NO. 2004-03964
IN RE
ASBESTOS LITIGATION
§
§
§
§
§
§
§
IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
11TH JUDICIAL DISTRICT
MEMORANDUM OF THE
COALITION FOR LITIGATION JUSTICE, INC.
IN SUPPORT OF DEFENDANTS’ MOTION
TO ESTABLISH AN UNIMPAIRED DOCKET
******************************************************************
Of Counsel
Paul W. Kalish
Mark D. Plevin
CROWELL & MORING LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
(202) 624-2500
Victor E. Schwartz
Mark A. Behrens
Philip S. Goldberg
SHOOK, HARDY & BACON L.L.P.
600 14th Street, N.W., Suite 800
Washington, D.C. 20005-2004
Tel: (202) 783-8400
Manuel López (Texas Bar No. 00784495)*
SHOOK, HARDY & BACON L.L.P.
JP Morgan Chase Tower
600 Travis Street, Suite 1600
Houston, TX 77002-2911
Tel: (713) 227-8008
* Counsel of Record
Counsel to Amicus Curiae
Coalition for Litigation Justice, Inc.
TABLE OF CONTENTS
Page
TABLE OF CASES AND AUTHORITIES ........................................................................
iii
STATEMENT OF INTEREST ............................................................................................
1
INTRODUCTION AND SUMMARY OF THE ARGUMENT .........................................
2
ARGUMENT
I.
ASBESTOS LITIGATION IS A CRISIS
THAT MUST BE ADDRESSED ................................................................
A.
Mass Filings By The Non-Sick Threaten Payments
to the Truly Sick...............................................................................
5
Bankruptcies Are Placing A Heavy Toll on Workers
And Their Employers .......................................................................
11
C.
Peripheral Defendants are Being Dragged Into the Litigation .........
14
D.
Overwhelmed Courts are Not Able to Accurately Filter Out
Questionable Cases ..........................................................................
16
THE ASBESTOS LITIGATION PROBLEMS IN TEXAS ARE
REPRESENTATIVE OF THE NATIONAL ASBESTOS CRISIS ............
19
A.
Texas Leads the Nation in Asbestos Filings ....................................
20
B.
Unimpaired Claimants are Taking Toll on Sick Plaintiffs and
Employers in Texas..........................................................................
21
A STATEWIDE UNIMPAIRED DOCKET WOULD PROVIDE
AN EFFECTIVE AND APPROPRIATE SOLUTION
TO THE ASBESTOS LITIGATION PROBLEMS IN TEXAS .................
22
B.
II.
III.
4
A.
B.
The Court Should Adopt A Statewide
Asbestos Docketing System .............................................................
22
Unimpaired Dockets Are Sound and Proven ...................................
23
1.
24
Boston, Massachusetts .........................................................
-i-
C.
2.
Chicago, Illinois ...................................................................
25
3.
Baltimore, Maryland ............................................................
25
Unimpaired Dockets Are Gaining Momentum Around The Country 26
1.
New York City .....................................................................
26
2.
Syracuse, New York ............................................................
27
3.
Seattle, Washington .............................................................
27
4.
Madison County, Illinois .....................................................
28
5.
Pending: Michigan Supreme Court .....................................
28
Innovations Used By Federal Courts to Give Priority
to the Truly Sick...............................................................................
28
1.
The Federal MDL Panel.......................................................
29
2.
United States Bankruptcy Court for the
District of Delaware .............................................................
30
The American Bar Association
Commission on Asbestos Litigation ................................................
31
CONCLUSION ....................................................................................................................
32
CERTIFICATE OF SERVICE ............................................................................................
App.
D.
E.
- ii -
TABLE OF CASES AND AUTHORITIES
CASES
Page
Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) ........................................................
2,4
Dunn v. Hovic, 1 F.3d 1371 (3d Cir.), modified in part, 13 F.3d 58, cert. denied
sub nom. Owens-Corning Fiberglas Corp. v. Dunn, 510 U.S. 1031 (1993) ...........
4
Eagle-Picher Indus., Inc. v. Am. Employers’ Ins. Co., 718 F. Supp. 1053
(D. Mass. 1989)........................................................................................................
7
In re All Asbestos Litigation Filed in Madison County, Order Establishing
Asbestos Deferred Registry (Madison County Cir. Ct., Ill.
Jan. 23, 2004) ...........................................................................................................
28
In re Asbestos Cases, 586 N.E.2d 521 (Ill. App. 1991) .......................................................
6
In re Asbestos Cases (Cir. Ct., Cook County, Ill. Mar. 26, 1991)
(Order to Establish Registry for Certain Asbestos Matters) ....................................
25
In re Asbestos Pers. Injury and Wrongful Death Asbestos Cases,
File No. 92344501 (Cir. Ct. Baltimore City, Md. Dec. 9, 1992)
(Order Establishing an Inactive Docket for Asbestos Personal Injury Cases) .........
25
In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875 (J.P.M.L. 1991) ..................................
29
In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Admin. Order No. 3
(E.D. Pa. Sept. 8, 1992) ...........................................................................................
29
In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Civil Action No. 2
(Maritime Actions) (E.D. Pa. May 1, 1996) ............................................................
30
In re Asbestos Prods. Liab. Litig. (No. VI), 1996 WL 539589
(E. D. Pa. Sept. 12, 1996) ........................................................................................
8
In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Order
(E.D. Pa. Oct. 16, 1997) ..........................................................................................
29
In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Admin. Order No. 8
(E.D. Pa. Jan. 14, 2002) ...........................................................................................
8,30
In re Collins, 233 F.3d 809 (3d Cir. 2000), cert. denied sub nom.
Collins v. Mac-Millan Bloedel, Inc., 532 U.S. 1066 (2001) ....................................
8,11
- iii -
In re Fifth Jud. Dist. Asbestos Litig., Am. to Am. Case Mgmt. Order
No. 1 (N.Y. Sup. Ct. Jan. 31, 2003) .......................................................................
27
In re Haw. Fed. Asbestos Cases, 734 F. Supp. 1563 (D. Haw. 1990) .................................
6
In re Joint E. & S. Dists. Asbestos Litig., 129 B.R. 710 (E. & S.D.N.Y. 1991),
vacated, 982 F.2d 721 (2d Cir. 1992) ......................................................................
passim
In re Joint E. & S. Dists. Asbestos Litig., 237 F. Supp. 2d 297 (E. & S.D.N.Y. 2002) .......
7
In re New York City Asbestos Litig., Order Amending Prior Case
Mgmt. Orders (S. Ct. N.Y. City, N.Y. Dec. 19, 2002) ............................................
26
In re Pers. Injury and Wrongful Death Asbestos Cases, Mem. Op. and Order
Denying Modification to Inactive Docket Medical Removal Criteria,
No 24-X-92-344501 (Cir. Ct. Baltimore City, Md. Aug. 15, 2002) ........................
26
In re Pet. For An Admin. Order, No. 124213 (Mich. Pet. filed Sept. 11, 2003) ................
28
In re USG Corp., No. 01-2094, Mem. Op. and Order (Bankr. Del. Feb. 19, 2003) ............
24,31
Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1 (Mich. 1986) ..................................
8
Letter from Judge Sharon S. Armstrong, King County, Wash., to
Counsel of Record, Moving and Responding Parties (Dec. 3, 2002) ......................
27
Mass. State Ct. Asbestos Pers. Injury Litig., Order
(Commw. of Mass., Middlesex Super. Ct., Sept. 1986). .........................................
24
OTHER AUTHORITIES
Am. Bar Ass’n, House of Delegates, ABA Standard for Non-Malignant Asbestos
Related Disease Claims (resolution adopted Feb. 2003) ........................................
32
Am. Med. Ass’n, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) .......
32
Am. Thoracic Soc’y, Lung Function Testing: Selection of Reference Values and
Interpretive Strategies, 144 Am. Rev. Resp. Dis. 1202-1218 (1991) .....................
32
Am. Tort Reform Ass’n, Bringing Justice to Judicial Hellholes (2003)
available at <http://www.atra.org/reports/hellholes> (last visited
Mar. 1, 2004) ...........................................................................................................
28
- iv -
Asbestos Litigation: Hearing Before the Sen. Comm. on the Judiciary,
107th Cong. (Mar. 5, 2003) (statement of the Hon. Dennis Archer,
President-elect, American Bar Ass’n)......................................................................
32
Asbestos Litigation: Hearing Before the Sen. Comm. on the Judiciary,
107th Cong. (Mar. 5, 2003) (statement of Steven Kazan, partner,
Kazan, McClain, Edises, Abrams, Fernandez, Lyons & Farrise) ............................
9
Assoc. Press, Beaumont Law Firm Must Pay $500,000, Hous. Chron.,
Nov. 15, 2002, available at 2002 WL 23238273 ....................................................
21
Patrick Beach, The Bitter Price of a Better Life, Austin Am.-Statesman,
Aug. 31. 2003, available at 2003 WL 56774561 ....................................................
20
Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick
Claimants and Solving Serious Problems in Asbestos Litigation,
54 Baylor L. Rev. 331 (2002) ..................................................................................
3
Mark A. Behrens & Monica G. Parham, Stewardship for the Sick:
Preserving Assets For Asbestos Victims Through Inactive
Docket Programs, 33 Tex. Tech. L. Rev. 1 (2001) .................................................
passim
Mark A. Behrens & Rochelle M. Tedesco, Two Forks in the Road of Asbestos
Litigation, Mealey’s Litig. Rep.: Asbestos, Vol. 18, No. 3, Mar. 7, 2003...............
11
Hon. Griffin B. Bell, Asbestos Litigation and Judicial Leadership:
The Courts’ Duty to Help Solve The Asbestos Litigation Crisis,
Briefly, Vol. 6, No. 6, June 2002) ............................................................................
4,15,18
Hon. Griffin B. Bell, Asbestos & The Sleeping Constitution,
31 Pepp. L. Rev. 1 (2003) .......................................................................................
17
Alex Berenson, A Surge in Asbestos Suits, Many by Healthy Plaintiffs,
N.Y. Times, Apr. 10, 2002, available at 2002 WL 18538000 ................................
5
Matthew Bergman & Jackson Schmidt, Editorial, Change Rules on Asbestos
Lawsuits, Seattle Post-Intelligencer, May 30, 2002, available at 2002
WL-STLPI 5934774 ................................................................................................
9,10
David E. Bernstein, Keeping Junk Science Out of Asbestos Litigation,
31 Pepp. L. Rev. 11 (2003) ......................................................................................
16
Jennifer Biggs et al., Overview of Asbestos Issues and Trends (Dec. 2001),
available at <http://www.actuary.org/mono.htm> (last visited Aug. 14, 2003) .....
-v-
6
William Booth, Unsettling Forecast For the Bay Area; Chance of
Big Quake Before 2030 Put at 70%, Wash. Post, Oct. 15, 1999,
available at 1999 WL 23309261 .............................................................................
14
Lester Brickman, Lawyers’ Ethics and Fiduciary Obligation in The Brave
New World of Aggregative Litigation, 26 Wm. & Mary Envtl. L. &
Pol’y Rev. 243 (2001) ..............................................................................................
7
Lester Brickman, On The Theory Class’s Theories of Asbestos Litigation:
The Disconnnect Between Scholarship and Reality?,
31 Pepp. L. Rev. 33 (2003) .....................................................................................
16
Stephen Carroll et al., Asbestos Litigation Costs and Compensation:
An Interim Report (RAND Inst. for Civil Justice, Sept. 2002) ................................
passim
Stephen Carroll et al., Asbestos Litigation Costs and Compensation
(RAND Inst. for Civil Justice, Feb. 2004) ..............................................................
5
George Scott Christian & Dale Craymer, Texas Asbestos Litigation Reform: A Model for
the States, 44 So. Tex. L. R. 981 (2003) .................................................................
20
Albert B. Crenshaw, For Asbestos Victims, Compensation Remains Elusive,
Wash. Post., Sept. 25, 2002, available at 2002 WL 100084407 .............................
10
Eddie Curran, Diagnosing for Dollars, Mobile Reg., Apr. 4, 2004, available at
<www.al.com/news/mobileregister/index.ssf?/base/news/
1081071995288570.xml> (last visited on Apr. 28, 2004) ......................................
17
Eddie Curran, Mystery Companies, Massive Payouts, Mobile Register,
Mar. 28, 2004, at 5A, available at <www.al.com/news/mobileregister/
index.ssf?/base/news/108046931090410.xml> .......................................................
17
Eddie Curran, Trial Lawyers Say: If Asbestos Cases Bad, Why Settle Them?,
Mobile Reg., Mar. 28, 2004, available at <www.al.com/news/mobileregister
/index.ssf?/base/news/1080585951129600.xml> (last visited
on Apr. 28, 2004) ....................................................................................................
19
Jesse David, The Secondary Impacts of Asbestos Liabilities
(Nat’l Econ. Research Assocs., Jan. 23, 2003) ........................................................
12
The Diagnosis of Nonmalignant Diseases Related to Asbestos, Am. Thoracic Soc’y
Official Statement, 134 Am. Rev. Resp. Dis. 363 (Mar. 1986) ..............................
32
- vi -
Editorial, ABA Backs Asbestos Reform, Wash. Times, Feb. 16, 2003,
available at 2003 WL-WATIMES 7706224 ...........................................................
32
Editorial, Asbestos Bill Reasonable: Seriously Ill Victims Deserve a Day
in Court More Quickly Than Those Who May or May Not Get Sick,
San Antonio Express-News, May 13, 2003, available at
2003 WL 20247629 .................................................................................................
22
Editorial, Asbestos Sense, Hous. Chron., July 7, 2003, available at
2003 WL 57428391 ................................................................................................
22
Editorial, Lawyers Torch the Economy, Wall St. J., Apr. 6, 2001,
available at 2001 WL-WSJ 2859560 ......................................................................
14
Editorial, The Asbestos Blob, Cont., WALL ST. J., Apr. 6, 2004,
available at 2004 WL-WSJ 56925100 ...................................................................
5
Editorial, The Job-Eating Asbestos Blob, Wall St. J., Jan. 23, 2002,
available at 2002 WL-WSJ 3383766 ......................................................................
14
Christopher Edley, Jr. & Paul C. Weiler, Asbestos: A Multi-Billion-Dollar Crisis,
30 Harv. J. on Legis. 383 (1993) .............................................................................
11
David Egilman, Asbestos Screenings, 42 Am. J. of Indus. Med. 163 (2002) .....................
18
The Fairness in Asbestos Compensation Act of 1999: Hearing on
H.R. 1283 Before the House Comm. on the Judiciary, 106th Cong.
(July 1, 1999) (statement of Christopher Edley, Jr., Professor,
Harvard Law School) ...............................................................................................
5,6
The Fairness in Asbestos Compensation Act of 1999: Hearing on
H.R. 1283 Before the House Comm. on the Judiciary, 1999 Leg.,
106th Cong. (July 1, 1999) (statement of Dr. Louis Sullivan,
former Secretary of the U.S. Department of Health and Human Services) .............
6
The Fairness in Asbestos Compensation Act of 1999: Hearing on
S. 758 Before the Subcomm. On Admin. Oversight and the Courts
of the Senate Comm. on the Judiciary, 106th Cong. (Oct. 5, 1999)
(statement of the Hon. Conrad L. Mallett, Jr., former Chief Justice,
Michigan Supreme Court)........................................................................................
3-4
- vii -
Richard O. Faulk, Asbestos Litigation in State Court: Why the System is
Broken and Some Suggestions for Repair, Prod. Safety & Liab. Rptr. (BNA),
Vol. 30, No. 37, Sept. 23, 2002, also printed in Class Action Litig. (BNA),
Vol. 3, No. 19, Oct. 11, 2002 ...................................................................................
22
Richard O. Faulk, Dispelling the Myths of Asbestos Litigation: Solutions
for Common Law Courts, 44 So. Tex. L. R. 945 (2003) ........................................
20
Federal Judge Is Optimistic About Talks on Asbestos Legislation, Best’s Ins. News,
Mar. 26, 2004, available at 2004 WL 61249492 (citing Chief Judge Emeritus
Edward Becker of the U.S. Court of Appeals for the Third Circuit) ......................
5
Michael Freedman, The Tort Mess, Forbes, May 13, 2002,
available at 2002 WL 2214449 ...............................................................................
12
Andrew J. Ghio, M.D., Editorial, Asbestosis: Over Diagnosed?,
The News & Observer (Charlotte, North Carolina),
Apr. 12, 2004, available at 2004 WL 56033533 .....................................................
19
Lisa Girion, Firms Hit Hard as Asbestos Claims Rise, L.A. Times,
Dec. 17, 2001, available at 2001 WL 28937452 .....................................................
12
Patrick J. Hagan et al., Totalling Up the Costs of Asbestos Litigation:
Guess Who Will Pay the Price?, 9 Temp. Envtl. L. & Tech. J. 1 (1990) ................
12
Paul Hampel & Philip Dine, Asbestos Litigation Deal Could Force Law
Offices to Find New Specialties; Bill Would Substitute Trust
Fund for Lawsuits, St. Louis Post-Dispatch, July 23, 2003,
available at 2003 WL 3596458 ...............................................................................
11
Steven Hantler, Judges Must Play Key Role in Stemming Tide of Asbestos Litigation,
Andrews Asbestos Litig. Rptr., Vol. 25, No. 14, May 22, 2003...............................
8
Steven Hantler, Toward Greater Judicial Leadership in Asbestos Litigation,
Manhattan Inst. Civil Justice Forum, No. 41, Apr. 2003, available at
<http://www.manhattaninstitute.org> (last visited Aug. 14, 2003) ........................
14
James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad:
Exposure-based Recovery for Increased Risk, Mental Distress, and
Medical Monitoring, 53 S.C. L. Rev. 815 (2002) ....................................................
6
Gina Holland, ABA Recommends Curbs on Asbestos Lawsuits,
Assoc. Press Newswire, Feb. 11, 2003 ....................................................................
32
- viii -
Stephen Hudak & John F. Hagan, Asbestos Litigation Overwhelms Courts,
Cleveland Plain Dealer, Nov. 5, 2002, available at 2002 WL 6382801 .................
10,18
Inactive Asbestos Dockets: Are They Easing the Flow of Litigation?,
HarrisMartin’s Columns: Asbestos, Feb. 2002 .......................................................
24,25
Senator Kyle Janek, Editorial, Clearing the Way for the Truly Sick, Austin Am.
Statesman, Jul. 17, 2003, available at 2003 WL 56773165 ....................................
20
Quenna Sook Kim, Asbestos Trust Says Assets Are Reduced As the
Medically Unimpaired File Claims, Wall St. J., Dec. 14, 2001,
available at 2001 WL-WSJ 29680683 ....................................................................
10
Quenna Sook Kim, Firms Hit by Asbestos Litigation Take Bankruptcy Route,
Wall St. J., Dec. 21, 2000, available at 2000 WL-WSJ 26620724 .........................
12
Thomas Korosec, Enough to Make You Sick, Dallas Observer,
Sept. 26, 2002, available at <www.dallasobserver.com/issues/2002-09-26/
feature.html/1/index.html> (last visited Apr. 29, 2004) ..........................................
21
Terry Maxon, Balance Sought in Asbestos Bill, Dallas Morning News, Jul. 9, 2003,
available at 2003 WL 73103258 .............................................................................
21
Mike McClintock, Preparing for High Winds, Wash. Post, May 13, 1999,
available at 1999 WL 17002587 .............................................................................
14
‘Medical Monitoring and Asbestos Litigation’ — A Discussion with
Richard Scruggs and Victor Schwartz, Vol. 17, No. 3,
Mealey’s Litig. Rep.: Asbestos (Mar. 1, 2002).......................................................
9,15
Letter from Senator Don Nickles, Chairman, Committee on Budget, to
Hon. Timothy J. Muris, Chairman, Federal Trade Commission and
Lester M. Crawford, D.V.M., Ph.D., Acting Commissioner, Food
and Drug Administration 1 (Apr. 28, 2004) (on file with authors) .........................
16
Dr. John E. Parker, Understanding Asbestos-Related Medical Criteria,
Vol. 18, No. 10, Mealey’s Litig. Rep.: Asbestos, June 18, 2003 ............................
22-23
Roger Parloff, The $200 Billion Miscarriage of Justice; Asbestos Lawyers are
Pitting Plaintiffs Who Aren’t Sick Against Companies that Never
Made the Stuff and Extracting Billions for Themselves, Fortune,
Mar. 4, 2002, available at 2002 WL 2190334 .........................................................
5,7
- ix -
Mark D. Plevin & Paul W. Kalish, What’s Behind the Recent Wave of
Asbestos Bankruptcies?, Vol. 16, No. 6, Mealey’s Litig. Rep.: Asbestos
(Apr. 20, 2001) .........................................................................................................
11
Letter from Daniel J. Popeo, Chairman and General Counsel, Washington Legal
Foundation, to Betsy Whitaker, President, State Bar of Texas,
(Mar. 16, 2004) (on file with author) ......................................................................
21
Eric Roston, The Asbestos Pit, Time, Mar. 11, 2002, available at 2002 WL 8385920.......
12
Paul F. Rothstein, What Courts Can Do in the Face of the Never-Ending
Asbestos Crisis, 71 Miss. L.J. 1 (2001) ...................................................................
2
Hon. Carl Rubin & Laura Ringenbach, The Use of Court Experts in Asbestos Litigation,
137 F.R.D. 35 (1991) ..............................................................................................
17-18
S. Rep. No. 108-118 (2003) .................................................................................................
13
Richard B. Schmitt, Burning Issue: How Plaintiffs’ Lawyers Have Turned
Asbestos Into a Court Perennial, Wall St. J., Mar. 5, 2001,
available at 2001 WL-WSJ 2856111 ......................................................................
15
Peter H. Schuck, The Worst Should Go First: Deferral Registries in
Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541 (1992) ...................................
passim
Victor E. Schwartz & Leah Lorber, A Letter to the Nation’s Trial Judges:
How the Focus on Efficiency is Hurting You and Innocent Victims in
Asbestos Liability Cases, 24 Am. J. Trial Advoc. 247 (2000) .................................
15
Victor E. Schwartz & Rochelle M. Tedesco, The Law of Unintended
Consequences in Asbestos Litigation: How Efforts to Streamline
The Litigation Have Fueled More Claims, 71 Miss. L.J. 531 (2001) ......................
15
David M. Setter et al., Why We Have to Defend Against Screened Cases:
Now is the Time for a Change, 2-4 Mealey’s Litig. Rep. Silica 11 (2003) ............
19
Pamela Sherrid, Looking for Some Million Dollar Lungs, U.S. News & World Rep.,
Dec. 17, 2001, available at 2001 WL 30366341 .....................................................
9,17
Amity Shlaes, The Real-Life Tragedy of the Asbestos Theatre, Fin. Times,
May 14, 2002, available at 2002 WL 20299748 .....................................................
12
-x-
Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Jennifer L. Biggs, Consulting
Actuary, Tillinghast-Towers Perrin) .......................................................................
13
Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Dr. James D. Crapo, Professor of
Medicine at the National Jewish Center and University of Colorado Health
Sciences Center, former President of the American Thoracic Society, and
President-elect of the Fleischner Society)................................................................
23
Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Frederick C. Dunbar, Ph.D.,
Senior Vice President, Nat’l Econ. Research Assocs.) ............................................
12
Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Scott Kapnick
Managing Director, Goldman Sachs) ......................................................................
13
Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Dr. John E. Parker, Professor
and Chief of Pulmonary and Critical Care Medicine, Robert C. Byrd
Health Sciences Center of West Virginia University) .............................................
23
The State of the Economy: Hearing Before the Sen. Comm. on the Budget,
107th Cong. (Jan. 29, 2003) (statement of Michael Baroody,
Executive Vice President of the National Association of Manufacturers) ..............
11
Joseph E. Stiglitz et al., The Impact of Asbestos Liabilities on Workers in
Bankrupt Firms, 12 J. Bankr. L. & Prac. 51 (2003) ................................................
12
Susan Warren, Asbestos Suits Target Makers of Wine, Cars, Soups, Soaps,
Wall St. J., Apr. 12, 2000, available at 2000 WL-WSJ 3025073............................
15
Susan Warren, Competing Claims: As Asbestos Mess Spreads, Sickest See Payouts
Shrink, Wall St. J., Apr. 25, 2002, available at 2002 WL-WSJ 3392934 ...............
20
Susan Warren, Plaintiffs Target Companies Whose Premises Contained
Any Form of Deadly Material, Wall St. J., Jan. 27, 2003,
available at 2003 WL-WSJ 3957497 ......................................................................
- xi -
15
Susan Warren, Swamped Courts Practice Plaintiff Triage, Wall St. J.,
Jan. 27, 2003, available at 2003 WL-WSJ 3957498 ...............................................
3
Remarks of the Hon. Jack Weinstein, at a symposium held at the Bar Association of
the City of New York, Asbestos: What Went Wrong?, Oct. 21, 2002, at 12 ...........
16
Jonathan Weisman & Mike Allen, Officials Argue for Fast U.S. Exit From Iraq,
Wash. Post, Apr. 21, 2003, available at 2003 WL 18819230 .................................
14
- xii -
NO. 2004-03964
IN RE
ASBESTOS LITIGATION
§
§
§
§
§
§
§
IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
11TH JUDICIAL DISTRICT
MEMORANDUM OF THE COALITION FOR LITIGATION JUSTICE, INC.
IN SUPPORT OF DEFENDANTS’ MOTION
TO ESTABLISH AN UNIMPAIRED DOCKET
STATEMENT OF INTEREST
The Coalition for Litigation Justice, Inc. (“Coalition”) was formed in 2000 as a nonprofit
association to address and improve the asbestos litigation environment. Established by insurers, the
Coalition’s mission is to encourage fair and prompt compensation to deserving current and future
asbestos claimants by seeking to reduce or eliminate the abuses and inequities that exist under the
current civil justice system.1
The Coalition files briefs in important matters, such as this one, that
that may have a significant impact on the asbestos litigation environment.
We believe it is critical for this Court to take steps now to: (1) improve the asbestos litigation
environment, and (2) help ensure that resources spent in the litigation are directed at those most
deserving of compensation – the truly sick. The subject Motion presents this Court with a unique
1
The Coalition for Litigation Justice, Inc. includes the following: ACE-USA companies,
Chubb & Son, a division of Federal Insurance Company; CNA service mark companies,
Fireman’s Fund Insurance Company, The Hartford Financial Services Group, Inc., Argonaut
Insurance Co., General Cologne Re, Liberty Mutual Insurance Group, the St. Paul Fire and
Marine Insurance Company, Everest Re, and the Great American Insurance Company.
opportunity to do both. For these reasons, we strongly support the subject Motion as a fair and
workable solution to Texas’s asbestos litigation problem.
INTRODUCTION AND SUMMARY OF ARGUMENT
In 1997, the U.S. Supreme Court stated that this country is in the midst of an “asbestoslitigation crisis.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 597 (1997). Since then, the
litigation has spread like a renewed wild fire, taking on even greater proportions. Claims continue to
pour in at an extraordinary rate, scores of employers have been forced into bankruptcy, and
payments to the sick are threatened. See Paul F. Rothstein, What Courts Can Do in the Face of the
Never-Ending Asbestos Crisis, 71 Miss. L.J. 1 (2001).
Present trends in asbestos litigation have set off a chain reaction. Payments to individuals
with little or no serious physical illness have encouraged more lawsuits. Recent reports indicate that
as much as ninety percent of new asbestos-related claims are filed by the non-sick. These filings
have forced dozens of so-called “traditional” asbestos defendants into bankruptcy.
These bankruptcies, in turn, have created ripple effects throughout the entire business
community. When “traditional” defendants are forced into bankruptcy, experience shows that the
asbestos personal injury bar will cast its litigation net wider and sue more defendants. Now, more
than 8,400 defendants have been named in asbestos cases. Many are either household names and
small businesses. These defendants have only very attenuated connections to asbestos, but they
provide fresh “deep pockets,” and that is why they have become targets of litigation.
Some of the new attenuated class of defendants, the so-called “peripheral defendants,” have
themselves begun to collapse under the great weight of claims against them. The downward spiral
will continue to play out on a broad scale for many more years unless something is done.
-2-
The current asbestos litigation system is not working for anyone. Clearly, changes are
needed, but federal legislation to solve the problem remains speculative. Therefore, many courts are
now reevaluating the way they handle asbestos claims and working to make improvements. See
Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick Claimants and Solving
Serious Problems in Asbestos Litigation, 54 Baylor L. Rev. 331 (2002).
In particular, a growing number of jurisdictions have chosen to implement an unimpaired
asbestos docket (also called an inactive docket, pleural registry or deferred docket) or a similar
docket management plan. See Susan Warren, Swamped Courts Practice Plaintiff Triage, Wall St. J.,
Jan. 27, 2003, at B1, available at 2003 WL-WSJ 3957498. Individuals who cannot meet certain
objective medical criteria are placed on an unimpaired docket with statute of limitations being tolled,
and all discovery stayed. Claimants are moved to the active civil docket when they present credible
medical evidence of impairment. See Peter H. Schuck, The Worst Should Go First: Deferral
Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541 (1992) [hereinafter Schuck]. These
plans have existed for many years in some jurisdictions. They have proven to be fair and workable.
See Mark A. Behrens & Monica G. Parham, Stewardship for the Sick: Preserving Assets For
Asbestos Victims Through Inactive Docket Programs, 33 Tex. Tech. L. Rev. 1 (2001) [hereinafter
Behrens & Parham].
The subject Motion, filed on behalf of defendants in asbestos litigation, presents this Court
with a unique opportunity to adopt an unimpaired docket. The Court should seize this opportunity.
See The Fairness in Asbestos Compensation Act of 1999: Hearing on S. 758 Before the Subcomm.
On Admin. Oversight and the Courts of the Senate Comm. on the Judiciary, 106th Cong. 2 (Oct. 5,
1999) (statement of the Hon. Conrad L. Mallett, Jr., former Chief Justice, Michigan Supreme Court)
-3-
(stating that “During my tenure on my state’s highest court I was keenly aware of my responsibility
to be sure the court system functioned efficiently. . . .”). As Senior Judge Joseph F. Weis, Jr. of the
U.S. Court of Appeals for the Third Circuit has stated:
It is time—perhaps past due—to stop the hemorrhaging so as to
protect future claimants. . . . [A]t some point, some jurisdiction must
face up to the realities of the asbestos crisis and take a step that might,
perhaps, lead others to adopt a broader view. Courts should no longer
wait for congressional or legislative action to correct common law
errors made by the courts themselves. Mistakes created by courts can
be corrected by courts without engaging in judicial activism. It is
judicial paralysis, not activism, that is the problem in this area.
Dunn v. Hovic, 1 F.3d 1371, 1399 (3d Cir.) (Weis, J., dissenting), modified in part, 13 F.3d 58, cert.
denied sub nom. Owens-Corning Fiberglas Corp. v. Dunn, 510 U.S. 1031 (1993).
ARGUMENT
I.
ASBESTOS LITIGATION IS A CRISIS THAT MUST BE ADDRESSED
When asbestos product liability lawsuits emerged almost thirty years ago, nobody could have
predicted that courts today would be facing an ever growing “asbestos-litigation crisis.” Amchem,
521 U.S. at 597. Many believed that asbestos litigation would be a serious but diminishing problem
in the years to come.
Instead of declining, however, “the crisis is worsening at a much more rapid pace than even
the most pessimistic projections.”
Hon. Griffin B. Bell, Asbestos Litigation and Judicial
Leadership: The Courts’ Duty to Help Solve The Asbestos Litigation Crisis, Briefly, Vol. 6, No. 6,
June 2002, at 2 (Nat’l Legal Center for the Pub. Interest monograph), available at
<http://www.nlcpi.org> (last visited Apr. 29, 2003) [hereinafter Bell]. The number of asbestos cases
pending nationwide doubled from 100,000 to more than 200,000 during the 1990s. See The Fairness
-4-
in Asbestos Compensation Act of 1999: Hearing on H.R. 1283 Before the House Comm. on the
Judiciary, 106th Cong. 4 (July 1, 1999) (statement of Christopher Edley, Jr., Professor, Harvard Law
School).
At least 300,000 asbestos claims are now pending. See Federal Judge Is Optimistic About
Talks on Asbestos Legislation, Best’s Ins. News, Mar. 26, 2004, available at 2004 WL 61249492
(citing Chief Judge Emeritus Edward Becker of the U.S. Court of Appeals for the Third Circuit).
More than 100,000 new claims were filed in 2003 – “the most in a single year.” Editorial, The
Asbestos Blob, Cont., WALL ST. J., Apr. 6, 2004, at A16, available at 2004 WL-WSJ 56925100.2
The RAND Institute for Civil Justice predicts that as many as one million more claims may be filed.
See Stephen Carroll et al., Asbestos Litigation Costs and Compensation 77 (RAND Inst. for Civil
Justice, Feb. 2004) [hereinafter “RAND Rep. II”].
A.
Mass Filings By The Non-Sick Threaten Payments to the Truly Sick
In the past, most asbestos claims were filed by “workers suffering from grave and crippling
maladies. The most common was mesothelioma.” Roger Parloff, The $200 Billion Miscarriage of
Justice; Asbestos Lawyers are Pitting Plaintiffs Who Aren’t Sick Against Companies that Never
Made the Stuff and Extracting Billions for Themselves, Fortune, Mar. 4, 2002, at 158, available at
2002 WL 2190334 [hereinafter Parloff].
Today, however, the vast majority of new asbestos
claimants are “people who have been exposed to asbestos, and who (usually) have some marker of
exposure such as changes in the pleural membrane covering the lungs, but who are not impaired by
2
Ninety thousand new cases were filed in 2001. See Alex Berenson, A Surge in Asbestos
Suits, Many by Healthy Plaintiffs, N.Y. Times, Apr. 10, 2002, at A1, abstract available at
2002 WL 18538000.
-5-
an asbestos-related disease and likely never will be.” The Fairness in Asbestos Compensation Act of
1999: Hearing on H.R. 1283 Before the House Committee on the Judiciary, 106th Cong. at 5
(July 1, 1999) (statement of Christopher Edley, Jr., Professor, Harvard Law School). See also In re
Haw. Fed. Asbestos Cases, 734 F. Supp. 1563, 1567 (D. Haw. 1990) (“In virtually all pleural plaque
and pleural thickening cases, plaintiffs continue to lead active, normal lives, with no pain or
suffering, no loss of the use of an organ or disfigurement due to scarring.”).
Recent estimates indicate that up to ninety percent of new claims are filed by plaintiffs with
little or no impairment. See RAND Rep., supra, at 20; Jennifer Biggs et al., Overview of Asbestos
Issues and Trends 1 (Dec. 2001), available at <http://www.actuary.org/mono.htm> (last visited Apr.
29, 2004) [hereinafter Biggs].3
A primary reason that so many unimpaired individuals are filing claims is the “fear that their
claims might be barred by the statute of limitations if they wait until such time, if ever, that their
asbestos-related condition progresses to disability.” In re Asbestos Cases, 586 N.E.2d 521, 523 (Ill.
App. 1991). See also The Fairness in Asbestos Compensation Act of 1999: Hearing on H.R. 1283
Before the House Comm. on the Judiciary, 1999 Leg., 106th Cong. 4 (July 1, 1999) (statement of Dr.
Louis Sullivan, former Secretary of the U.S. Department of Health and Human Services) (stating
that there are “mass filings of cases on behalf of large groups of people who are not sick and may
never become sick but who are compelled to file for remedial compensation simply because of state
statutes of limitation”), available at 1999 WL 20009757.
3
See also James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad:
Exposure-based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53
S.C. L. Rev. 815 (2002).
-6-
Another reason may be that plaintiffs’ lawyers are aware that many traditional asbestos
defendants are going bankrupt, and may seek compensation now out of fear that it will not be
available later. Some plaintiffs’ lawyers also may be aware of huge awards being given to some
unimpaired plaintiffs, and may question “Why wait for an injury to manifest itself if I can receive
compensation for my clients now?”
In addition, the increase in filings by unimpaired claims may result from mass screenings
conducted by plaintiffs’ law firms and their agents.4 Such screenings are frequently conducted in
areas with high concentrations of workers who may have worked in jobs where they were exposed to
asbestos.5 Regardless of whether one agrees with this practice, there seems to be a consensus that it
fuels new asbestos filings.6 As the manager of the federal asbestos docket, Senior U.S. District
Judge Charles Weiner of the Eastern District of Pennsylvania, has noted: “Oftentimes, these suits
are brought on behalf of individuals who are asymptomatic as to an asbestos-related illness and may
not suffer in the future. Filing fees are paid, service costs incurred, and defense files are opened and
4
See Parloff, supra, at 154 (“To unearth new clients for lawyers, screening firms advertise in
towns with many aging industrial workers or park X-ray vans near union halls. To get a free
X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One
solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!’”).
5
See Eagle-Picher Indus., Inc. v. Am. Employers’ Ins. Co., 718 F. Supp. 1053, 1057 (D. Mass.
1989) (“[M]any of these cases result from mass X-ray screenings at occupational locations
conducted by unions and/or plaintiffs’ attorneys, and many claimants are functionally
asymptomatic when suit is filed.”); In re Joint E. & S. Dists. Asbestos Litig., 237 F. Supp. 2d
297, 309 (E. & S.D.N.Y. 2002) (“Claimants today are diagnosed largely through plaintifflawyer arranged mass screening programs targeting possibly asbestos-exposed workers and
attraction of potential claimants through the mass media.”).
See Lester Brickman, Lawyers’ Ethics and Fiduciary Obligation in The Brave New World of
Aggregative Litigation, 26 Wm. & Mary Envtl. L. & Pol’y Rev. 243, 273 (2001) (providing
detailed account of how the typical “exposure only” case arises and is litigated; stating that
(Footnote continued on next page)
-76
processed. Substantial transaction costs are expended and therefore unavailable for compensation to
truly ascertained asbestos victims.” In re Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Admin.
Order No. 8, at 1-2 (E.D. Pa. Jan. 14, 2002) [hereinafter MDL 875, Admin. Order No. 8].
The problem presented by these claims is self-evident: they create judicial backlogs and
exhaust scarce resources that should go to “the sick and the dying, their widows and survivors.” In
re Collins, 233 F.3d 809, 812 (3d Cir. 2000), cert. denied sub nom. Collins v. Mac-Millan Bloedel,
Inc., 532 U.S. 1066 (2001) (internal citation omitted). See also Larson v. Johns-Manville Sales
Corp., 399 N.W.2d 1, 23 (Mich. 1986) (“We believe that discouraging suits for relatively minor
consequences of asbestos exposure will lead to a fairer allocation of resources to those victims who
develop cancers.”); Steven Hantler, Judges Must Play Key Role in Stemming Tide of Asbestos
Litigation, Andrews Asbestos Litig. Rptr., Vol. 25, No. 14, May 22, 2003, at 12 (assistant general
counsel for DaimlerChrysler Corp., stating: “The tragedy is that as plaintiffs’ lawyers enroll the
healthy into their lawsuits in order to line their own pockets, less money is available for those who
are actually sick and dying.”).7
“the ‘asbestos litigation crisis’ would never have arisen and would not exist today” if not for
the claims filed by unimpaired).
7
Judge Weiner has explained that “[o]nly a very small percentage of the cases filed have
serious asbestos-related afflictions,” but they “are prone to be lost in the shuffle with pleural
and other non-malignant cases.” In re Asbestos Prods. Liab. Litig. (No. VI), 1996 WL
539589, *1 (E. D. Pa. Sept. 12, 1996); see also id. at *3 n.8 (“Pleural disease is most often an
asymptomatic scarring of the pleura—a tissue thin membrane surrounding the lung . . . . It
can only be discovered through x-ray and, in and of itself, does not pose a health risk or
impairment.”).
-8-
Indeed, lawyers who represent cancer victims have expressed strong concern that filings by
the unimpaired are threatening payments to their clients. For example, Oakland, California, attorney
Steve Kazan has testified that recoveries by the unimpaired may result in his clients being left
uncompensated.
See Asbestos Litigation:
Hearing Before the Sen. Comm. on the Judiciary,
107th Cong. (Mar. 5, 2003) (statement of Steven Kazan, partner, Kazan, McClain, Edises, Abrams,
Fernandez, Lyons & Farrise); see also Pamela Sherrid, Looking for Some Million Dollar Lungs, U.S.
News & World Rep., Dec. 17, 2001, at 36, available at 2001 WL 30366341 (quoting Mr. Kazan).
Plaintiffs’ lawyer Matthew Bergman of Seattle, Washington, has written, “Victims of mesothelioma,
the most deadly form of asbestos-related illness, suffer the most from the current system. As a result
of these bankruptcies, the genuinely sick and dying are often deprived of adequate compensation as
more and more funds are diverted into settlements of the non-impaired claims.” Matthew Bergman
& Jackson Schmidt, Editorial, Change Rules on Asbestos Lawsuits, Seattle Post-Intelligencer, May
30, 2002, at B7, available at 2002 WL-STLPI 5934774 [hereinafter Bergman].
Even renowned Mississippi plaintiffs’ lawyer Richard Scruggs has said, “Flooding the courts
with asbestos cases filed by people who are not sick against defendants who have not been shown to
be at fault is not sound public policy.” ‘Medical Monitoring and Asbestos Litigation’ — A
Discussion with Richard Scruggs and Victor Schwartz, Vol. 17, No. 3 Mealey’s Litig. Rep.:
Asbestos 39 (Mar. 1, 2002) (quoting Mr. Scruggs) [hereinafter Schwartz & Scruggs].
Cancer victims have a well-founded fear that they will not receive adequate or timely
compensation unless trends in the litigation are addressed.8 For example, consider Johns-Manville,
8
See In re Joint E. & S. Dists. Asbestos Litig., 129 B.R. 710, 751 (E. & S.D.N.Y. 1991)
(“Overhanging this massive failure of the present system is the reality that there is not
(Footnote continued on next page)
-9-
which filed for bankruptcy in 1982. It took six years for the company’s bankruptcy plan to be
confirmed. Payments to Manville Trust claimants were halted in 1990, and did not resume until
1995. According to the Manville trustees, a “disproportionate amount of Trust settlement dollars
have gone to the least injured claimants—many with no discernible asbestos-related physical
impairment whatsoever.” Quenna Sook Kim, Asbestos Trust Says Assets Are Reduced As the
Medically Unimpaired File Claims, Wall St. J., Dec. 14, 2001, at B6, available at 2001 WL-WSJ
29680683. As a result, the Trust is now paying out just five cents on the dollar to asbestos
claimants. See id.
Consider also the widow of one man in Washington State who died from mesothelioma. She
has been told that she should expect to receive only fifteen percent of the $1 million she might have
received if her husband had filed suit before the companies he sued went bankrupt. See Albert B.
Crenshaw, For Asbestos Victims, Compensation Remains Elusive, Wash. Post., Sept. 25, 2002, at
E1, available at 2002 WL 100084407. Similarly, the widow of a mechanic in Ohio will recover at
most $150,000 of the $4.4 million dollar award that she received for her husband’s death. See
Stephen Hudak & John F. Hagan, Asbestos Litigation Overwhelms Courts, Cleveland Plain Dealer,
Nov. 5, 2002, at A1, available at 2002 WL 6382801.
It is for these reasons that lawyers representing sick and dying plaintiffs have endorsed
unimpaired docket type solutions to the litigation. See, e.g., Bergman, supra (“The solution is
simple: defer the non-sick claims unless and until the claimants actually suffer an asbestos-related
enough money available from traditional defendants to pay for current and future claims.
Even the most conservative estimates of future claims, if realistically estimated on the books
(Footnote continued on next page)
- 10 -
disease.”); Paul Hampel & Philip Dine, Asbestos Litigation Deal Could Force Law Offices to Find
New Specialties; Bill Would Substitute Trust Fund for Lawsuits, St. Louis Post-Dispatch, July 23,
2003, at A1, available at 2003 WL 3596458 (quoting Randy Bono, a prominent Madison County,
Illinois, asbestos plaintiffs' attorney as saying, “I welcome change. Getting people who aren't sick
out of the system, that's a good idea.”).
B.
Bankruptcies Are Placing A Heavy Toll on Workers And Their Employers
Asbestos litigation has already forced more than seventy companies into bankruptcy. See
Mark A. Behrens & Rochelle M. Tedesco, Two Forks in the Road of Asbestos Litigation, Mealey’s
Litig. Rep.: Asbestos, Vol. 18, No. 3, Mar. 7, 2003, at 1. Many of the bankruptcies have occurred
within the past three years. The “process is accelerating,” In re Collins, 233 F.3d at 812, due to the
“piling on” nature of asbestos liabilities. See Mark D. Plevin & Paul W. Kalish, What’s Behind the
Recent Wave of Asbestos Bankruptcies?, Vol. 16, No. 6, Mealey’s Litig. Rep.: Asbestos (Apr. 20,
2001). Each time a defendant declares bankruptcy, “mounting and cumulative” financial pressure is
placed on the “remaining defendants, whose resources are limited.” Christopher Edley, Jr. & Paul C.
Weiler, Asbestos: A Multi-Billion-Dollar Crisis, 30 Harv. J. on Legis. 383, 392 (1993).
As the Enron debacle illustrated, these bankruptcies represent more than the demise of a
business. They also have a real impact on the job prospects of employees, the retirement savings of
ordinary citizens, and the economy as a whole.9 For instance, a 2002 study by Nobel Prize-winning
of many present defendants, would lead to a declaration of insolvency--as in the case of some
dozen manufacturers already in bankruptcy.”), vacated, 982 F.2d 721 (2d Cir. 1992).
9
See The State of the Economy: Hearing Before the Sen. Comm. on the Budget, 107th Cong.
(Jan. 29, 2003) (statement of Michael Baroody, Executive Vice President of the National
(Footnote continued on next page)
- 11 -
economist Joseph Stiglitz and two colleagues on the direct impact of asbestos bankruptcies on
workers found that bankruptcies resulting from asbestos litigation put approximately 52,000 to
60,000 people (many of them union workers) out of work between 1997 and 2000. See Joseph E.
Stiglitz et al., The Impact of Asbestos Liabilities on Workers in Bankrupt Firms 12 J. Bankr. L. &
Prac. 51, 73-74 (2003). Those workers and their families lost $175 million to $200 million in wages.
See id. at 76. Employee retirement assets declined roughly twenty-five percent. See id. at 83. In
addition to the impact on workers, the aggregate direct costs of bankruptcies on the bankrupt firms,
such as the legal, accounting, and other expenses associated with a bankruptcy, are estimated at
between $325 and $625 million. See id. at 86.
Asbestos-related bankruptcies result in indirect costs as well. See Patrick J. Hagan et al.,
Totalling Up the Costs of Asbestos Litigation: Guess Who Will Pay the Price?, 9 Temp. Envtl. L. &
Tech. J. 1 (1990). A 2002 study by National Economic Research Associates found that workers,
communities, and taxpayers will bear as much as $2 billion in additional costs, due to indirect and
induced impacts of company closings related to asbestos. See Jesse David, The Secondary Impacts
of Asbestos Liabilities (Nat’l Econ. Research Assocs., Jan. 23, 2003).10 For instance, for every ten
Association of Manufacturers); Lisa Girion, Firms Hit Hard as Asbestos Claims Rise, L.A.
Times, Dec. 17, 2001, at A1, available at 2001 WL 28937452; Amity Shlaes, The Real-Life
Tragedy of the Asbestos Theatre, Fin. Times, May 14, 2002, at 15, available at 2002 WL
20299748; Eric Roston, The Asbestos Pit, Time, Mar. 11, 2002, Y9, available at 2002 WL
8385920; Michael Freedman, The Tort Mess, Forbes, May 13, 2002, at 95, available at 2002
WL 2214449; Quenna Sook Kim, Firms Hit by Asbestos Litigation Take Bankruptcy Route,
Wall St. J., Dec. 21, 2000, at B4, available at 2000 WL-WSJ 26620724.
10
See also Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Frederick C. Dunbar, Ph.D., Senior Vice President,
Nat’l Econ. Research Assocs.).
- 12 -
jobs lost directly, the community may lose eight additional jobs. See id. at 8. The shutting of plants
and job cuts will decrease per capita income, lead to declining real estate values, and lower federal,
state and local tax receipts.
See id. at 11-13.
Additional costs brought upon workers and
communities include up to $76 million in worker retraining, $30 million in increased healthcare
costs and $80 million in payment of unemployment benefits. See id. at 14-15.
There is also a staggering loss to the U.S. economy. The RAND Institute for Civil Justice
recently estimated that $70 billion has already been spent in asbestos litigation through the end of
2002. See S. Rep. 108-118, at 59 (2003) (citing RAND’s Stephen Carroll). A lot of that money has
been spent in transaction costs that could be put to more productive uses, such as job creation and
innovation.11 The remaining future cost of the litigation is an estimated $130 billion. See Solving
the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in Asbestos Injury Act of 2003,
Before the Sen. Comm. on the Judiciary, 107th Cong. (June 4,2003) (statement of Jennifer L. Biggs,
Consulting Actuary, Tillinghast-Towers Perrin).
To put the total past and future cost of asbestos litigation in perspective, consider that
analysts estimate the cost of rebuilding Iraq, a country battered by two wars in two decades and
twelve years of United Nations sanctions, at roughly the same amount.12 Asbestos litigation costs
Goldman Sachs Managing Director Scott Kapnick has also explained that “the large
uncertainty surrounding asbestos liabilities has impeded transactions that, if completed,
would have benefited companies, their shareholders and employees, and the economy as a
whole.” Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the Fairness in
Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statement of Scott Kapnick, Managing Director, Goldman
Sachs).
12
See Jonathan Weisman & Mike Allen, Officials Argue for Fast U.S. Exit From Iraq, Wash.
Post, Apr. 21, 2003, at A1, available at 2003 WL 18819230 (reporting that Yale University
(Footnote continued on next page)
- 13 11
are at least ten times greater than the $20 billion in property damage caused by the massive 6.7
magnitude earthquake that hit Los Angeles in 1994.13 The litigation will also cause far more
economic devastation than Hurricane Andrew, which pounded Florida and Louisiana in 1992 to
become one of the most expensive natural disasters in U.S. history, with a cost of about $30
billion.14 As former U.S. Attorney General Griffin Bell has pointed out, asbestos litigation costs will
exceed the cost of “all Superfund sites combined, Hurricane Andrew, or the September 11th terrorist
attacks.” Bell, supra, at 4.
C.
Peripheral Defendants Are Being Dragged Into the Litigation
Now that virtually all former manufacturers of asbestos-containing products have been
forced into bankruptcy, “the net has spread from the asbestos makers to companies far removed from
the scene of any putative wrongdoing.” Editorial, Lawyers Torch the Economy, Wall St. J., Apr. 6,
2001, at A14, available at 2001 WL-WSJ 2859560.15 Plaintiffs’ attorney Scruggs has remarked that
the litigation has turned into the “endless search for a solvent bystander.” Schwartz & Scruggs,
supra, at 5 (quoting Mr. Scruggs).
13
14
15
economist William D. Nordhaus has estimated the total postwar cost of rebuilding Iraq at
between $75 billion and $500 billion).
See William Booth, Unsettling Forecast For the Bay Area; Chance of Big Quake Before
2030 Put at 70%, Wash. Post, Oct. 15, 1999, at A3, available at 1999 WL 23309261.
See Mike McClintock, Preparing for High Winds, Wash. Post, May 13, 1999, at T23,
available at 1999 WL 17002587.
See also Steven Hantler, Toward Greater Judicial Leadership in Asbestos Litigation,
Manhattan Inst. Civ. Just. F., No. 41, Apr. 2003, at 6, available at
<http://www.manhattaninstitute.org> (last visited Aug. 14, 2003); Editorial, The Job-Eating
Asbestos Blob, Wall St. J., Jan. 23, 2002, at A22, available at 2002 WL-WSJ 3383766.
- 14 -
As a result, “[a] newer generation of peripheral defendants are becoming ensnarled in the
litigation.” In re Joint E. & S. Dists. Asbestos Litig., supra, at 747-48. Many of these defendants
never made or used asbestos in their products. They have only an attenuated connection to the
litigation. See Richard B. Schmitt, Burning Issue: How Plaintiffs’ Lawyers Have Turned Asbestos
Into a Court Perennial, Wall St. J., Mar. 5, 2001, at A1, available at 2001 WL-WSJ 2856111. See
also Victor E. Schwartz & Rochelle M. Tedesco, The Law of Unintended Consequences in Asbestos
Litigation: How Efforts to Streamline The Litigation Have Fueled More Claims, 71 Miss. L.J. 531
(2001); Victor E. Schwartz & Leah Lorber, A Letter to the Nation’s Trial Judges: How the Focus on
Efficiency is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 Am. J. Trial Advoc.
247 (2000).
There are now more than 8,400 asbestos defendants, see Susan Warren, Plaintiffs Target
Companies Whose Premises Contained Any Form of Deadly Material, Wall St. J., Jan. 27, 2003, at
B1, available at 2003 WL-WSJ 3957497, up from only 300 in 1982. See RAND Rep., supra, at 6.
Many of these defendants are household names; many others are small businesses facing potentially
devastating liability. See Susan Warren, Asbestos Suits Target Makers of Wine, Cars, Soups, Soaps,
Wall St. J., Apr. 12, 2000, at B1, available at 2000 WL-WSJ 3025073. Attorney General Bell
predicts that half of the companies in the Dow Jones Index may soon be affected. See Bell, supra, at
24. See also RAND Rep., supra, at 50 (finding that asbestos litigation “has spread to touch firms in
industries engaged in almost every form of economic activity that takes place in the American
economy.”).
According to Senior U.S. District Court Judge Jack Weinstein, “[i]f the acceleration
and expansion of asbestos lawsuits continues unaddressed, it is not impossible that every company
with even a remote connection to asbestos may be driven into bankruptcy.” Remarks of the Hon.
- 15 -
Jack Weinstein, at a symposium held at the Bar Association of the City of New York, Asbestos:
What Went Wrong?, Oct. 21, 2002, at 12.
D.
Overwhelmed Courts Are Not Able to Accurately Filter Out Questionable Cases
Because of the magnitude of the asbestos-related filings, courts have not been able to
accurately filter out questionable claims. These claims generally result from the practice of mass
litigation screenings, which have come under significant scrutiny recently because of the reported
problem of regular misdiagnosis of unimpaired claimants as having an asbestos-related disease. See
e.g. David E. Bernstein, Keeping Junk Science Out of Asbestos Litigation, 31 Pepp. L. Rev. 11, 12
(2003); Letter from Senator Don Nickles, Chairman, Committee on Budget, to Hon. Timothy J.
Muris, Chairman, Federal Trade Commission and Lester M. Crawford, D.V.M., Ph.D., Acting
Commissioner, Food and Drug Administration 1 (Apr. 28, 2004) (on file with authors) (calling for a
Federal inquiry into the “widespread use of for-profit mass X-ray screening vans and trucks to
generate lawsuits by claimants, many of whom are not sick”). Misdiagnosis of asbestos-related
disease occurs when an expert erroneously claims to have found a lung or chest abnormality related to
asbestos exposure. These questionable claims unfairly burden the courts with additional cases and are
costly to both plaintiffs and defendants, as questionable claims usurp valuable resources.
Some attribute the rise in unimpaired claims to misdiagnosis from plaintiffs’ law firm-sponsored
screenings for asbestos-related diseases, as some plaintiffs’ law firms have hired physicians to canvas
workplaces and union halls offering to test workers for asbestos exposure. See Lester Brickman, On
The Theory Class’s Theories of Asbestos Litigation: The Disconnnect Between Scholarship and
Reality?, 31 Pepp. L. Rev. 33, 38 (2003); Sherrid, Looking for Some Million Dollar Lungs, supra, at
36; Eddie Curran, Mystery Companies, Massive Payouts, Mobile Register, Mar. 28, 2004, at 5A,
- 16 -
available
at
<www.al.com/news/mobileregister/index.ssf?/base/news/108046931090410.xml>.
Even when plaintiffs’ attorneys do not arrange mass screenings, they can hire their own physicians
to examine potential claimants. As former U.S. Attorney General Griffin Bell recently pointed out,
“These screenings often do not comply with federal or state health or safety law. There often is no
medical purpose for these screenings and claimants receive no medical follow-up.” Griffin B. Bell,
Asbestos & The Sleeping Constitution, 31 Pepp. L. Rev. 1 (2003).
There is evidence that “screening companies grossly overdiagnose for asbestosis.” Eddie
Curran, Diagnosing for Dollars, Mobile Reg., Apr. 4, 2004 (Citing Dr. Greg Nayden, who worked
for a testing company. Dr. Nayden admitted, “To be honest with you, I don’t think many of these
people
had
any
problems”),
available
at
<www.al.com/news/mobileregister/index.ssf?/base/news/1081071995288570.xml> (last visited on
Apr. 28, 2004). In one instance, Federal District Judge Carl Rubin of the Southern District of Ohio
studied the merits of sixty-five asbestos bodily injury cases by appointing medical experts to
evaluate their claims. See Hon. Carl Rubin & Laura Ringenbach, The Use of Court Experts in
Asbestos Litigation, 137 F.R.D. 35, 37-39 (1991). All of the plaintiffs had claimed some asbestosrelated condition, but the court-appointed experts found that sixty-five percent of the claimants had
no asbestos-related conditions at all. See id. Of the remaining thirty-five percent of claimants,
approximately fifteen percent had asbestosis, and the rest presented only pleural plaques. See id.
Two independent scientists appointed by the Manville Personal Injury Settlement Trust
conducted a similar study to review claims of people with reported asbestos-related diseases. In fortyone percent of the claims, both experts agreed that the claimant’s X-ray did not present evidence of
asbestos-related disease. See Bell, supra, at 14. Additionally, in one study of 439 tire workers
- 17 -
diagnosed as having abnormal chest x-rays from inhaled asbestos, an independent panel of three
radiologists confirmed that diagnosis in less than four percent of the cases. See Bernstein, supra, at
13.
As one expert has explained, “the chest x-rays are not read blindly, but always with the
knowledge of some asbestos exposure and that the lawyer wants to file litigation on the worker’s
behalf.” Id. Some attorneys reportedly pass an x-ray around to numerous radiologists until they find
one who is willing to say that the x-ray shows symptoms of an asbestos-related disease, a practice
strongly suggesting unreliable scientific evidence. See David Egilman, Asbestos Screenings, 42 Am.
J. of Indus. Med. 163 (2002). See also Stephen Hudak & John F. Hagan, Asbestos Litigation
Overwhelms Courts, Plain Dealer (Cleveland, Ohio), Nov. 5, 2002, at 1 (reporting that one plaintiffs’
expert medical witness remarked, “I was amazed to discover that, in some of the screenings, the
worker’s x-ray had been ‘shopped around’ to as many as six radiologists until a slightly positive
reading was reported by the last one.”). The result is “the epidemic of asbestosis observed . . . in
numbers which are inconceivable and among industries where the disease has never been previously
recognized by medical investigation.”
Andrew J. Ghio, M.D., Editorial, Asbestosis: Over
Diagnosed?, The News & Observer (Charlotte, North Carolina), Apr. 12, 2004, at A11, available at
2004 WL 56033533.
These questionable claims burden the courts, as American Bar Association President Dennis
Archer observed, because they are bundled for settlement purposes with cases of people who are
seriously ill from asbestos exposure. See Eddie Curran, Trial Lawyers Say: If Asbestos Cases Bad,
Why
Settle
Them?,
Mobile
Reg.,
Mar.
28,
2004,
available
at
<www.al.com/news/mobileregister/index.ssf?/base/news/1080585951129600.xml> (last visited on
- 18 -
Apr. 28, 2004) . In order to settle the claims of the truly sick, the defendants are then forced to settle
the “crap cases, too.” Id. But, given the massive number of unimpaired claimants resulting from the
screening process, defendants “cannot settle their way out of ‘the asbestos litigation crisis.’” David
M. Setter et al., Why We Have to Defend Against Screened Cases: Now is the Time for a Change, 24 Mealey’s Litig. Rep. Silica 11 (2003).
Requiring actual impairment through an unimpaired
asbestos docket would have the important benefit of filtering out the most questionable of these
claims.
II.
THE ASBESTOS LITIGATION PROBLEMS IN TEXAS ARE REPRESENTATIVE
OF THE NATIONAL ASBESTOS CRISIS
Historically, Texas has been a magnet state for asbestos litigation, leading to the same
problems as identified on the national level.
A.
Texas Leads the Nation in Asbestos Filings
According to the RAND Rep., more asbestos cases have “migrated” to Texas since 1988 than
any other state. RAND Rep., supra, at 34. By the mid 1990s, Harris, Galveston, and Jefferson
counties in Texas accounted for forty-two percent of all new filings. Id. at 36; see also Senator Kyle
Janek, Editorial, Clearing the Way for the Truly Sick, Austin Am. Statesman, Jul. 17, 2003, at A11,
available at 2003 WL 56773165 (“with only eight percent of the nation’s population and little
historical connection to asbestos production, Texas has in its state courts half the 200,000 active
asbestos claims pending nationwide.”).
Texas is an “attractive location for plaintiffs” for several reasons. George Scott Christian &
Dale Craymer, Texas Asbestos Litigation Reform: A Model for the States, 44 So. Tex. L. R. 981
(2003) (citing the state’s statute of limitations rules for asbestos cases as well as other general
- 19 -
litigation rules). At the heart of this situation, though, is the ability for unimpaired claimants to
collect large awards and settlements. In one well-known lawsuit involving twenty-two plaintiffs
with only pleural markings, a jury in Beaumont, Texas awarded the plaintiffs $1.6 million each.
Susan Warren, Competing Claims: As Asbestos Mess Spreads, Sickest See Payouts Shrink, Apr. 25,
2002, at A1, available at 2002 WL-WSJ 3392934.
In addition, some trial courts allow “fear of
cancer” claims by unimpaired claimants despite “clear signals” from the Texas Supreme Court that
such claims may be illegitimate – a practice that drives up settlement costs in unimpaired cases.
Richard O. Faulk, Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts,
44 So. Tex. L. R. 945 (2003); see also Patrick Beach, The Bitter Price of a Better Life, Austin Am.Statesman, Aug. 31. 2003, at A1, available at 2003 WL 56774561 (While fewer than a dozen
asbestos injury trials have been held in Milam County, “many tens of millions of dollars have been
paid in confidential settlements and at trial”). The effort by some plaintiffs’ firms to take advantage
of these case recently led one Corpus Christi judge to take the unusual step of fining a Beaumont law
firm $500,000 for filing cases in a way that threatened “the integrity of our judicial system.” Assoc.
Press, Beaumont Law Firm Must Pay $500,000, Hous. Chron., Nov. 15, 2002, at 38, available at
2002 WL 23238273 (quoting from the judge’s order and noting that disciplinary action in this regard
is rare).
B.
Unimpaired Claimants are Taking Toll On Sick Plaintiffs and Employers in
Texas
The large verdicts by mass numbers of unimpaired claimants in Texas have resulted in
localized versions of the same trends that have occurred nationally. Mark Iola, a Dallas lawyer who
specializes in representing people who have cancer from asbestos exposure, has said that the
unimpaired claimants in Texas, in effect, are “stealing money from the very sick.” Thomas Korosec,
- 20 -
Enough
to
Make
You
Sick,
Dallas
Observer,
Sept.
26,
2002,
available
at
<www.dallasobserver.com/issues/2002-09-26/feature.html/1/index.html> (last visited Apr. 29,
2004). Peripheral defendants with little or no connection to asbestos are being named defendants at
an increasing rate. Jeff Clark, Texas director of the National Federation of Independent Business,
recently observed, “I have members all over the state who are being sued even though they have no
relationship with asbestos. . . . They’re often being sued by people who aren’t even sick.” Terry
Maxon, Balance Sought in Asbestos Bill, Dallas Morning News, Jul. 9, 2003, at 2, available at 2003
WL 73103258. In addition, the Washington Legal Foundation recently petitioned the State Bar of
Texas to investigate “the conduct and operation of attorney-sponsored screening programs and
related activity that have resulted in the filing of questionable non-malignant asbestos claims” in
Texas. Letter from Daniel J. Popeo, Chairman and General Counsel, Washington Legal Foundation,
to Betsy Whitaker, President, State Bar of Texas, (Mar. 16, 2004) (on file with author) (quoting
Professor Lester Brickman describing how claims collected by a Texas attorney are “sold off to
leading asbestos law firms” in the state and elsewhere).
For these reasons, Texas newspapers have editorialized in favor of an unimpaired docketing
system. See, e.g., Editorial, Asbestos Sense, Hous. Chron., July 7, 2003, at 18, available at 2003 WL
57428391; Editorial, Asbestos Bill Reasonable: Seriously Ill Victims Deserve a Day in Court More
Quickly Than Those Who May or May Not Get Sick, San Antonio Express-News, May 13, 2003, at
B6, available at 2003 WL 20247629 (“Plaintiffs who are well but have been exposed to asbestos are
filing lawsuits claiming damages. This dilutes relief from those suffering serious illness and slows
down the court system for those who need financial assistance.”).
- 21 -
III.
A STATEWIDE UNIMPAIRED DOCKET WOULD PROVIDE
AN EFFECTIVE AND APPROPRIATE SOLUTION
TO THE ASBESTOS LITIGATION PROBLEMS IN TEXAS
A.
The Court Should Adopt A Statewide Asbestos Docketing System
This Court has the unique opportunity to address Texas’s asbestos problems and join other
pioneering courts by implementing a statewide unimpaired asbestos docket. A statewide unimpaired
docketing system would addresses a significant legal crisis in a surgical fashion, narrowly tailored to
deal with the problem of the unimpaired claimants and the “ripple effects” such claims produce. See
Richard O. Faulk, Asbestos Litigation in State Court: Why the System is Broken and Some
Suggestions for Repair, Prod. Safety & Liab. Rptr. (BNA), Vol. 30, No. 37, at 845, Sept. 23, 2002,
also printed in Class Action Litig. (BNA), Vol. 3, No. 19, Oct. 11, 2002, at 658.16
Importantly, an unimpaired docket would greatly benefit the truly sick as well as asbestos
defendants. It would give trial priority to the sick by allowing them to move “to the front of the
line” and not be forced to wait until earlier-filed claims by unimpaired individuals are resolved.
Removing these delays can be especially important to impaired claimants, particularly if the
individual has a fatal disease, such as mesothelioma, or is an older person, which is frequently the
case. An unimpaired docket also would help unimpaired individuals by protecting their claims from
16
For a helpful primer on the basic medical issues involved in utilizing objective medical
criteria to prioritize the treatment of asbestos claims, see Dr. John E. Parker, Understanding
Asbestos-Related Medical Criteria, Vol. 18, No. 10, Mealey’s Litig. Rep.: Asbestos, June
18, 2003, at 45. See also Solving the Asbestos Litigation Crisis: Hearing on S. 1125, the
Fairness in Asbestos Injury Act of 2003, Before the Sen. Comm. on the Judiciary,
107th Cong. (June 4, 2003) (statements of Dr. John E. Parker, Professor and Chief of
Pulmonary and Critical Care Medicine, Robert C. Byrd Health Sciences Center of West
Virginia University, and Dr. James D. Crapo, Professor of Medicine at the National Jewish
Center and University of Colorado Health Sciences Center, former President of the American
Thoracic Society, and President-elect of the Fleischner Society).
- 22 -
being time-barred should an asbestos-related disease later develop. This would address a primary
engine driving the filing of many claims by unimpaired claimants. In addition, an unimpaired
docket would conserve scarce financial resources needed to compensate sick claimants – resources
now used up litigating “claims that are premature (because there is not yet any impairment) or
actually meritless (because there never will be).” Schuck, supra, at 555. Finally, adoption of an
unimpaired docket would reduce the specter of more employers being driven into bankruptcy,
thereby helping to ensure that adequate resources remain for impaired claimants in the future. See
Behrens & Parham, supra, at 7.
B.
Unimpaired Dockets Are Sound and Proven
In the late 1980s and early 1990s, three major jurisdictions adopted unimpaired docket plans
– Boston, Chicago and Baltimore. Judges from all three courts have stated that they believe the
plans are working well for all parties. See Inactive Asbestos Dockets: Are They Easing the Flow of
Litigation?, HarrisMartin’s Columns: Asbestos, Feb. 2002, at 2 [hereinafter Columns: Asbestos].
See also In re USG Corp., No. 01-2094, Mem. Op. and Order, at 8 n.3 (Bankr. Del. Feb. 19, 2003)
(“The practical benefits of dealing with the sickest claimants first have been apparent to the courts
for many years and have led to the adoption of deferred claims registries in many jurisdictions.”).
1.
Boston, Massachusetts
Judge Hiller Zobel adopted the Massachusetts Inactive Asbestos Docket in 1986 as part of
his order creating a statewide consolidated asbestos docket. See Mass. State Ct. Asbestos Pers. Injury
Litig., Order (Commw. of Mass., Middlesex Super. Ct., Sept. 1986). The docket was envisioned as a
mechanism to give priority to the claims of the truly sick while tolling statutes of limitations for
claims brought by the non-sick or their families. While on the inactive docket, cases are exempt
- 23 -
from discovery. The Massachusetts Inactive Docket does not specify criteria to be applied in
determining whether a case should be moved from the Inactive to the Active Docket. Over the past
fifteen years, however, the judge overseeing the Inactive Docket has made clear to all litigants that
he expects pleural cases to be placed on the Inactive Docket in order to further the court’s goal of
reducing expenditures of court time and resources trying purely pleural actions.
There have been relatively few instances of contested placements on the active docket in
Massachusetts. Indeed, while placement of pleural cases on the Inactive Docket is not mandatory,
most of the primary plaintiffs’ counsel involved in Massachusetts state court litigation have opted to
file substantially all of their pleural cases on the Inactive Docket. As a result, the number of cases
on the Active Docket and the amount of money spent on settlements with unimpaired claimants have
been significantly reduced. See Behrens & Parham, supra, at 14.17
Judge Zobel recently commented that the Massachusetts inactive docket has been “really a
very good system that has worked out. . . .” Columns: Asbestos, supra, at 3. Jim Ryan, special
master of the Massachusetts asbestos litigation, has described the inactive docket as “an extremely
useful tool,” saying, “I don’t see any downside for creating one anywhere else.” Id. at 70.
2.
Chicago, Illinois
In 1991, Judge Dean Trafelet in Cook County, Illinois, established an unimpaired docket
system for Chicago. See In re Asbestos Cases (Cir. Ct., Cook County, Ill. Mar. 26, 1991) (Order to
Establish Registry for Certain Asbestos Matters). He did so because a “substantial number of cases”
Over the lifetime of the Massachusetts asbestos litigation, plaintiffs’ counsel has sought
transfer to “active” status for only a small fraction of the thousands of cases on the
unimpaired docket. The Massachusetts experience underscores how the vast majority of
(Footnote continued on next page)
- 24 17
involving “plaintiffs who claim[ed] significant asbestos exposure, but who [were] not. . . physically
ill” were presenting “a serious threat of calendar congestion to the Court.” Id. at 3. Moreover,
defendants were seeing “their available resources severely strained.” Id. Judge Trafelet believed
that their resources could be better expended if the Cook County litigation “focused on those cases
that involve claims of actual and current conditions of impairment.” Id.
3.
Baltimore, Maryland
An unimpaired asbestos docket was introduced in Baltimore in December of 1992. See In re
Asbestos Pers. Injury and Wrongful Death Asbestos Cases, File No. 92344501 (Cir. Ct. Baltimore
City, Md. Dec. 9, 1992) (Order Establishing an Inactive Docket for Asbestos Personal Injury Cases).
Circuit Court Judge Richard Rombro, who oversees the asbestos litigation in Baltimore, recently
remarked on the success of that court’s unimpaired docket plan. Since the docket’s establishment,
he said, “there have been 14,713 cases filed and placed on the inactive docket; in that same period
6,098 cases have been moved to the active docket, and 71 cases which were removed to the Federal
Court. The number activated from the inactive docket is over 40 percent which would indicate to
this court that the docket is working and that a substantial number of cases have been moved to the
active docket while those without any impairment remain on the inactive docket.” In re Pers. Injury
and Wrongful Death Asbestos Cases, Mem. Op. and Order Denying Modification to Inactive Docket
Medical Removal Criteria, No. 24-X-92-344501, at 5 (Cir. Ct. Baltimore City, Md. Aug. 15, 2002).
asbestos claimants do not have any present impairment, and will not likely develop any
impairment, as a result of their asbestos exposure.
- 25 -
C.
Unimpaired Dockets Are Gaining Momentum Around The Country
The exponential increase in asbestos claims, mostly from unimpaired claimants, recently has
led several other jurisdictions – from New York City and Syracuse in New York to Seattle,
Washington and Madison County, Illinois – to join the list of pioneering courts that have adopted
unimpaired dockets to manage their growing asbestos caseloads.
1.
New York City
In December 2002, New York trial court Judge Helen Freedman amended the existing New
York City asbestos case management order to establish a “deferred docket” for claimants with little
or no present physical impairment. See In re New York City Asbestos Litig., Order Amending Prior
Case Mgmt. Orders (S. Ct. N.Y. City, N.Y. Dec. 19, 2002). She had observed that fewer than ten
percent of the 21,000 asbestos-related personal injury or wrongful death claims pending in New
York City involve claimants with asbestos-related malignant diseases; a “small percentage” have
sustained functionally impairing asbestosis.” Id. at 1.
2.
Syracuse, New York
Judge James McCarthy of New York’s Fifth Judicial District, which includes Syracuse,
amended his court’s existing case management order to establish a deferred docket in January 2003.
See In re Fifth Jud. Dist. Asbestos Litig., Am. to Am. Case Mgmt. Order No. 1 (N.Y. Sup. Ct. Jan.
31, 2003). He reported finding that of the more than 200 asbestos-related personal injury cases
pending before his court, “less than 5% of the claimants or decedents suffer or suffer from asbestosrelated malignant diseases, and a small percentage of the remainder have sustained functionally
impairing asbestosis.” Id. at 1.
- 26 -
3.
Seattle, Washington
King County (Seattle) Superior Court Judge Sharon Armstrong concluded in December 2002
that the “increasing volume of asbestos cases” had made it “necessary for the court to give priority to
the cases of plaintiffs who are the most ill.” Letter from Judge Sharon S. Armstrong, King County,
Wash., to Counsel of Record, Moving and Responding Parties, 1 (Dec. 3, 2002). The court went on
to hold that “plaintiffs who are asymptomatic, who suffer from only mild reduction in lung function,
or whose reduced lung function is not attributed by competent medical opinion to asbestos-related
disease shall be placed on an Inactive Status Calendar” until such time that the claimant’s
“symptoms or lung functions reaches the level of significant functional impairment.” Id.
4.
Madison County, Illinois
As of the time of this writing, the Circuit Court for Madison County, Illinois is the most
recent court to join the ranks of those courts adopting an unimpaired asbestos docket. See In re All
Asbestos Litigation Filed in Madison County, Order Establishing Asbestos Deferred Registry
(Madison County Cir. Ct., Ill. Jan. 23, 2004). In its order, the court noted that “over 6,000 nonmalignant cases were on the trial docket in Madison County in 2003, many of which involved no
physical impairment.” The fact that Madison County considers the inactive docket a workable
solution to some of that jurisdiction’s asbestos litigation is significant, as its courts have developed a
reputation as a Mecca for asbestos suits. Rulings in that forum have earned it the dubious distinction
as America’s number one “judicial hellhole,” according to the American Tort Reform Association.
See Am. Tort Reform Ass’n, Bringing Justice to Judicial Hellholes (2003) available at
<http://www.atra.org/reports/hellholes> (last visited Mar. 1, 2004).
- 27 -
5.
Pending: Michigan Supreme Court
As of this writing, the Michigan Supreme Court is considering a petition filed by nearly
seventy companies and numerous amici who are asking the court to adopt a statewide unimpaired
asbestos docket. See In re Pet. For An Admin. Order, No. 124213 (Mich. Pet. filed Sept. 11, 2003).
The court held an administrative hearing on the Petition in January 2004.
D.
Innovations Used By Federal Courts to Give Priority to the Truly Sick
The different types of unimpaired docketing used in these jurisdictions, as with the one
proposed to this Court, are consistent with federal judicial public policy. Orders to prioritize the
treatment of asbestos claims have been issued by Senior U.S. District Judge Charles Weiner and
U.S. District Court Judge Alfred Wolin, who oversees the USG Corporation (“USG”) bankruptcy
proceeding in Delaware.18
1.
The Federal MDL Panel
In 1992, Judge Weiner adopted procedures, which although not technically an unimpaired
docket, had the purpose of prioritizing “malignancy, death and total disability cases where the
substantial contributing cause is an asbestos-related disease or injury.” In re Asbestos Prod. Liab.
Litig. (No. VI), MDL 875, Admin. Order No. 3, at 1 (E.D. Pa. Sept. 8, 1992) [hereinafter MDL 875,
Admin. Order No. 3]. Under the court’s order, a select number of cases were identified and placed
18
In July 1991, the Judicial Panel on Multidistrict Litigation ordered all federal asbestos
personal injury and wrongful death actions to be centralized before Judge Weiner. See In re
Asbestos Prod. Liab. Litig. (No. VI), MDL 875 (J.P.M.L. 1991). At the time of the transfer,
unimpaired dockets existed in about a dozen federal districts, including some districts with
“very large asbestos caseloads.” Schuck, supra, at 568. These included a broad and diverse
number of courts, ranging from the Northern District of California, the Northern District of
Illinois, the Northern and Southern Districts of Mississippi, the Western District of New York,
the Northern District of Ohio, to the Districts of Colorado, Connecticut, Hawaii, Maine,
Maryland, Massachusetts, and New Hampshire. See id. at 568 n.109.
- 28 -
into one of four disease categories. See id. at 1.19 In each case, plaintiff’s counsel was required to
have a written medical opinion by a board-certified specialist indicating that exposure to either
asbestos or products containing asbestos was a contributing cause to the claimant’s condition. Cases
in which the claimant suffered from mesothelioma or lung cancer were thereafter given priority with
respect to review, settlement, or further litigation. Through utilization of the ordering device,
thousands of cases involving non-impaired claimants were dismissed without prejudice. See In re
Asbestos Prod. Liab. Litig. (No. VI), MDL 875, Order (E.D. Pa.
Oct. 16, 1997) (dismissing
approximately 3,200 non-impairment claims without prejudice with all applicable statutes of limitation
tolled).20
More recently, in January 2002, Judge Weiner found that “the filing of mass screening cases
is tantamount to a race to the courthouse and has the effect of depleting funds, some already
stretched to the limit, which would otherwise be available for compensation to deserving plaintiffs.”
19
20
The disease categories were: (1) mesothelioma, living and deceased; (2) lung cancer, living
and deceased; (3) other malignancies, living and deceased; and (4) asbestosis, total disability
deceased or total disability living. See MDL 875, Admin. Order No. 3, at 1.
Similarly, with respect to claims brought under the federal Jones Act for asbestos exposures
during World War II and thereafter, by a May 1996 Memorandum and Order, Judge Weiner
administratively dismissed without prejudice approximately 20,000 cases filed by the Jaques
Admiralty Law Firm in Detroit, Michigan. Those orders provided that reinstatement of the
claims in the MDL would be warranted only if each plaintiff provided the court with, among
other things, sufficient medical evidence of a present “manifest injury” (rather than
asymptomatic conditions such as pleural thickening or scarring). See In re Asbestos Prod.
Liab. Litig. (No. VI), MDL 875, Civil Action No. 2 (Maritime Actions), Order at 9, 13, 15
(E.D. Pa. May 1, 1996) (finding that with respect to the maritime cases “only a fraction of the
recently diagnosed plaintiffs have an asbestos-related condition, and many of these may be
open to question. Numerous cases have either no diagnosis of an asbestos-related condition, or
there is scant credible medical evidence…To file cases by the thousands and expect the Court
to sort out the actionable claims is improper and a waste of the Court’s time. Other victims
suffer while the Court is clogged with such filings.”). Significantly, in the seven years since
Judge Weiner entered these orders, only a handful of these 20,000 maritime cases have been
reinstated to active status.
- 29 -
MDL 875, Admin. Order No. 8, supra. Accordingly, Judge Weiner acted to administratively dismiss
without prejudice (and toll the applicable statutes of limitations of) all asbestos cases initiated
through mass screenings. Cases subject to administrative dismissal remain active for the purposes of
settlement and motions to amend pleadings. Any party may request a case to be transferred to active
status by filing a request for reinstatement and providing the court with an affidavit supporting the
reasons for reinstatement. See id.
2.
United States Bankruptcy Court for the District of Delaware
USG and its major domestic subsidiaries filed petitions for reorganization under Chapter 11
of the U.S. Bankruptcy Code in July of 2001. The case was assigned to U.S. District Judge Alfred
Wolin.21 In response to USG’s request to establish procedures to resolve the asbestos personal
injury liability in its bankruptcy case, Judge Wolin has ordered that claimants with legitimate
asbestos-related cancer claims shall be processed and compensated in the bankruptcy proceeding
before other claimants. See In re USG Corp., supra.
Importantly, Judge Wolin was careful to set standards to help ensure the reliability of claims
submitted. Under his order, claimants are required to provide the court with “a medical report by a
board-certified internist, pulmonary specialist, oncologist, or pathologist” demonstrating a diagnosis
of “a primary cancer” that was “caused by asbestos exposure.” Id. at 10. Each claimant must also
provide additional information regarding his or her claim, including the claimant's occupational
exposure to USG products and smoking history. See id. at 11. Upon the passing of the cancer-only
21
Judge Wolin is a U.S. District Court Judge for the District of New Jersey in Newark. In
November 2001, the Third Circuit Court of Appeals appointed him to the U.S. Bankruptcy
Court for the District of Delaware to oversee five asbestos-related bankruptcy cases,
including the USG matter.
- 30 -
bar date, or deadline, and processing of claims, the court will hold a hearing to estimate the liability
of USG and its affiliates for these claims. See id. at 9.
E.
The American Bar Association Commission on Asbestos Litigation
In February 2003 the American Bar Association’s (ABA) House of Delegates passed a
resolution calling for Congress to adopt legislation that would defer the claims of unimpaired
plaintiffs and toll all applicable statutes of limitations until such claimants are able to satisfy wellestablished medical criteria indicating the presence of an asbestos-related impairing condition.22 See
Asbestos Litigation: Hearing Before the Sen. Comm. on the Judiciary, 107th Cong. (Mar. 5, 2003)
(statement of Hon. Dennis Archer, President-elect, American Bar Ass’n). See also Gina Holland,
ABA Recommends Curbs on Asbestos Lawsuits, Assoc. Press Newswire, Feb. 11, 2003. Supporters
of the plan included Chicago personal injury lawyer Terrence Lavin, who said: “Members of the
asbestos bar have made a mockery of our civil justice system and have inflicted financial ruin on
corporate America by representing people with nothing more than an arguable finding on an x-ray.”
Editorial, ABA Backs Asbestos Reform, Wash. Times, Feb. 16, 2003, at B2, available at 2003 WL-
22
The ABA Commission interviewed several nationally recognized pulmonologists and other
medical specialists with extensive knowledge of asbestos-related non-malignant conditions to
determine the objective medical criteria that would constitute the threshold level of asbestosrelated injury that would permit a plaintiff’s case to be placed on an active docket. Based on
those interviews the ABA Commission promulgated a Standard for Non-Malignant AsbestosRelated Disease Claims (the “ABA Standard”). Am. Bar Ass’n, House of Delegates, ABA
Standard for Non-Malignant Asbestos Related Disease Claims (resolution adopted Feb.
2003). The ABA Standard is also based both on guidelines for diagnosing asbestos-related
conditions which have been published by the American Thoracic Society (a division of the
American Lung Association) and on guidelines for the evaluation of impairment published
by the American Medical Association. See The Diagnosis of Nonmalignant Diseases Related
to Asbestos, Am. Thoracic Soc’y Official Statement, 134 Am. Rev. Resp. Dis. 363-368 (Mar.
1986); Am. Thoracic Soc’y, Lung Function Testing: Selection of Reference Values and
Interpretive Strategies, 144 Am. Rev. Resp. Dis. 1202-1218 (1991); Am. Med. Ass’n, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001).
- 31 -
WATIMES 7706224 (quoting Mr. Lavin). The ABA plan, he added, “is not tort reform. It’s scandal
reform.” Id.
While the ABA resolution was directed primarily at encouraging federal legislative action, it
provides the model for the subject motion and is yet another voice providing support for efforts to
prioritize the claims of the truly ill while preserving the legal rights of the non-sick.
CONCLUSION
For these reasons, the Coalition for Litigation Justice strongly supports the Motion before
this Court to establish an unimpaired docket for asbestos claimants.
- 32 -
Respectfully submitted,
________________________________
Manuel López (Texas Bar No. 00784495)*
SHOOK, HARDY & BACON L.L.P.
JP Morgan Chase Tower
600 Travis Street, Suite 1600
Houston, TX 77002-2911
Tel: (713) 227-8008
Victor E. Schwartz
Mark A. Behrens
Philip S. Goldberg
SHOOK, HARDY & BACON L.L.P.
Hamilton Square
600 14th Street, N.W., Suite 800
Washington, D.C. 20005-2004
Tel: (202) 783-8400
* Counsel of Record
Of Counsel
Paul W. Kalish
Mark D. Plevin
CROWELL & MORING LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tel: (202) 624-2500
Dated: May 3, 2004
- 33 -
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing Memorandum of the Coalition for
Litigation Justice, Inc. In Support of the Motion before this Court to Establish an Unimpaired
Docket upon counsel through electronic mail this 3rd day of May, 2004, addressed as follows:
Adams, Kent M.
kentadams@adamscoffey.com
Adams, Robert L. ("Larry")
ladams@dkapl.com
Akeroyd, Nancy
nancya@rameyflock.com
Albertson, Raymond B.
ralbertson@gpalaw.com
Alenik, Dennis R.
alefirm@aol.com
Allen, Mark
mallen@tbml.com
Alley, Jeffrey S.
jall@scotthulse.com
Almquist, Arthur R. ("Art")
artalmquist@mehaffyweber.com
Andarsio, Pedro F. ("Pete")
pfa@andarsio.com
Anderson, Billy D.
billya@tyler.net
Anderson, Roger W.
rander@tyler.net
Andis, David P.
david@gk-lawyers.com
Andrews, Kay
kandrews@mailbmc.com
Arntz, Jill McCarthy
jarntz@kasowitz.com
Arredondo, Robert D.
rarredondo@mga-law.com
Asher, H. Ross
rasher@rmgattorneys.com
Atha, Cynthia A. ("Cindy")
catha@strongpipkin.com
Atwood, Roy T.
royatwood@jonesday.com
Bailey, Mel D.
mbailey@bcklaw.com
Baker, Kenneth
kbaker@bakpatlaw.com
Baker, Michael L.
mbaker@strongpipkin.com
Baldo, Nicholas S. ("Nick")
baldo@sbf-law.com
Barber, Steven J.
sbarber@steptoe.com
Barrera, Eric I.
ebarrera@gthm.com
Barron, Barbara
barbarabarron@mehaffyweber.com
Bartlett, James W.
jbartlett@kasowitz.com
Bashline, J. D.
jdbashline@mapalaw.com
Bean, Frank M.
tls@beanllp.com
Beason, Ryan A.
ryanb@beasonwillingham.com
Beirne, Martin D.
mbeirne@bmpllp.com
Bell, Trudy
trudybell@gtbizclass.com
Bennett, Karen R.
krbennett@germer.com
Berlanga, Jose A.
jberlanga@gardere.com
Bissell, John G.
jbissell@strongpipkin.com
Blazek, Paula H.
pblazek@germer.com
Book, William ("Bill")
wbook@tbml.com
Boyd, Ernest W.
boyde@mehaffyweber.com
Boyd, Howard T.
hboyd@shergarner.com
Bridger, John W.
jbridger@strongpipkin.com
Brown, Gregg R.
gbrown@germer-austin.com
Brown, Nancy J.
nbrown@gardere.com
Brown, Russell T.
russ.brown@strasburger.com
Burton, J. Randy
randy@moerer-burton.com
Carlton, George R.
gcarlton@godwingruber.com
Carmack, Kaye
kcarmack@canteyhanger.com
-2-
Carrington, M. C.
mccarrington@mehaffyweber.com
Carroll, Marcus A.
macarroll@cox-internet.com
Carstarphen, Edward M.
emc@ecdglaw.com
Carter, Cheryl
ccarter@sammons-parker.com
Carter, Julie
juliecarter@mehaffyweber.com
Chambers, J. Dennis
dchambers@arwhlaw.com
Chambers, Kim
kchambers@sjdllp.com
Chaney, Lecia L.
ll.chaney@rcclaw.com
Chaves, Douglas E. ("Doug")
dchaves@crrlawfirm.com
Clark, Sandra F.
sandraclark@mehaffyweber.com
Clary, Brian S.
bclary@claryfirm.com
Corona, Jennifer A.
jenniferc@jeanrem.com
Cosculluela, Alex E.
alex.cosculluela@arlaw.com
Cotellesse, David P.
dcotellesse@womco.com
Cotten, Larry E.
lcotten@cottenschmidt.com
Craft, R. Brian
bcraft@rameyflock.com
Crawford, Walter J.
wjc@cyberscope.net
Crockett, Lynn
lcrockett@hplegal.com
Crouch, Hubert A.
hcrouch@crouchfirm.com
Croyle, Robert T.
rcroyle@womco.com
Cummings, Robin
robinc@germer.com
Dacus, Shannon M.
sdacus@rameyflock.com
Daniels, Deidra
deidra@splpc.com
Danish, Teri L.
tl.danish@rcclaw.com
Danysh, Richard C.
rdanysh@bracepatt.com
-3-
Davis, Sarah M.
sarahdavis@adamscoffey.com
Day, Paul J.
paul.day@piperrudnick.com
Dettmer, Robin O'Day
robind@cgmlegal.com
Devin, Clayton E.
cdevin@mmdattorneys.com
Dinwiddie, Angela
adinwiddie@strongpipkin.com
Dodson, Richard ("Dick")
dickdodson@dodsondodson.com
Dodson, Robert E. ("Bob")
bobdodson@dodsondodson.com
Dolezal, John R.
dolezal@sbf-law.com
Donnell, Ben A.
bdonnell@mdacc.com
Duble, Steven M.
sduble@haysmcconn.com
Easter, Laurie B.
leaster@jw.com
Edwards, Brady
bedwards@edwards-george.com
Egeland, Susan
segeland@hplegal.com
Ehlinger, Tracy K.
tehlinger@hicks-thomas.com
Elliott, Lori M.
lelliott@hunton.com
Ellis, G. Joe
gje@ecdglaw.com
Elliston, Gary D.
gelliston@dehay.com
Erwin, R. Harding
herwin@kcelaw.com
Estes, David H.
destes@hdbdk.com
F. Walter Conrad Jr.
Walter.Conrad@BakerBotts.com
Farrell, William H.
wfarrell@cottonfarrell.com
Faulk, Richard O.
rfaulk@gardere.com
Fay, Laurel Ashley ("Laurie")
lfay@whittenburglaw.com
Feeney, Christi Dickson
cfeeney@godwingruber.com
Fernandez, Kristina
kfernandez@hdbdk.com
-4-
Ferrell, Melissa
mferrell@smsm.com
Florence, Kirk
kflorence@crouchfirm.com
Foeh, Debbi K.
dfoeh@ghf-lawfirm.com
Foley, James T.
tfoley@tyler.net
Foley, Keith
keithfoley@mehaffyweber.com
Fox, Crystal A.
cfox@edwards-george.com
Frase, Laura A.
lafrase@fpwk.com
Frost, Gwen
gwenfrost@powersfrost.com
Frost, Sharla J.
sfrost@powersfrost.com
Fuchs, Karen R.
kfuchs@womco.com
Fuller, L. Hayes
fuller@namanhowell.com
Funderburk, Larry
lfunderburk@ffllp.com
Gauntt, J. Chad
chad@gk-lawyers.com
Gehres, Michele T.
michele@andrewshartman.com
Gibson, Shannon G.
sgibson@crouchfirm.com
Gilbert, Jeffrey R.
jgilbert@connellybaker.com
Gilbert, John R.
jgilbert@jrgpc.com
Glazer, Rachelle
rachelle.glazer@tklaw.com
Godwin, Donald
dgodwin@godwingruber.com
Goodman, Mark A.
mgoodman@dgmlegal.com
Gordon, Thomas Patrick ("Trey")
tgordon@canteyhanger.com
Greve, Kurt W.
kgreve@fpwk.com
Grimaldo, Arthur
agrimaldo@cmj-law.com
Groves, Charles Christopher ("Chris") cgroves@jonesday.com
Guidry, Stephen K. ("Steve")
skguidry@germer.com
-5-
Guild, John Franklin
jguild@ccsb.com
Gum, Estelee
egum@iwlegal.com
Michael Brem ("Mike")
Michael.Brem@bakerbotts.com
Hall, Alton J.
ahall@ebglaw.com
Hancock, Ronald T.
rhancock@mhn-law.com
Handel, Rodney R.
rod@hunterhandel.com
Harmon, Frank G.
fharmon@ccj-law.com
Harris, James M.
jharrisjr@ev1.net
Harrison, Carrie
harrison@ramseyandmurray.com
Hazen, Scott P.
shazen@godwingruber.com
Heald, Russell W.
russheald@adamscoffey.com
Henderson, John R.
jhenderson@mailbmc.com
Hendryx, Michael
mhendryx@strongpipkin.com
Hennessy, Edward J.
ejh@hgbatty.com
Hernandez, Martha
martha.hernandez@rcclaw.com
Heyburn, Paul Rice
paulheyburn@mehaffyweber.com
Higgins, Sean M.
shiggins@mailbmc.com
Hill, Frank L.
frank.hill@tklaw.com
Hoblit, R. Clay
choblit@ghf-lawfirm.com
Hogan, Timothy J.
thogan@bmpllp.com
Holmgreen, John C.
jholmgreen@gthm.com
Howell, Brad K.
bhowell@womco.com
Howell, Stephen C.
sch@howelldorman.com
Hughes, Beth
beth.hughes@bakerbotts.com
Hunter, Harold H.
hhunter@qsclpc.com
-6-
Hurley, R. Bruce
bhurley@kslaw.com
Hyatt, J
jhyatt@qsclpc.com
Iiams, Sarah E.
siiams@abbott-simses.com
Ireson, Lansford O.
lireson@iwlegal.com
Jackson, Bradley A.
brad.jackson@roystonlaw.com
Jamison, Josephine H. ("Jody")
josephinej@bellnunnally.com
Jenkins, Gail C.
gailj@j-mlaw.com
Johnson, Carson W.
carsonj@hunton.com
Johnson, Ned W.
johnsonned@jfpplaw.com
Jones, D. Allan
daj@obt.com
Jordan, J. Michael
mjordan@gardere.com
Jordan, Kevin M.
kjordan@sjdllp.com
Jordan, Sean D.
sjordan@jw.com
Karos, Maria Katina ("Kiki")
mariak@bellnunnally.com
Kevin Jacobs
Kevin.Jacobs@BakerBotts.com
Kibbe, Christine
ckibbe1@entergy.com
Kissner, Todd
tkissner@tbml.com
Klein, Elizabeth
eklein@germer.com
Knabeschuh, Louis H.
louisk@j-mlaw.com
Knight, Richard Nelson ("Nelson")
nknight@godwingruber.com
Koepke, John A.
jkoepke@jw.com
Kolber, Monica
kolber@ramseyandmurray.com
Kugler, Laura Ellis
lkugler@bcklaw.com
Kyle, Glenna M.
glenna.m.kyle@exxonmobil.com
Lackey, Doug
dlackey@mailbmc.com
-7-
Landes, Crystal L.
crystall@bellnunnally.com
Landin, David
dlandin@hunton.com
Larson, Scott L.
scottlarson@dodsondodson.com
Ledyard, David W.
dledyard@strongpipkin.com
Leone, Frank
fleone@spriggs.com
Leunes, Christopher Chay
cleunes@bushramirez.com
Levine, Tori S.
tlevine@mailbmc.com
Lewis-Bullitt, Stephanie
sbullitt@dgmlegal.com
Little, Joseph R.
jlittle@mcfall-law.com
Little, William T.
william.little@aig.com
Livingston, Laddie
llivingston@kcelaw.com
Livingston, Stephen S. ("Steve")
stephen.livingston@tklaw.com
Loftin, Stephen M.
sloftin@hicks-thomas.com
Luce, Joe E.
luce@mdjwlaw.com
Lusk, Sheri
slusk@cbplaw.com
Lynn, Lawrence A. ("Larry")
llynn@coatsrose.com
Maccherone, Amy L.
amaccherone@abbott-simses.com
Mahley, Frederick William ("Bill")
bill.mahley@strasburger.com
Maloney, Linda L.
ll.maloney@rcclaw.com
Manning, Jack B.
jmanning@mga-law.com
Marlow, Roger D.
rdm@hulsewanek.com
Marshall, R. Todd
tmarshall@js-llp.com
Martin, John H.
john.martin@tklaw.com
Martin, Kirk E.
kirkm@j-mlaw.com
Maston, Karen K.
kmaston@connellybaker.com
-8-
Mauro, Mary Lou
mmauro@gjtbs.com
McCall, George S.
gmccall@kern-wooley.com
McCleary, Roger L.
rmccleary@bmpllp.com
McCleery, Stephen E.
smccleery@bakpatlaw.com
Meade, Andrew K.
ameade@hicks-thomas.com
Meyer, Ralph F.
ralph.meyer@roystonlaw.com
Mickelsen, Carol A.
camickelsen@dkapl.com
Miller, Jackie
jmiller@djoalaw.com
Miltenberger, Lewis C. ("Lew")
lewism@cgmlegal.com
Mitchell, Denise Hunter
denisem@beasonwillingham.com
Moir, Peter A.
pmoir@qsclpc.com
Montgomery, Pamela W.
pmontgomery@rmgattorneys.com
Moore, Alan
amoore@fhmlaw.com
Moore, Randy E.
rmoore@moorelaw.us
Morris, Kenneth D.
kmorris@gardere.com
Mosteller, Misti D.
mmosteller@dehay.com
Murphy, Terence M.
tmmurphy@jonesday.com
Murphy, Thomas D.
tmurphy@steptoe.com
Nebel, Roger H.
nebelrh@fpwk.com
Nettle, Amy E.
anettle@crouchfirm.com
Neuer, Raymond A.
rneuer@sswpc.com
Newsom, James A.
newsom@msrnr.net
Nixon, Joseph M.
joe.nixon@phillipsakers.com
Nolley, Lisa C.
nolleyl@wemed.com
Odam, John W.
jodam@ffllp.com
-9-
Ogden, Todd D.
tdogden@fpwk.com
Old, James R. ("Jay")
jrold@germer.com
Olesen, Cheryl Diane
cdolesen@cyberscope.net
Oliver, David A.
doliver@porterhedges.com
Oxford, Hubert (IV)
hoxfordiv@benoxford.com
Panian, Diana
dpanian@gardere.com
Pappas, George P.
gpappas@sswpc.com
Parker, Jerry C.
jparker@sammons-parker.com
Patterson, Jeffrey S.
jpatterson@hdbdk.com
Pellett, Susan J.
spellett@thompsoncoe.com
Peters, Norman W.
npeters@kasowitz.com
Pevsner, Joseph S.
joseph.pevsner@tklaw.com
Phifer, Elizabeth
ephifer@suplaw.com
Pickett, Leslie D. ("Les")
lpickett@gjtbs.com
Pita, Marina Kraft
marinap@jeanrem.com
Poff, Franklin A. ("Frank")
fpoff@cbplaw.com
Pollard, Bryan D.
bpollard@mailbmc.com
Powell, Lisa A.
lpowell@jw.com
Powers, James H.
jpowers@powersfrost.com
Powers, Sheila
sheila@andrewshartman.com
Quinn, Christi D.
cquinn@porterhedges.com
Quintanilla, Robert L.
rquintanilla@abbott-simses.com
Rabel, John V.
jvrabel@mapalaw.com
Rambin, W. Neil
neil.rambin@sdma.com
Ramirez, Michael John
mramirez@godwingruber.com
- 10 -
Ramsey, Russell
rramsey@ramseyandmurray.com
Ramsey, T
tramsey@bakpatlaw.com
Rathwell, Lyle R.
rathwell@woodlandslaw.com
Raven, Ricky R.
ricky.raven@tklaw.com
Reynard, David D.
dreynard@j-mlaw.com
Rhodes, Kenneth D. ("Ken")
kdrhodes@dkapl.com
Rice, B. Stephen
srice@haysmcconn.com
Richardson, Tracy
trichardson@strongpipkin.com
Rienstra, M
mrienstra@bakpatlaw.com
Riley, James M.
jriley@coatsrose.com
Robbins, Lauren Miller
robbins@msrnr.net
Roberts, Jeffrey D.
jroberts@rmgattorneys.com
Robichaux, James H. ("Jim")
jrobichaux@mattbran.com
Rodriguez, Christine M.
crodriguez@jrgpc.com
Rothman, Gaye L.
grothman@mailbmc.com
Samford, Michael L.
msamford@strongpipkin.com
Sams, John G.
jgs@howelldorman.com
Sanchez, B
bsanchez@andrewskurth.com
Schirrmeister, Andrew C.
acs@salawfirm.com
Schwager, Candice L.
cschwager@cdzc.com
Schweinle, William E.
wesjrlaw@aol.com
Scott, Robert P.
rscott@asbtexas.com
Scudder, Mark S.
mark.scudder@strasburger.com
Seckel, Robin B.
rseckel@thompsoncoe.com
Shah, Ajay R.
shahar@fpwk.com
- 11 -
Sharp, David E.
dsharp@bmpllp.com
Shaver, Jeffery J. ("Jeff")
jshaver@sammons-parker.com
Sheehy, Richard A.
rsheehy@sswpc.com
Shipp, John
jshipp@crouchfirm.com
Skelton, Scott C.
sskelton@zeleskey.com
Smith, J. Michael ("Mike")
msmith@arwhlaw.com
Smith, James D. ("Jim")
jims@jeanrem.com
Smith, Patrick N.
psmith@ramseyandmurray.com
Snyder, Jennifer J. ("Jenny")
jsnyder@rameyflock.com
Spain, H. Daniel
dspain@spain-law.com
Spardone, Stephanie L.
sspardone@hplegal.com
Stacy, Jessica A.
jstacy@cmj-law.com
Stanton, James D. ("Jim")
jstanton@jstantonlaw.com
Steele, Kyle C.
kcsteele@fpwk.com
Stell, Michael D.
mste@scotthulse.com
Stephen Tipps
Stephen.Tipps@BakerBotts.com
Stephens, Cindy B.
cstephens@watsonrossick.com
Sterling, Stephanie R.
stephans@germer.com
Stuart, Kimberly Rose
kstuart@craincaton.com
Suddleson, Todd J.
tsuddleson@dehay.com
Sullivan, Greg
gregsullivan@andrewskurth.com
Surratt, Donean
sds@obt.com
Swift, Brian T.
bswift@mailbmc.com
Tardy, Thomas W.
ttardy@fpwk.com
Tatem, James A.
jatatem@germer-houston.com
- 12 -
Taylor, David M.
dtaylor@thompsoncoe.com
Taylor, Michele E.
mtaylor@tbml.com
Taylor, Thomas W.
ttaylor@andrewskurth.com
Terry, Michael G.
mterry@hdbdk.com
Thackston, Robert E.
rthackston@hplegal.com
Thomas, W. Miller
wmthomas@fpth-law.com
Tidwell, John L.
jtidwell@texarkanalawyers.com
Tolin, David L.
dltolin@germer.com
Trent, T. Christopher
ctrent@js-llp.com
Tucker, Jack W.
jtucker@ttsslawfirm.com
Ulmer, Gregory C.
gulmer@bakerlaw.com
Unger, John F.
john.unger@roystonlaw.com
Usery, Susan
susan.usery@libertymutual.com
Utter, Maggie
mutter@powersfrost.com
van Rensburg, Jillian J.
jvanrensburg@dehay.com
Volmert, Elizabeth P.
elizabeth.volmert@strasburger.com
Wade, Todd N.
twade@mailbmc.com
Walker, Worthy W.
worthy@cdhlaw.com
Ward, A C
acward@ffllp.com
Ward, Kathryn L.
kward@spain-law.com
Ware, James L.
jware@sswpc.com
Watkins, James R.
james.watkins@roystonlaw.com
Watkins, Walter G.
wwatkins@fpwk.com
Watson, Charles A. ("Chuck")
cwatson@watsonrossick.com
Weaver, Brandon W.
brandonweaver@dodsondodson.com
- 13 -
Wedig, Mary Lou
mlwedig@brownsims.com
Weitzel, Harry
hpweitzel@mayerbrownrowe.com
Welsh, H. Ron
rwelsh@cdzc.com
Werner, Philip A.
pwerner@wernerkerrigan.com
Wetwiska, James R. ("Jim")
jwetwiska@fulbright.com
White, Clay M.
cwhite@sammons-parker.com
Wickes, Paul O.
pwickes@hunton.com
Wiedenfeld, Carolyn
carolynw@germer.com
Wilkinson, Robert
rwilkinson@doganwilkinson.com
Williams, Gene
genewilliams@mehaffyweber.com
Willingham, R. Mark
markw@beasonwillingham.com
Wilson, Lee Ruffin
lwilson@bowersorr.com
Wolter, Mary
maryw@beasonwillingham.com
Womble, W. T.
wt@womco.com
Work, Jeffery K.
jwork@bmpllp.com
Wright, Dawn M.
dawn.wright@tklaw.com
Wright, Rob W.
rwwright@fpwk.com
Young, Amy
amy.young@bakerbotts.com
Zeidman, Mark R.
mzeidman@bushramirez.com
Arney, Lance C.
larney@rlclaw.com
B, Joe
joebrue1@airmail.net
Bailey, K. Camp
cbailey@williamsbailey.com
Bailey, L
lbailey@hobsonlaw.com
Baldwin, Francis Scott
scott@baldwinlaw.com
Baron, Steven T.
baron@splaw.com
- 14 -
Black, John Milton
jblack@heardrobins.com
Black, Lou Thompson
lou@bcoonlaw.com
Blevins, Bryan O.
bblevins@provostumphrey.com
Bobbitt, Barry Lane
bobbitt@bobbittlaw.com
Bogdan, Eric
bogdanlaw@aol.com
Brown, Russell C.
rb@wellbornhouston.com
Budd, Russell W.
rbudd@baronbudd.com
Burns, Pam
pamb@oqlaw.com
Campbell, C. Taylor
ctc@lanierlawfirm.com
Carlile, D. Scott
scarlile@carlilelawfirm.com
Carlile, David C.
dcarlile@carlilelawfirm.com
Carlos
carlos@leibowitzconsumerlaw.com
Carpenter, T
tcarpntr@swbell.net
Chandler, Troy Damon
tchandler@heardrobins.com
Chargois, Damon J.
dchargois@chargoisernsterlaw.com
Cloud, Ian Patrick
icloud@heardrobins.com
Coon, Brent W.
brent@bcoonlaw.com
Cox
cox@clarkdepew.com
DiMuzio, Gary Martin
dimuzio@clarkdepew.com
Endsley, Russell William
rendsley@smith-gibson.com
Farris, Misty A.
mfarris@baronbudd.com
Ferrell, David W.
dferrell@rmqlawfirm.com
Foster, Ryan A.
ryanf@rfosterlaw.com
Franklin, Ron
franklin@fcj.com
Grubbs, Amie
amie@baldwinlaw.com
- 15 -
Guerrero, D
dguerrero@williamsbailey.com
H, P
ph@wellbornhouston.com
Haines, Patrick N.
pnh@lanierlawfirm.com
Hanners, Michael J.
mikeh@splaw.com
Hartley, Christian H.
chartley@rpwb.com
Hays, Susan
shays@awpk.com
Heygood, Michael E.
heygood@reyeslaw.com
Hossley, D. Allen
allen@hossleylaw.com
Jackson, D. LeAnne
ljackson@baronbudd.com
Kaeske, Mike
mkaeske@kaeskelaw.com
Kanayan, Philip Martin
philip@hkhlaw.com
Kharod, Ketan U.
kuk@hendlerlaw.com
Kherkher, Steven J.
skherkher@williamsbailey.com
Kivett, Lisa R.
lkivett@baronbudd.com
Kraus, Peter A.
pkraus@awpk.com
Langston, Keith L.
klangston@nixlawfirm.com
Lanier, W. Mark
wml@lanierlawfirm.com
Link, Scott Reiter
slink@heardrobins.com
Madeksho, Lawrence
lmadek@aol.com
McCally, Sharon Sue
smccally@aol.com
McCormack, James M.
jim@tomblinlaw.com
McHargue, Kevin D.
kmchargu@baronbudd.com
Meggesin, Laurie J.
lmeggesi@baronbudd.com
Meyer, M. Michael
mikem@oqlaw.com
Moore, Colin David
cmoore@provostumphrey.com
- 16 -
Motley, Ronald L.
rmotley@motleyrice.com
Mundy, John Jeffery
jeff@mundysingley.com
Parks, Christopher M.
cparks@parkerparks.com
Parron, David D.
parronfirm@sbcglobal.net
Patrick, Charles W.
cpatrick@rpwb.com
Patronella, Michael B.
mpatronella@williamsbailey.com
Pennington, Janice Robinson
jpennington@kaeskelaw.com
Portner, Christopher Michael
cportner@rmqlawfirm.com
Rosenthal, Brent M.
brosenth@baronbudd.com
Shrader, Justin Hyde
justin@shraderwilliamson.com
Siegel, Charles S.
siegel@awpk.com
Strachan, Mark D.
mstrachan@carlilelawfirm.com
Thelma
thelma@hossleylaw.com
Tracey, Sean Patrick
sean@clarkdepewtracey.com
Walker, Erik
erik@hkhlaw.com
Watts, Mikal C.
mcwatts@wattslawfirm.com
Wert, Scott W.
swert@fostersear.com
Wimberley, James E.
jwimberley@mc-law.net
Manuel López
- 17 -