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Message to Asbestos Defense: Solve the Problem, Cure the Cancer
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In 1935 about 250 lawyers, executives
and insurance lobbyists convened in Philadelphia to discuss the growing threat of lawsuits
over asbestos exposure. They decided "the greatest bulwark against the future
disaster of the [asbestos] industry was the enactment of properly drawn laws" which
would "eliminate the jury" and "eliminate the shyster lawyer and quack
doctor." They talked about the disease and the cancer risks, but nobody talked about
removing asbestos, or replacing it, or investing money in treating the disease.
Fast forward almost 70 years. Look at where we are.
Hundreds of thousands of Americans dead from asbestosis, lung cancer and mesothelioma.
Millions of Americans with dangerous levels of asbestos fibers in their lungs and lung
linings. Millions occupationally exposed to asbestos, and millions exposed at home. $54
billion spent on litigation, over half of which was consumed by "transaction
costs," including defense lawyer fees and defense medical expert fees. Over 70
companies have gone belly up in the bankruptcy courts. Since January 2000, 23 companies
have sought shelter from the tort claims in the bankruptcy courts. Smart guys are
predicting another $200 billion worth of litigation costs in the next 50 years. A sense of
nihilism still pervades the medical community. Not a single government or industry
sponsored medical research and treatment program for mesothelioma victims exist.
Just last week, on March 28, 2003, a very polished,
very smart, and highly paid corporate lawyer for a prominent blue chip Washington D.C.
defense firm stood before an audience of insurance adjusters, corporate lawyers and risk
analysts at the Nikko Hotel in San Francisco and again spouted the party line. How do we
solve this asbestos disease mess he asked? How do we end the epidemic of mesothelioma and
cancer, especially among children and young adults? How do we stave off future
bankruptcies, protect jobs, increase shareholder value and save lives? How do we end the
needless suffering? Answer: we spend more insurance money to hire more medical experts
to cook up more "scientific" papers confirming that our flavor of asbestos
tastes good and is less toxic!
With a straight face the corporate lawyer suggested
that the reason why juries have awarded mesothelioma victims millions of dollars in
damages is because the asbestos industry has not invested sufficient resources in
establishing their "core defenses," i.e., the bizarre defense that chrysotile
asbestos does not cause meso (despite the fact that 95% of asbestos used in the U.S. was
chrysotile and every neutral government agency that ever studied the question has
resoundingly confirmed the nexus). He wrote in his rigorously researched paper (which
contained a stunning 112 citation-rich footnotes), in the context of advocating for more
corporate money to hire more experts to do more research in order to attack the
carcinogenicity of chrysotile:
Additional research . . . should
be given high priority. This task has been given even
greater urgency
by a still small but highly disturbing increase in secondhand exposure claims by
individuals who allege that they contracted mesothelioma after being exposed as children
to asbestos fibers brought home on their fathers’ clothing or from
asbestos-containing products in their homes. This is a subject on which additional
pathology, toxicology and epidemiology research is urgently needed [to
defend lawsuits]." 1
Let’s get this straight. The
corporate lawyers and their experts have already extracted at least $20 billion from the
asbestos companies and their insurers since the late 1960s in fees, costs and expert
reports, but more money is urgently needed to finally win the asbestos war? After 70 years
of ducking, weavind, denying, discrediting and deceiving, we need to spend more scarce
dollars chasing the fantastic notion that asbestos does not cause mesothelioma? I’ve
got an idea. Instead of investing all those billions in another bogus pseudo-scientific
courtroom prop, why not solve the problem at its roots? No, I’m not talking about
killing all the trial lawyers. I’m talking about finding a cure for mesothelioma.
Not once did the corporate sharpie from
Washington DC talk about investing in a cure. Wouldn’t that be the best defense?
Admit your fault, say you’re sorry, and work like a dog to find a cure so that
mesothelioma is not an automatic death sentence. Mesothelioma has been reported in the
medical literature since the late 1940s. But the asbestos companies have never ever made
any effort to fund a research program to eradicate mesothelioma. If the asbestos companies
were smart, if they hired smart lawyers who gave good advice, if they hired smart doctors
more interested in curing the disease than apologizing for it, they could’ve saved
billions in costs, fees and awards.
Instead, they continue to waste their
money on robot lawyers and their wind-up medical experts who it seems have little interest
in stopping the flow of mesothelioma cases at their roots. They continue to obsess on
causation. They continue to blame the victims, and their lawyers, and even judges who have
the courage to implement novel strategies for resolving cases. They continue to blame
"runaway" juries whenever they lose. They continue to drag cancer claimants
through the mud in endless depositions that produce nothing but more misery, more hardship
and more "billable hours" -- the holy grail of the defense attorney. They
continue to search for loopholes and technicalities that will get the guilty company off
the hook and strip the victims of their rights.
Perhaps it’s too late for the
asbestos companies who remain and their lawyers to get religion. When I helped found MARF
in late 1999, two major former asbestos companies, W.R. Grace and Owens Corning
Fiberglass, agreed that the time had come to invest in a cure. Both joined MARF with the
intention of raising money from their corporate brethren for the medical cause. But both
eventually bailed out with the help of their bankruptcy lawyers. OCF gave MARF a note for
$900,000 that for all intents and purposes is worthless. Meanwhile, we continue to see
that suave pink panther on the television hawking their insulation products -- OCF even
found the money to sponsor a basketball tournament, although they continue to owe millions
to mesothelioma victims.
It’s time to "think outside
the box" here folks. Instead of deny, deny, deny, why not admit your fault, apologize
for your mistakes and invest in a real solution -- a cure? Stop listening to the sage
advice of your hired guns. Their main interest is the perpeutation of the litigation. Even
in bankruptcy they make out like bandits, billing the debtor millions and millions every
month, money that should be used to compensate cancer victims and find a cure.2
Call me an idealist, but I dream of a
day when the asbestos companies put many trial lawyers out of business by admitting fault
and making mesothelioma curable.
Roger Worthington
March 31, 2003
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Voorhees and Hellerman, "Peripheral Defendants As
Litigation targets: Defense Strategies for The Next Wave," Asbestos Litigation,
ACI, San Francisco, CA (Feb. 28, 2003), p.40. |
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The defense lawyers and their bean counters have been
goring the assets of Owens Corning, which voluntarily filed for bankruptcy protection in
2000, like it was a generous cash cow. OCF recently revealed that in two years it's crack
team of lawyers and experts have stripped $200 million in legal and consulting fees from
the OCF carcass. That's $200 million that could have been better spent on finding a cure
and paying out deserving cancer and mesothelioma patients. There's no telling how much the
OCF trust will eventually pay out to the cancer claimants. But if it's anything like the
Manville Trust miscarriage -- the Manville Trust is currently paying out only $.05 on the
dollar to cancer claimants -- the only winners will be the corporate defense lawyers and
their army of paper pushing experts. See ABA, Commission on Asbestos Litigation, Report to
the House of Delegates, Recommendation (Feb. 2003), p. 10 (for a copy contact Hon.
Nathaniel Jones, jones-n@blankrome.com) |
*** POSTED ON MARCH 31, 2003 **
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PATIENT PROFILES
