor constitutes a final judgment. We disagree and shall dismiss their appeal.

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• Asbestos plaintiff can’t fight tobacco dismissals 

The Court of Appeals has refused to allow the family of a man who died of lung cancer to put a wrongful death suit against asbestos defendants “on ice” while appealing the dismissal of tobacco defendants.

“Ultimately, the question is whether the case should remain in trial court until the case is over, which, for good reason, is what the law generally requires,” wrote retired Judge Alan M. Wilner, specially assigned, for the high court.

“We think the court correctly decided the case and we are very pleased,” said Kathleen McDonald of Kerr McDonald LLP, attorney for appellee Lorillard Tobacco Co. . . .

Case: Donna Silbersack, Personal Representative of the Estate of Dominic Casino, et al. v. ACandS, Inc., et al. CA No. 53, Sept. Term 2007. Reported. Opinion by Wilner, J. Filed Jan. 4, 2008.

Issue: Can a party appeal the denial of a motion for an entry of a final judgment?

Holding: No; appeal dismissed. . . .

Appellants, the widow of Dominic Casino and the personal representative of his estate, filed suit in Baltimore City Circuit Court in 1997 against 19 defendants after Casino died of lung cancer. The wrongful death and personal injury lawsuit claimed that Casino’s death was caused by exposure, during his employment at the Bethlehem Steel Corp., to asbestos products that were allegedly manufactured or distributed by the defendants.

A year prior to filing this suit, Casino was also part of a class of plaintiffs in a class action lawsuit against Philip Morris filed by The Law Office of Peter G. Angelos.

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• Rules on smoking weren't enforced at toxic ground zero building 

The deadly fire at an abandoned ground zero skyscraper has raised questions over whether there is strict enough enforcement of rules banning smoking at certain construction sites.

City officials this week said that they believe careless smoking by demolition workers started the blaze, which filled the tower with a lung-searing soot that killed two firefighters.

Smoking was forbidden in the building, but authorities said the rules were widely ignored. Fire Commissioner Nicholas Scoppetta said workers apparently lit up regularly, including on the 17th floor, where the blaze began.

That smoking was common surprised some fire safety experts, who noted that the tower, which is being dismantled after being damaged in the Sept. 11 terrorist attacks, was filled with flammable materials including unusually large amounts of plywood and plastic used to contain asbestos.

"There should have been people walking around saying, 'If you smoke anywhere within 100 feet of this building, you're history,"' . . .

A variety of city and state rules were supposed to have limited cigarette use in the building. . . .

The Occupational Safety and Health Administration also bans smoking in any areas where workers are exposed to asbestos because of their jobs.

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A Statement from Weitz & Luxenberg, P.C. to Smokers and Former Smokers: Asbestos Exposure Multiplied Your Risk for Lung Cancer 

Sitting before the U.S. Senate two years ago, Dr. Philip Landrigan, the Chair of the Department of Community and Preventive Medicine at Mt. Sinai School of Medicine, testified, "asbestos workers who also smoke[d] have 55 times the background risk of lung cancer." Further, according to Perry Weitz, the founding member of Weitz & Luxenberg, P.C., a leading asbestos law firm, "if smokers who are exposed to asbestos smoke a pack of cigarettes a day, their risk of getting lung cancer is more than a 100 times that of a person who does not smoke and isn't exposed to asbestos." The courts have found in favor of smokers exposed to asbestos with multimillion dollar damages punctuated by a recent jury verdict won by Weitz & Luxenberg P.C.

"Cigarettes are addictive, asbestos is not. All that was needed to protect people from asbestos-related lung cancer was a warning," says Perry Weitz.

In May, the firm obtained a jury verdict of $37 million for two smokers with lung cancer who had been exposed to asbestos; adding another victory to its long record of success in asbestos litigation (index #s 100016/99 and 113583/05, New York Supreme Court). The defendant was Robert A. Keasbey Company, a former insulation contractor and distributor of asbestos products.

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Asbestos Not Blamed For Carpenters Death  

INDUSTRIAL exposure to asbestos did not play a part in the lung cancer which killed a Dursley man, a coroner has ruled.

Deputy county coroner David Dooley recorded a verdict that Frederick Rudd, 74, a retired carpenter/joiner of Rock Road, died from natural causes.

Mr Dooley said at the inquest in Gloucester that the level of asbestos fibres found in Mr Rudd's body was not high enough to prove that it was due to industrial exposure to the deadly mineral. . . .

Mr Rudd had come into contact with asbestos during the building work and used to cut and saw it to shape, she stated.

He had also been a lifelong smoker, although he had given up in 1998 because he was fed up with getting chest infections in winter.

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CLINICAL GUIDELINES FOR ADULTS EXPOSED TO THE WORLD TRADE CENTER DISASTER (PDF) 

The risk and severity of many WTC-related diseases are heightened by tobacco use. Exposure to secondhand smoke may also exacerbate WTC-related diseases. All WTC-exposed people and their family members who use tobacco should be advised to quit, and all who attempt to quit should be provided with medications to help them quit. Smokers can access the Smokers’ Quitline by calling 311. Information on the treatment of nicotine addiction is available at: www.nyc.gov/html/doh/downloads/pdf/chi/chi21-6.pdf

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• Weitz & Luxenberg Wins $37 Mil Asbestos Verdict in Two Lung Cancer Cases 

On Friday, May 11, 2007, Weitz & Luxenberg, P.C., a staunch protecter of the rights of workers who have been recklessly exposed to asbestos, won Phase II of a reverse-bifurcated lung cancer trial against Robert A. Keasbey Company. The company was a former insulation contractor that also distributed asbestos products in the New York metropolitan area.

James C. Long, Jr., Weitz & Luxenberg trial team attorney and lead counsel said, “Our clients suffered greatly. We are pleased that the jury was receptive to the evidence that established the substantive role that exposure to asbestos plays in the development of lung cancer and other debilitating diseases.” . . .

This was the first time that an asbestos defendant brought forth a full tobacco company liability case, calling pulmonologist Dr. Hans Weill, and a tobacco historian, Dr. Louis Kyriakoudes, to the stand in an effort to again try to blame smoking as the sole or overwhelming cause of the lung cancers.

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• Law Firm Wins $37 Mil Asbestos Verdict in Two Lung Cancer Cases 

On Friday, May 11, 2007, Weitz & Luxenberg, P.C., a staunch protecter of the rights of workers who have been recklessly exposed to asbestos, won Phase II of a reverse-bifurcated lung cancer trial against Robert A. Keasbey Company. The company was a former insulation contractor that also distributed asbestos products in the New York metropolitan area.

James C. Long, Jr., Weitz & Luxenberg trial team attorney and lead counsel said, “Our clients suffered greatly. We are pleased that the jury was receptive to the evidence that established the substantive role that exposure to asbestos plays in the development of lung cancer and other debilitating diseases.” . . .

This was the first time that an asbestos defendant brought forth a full tobacco company liability case, calling pulmonologist Dr. Hans Weill, and a tobacco historian, Dr. Louis Kyriakoudes, to the stand in an effort to again try to blame smoking as the sole or overwhelming cause of the lung cancers.

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• Cigar smoker's wife blames asbestos for husband's lung cancer 

Attorney Bryan Blevins of Provost Umphrey will represent Lula Delafosse, the wife of the deceased Louis Delafosse, in a suit against the A.O. Smith Corp., along with 42 other major corporations, for distributing products containing asbestos throughout Jefferson County.

This is the fifth case of its kind in the last two months. Provost Umphrey is best known for organizing asbestos and benzene class-action lawsuits against chemical refineries.

Delafosse filed the lawsuit with the Jefferson County District Court on May 2. Judge Donald Floyd, 172nd Judicial District, will preside over the case. The suit names corporations from aerospace giant Lockheed Martin to iron supplier Zurn Industries for manufacturing and distributing asbestos laced products.

A lung cancer patient, Louis was around 87 years of age when he passed away, the suit said.

Medical records attached to his lawsuit state Louis, a WWII veteran, had significant occupational exposure to asbestos, probably while working at John Dallinger Steel, Inc. from 1941 to 1942 and 1955 to 1983.

The document also says Louis was an avid cigar smoker.

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NYU Medical Center Partners With Rosetta Genomics to Develop a Line of Diagnostic Tools for Lung and Mesothelioma Cancers 

Rosetta Genomics, Ltd. (NASDQ: ROSG) announced today that it has partnered with NYU Medical Center with the aim of developing a line of early detection diagnostic products for lung, and Mesothelioma cancers. The early detection test will mainly target over 45 million Americans who are at an increased risk of lung cancer due to smoking, as well as those who have been exposed to asbestos fibers. The test will utilize Rosetta Genomics' proprietary protocol to extract microRNAs from a simple blood draw.

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Study looks into possible cancer link with asbestos 

Neighbors of two plants that made products containing asbestos were about 50 percent more likely to get lung cancer than residents living elsewhere in the state, a new study indicated.

Using data from the U.S. census and the Utah Cancer Registry, a Utah Department of Health study identified about 70,000 people who lived in the 2-mile radius around both vermiculite processing plants and traced their cancer incidence over 28 years.

The number of cases of respiratory cancer in the area was significantly higher than other areas of the state, but cases of the specific cancer directly linked to asbestos -- mesothelioma -- were significantly lower, said Wayne Ball, lead epidemiologist with the state Department of Health. . . .

Other factors, like smoking, could have also caused the cancers, Ball said.

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Lorillard Tobacco Company Comments On Decision in Ohio Personal Injury Case 

Late yesterday a Cuyahoga County Ohio state court judge issued an order and opinion that make a significant statement about the consequences of litigation fraud and abuse.

Judge Harry Hanna revoked the law firm of Brayton Purcell’s admission to the Ohio court for violating legal and ethical standards through a series of improper and deceptive acts in pretrial discovery.

"We are pleased with Judge Harry Hanna's decision in the Kananian case" said Ronald S. Milstein, Lorillard's Senior Vice President of Legal and External Affairs. "We hope our efforts to bring to the court’s attention this reckless abuse of the judicial system and Judge Hanna’s refusal to tolerate such deception will make a loud and clear statement to all that our process of jurisprudence must be conducted in the most impartial manner possible to effectively enforce the law.”

“Lorillard also hopes that Judge Hanna’s decision will benefit other companies that may be subject to unethical conduct in asbestos personal injury and mass tort litigation.”

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Law Blog Lawyer of the Day: Christopher Andreas 

On Monday we posted on colleague Paul Davies’s story on an Ohio court lambasting a plaintiffs’ firm in an asbestos case brought against a tobacco manufacturer. Judge Harry Hanna criticized the law firm for, among other things, one of its attorneys wearing a t-shirt in a deposition that read: “Killer smokes — Kent cigarettes — 1952-1956 — made by Lorillard Tobacco.” After reading the article we thought to ourselves, “Gee whiz, we’d love to get our readers a photo of this guy in his killer tee.”

Well, the intrepid Davies came through for us in a big way. At left: Christopher Andreas, a junior partner at Brayton Purcell in Novato, Calif. The photo was captured from the videotaped deposition.

Judge Harry Hanna came down hard on Andreas, questioning Andreas’s “appearance, attitude and veracity” and finding that he “lied to the court” on several instances.

“For an officer of the court to show such lack of respect is shocking,” Judge Hanna wrote.

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EDITORIAL: Cuyahoga Comeuppance ($$) 

The judicial hammer finally came down last week on the California law firm of Brayton Purcell, one of the giants of the asbestos bar. All the firm had done was file a false claim, lie in court and obstruct discovery. . . .

Judge Hanna has now opened the door to more scrutiny of "double dipping" and the rampant fraud inherent in asbestos trusts. The goal should be for more judges to allow for the discovery and admissibility of trust forms in ongoing litigation. His opinion is required reading for other judges, who can start asking whether similar dishonesty is destroying the integrity of their own courts.

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