Tobacco.org

• In This Asbestos Case, Plaintiffs May Get Burned 

Asbestos defendants often say they're the victims of a multibillion-dollar shakedown. A new case could prove they're right.

Asbestos defendants have complained for years that they are the victims of a multibillion-dollar shakedown. Now a Mississippi lawsuit makes that claim explicit: A Georgia company that paid out some $95 million in asbestos settlements has accused doctors, testing companies and as-yet unnamed plaintiff lawyers of participating in a racketeering scheme to gin up phony cases.

It's not the first time an asbestos defendant has accused the other side of fraud. . . .

Potential defendants include some of the most prominent names in the plaintiffs' bar, such as Baron & Budd; Motley Rice; Reaud, Morgan & Quinn and Brent Coon. Many are big supporters of the Democratic party and some participated in the multibillion-dollar tobacco settlement, raising the political stakes if the case proceeds.

The Mississippi lawsuit--two of them, actually, filed in state and federal court--names physicians including Dr. Jay T. Segarra, an Ocean Springs, Miss., radiologist who reportedly reviewed tens of thousands of X-rays over the years for evidence of asbestos injury. . . .

The Mississippi cases face an uphill fight, as lawyers and physicians have frequently cited confidentiality and the attorney-client privilege to refuse to turn over documents. But defendants have cracked the wall. An Ohio judge in 2007 booted the Novato, Calif., law firm of Brayton Purcell from an asbestos case after defendant Lorillard Tobacco Co. obtained e-mails and other documents suggesting the lawyers had made up information about their client.

Jump to full article »

• Ex-Grace Officials on Trial in Asbestos Poisoning  

LIBBY, Mont. — A reckoning in one of American history’s worst industrial disasters, which unfolded here over seven decades as an asbestos-tainted mineral was dug from the ground and processed, begins Thursday when five former mine executives go to trial on federal criminal charges.

The case is highly unusual in that prosecutors have generally avoided criminal charges in the broad arena of asbestos law, leaving the issue to the civil courts.

But the story of the now-closed mine and its adjacent mill is different, because it involves not only miners but also their families and neighbors, many of whom became ill just living in this remote northwestern corner of Montana.

At least 200 deaths and thousands of illnesses are known to be related to the town’s exposure to the mine’s billowing dust clouds of vermiculite . . .

The company did ban smoking at the mine in 1978 — smoking compounds the dangers of asbestos, doctors say — and also issued respirator masks to workers. But showers that the miners could have used at the end of their shifts before heading home were ruled out, because they might have overly worried people. . . .

Legal experts say that some of the prosecution’s case could be particularly hard to prove, especially the charges that Grace executives obstructed justice by obfuscating in interviews with investigators at the Environmental Protection Agency, and then conspired to cover up their knowledge of the asbestos risks.

“Companies have a right under the First Amendment, established by the Supreme Court and recently reinforced, to advocate on their own behalf,” said Lester Brickman, a professor at the Benjamin N. Cardozo School of Law in New York.

Jump to full article »

• Workers' Comp Award in Asbestos Case Reduced to Account for Cigarette Usage 

The Connecticut Supreme Court has ruled that a laborer's lung damage from smoking can be segregated from respiratory problems caused by asbestos work, and his workers' compensation award reduced by the portion of his ailment caused by cigarettes.

Workers' comp plaintiffs lawyers say that before the decision in George Deschenes v. Transco, such blended injuries had consistently resulted in full compensation.

The justices reached their conclusion after a long struggle. The ruling, to be officially released this week, was a reconsideration of a decision issued in the same case last year. The justices tightened some language after considering amicus briefs by lawyers who represent injured workers. . . .

"For the court to judicially create this apportionment where none had been before really caught the attention of a lot of people," said Nathan J. Shafner, of Groton, Conn.'s Embry & Neusner, who co-authored one of four amicus briefs in the case, on behalf of the New England Health Care Employees Union. "We saw this as more than a slippery slope -- this was a runaway train."

Justice Flemming L. Norcott Jr., writing for a unanimous court, saw the question as one that had never been asked before. Whether the Workers' Compensation Act requires official consideration of two separate but concurrent illnesses -- one occupational, the other not -- is a question of first impression, he wrote, and one "that requires us to fill a gap in our statutes." . . .

there was too little information in the court record for the Supreme Court to issue a final ruling. So the case was sent back for further legal proceedings before a different commissioner.

Jump to full article »

[E]mployers should not have to bear the costs of their employees' smoking habits.
Connecticut Supreme Court.

• 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.

Jump to full article »

• [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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• Ohio Judge Finds Calif. Firm Submitted Fraudulent Asbestos Claim Forms 

An Ohio state court judge upbraided the Brayton Purcell law firm in Novato, Calif., and one of its partners Thursday, finding that they lied to the court, submitted fraudulent asbestos claim forms and broke other rules.

As a result, the judge said in a published ruling that they had forfeited pro hac vice privileges to practice law in the asbestos litigation hotbed of Ohio's Cuyahoga County.

Judge Harry Hanna's ruling offers a rare glimpse behind the scenes of a heated discovery fight, one that portrays the plaintiffs firm and partner Christopher Andreas as sloppy and deceitful in their representation of the estate of Harry Kananian, who died from mesothelioma, a cancer caused by asbestos exposure.

The decision won't put an end to the underlying claims Kananian's estate brought against Lorillard Tobacco, maker of Kent cigarettes. But it jeopardizes the ability of Andreas and the Brayton firm to practice in the Ohio county, which includes Cleveland; whether the ruling will sully their reputations elsewhere is unclear. . . .

When lawyers for Lorillard moved to disqualify the California firm and its partner in November, they contended that Andreas and the Brayton firm had submitted inconsistent claims to asbestos trusts in order to hit up multiple defendants for Kananian's exposure, then lied in court to cover their tracks. . . .

The judge also criticized Andreas for showing up at a deposition last summer wearing a T-shirt that said, "Killer Smokes -- Kent Cigarettes -- 1952-1956 -- Made by Lorillard Tobacco." . . .

As part of Thursday's order, Hanna denied Lorillard's request to dismiss the case, saying that Kananian's family and its current counsel did nothing wrong.

Jump to full article »

• Lorillard Tobacco Company Comments on Decision in Ohio Personal Injury Case 

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."

Jump to full article »

• STRASSEL: Trusts Busted ($$) 

Harry Kananian died in the year 2000 of mesothelioma -- a cancer almost always caused by asbestos. But the legacy that may survive him is the role he is posthumously playing in exposing evidence of asbestos litigation fraud.

In early 2000, the Ohio resident met with the law firm of Early, Ludwick, Sweeney & Strauss to see about collecting compensation from special trusts set up by companies to deal with asbestos liabilities. . . .

In the legal trade, this is known as "double dipping" -- the process by which lawyers file claims at many different bankruptcy trusts on behalf of a single plaintiff. Each trust is told a different story about how the client got sick, and the plaintiff collects from all of them. Of course, the lawyers collect too. This practice may well have remained unexposed had not Brayton Purcell decided to cash in on Kananian one more time. It sued Lorillard Tobacco, this time claiming its client had become sick from smoking Kent cigarettes, whose filters contained asbestos for several years in the 1950s. That suit has now exploded on Brayton, exposing one of the asbestos bar's more lucrative cash cows.

Jump to full article »

• LETTER: A Death by Mesothelioma ($$) 

In response to the Dec. 5 editorial-page commentary "Trusts Busted" by Kimberley Strassel: In June of 2000, Harry Kananian died of mesothelioma, a rare cancer of the lining of the lungs, caused only by past exposure to asbestos fibers. Prior to his death, a personal injury lawsuit was filed on his behalf in California.

A number of companies that made or sold asbestos-containing products were named as defendants, including Lorillard Tobacco Co. . . .

The allegations leveled against the defendant companies, including Lorillard, in both California and Ohio have been entirely consistent. At all times, plaintiffs have asserted that it was the cumulative dose of asbestos inhaled by Mr. Kananian from all sources that caused his mesothelioma.

Lorillard, in conscious disregard for the health and safety of its customers, incorporated a particularly lethal form of asbestos fiber into its Kent "Micronite" cigarette filters from 1952-1956. . . .

Seeking damages from all of the companies who profited from the sale of this deadly material is not "double dipping," but rather is entirely proper under our system of civil jurisprudence to ensure full and complete compensation for injuries or death caused by an individual's cumulative past exposure to asbestos. . . .

I would hope the Journal could be more concerned with compensation of innocent people unwittingly exposed and injured by this deadly material rather than leveling unfounded allegations that somehow the attorneys representing these victims are trying to "double dip."

Jump to full article »

• STRASSEL: Trusts Busted ($$) 

Harry Kananian died in the year 2000 of mesothelioma -- a cancer almost always caused by asbestos. But the legacy that may survive him is the role he is posthumously playing in exposing evidence of asbestos litigation fraud. . . .

In the legal trade, this is known as "double dipping" -- the process by which lawyers file claims at many different bankruptcy trusts on behalf of a single plaintiff. Each trust is told a different story about how the client got sick, and the plaintiff collects from all of them. Of course, the lawyers collect too. This practice may well have remained unexposed had not Brayton Purcell decided to cash in on Kananian one more time. It sued Lorillard Tobacco, this time claiming its client had become sick from smoking Kent cigarettes, whose filters contained asbestos for several years in the 1950s. That suit has now exploded on Brayton, exposing one of the asbestos bar's more lucrative cash cows.

In Cleveland, Judge Harry Hanna of the Cuyahoga County Court of Common Pleas has been asked to rule on a motion to disqualify Brayton from the suit and bar it from practicing in Ohio. The firm stands accused by Lorillard of lying to the court, defrauding asbestos trust funds and obstructing discovery. Those accusations come via a raft of internal emails and documents, most if which are referred to in the court record, that tell a story of two law firms using contradictory stories to rake in money from bankruptcy trusts, then potentially trying to cover it up. All parties are under a gag order from the judge. Last week, Brayton Purcell, amazingly, requested to withdraw itself from the case. . . .

Whatever happens, the exposure of this trust scam is bolstering a new wave of oversight. Judges are already taking a closer look at silicosis claims and "prepackaged" bankruptcies -- both cash cows for the trial bar. Just last week, a separate Ohio judge ruled that an asbestos plaintiff must turn over any prior claims to a bankruptcy trust. Similar rulings have been handed down in Virginia and California. . . .

A cleaner system would help true victims. Some lawyers for mesothelioma victims feel the need to file many claims because trusts are drying up -- making it difficult to get decent compensation. The feeding frenzy by plaintiffs lawyers who cash in repeatedly, often on behalf of plaintiffs who are entirely healthy, often leaves little for those who are truly ill. It isn't justice: It's fraud.

Jump to full article »