CCR Class Action Busted

We won! The asbestos class action, for now, is dead. The Third Circuit Court of Appeals recently overturned the class action lawsuit which attempted to insulate from litigation the twenty asbestos companies who belong to the Center for Claims Resolution (CCR).

The class action, which was filed in January 1993, would have settled all present and future claims against CCR members for a fraction of what asbestos victims could obtain using the court system. CCR members include National Gypsum, United States Gypsum, Flexitallic, GAF/Ruberoid, Armstrong, AP Green, Union Carbide, among others.

This is huge victory for asbestos victims nationwide. We have been arguing for the past three years that the class action settlement was a sell out and a fraud. The sweetheart settlement deal would have capped damages at an arbitrary dollar amount. It would have deprived Americans who developed asbestos disease and cancer after January 1994 of their constitutional right to a jury trial. It would have denied any compensation to victims with pleural disease and low- level scarring.

The Third Circuit Court of Appeals agreed with us. The Court concluded:

• The class action settlement was an attempt by a single trial court and a cadre of unethical lawyers to "legislate" from the bench a final solution to the asbestos litigation boom.

• The interests of individual claimants from Coast to Coast were too factually and legally different to be all lumped in together for a quick and dirty bargain basement settlement.

• The settlement would have deprived claimants of their legal rights to seek damages for medical monitoring and loss of consortium (i.e., the loss of love, comfort, society and affection by a wife whose husband was dying of mesothelioma).

The Court wrote: "The settlement relegates those who are unlucky enough to contract mesothelioma in 10 or 15 years to a modest recovery, whereas the average recovery of mesothelioma plaintiffs in the tort system runs into millions of dollars."

Special credit goes to Fred Baron and Brent Rosenthal of Baron & Budd who have spearheaded the legal efforts to undo the class action the past three years. The task was monumental. Very few plaintiffs' firms nationwide had the resolve to fight against the powerful asbestos companies, their insurance carriers, and the trial court in Philadelphia. The Court of Appeals could have very easily denied the appeal. It could have maintained the status quo. It could have bought into the popular refrain that there are too many asbestos cases clogging up the court system. It could have sacrificed the individual's rights in favor of a fiscally expedient "global resolution."

But the Court held firm. The Court acknowledged the potential for using class actions to foist unreasonable settlements on unsuspecting victims of dangerous products. The answer to mass social problems, it said, lies with the legislative branch.

Had the CCR class action survived appeal, experts predicted a wave of class action lawsuits filed by manufacturers of silicone breast implants and defective pacemakers, heart valves, automobiles, drugs, chemicals and other products.

After the decision was handed down, the CCR attorneys filed a motion for reconsideration. In late June, the Third Circuit affirmed its original decision. However, in August, the CCR filed a writ of certiorari with the United States Supreme Court. Because the Fifth Circuit recently upheld a similar, although identical, "limited fund" class action lawsuit filed by Fibreboard, the chances that the Highest Court in the Land will review the case and issue a ruling are favorable.

For the past few years, many of our clients have been barred from suing CCR members. Because the CCR has appealed to the Supreme Court, unfortunately we will probably be forced once again to delay our litigation efforts against those CCR companies who are responsible.

Like the Hydra headed monster, lop off one head and another sprouts up in its place. It never ends.