Asbestos Legislation in 2005 A Fresh Look at Old

Transcription

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A Fresh Look at Old Practices:
The Changing Face of
Mass Tort Pleadings
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PAGE 6
Sen. Specter Holds Hearing on
Asbestos Trust Fund Bill;
President Bush Pushes ‘Tort Reform’
PAGE 66
Vol. 5, No. 3 • January 2005
The Latest Asbestos-Related Scientific
And Medical Research
8
Ohio Court Finds Retroactivity of
New Act Unconstitutional
In 11 Lawsuits
14
Halliburton Subsidiaries
Exit Bankruptcy with
$4.7 Billion Settlement
13
Supreme Court Order
Severing Mississippi
Asbestos Claims Published
16
Court Denies Class Certification
in Medical Monitoring
Asbestos Lawsuit
19
Plaintiff Fails to Provide
X-Rays Read by B-Reader,
Claims Dismissed
20
Order Compelling Arbitration
between CCR and Asbestos
Plaintiffs Affirmed
www.harrismartin.com
COLUMNS
January 2005 Vol. 5, No. 3
PERSPECTIVES
by W. Mark Lanier, Esq.
2
A Fresh Look at Old Practices:The Changing Face of Mass Tort Claim Pleading
by C. Paul Cavender, Esq. and Kathryn Morris Willis, Esq.
4
EDITORIAL STAFF
Editorial Director
Jeff Andrus
Managing Editor
John T. Hayes
Associate Editor
Kate McGovern
Art & Production Manager
Jennifer Hartman
BUSINESS STAFF
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Harry J. Hurley III
President
Brian F. Kirby
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CONTRIBUTING AND
REGIONAL EDITORS
National Medicine & Science Editor
Donald S. MacLachlan, Esq.
Regional Editors
Cheryl Olesen, Esq. • Beaumont-Houston
Marte J. Bassi, Esq. • San Francisco
Contributing Editors
W. Mark Lanier
C. Paul Cavender
Kathryn Morris Willis
BEYOND THE
HEADLINES
Sen. Specter Holds Hearing on Asbestos Trust Fund; Pres. Bush Pushes ‘Tort Reform’
TA B L E
OF
6
CASES
A Regional Listing of All the Cases Covered in This Issue
COURTROOM
7
NEWS
3 Miss. Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency
Ohio Court Finds Retroactivity of New Act Unconstitutional in 11 Lawsuits
Court Rejects Claims of Juror Misconduct; Motion for New Trial Denied
Court Reverses Assignment of Joint and Several Liability to CCR Members
High Court Remands Miners’ Asbestos Claims, Rules State Had Duty to Warn
Supreme Court Order Severing Mississippi Asbestos Claims Published
Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement
Asbestos Claims Prompts A.P.I. Industries to File For Chapter 11
Court Reverses Summary Judgment, Finds Testimony Wrongfully Omitted
Court Denies Class Certification in Medical Monitoring Asbestos Lawsuit
Texas Court Affirms $150,000 Asbestos Verdict
Court Finds Appeal Timely, Claims Remanded for Determination of Benefits
Benefits Denied to Smoker Alleging Asbestos Aggravated Lung Condition
Plaintiff Fails to Provide X-Rays Read by B-Reader, Claims Dismissed
Summary Judgment Reversed, Court Claims Product Identification Triable Issue
Order Compelling Arbitration between CCR and Asbestos Plaintiffs Affirmed
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Editorial Correspondence
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Copyright © 2005 by HarrisMartin Publishing LLC. All
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VERDICT
REPORT
Essential Information about Recent Verdicts Reported by HarrisMartin
EXPERT WITNESS
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BANK
A Listing of Plaintiff’s and Defense Experts Who Have Testified at Recent Trials
32
DOCUMENTS
Kelly-Moore v. Union Carbide;Texas 23rd Dist. Ct., Brazoria Cty.; Order/Motion
Thornton v. A-Best Products, et al.; Ohio Ct. Comm. Pls., Cuyahoga Cty.; Order
39
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JOURNAL TOP TEN
The Latest Asbestos-Related Scientific Articles Published Around the World
66
PERSPECTIVES
W. Mark Lanier, Esq.
W. Mark Lanier is the founder of The Lanier Law
Firm, where he serves as the firm’s lead litigation
counsel. Mr. Lanier is widely recognized as one of
the top trial lawyers in the United States. He recently was named by The American Lawyer magazine
as one of the top 45 attorneys in the nation under
the age of 45. The publishers of Law & Politics
Magazine and Texas Monthly magazine named Mr.
Lanier as a “Texas Super Lawyer” in 2003 and 2004
based on nominations from other attorneys who
were asked to identify the top lawyers in Texas.
In 2002, Texas Lawyer newspaper named Mr.
Lanier as one of the top 5 “Go To” personal injury
plaintiff attorneys in Texas. Mr. Lanier’s success in
the courtroom has resulted in feature articles in The
Wall Street Journal, The American Lawyer, Texas
Lawyer, The New York Times, New York Lawyer,
The National Law Journal, Los Angeles Times,
Houston Chronicle, and Bloomberg, among others.
In 1998, The National Law Journal recognized Mr.
Lanier as one of nation’s Top 10 Trial Attorneys. The
NLJ also named him among the country’s 40 top
attorneys under the age of 40.
Mr. Lanier has negotiated hundreds of millions of
dollars in settlements in lawsuits filed across the
United States. Mr. Lanier’s $115 million verdict for
21 asbestos victims in February 1998 is one of the
largest asbestos verdicts in U.S. history.
Mr. Lanier earned his law degree from Texas Tech
University School of Law in 1984. He remains
active at the Texas Tech by serving on the Law
School’s Foundation Board. He also is the founder
of the Christian Trial Lawyers Association, a nonprofit organization whose goal is to create a network
of principled attorneys to minister to others through
civic-minded endeavors. Mr. Lanier lives in Houston
with his wife, Becky, and their five children.
After the November 2004 elections, the
Republicans increased control in the
Senate, maintained control in the House,
and captured the White House for another four years. As expressed during the
election, part of the Republican agenda
was tort reform. One of the tort reform
areas prioritized in the Republican campaign agenda was asbestos reform. This
article addresses the likelihood of asbestos
legislation on a federal level following the
Republicans’ victories in the November
elections.
PRE-ELECTION LEGISLATIVE
EFFORTS OF 2004
During the last Congress, the U.S. Senate
considered two basic approaches for
asbestos legislation reform. These reform
bills were before the Judiciary Committee.
Former Oklahoma Sen. Jonathan Nichols
proposed a “Medical Criteria Bill.” This
bill sought to remove 80 percent as
“unimpaired” plaintiffs.1 Under Senator
Nichols’s bill, the 20 percent of cases that
remain would be the most serious illnesses. These illnesses, without question,
affect the life expectancy, as well as the
day-to-day activities of the plaintiffs.
Those people with these diseases would be
allowed to proceed with their cases in an
appropriate court. Those plaintiffs
deemed “unimpaired” would have their
cases held until their disease progressed to
a point of “impairment.” Then, those
cases would be allowed into the court system to address tort-feasor responsibility.
Sen. Nichols’s bill, although it had the
support of some Democrats and even
some trial lawyers, did not make it out of
committee. Instead, the Judiciary
Committee in the Senate passed the bill
Sen. Orrin Hatch (R-Utah) proffered.
2
COLUMNS
The Hatch bill was termed a “Trust Bill.”
A number of companies supported this
bill and sought to establish a trust fund
for victims rather than a medical criteria
docket. The trust fund approach centered
on a massive infusion of funds (ranging
from $100 to $140 billion) from business
and insurance companies. In return for
this money being put into trust, businesses and insurers would have complete protection against any future asbestos liabilities. This money was to be infused under
different payment schedules on a sliding
scale based upon how much these companies had previously paid in litigation.
Asbestos victims would have access to this
money, but would have no access to the
court system. This money would either
eliminate or severely limit any attorneys’
fees that would normally be taken out of a
victim’s recovery. It would also set up a
new federal government organization to
administer the trust.
Ultimately, the trust effort never reached a
vote on the Senate floor. The bill and its
Republican sponsors could never get the
60 votes necessary for cloture. Ultimately,
the bill did nothing more than find its
way into fund raising letters to help
enrich both the Republican and
Democratic efforts at the 2004 election.
The question on everyone’s mind after the
election was whether the increased number of Republicans in the Senate would
provide enough votes for cloture so this
bill would become law in 2005.
POST-ELECTION
DEVELOPMENTS
The 2005 landscape is shaping up to be
somewhat different than the 2004 landscape in more ways than the additional
Republican Senators. Sen. Hatch is no
PERSPECTIVES
longer Chairman of the Judiciary
Committee. Senate rules limited his term
as Chairman, and he has stepped down.
In his stead, the next senior Republican
has taken leadership of that committee,
Sen. Arlen Specter (R-Pa.). Senator
Specter is well-versed not only in the law,
but also in matters pertaining to asbestos
and other litigation and tort issues.
Additional landscape changes have
occurred because of the time spent in analyzing the trust approach itself. In order
for the trust to assist those most severely
injured, the trust would require almost a
complete infusion of capital at the front
end. Many recognize that the current
claims in the court system alone would
take up the first ten years of the trust’s
money. Therefore, someone who is diagnosed with mesothelioma and given eight
months to live the day after the trust went
into effect would be given very grim news.
This soon-to-die victim would be told
that their money, assuming the trust is
still viable, would most likely come ten
years down the road. Obviously, that is
not sufficient for any type of experimental
medical treatment or getting one’s house
in order for a death eight months later.
Once these types of problems with the bill
became apparent, the only possible solution included such massive upfront funding that insurers determined was unfair to
insurance companies. Rather than have
payments made over a protracted period,
insurance companies were going to be
required to front significant loads of cash
into the trust, depleting not only the
reserves set aside, but even resources
beyond those reserves kept by the insurance companies. Therefore, as the trust
approach was analyzed more and more,
insurance companies began balking at the
trust approach as a proper solution.
As 2005 has unfolded, insurance companies have banded together to put into
writing and vocally oppose the trust bill as
it is being proffered. In addition to these
insurance companies, however, there are a
number of other companies that are now
Realistically, however, it
will be difficult for
sufficient support to pass
[Sen. Specter’s] bill on
the expedited basis that
most Republican
supporters would
like to see.
standing in opposition to this trust bill.
Noteworthy companies such as Exxon
Mobil, Federal Mogul, and others have
put into writing a strong opposition to
the trust approach as fatally flawed and
unfair to most all concerned.
This leaves Sen. Specter and his committee with a very difficult chore. While the
White House apparently endorses the
trust bill and a number of corporations
still push the trust bill, support for this
approach is draining away at a noticeable
rate. The voices are starting to rise in
chorus again that the fair resolution is to
be found in a medical criteria bill.
In an effort to see if there is any life left
in the trust bill, Sen. Specter met with
former Federal Judge Edward Becker
toward the end of 2004 in an effort to
sculpt a compromise trust bill that might
satisfy enough parties to gain passage. As
this article is being written, Sen. Specter
has not yet issued his final edited trust
bill. Sen. Specter has announced a very
vigorous schedule to get the revised bill to
committee, have hearings, and hopefully
put the bill on the Senate floor by the end
of January 2005. That aggressive schedule
3
ASBESTOS • JANUARY 2005
shows Sen. Specter’s commitment to faithfully carry the Republican torch on this
issue. Realistically, however, it will be difficult for sufficient support to pass that
bill on the expedited basis that most
Republicans supporters would like to see.
Should Sen. Specter’s committee look to a
medical criteria bill, most suspect that
Sen. Nichols’s initial draft would be the
starting point. The language being discussed for a medical criteria bill would
divide cases into multiple groups. Most
agree that the most egregious injuries are
the mesothelioma victims. This incurable
cancer has a quick time fuse and the most
glaring damage brought by asbestos exposure. In addition to the mesothelioma
cancers, there are a number of other cancers associated with asbestos exposure. All
of the cancer cases, whether mesothelioma
or otherwise, under any medical criteria
approach would be deemed “court worthy” and allowed to proceed. Those cases
that might be put onto a holding docket
are certain cases that involve the diseases
of asbestosis and pleural plaque.
Not all asbestosis or pleural plaque disease
would necessarily be put on a holding
docket. The holding docket would be
reserved for those cases where the disease
did not reach such significance in an individual as to cause that individual “impairment.” As noted earlier, impairment criteria are not well accepted. Generally, the
criteria involve an inability to breathe
under a forced vital capacity test of 80
percent of what is considered “normal.”
That inability or other symptoms, such as
rales in the lungs, clubbing in the fingers,
or significant radiological changes on an
x-ray, are the criteria that would be examined in determining whether asbestosis or
pleural plaque cases were allowed to come
to court.
While there are no clear numbers of the
exact amount of cases filed in America, it
is generally recognized that a medical criContinued on Page 65
PERSPECTIVES
The Changing Face of Mass Tort Claim Pleading
Editor’s Note: This article originally appeared
in the December 2004 issue of HarrisMartin
Publishing’s COLUMNS ––Silica.
By C. Paul Cavender, Esq.
Multiple plaintiff/multiple defendant complaints alleging mass torts in broad generic
terms have become the norm in many jurisdictions over the years. Changes to that
landscape are appearing in at least three
jurisdictions where these complaints were
recently examined and found to be insufficient under both state and federal rules of
civil procedure. Consider three recent decisions rendered in asbestos and silica cases,
their common rationale, and the potential
implications of such decisions:
Recent Decisions Affecting the
Asbestos Or Silica Plaintiff ’s
Complaint
and Kathryn Morris Willis, Esq.
About the Authors
Paul Cavender is a partner in Burr & Forman’s
Birmingham, Ala., office where he focuses on
products liability, mass tort, insurance and general litigation. He has tried a number of asbestos
cases to verdict in various states. His undergraduate degree is in Natural Sciences from the
University of South Florida. Prior to attending
law school, Cavender was a chemist for one of
the major oil companies. He graduated from the
Cumberland School of Law at Samford
University.
Several courts have strictly applied the
requirements of state and federal rules of
civil procedure in order to dismiss or sever
the mass tort claims of plaintiffs claiming
exposure to asbestos and/or silica. The
Supreme Court of Mississippi’s August
2004 decision led the way for consideration
of this approach to mass asbestos complaints, and other courts have conducted
similar analysis and made similar rulings.
Consider first the Mississippi decision and
then the subsequent rulings which have
identified common flaws in the mass tort
complaints that were before them:
Kathryn Morris Willis is an associate in Burr &
Forman’s Birmingham, Ala., office where she is a
member of the litigation, labor and employment
sections. She received her B.A. from the
University of Alabama in 1999, and also graduated from the University of Georgia School of Law
in 2002.
Harold’s Auto Parts, Inc., et al. v.
Flower Mangialardi, et al., in the
Supreme Court of Mississippi, No.
2004-IA-01308-SCT
Burr & Forman LLP is a 180-lawyer, southeastern-based, full service firm with offices in
Birmingham, Atlanta, Jackson, Miss. and
Montgomery, Ala., serving many clients on a
regional and national basis.
Some 264 plaintiffs filed suit claiming
asbestos exposure against 137 named defendants in the Circuit Court of Bolivar
County. Plaintiffs’ complaint provided the
names and social security numbers of the
4
COLUMNS
plaintiffs, the fact that the plaintiffs were
residents of Mississippi and/or other states,
and alleged that these plaintiffs were
exposed to asbestos products “mined,
designed, specified, evaluated, manufactured, packaged, furnished, supplied and/or
sold” from 1930 to the present. Defendants
filed a Motion to Sever, arguing that it was
nearly impossible to argue improper joinder
because the complaint failed to provide
basic information about each of the plaintiffs. In response, plaintiffs asserted that a
need for the information did not exist at
that time because the cases were to be tried
separately. The trial court denied defendants’ Motion to Sever. The defendants
then sought interlocutory appeal of the trial
court’s order, claiming that the joinder of
multiple plaintiffs in this particular asbestos
case violated Mississippi Rule of Civil
Procedure 20.1
According to the Supreme Court, both
defendants and plaintiffs missed the mark.
In a five-page opinion, the Court, in granting defendants’ petition for interlocutory
appeal, pointed out that the “complaint
provides virtually no helpful information
with respect to the claims asserted by the
individual plaintiffs.” Of particular note
was that the complaint disclosed that 264
plaintiffs were exposed over a 75-year span
to asbestos products associated with 137
manufacturers in approximately 600 workplaces.
Miss. R. Civ. P. 20, however, was not the
main reason that this issue should be before
the Court. Instead, the Court opined, the
complaint constituted a failure to comply
with Mississippi Rules of Civil Procedure 8
(general rules of pleading), 9 (pleading special matters), 10 (form of pleadings), and
11 (signing of pleadings and motions).
Rather than disclosing the “core information” concerning the nature and particularity of plaintiffs’ claims at the time the defen-
PERSPECTIVES
dants requested, the complaint should have
set forth this information when it was filed.
Rule 11 was implicated, according to the
Court, due to the fact that plaintiffs’ counsel should not have filed a complaint until
sufficient information was obtained concerning the specific defendants against
whom each plaintiff brought a cause of
action. The complaint at issue also failed
on joinder grounds under Miss. R. Civ. P.
20 because plaintiffs failed to provide information and assertions necessary to demonstrate the matters set out in the rule — that
their claims arose out of the same transaction or occurrence or that their claims
involved some common question of law or
fact.
The Court cautioned that filing suit, then
determining whose claims should not have
been joined is not the appropriate course of
action and constitutes “a perversion of the
judicial system unknown prior to the filing
of mass-tort cases.” What will satisfy the
parties’ obligations under Miss. Rules of
Civil Procedure 8, 9, 10, 11, and 20 is a
complaint in which it appears that counsel
for plaintiff has interviewed each plaintiff,
investigated their claims, and developed the
information necessary to file a complaint on
their behalf. The Court noted that there
are some complaints that satisfy these
requirements, even where multiple plaintiffs
and/or multiple defendants are present.
This, however, was not one of those cases.
The Court therefore reversed the trial
court’s order denying defendants’ Motion to
Sever. The Court remanded the action to
the trial court for transfer of each plaintiff
to an appropriate court of venue and jurisdiction. Moreover, the Court directed the
trial court to dismiss with prejudice the
complaint of any plaintiff who failed to
provide the defendants and the court with
sufficient information for determination of
venue and jurisdiction within 45 days of
the date of the Order.
Silica or asbestos, state or federal court,
strict liability or negligence, it does not change
the fact that at least three courts have recently
rejected so-called “shotgun” complaints
in mass tort actions.
Mildred Armstead, et al. v. Georgia
Pacific Corporation, et al., in the State
Court of Cobb County Georgia, Civil
Action NO. 03-A11943-5
The issue of joinder first arose in the
Georgia courts shortly before the
Mangialardi decision, when 214 plaintiffs
filed an Original Complaint naming over
150 defendant, alleging strict liability and
negligence for asbestos exposure. Upon
consideration of defendants’ Motion to
Sever, the trial court ordered plaintiffs to
file an Amended Complaint, setting forth
only those claims sufficient to support joinder under O.C.G.A. §9-11-20(a).2 After
filing of the Amended Complaint, defendants again raised their Motion to Sever.
Defendants argued that the Amended
Complaint, which also listed plaintiffs by
name and social security number, failed to
satisfy the applicable joinder requirements.
In response to plaintiffs’ argument that
joinder would be proper, if just for the purposes of discovery, defendants pointed out
that plaintiffs’ claims could make defendants liable as premises owners, manufacturers, distributors, or installers of asbestoscontaining products, but that, as currently
pled, the complaint did not allow defendants to ascertain their potential liabilities.
Defendants further contended that, according to the manner in which the Amended
Complaint was pled, various products
caused exposure at a number of different
job sites, making it impossible for defendants to know which asbestos-related dis5
ease each plaintiff alleged.
The defendants’ argument did not end
there. The defendants relied heavily upon
the Supreme Court of Mississippi’s decision
in Mangialardi, arguing that the Amended
Complaint at issue was so similar to that
filed in Mississippi (both alleged strict liability and negligence for asbestos exposure
on behalf of some 100 plus plaintiffs) that
the Court should adopt Mississippi’s
approach to such complaints. The defendants pointed out that Rule 20 of the
Georgia Civil Practice Act mirrors the language of the same Mississippi Rule of Civil
Procedure and, because plaintiffs’ Amended
Complaint failed to allege facts sufficient to
support any commonality, severance was
appropriate.
On Oct. 13, 2004, the State Court of Cobb
County issued its ruling on the matter. The
Court recited the history of the case, reiterating its previous Order in which it stated,
“[T]he Court is unwilling to allow joinder
of plaintiffs among whom there is a lack of
commonality” and that joinder is limited to
those” arising out of the same transaction,
occurrence, or series of transactions or
occurrences.” The Court noted that plaintiffs were given a brief extension of time in
which to file their Amended Complaint.
Nevertheless, the Amended Complaint was
“substantially identical” to the initial
Complaint and failed to show any commonality between the plaintiffs.
Continued on Page 64
BEYOND THE HEADLINES
Sen. Specter Holds Hearing on Asbestos
Trust Fund Bill; President Bush Pushes ‘Tort Reform’
Mogul Corp., Foster Wheeler, Hopeman
Brothers, IU North America, National Service
Industries Inc. and Oglebay Norton Co.
WASHINGTON –– On Jan. 11, Sen. Arlen
Specter (R-Pa.) presided over a Senate
Committee on the Judiciary hearing on the
“The Fairness in Asbestos Injury Resolution
Act,” during which representatives from the
National Association of Manufacturers,
Department of Occupational Safety and
Health, American Insurance Association, and
the American Trial Lawyers Association all testified.
In a press release, Federal-Mogul said it “cannot support a national trust that imposes a
grossly disproportionate payment obligation
on Federal-Mogul while providing a bailout
to a small number of companies that are
responsible for the lion’s share of the most
serious asbestos claims in the tort system.”
The meeting came after a week in which
President George W. Bush traveled to both
Illinois and Michigan to discuss his administration’s so-called tort reform agenda. During
a speech given at the Macomb Community
College in Clinton Township, Mich.,
President Bush called the huge mass of
asbestos cases a national problem.
Final details for Sen. Specter’s legislation proposal still have yet to be finalized, with the
amount of the trust fund still unclear. Last year,
Congress adjourned without voting on a proposed trust fund measure that would have created a $140 billion trust to pay asbestos claims
outside of the tort system.
During the hearing, John M. Engler, president
and CEO of the National Association of
Manufacturers testified that while the discussion
draft circulated by Sen. Specter does not address
funding, the $140 billion price tag agreed on by
Congress is sufficient.
“We believe that $140 billion is more than
enough to pay all qualifying claims at fair values,” Engler stated.
The hearing was held just days after several
asbestos defendants sent a joint letter to Sen.
Specter, calling the senator’s recent asbestos legislation proposal “fatally flawed” and expressing
concern that his plan for a national trust fund is
a step backward for efforts aimed at curtailing
asbestos litigation.
In the Jan. 3 letter, nearly 10 companies named
as defendants in pending asbestos litigation outlined concerns with Sen. Specter’s drafted proposal for an asbestos trust fund, specifically with
the allocation of payment obligations on defendant participants, the separation of companies
from their insurance coverage, the possibility of
claims returning to the tort system, the imposition of joint and several liability, and the opportunity for asbestos claimants to assert other
mixed dust claims.
“We continue to support efforts to reform the
current asbestos litigation system in a manner
that would address the needs of the truly sick,”
the defendants’ letter stated. “However, in view
of the dramatic number of current asbestosrelated claims by those who are not now and
many never become sick, we remain concerned
that the current discussion draft would result in
a program that would set us back rather than
forward.”
The letter was signed by E.I. du Pont de
Nemours and Company, Exxon Mobil Corp.,
Federal-Mogul Corp. and the Official
Committee of Unsecured Creditors of Federal
6
COLUMNS
Under Sen. Specter’s current proposal, the
trust fund would impose payment obligations
on companies that would exceed their
asbestos-related costs, in addition to precluding those companies from insurance coverage,
the letter claimed. Because of this, asbestos
defendants would benefit more from continuing to litigate asbestos claims within the current judicial system, the defendants claimed.
Additionally, the defendants argued that as currently written, the draft of the bill would falsely
stress a final resolution of all asbestos suits, as
claims could revert back to the tort system
should funding for the trust run out.
Finally, the defendants expressed concern that
the draft legislation would allow plaintiffs to
“recast” asbestos claims as silica or other mixed
dust claims, leaving certain defendants such as
premises owners subject to continuing litigation.
“We encourage you to consider alternative
approaches, specifically medical criteria legislation, to resolve the issue without penalizing
companies with minimal out-of-pocket
asbestos-related costs and sufficient insurance to
cover them,” the letter concluded.
Document is Available
Call (800) 496-4319 or
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Federal-Mogul Letter Ref# ASB-0501-07
TABLE OF CASES
Northeast Region
(First, Second, Third & D.C. Circuit
Courts)
Tutt v. International Paper Co., No. CA 04584 (Ark. Ct. App.). Affirmed. Page 18
In re: Mid-Valley Inc, et al., Misc. No. 04295 (W.D. Pa.). Bankruptcy. Page 14
Midwest Region
(Sixth, Seventh & Eighth Circuit Courts)
Root v. Eastern Refractories Co., et al., No. 0401412 (N.Y. Sup. Ct., App. Div., 4th Dept.).
Reversed. Page 20
In re: All Kelley & Ferraro Asbestos Cases, No.
2003-1653 (Ohio Sup. Ct.). Reversed. Page
11
Rourke v. Amchem Products, et al., No. 24-C02-001240/CN (Md. Ct. App.). Affirmed.
Page 20
In re: A.P.I Inc., No. 05-30073 (Minn.
Bankr. Ct.). Bankruptcy. Page 15
Seitz v. Jacobson & Company, No. 09759
(N.Y. App. Ct., 3rd Dept.). Remanded. Page
18
South/Southwest Region
(Fourth, Fifth & Eleventh Circuit Courts)
Borg-Warner Corp. v. Flores, No. 13-03-058CV (Texas 13th Dist. Ct. App.). Affirmed.
Page 17
Bourgeois v. A.P. Green, No. 488-642 (La.
24th Jud. Dist. Ct.). Denied. Page 16
Harold’s Auto Parts, Inc. v. Flower
Mangialardi, et al., No. 2004-IA-01308-SCT
(Miss. Sup. Ct.). Published. Page 13
Kelly-Moore Paint Co. v. Dow Chemical Co.,
et al., No. 19785 (Texas 23rd Dist. Ct.,
Brazoria Cty.). Denied. Page 10*
7
Orr, et al. v. State of Montana, No. 2004 MT
354 (Mont. Sup. Ct.). Remanded. Page 12
Thornton, et al. v. A-Best Products, et al., No.
CV-99-395724 (Ohio Ct. Comm. Pls., Cuyahoga
Cty.). Remanded. Page 8**
Wright v. Leggett & Platt, et al., No.
04CA008466 (Ohio Ct. App., 9th Dist.).
Affirmed. Page 19
West Region
(Ninth & Tenth Circuit Courts)
Biles v. Exxon Mobil Corp., No. A105783
(Calif. Ct. App., 1st Dist., Div. 2) Reversed.
Page 15
* See page 39 for Kelly Order/Motion
** See page 47 for Thornton Order
COURTROOM NEWS
Jurisdiction
3 Miss. Judges Order 13,000
Asbestos Plaintiffs to Show
Proof of Residency
JACKSON, Miss. –– Three Mississippi
Circuit Court judges have ordered thousands
of asbestos plaintiffs to show they reside or
were injured in the counties where their
claims are filed or face dismissal.
Last week, judges in Jefferson, Holmes and
Hinds County circuit courts granted several
pending motions to sever and ordered the
severed plaintiffs to produce proof of residency or site of injury by specific dates.
Sources said that Judge Lamar Pickard of
Jefferson County on Dec. 20 gave 8,000
plaintiffs 20 days to respond, Holmes
County Judge Jannie Lewis on Dec. 23 gave
4,000 plaintiffs a 60-day deadline and Judge
Winston Kidd of Hinds County gave an estimated 1,300 plaintiffs 225 days to produce
the information.
Court sources said that the orders addressed
severance issues only and that other pending
motions in the cases will be addressed after
the plaintiffs have complied with the order.
Sources also indicated that Judge Billy Joe
Landrum of Jones County Circuit Court has
yet to issue a decision that would affect
16,000 plaintiffs with claims pending before
him. Eventually, some 30,000 plaintiffs
could be affected by similar orders, sources
said.
The order follows the Mississippi Supreme
Court’s Aug. 26 order in Harold’s Auto Parts
Inc. v. Flower Mangialardi (04-IA01308SCT), which required plaintiffs in a Bolivar
County action provide information on the
residency and place of exposure for each
claimant. In that decision, the Supreme
Court found fault with the plaintiffs’ failure
to present information about underlying
claims against an estimated 150 defendants.
“Complaints should not be filed in matters
where plaintiffs intend to find out in discovery whether or not, and against whom, they
have a cause of action,” the Supreme Court
stated in its decision. “Absent exigent circumstances, plaintiffs’ counsel should not file
a complaint until sufficient information is
obtained, and plaintiffs’ counsel believes in
good faith that each plaintiff has an appropriate cause of action to assert against a
defendant in a jurisdiction where the complaint is to be filed.”
In finding that the plaintiffs’ claims failed to
satisfy the requirements set forth in
Mangialardi, Judge Lewis ordered each plaintiff to serve the defendants with a new pleading that contains “facts as to the home
address, social security number, job classification, and alleged disease of each plaintiff,
and describes which plaintiff was exposed to
which specific product manufactured by
which specific defendant in which workplace
(by name and address) and for what specific
time periods and frequencies.”
In issuing the shortest time in which the
plaintiffs have to define their claims, Judge
Pickard stated that if the plaintiffs fail to
meet the 20-day deadline, “the Court will
enter its own Order based upon the information that the Court has available to it, to
transfer or dismiss, if warranted, all those instate Plaintiffs without original jurisdiction
and venue to the appropriate court of venue
and jurisdiction, and dismiss, without prejudice, all those out-of-state Plaintiffs without
original jurisdiction and venue.”
The orders affect claims filed in Jefferson,
Copiah, Claiborne, Holmes, Humphreys,
Yazoo and Hinds Counties.
Documents Are Available
Call (800) 496-4319 or
Pickard Order Ref# ASB-0501-02
Lewis Order Ref# ASB-0501-03
Legislature
Ohio Court Finds Retroactivity
of New Act Unconstitutional in
11 Asbestos Lawsuits
CLEVELAND –– An Ohio Court has ruled
that a medical criteria bill governing the
types of asbestos claims that may proceed to
trial does not apply retroactively to the
claims of 11 asbestos plaintiffs, ordering that
the claims of the plaintiffs should proceed to
trial under the law prior to the Act.
Thornton, et al. v. A-Best Products, et al., No.
CV-99-395724 (Ohio Ct. Comm. Pls.,
Cuyahoga Cty.).
In a Jan. 10 opinion, the Ohio Court of
Common Pleas for Cuyahoga County found
that the rights of the 11 plaintiffs had been
impaired by the Act, which went into effect
in September 2004, because it imposed higher standards for proving medical causation.
Plaintiffs in the 11 lawsuits alleged that they
have developed various cancers as a result of
exposure to asbestos-containing products.
The claims were slated for an October 2004
trial.
However, on Sept. 2, 2004, Amended
Substitute House Bill 292 took effect,
prompting the defendants to move to take
the 11 lawsuits off the trial list.
House Bill 292 intended to give priority to
those asbestos claimants who exhibit actual
physical injury cased by asbestos and fits
those plaintiffs into categories of claimants
asserting claims based on non-malignant
conditions, claimants who are smokers and
suffer from lung cancer and plaintiffs asserting a wrongful death claim. The 11 plaintiffs
in the instant action are smokers alleging the
development of lung cancer as a result of
asbestos exposure.
The Common Pleas Court noted that the
Act also requires a plaintiff to file a written
8
HARRISMARTIN COLUMNS
COURTROOM NEWS
report and supporting test results that provides evidence of the impairment.
liabilities on the 11 claimants in the instant
case.”
events without which any happening would
not have occurred.”
The 11 plaintiffs argued that the Act should
not apply retroactively to their claims. The
defendants argued that a Savings Clause in
the Act stipulates that the Court should
apply an individualized retroactivity analysis.
The Court noted that Ohio law prior to the
Act does not define a competent medical
authority, and that the plaintiffs in the
instant action have conceded that their existing medical records no not contain causation
reports required by the new law.
The Court of Common Pleas determined
that the term “substantial contributing factor” as defined by the new Act would impose
new burdens on the instant plaintiffs, therefore rendering it unconstitutional.
The Common Pleas Court noted that
Section 28, Article II of the Ohio
Constitution prohibits the passing of retroactive laws and “protects vested rights from
new legislative encroachments.”
“The test for unconstitutional retroactivity
requires the court first to determine whether
the General Assembly expressly intended the
statute to apply retroactively,” the Common
Pleas Court noted. “If so, the court moves
on to the question of whether the statute is
substantive, rendering it unconstitutionally
retroactive, as opposed to merely remedial.”
The Court of Common Pleas opined that
the General Assembly did intend for the Act
to apply retrotactively, but not so that it
would violate Section 28, Article II of the
Constitution.
“For example, if this Court found that the
Act impaired a substantive right of a
claimant who filed a claim on September 1,
2004, the Act would be inapplicable, and the
law that was in effect prior to the effective
date of the Act would apply,” the Court stated. “Therefore, the Act cannot violate the
Ohio Constitution on retroactivity grounds
[emphasis original].”
The plaintiffs first argued that the Act
imposed higher medical standards that
would dismiss the claims of the 11 plaintiffs.
The defendants contended that Ohio law
prior to the Act stipulated that a competent
medical authority is required and that the
Act simply establishes minimum medical
requirements.
The Court of Common Pleas disagreed, stating that the “clearly, the Act imposes new or
additional burdens, duties, obligations, or
“Such an admission is irrelevant to the issue
of medical causation if the imposition of
new, higher medical standards for asbestosrelated claims is a substantive alteration of
existing Ohio law which will have the effect
of retroactively eliminating the claims of
plaintiffs whose rights to bring suit previously vested,” the Common Pleas Court
claimed.
The Court of Common Pleas, therefore,
determined that because the Act imposes
new burdens on the 11 plaintiffs, it is
unconstitutionally retroactive, leaving the
plaintiffs to bring their claims under the law
that existed prior to the Act.
The Common Pleas Court also found that
the guidelines for establishing exposure to
asbestos as a substantial contributing factor
were also unconstitutionally retroactive.
Under the new Act, a plaintiff must prove
that exposure to asbestos was a substantial
contributing factor to lung cancer, the
Common Pleas Court noted. The new
guidelines stipulate that the word “substantial” means both that exposure to asbestos is
the predominate cause of the impairment
and that a competent medical authority
determines that without asbestos exposure,
the impairment would not have occurred.
Under prior law, however, the word substantial was “used to denote the fact that the
defendant’s conduct has such an effect in
producing the harm as to lead reasonable
men to regard it as a cause, using that word
in a popular sense, in which there always
lurks the idea of responsibility, rather than
the so-called ‘philosophical sense,’ which
includes every one of the great number of
9
Finally, the Court of Common Pleas found
that the Act’s interpretation of “substantial
occupational exposure” imposed new burdens on the instant plaintiffs. Under the Act,
the plaintiff must provide evidence of substantial occupational exposure or evidence
that the exposure was at least 25 fiber per cc
years.
The Court of Common Pleas noted that
under law prior to the Act, the plaintiff
“need not prove that he was exposed to a
specific product on a regular basis over some
extended period of time in close proximity
to where the plaintiff actually worked in
order to prove that the product was a substantial factor in causing his injury.”
“The Act imposes an additional burden on
these 11 plaintiffs to demonstrate that they
were exposed to asbestos-containing products
on a regular basis and in close proximity to
where the Plaintiffs actually worked,” the
Court of Common Pleas opined.
The Court of Common Pleas further found
that each of the 11 plaintiffs had sufficiently
asserted claims under the law prior to the
Act and ruled that the claims were set to
proceed to trial.
Document is Included
See Page 47 or
Order Ref# ASB-0501-15
COURTROOM NEWS
Juror Conduct
Court Rejects Kelly-Moore’s
Claims of Juror Misconduct;
Motion for New Trial Denied
ANGLETON, Texas –– A Texas court has
denied Kelly-Moore Paint Co.’s motion for a
new trial in a landmark asbestos case in
which jurors found that Union Carbide did
not fraudulently conceal the dangers of
asbestos it sold to the paint maker. KellyMoore Paint Co. v. Dow Chemical Co., et al.,
No. 19785 (Texas 23rd Dist. Ct., Brazoria
Cty.).
Sources said that Judge J. Ray Gayle III of
the Texas 23rd District Court for Brazoria
County denied the motion on Jan. 5 after an
evidentiary hearing.
On Oct. 22, a jury found 11-1 that Union
Carbide did not withhold information about
the dangers of products it sold to KellyMoore. Specifically, Kelly-Moore claimed it
relied on the supplier’s representations in
using the Union Carbide asbestos in tape
joint compound products and other texture
products.
Kelly-Moore specifically alleged that Union
Carbide had evidence that its product
Calidria was linked to cancer and asbestosis,
but promoted the product to Kelly-Moore as
a safe alternative to deadly asbestos products.
Union Carbide argued during trial that its
product could be used safely and that comprehensive warnings were provided to KellyMoore regarding the dangers of asbestos.
On Dec. 3, Kelly-Moore moved to overturn
the landmark verdict, claiming that juror
misconduct tainted their finding that Union
Carbide did not fraudulently conceal the
dangers of asbestos-containing products sold
to the paint maker.
Kelly-Moore claimed in the motion that
jurors had access to a running documentary
produced on the Internet by the defendant,
discussed the case prior to jury deliberations,
and one juror in particular misrepresented a
possible connection with the defendant.
Kelly-Moore first argued that juror affidavits
revealed that a number of jurors reviewed a
running documentary of the trial from a
Dow Chemical-related computer, KellyMoore maintained. Union Carbide is a subsidiary of Dow Chemical.
Access to this Web site and press releases that
addressed the trial constituted improper contact between the jurors and the defendants
and also could have exposed to the jurors to
prejudicial information, including discussions about the trial and its impact on Dow
Chemical, Kelly-Moore contended.
“The jurors review of the internet and media
reports regarding the lawyers and gallery
jurors in this case is also misconduct requiring a new trial,” Kelly-Moore contended.
“Jurors should decide a case based on the
evidence before them and their assessment of
the credibility of the witnesses. Information
they obtain about attorneys could easily
influence their assessment of the credibility
of the witnesses or create bias on the part of
a juror for or against a litigant based upon
what the jury has learned about the litigant’s
attorney. Such conduct interferes with jury’s
ability to decide the case based on the evidence and deprives the litigants of a trial
based on the evidence presented to a neutral
jury.”
In a response filed Dec. 21, Union Carbide
claimed Kelly-Moore’s assertions that jurors
reviewed running documentary were unsupported and vague.
“The statements do not identify the jurors
who supposedly discussed the Web site,
when they did so, with whom they discussed
it, how and when they accessed the Web site,
or the content of the Web site,” Union
Carbide said. “Courts regularly deny newtrial motions when a movant submits impermissibly vague or hearsay affidavits in support of a juror-misconduct claim.”
Union Carbide further claimed that KellyMoore failed to show that the testimony
regarding the Web site involved in outside
influence that affected the jury’s verdict.
“It is ironic that Kelly-Moore seeks a new
trial based primarily on its claim that jurors
gained access to outside information about
the trial,” Union Carbide said. “Coverage in
the local and regional media was quite favorable to Kelly-Moore and its counsel.”
Juror affidavits also indicated that at least
two of the jurors discussed the case during
rides to trial, and prior to closing arguments,
according to Kelly-Moore. Union Carbide
refuted this contention as well, arguing that
the affidavits presented by the plaintiff were
vague and did not show that the jury was
influenced by the discussions.
Additionally, Kelly-Moore questioned a
juror’s statement that he had no connection
with Dow, when in fact, the juror’s vehicle
title reveals that the lienholder for the truck
is Texas Dow Employees Credit Union.
Based on this information, Kelly-Moore
requested that the court require the juror to
give testimony regarding his relationship
with Dow.
This argument is “embarrassingly weak,”
Union Carbide argued.
“[Kelly-Moore] has made no attempt to
establish that [the juror] is actually an
employee of Dow,” Union Carbide stated.
“Thus, it has not come close to establishing
that [the juror] lied. In fact, the undersigned
counsel has discovered that one need not be
a Dow employee, or even have any connection with Dow, to receive a car loan from
TDECU.”
On the day the order was issued, Union
Carbide also objected to Kelly-Moore’s filing
of additional juror affidavits, arguing that
the affidavits “constitute an untimely
attempt by Kelly-Moore to amend its
motion for new trial.” Judge Gayle did not
rule specifically on the objection.
Kelly-Moore is represented by W. Mark
Lanier, Kevin P. Parker, Eugene R. Egdorf
10
COURTROOM NEWS
and Dara G. Hegar of the Lanier Law Firm
in Houston; and Harvey G. Brown Jr. and
Thomas C. Wright of Wright & Brown in
Houston.
The defendants are represented by John R.
Gilbert of Gilbert & Gilbert in Angleton,
Texas; Scott D. Lassetter of Weil, Gotshal &
Manges in Houston; Harry P. “Hap” Weitzel
of Mayer, Brown, Rowe & Maw in Houston;
Deborah D. Kuchler and Sarah E. Iiams of
Abbott, Simses & Kuchler in New Orleans;
Randy E. Moore of the Moore Law Firm in
Lake Jackson, Texas; Michael G. Terry of
Hartline, Dacus, Barger, Dreyer & Kern in
Corpus Christi, Texas; and Peter Bicks,
Siobhan Handley and Morton Dubin of
Orrick, Herrington & Sutcliffe in New York.
Document Is Included
See Page 39 or
Response Ref# ASB-0501-13
Motion Ref# ASB-0412-18
Objection to Affidavits Ref# ASB-0501-14
Settlement
Ohio Supreme Court Reverses
Assignment of Joint and Several
Liability to CCR Members
COLUMBUS, Ohio –– Ohio’s highest court
has reversed an appellate court decision,
finding error with the assignment of joint
and several liability to companies involved in
a settlement agreement between the Center
for Claims Resolution and an Ohio law firm.
In re: All Kelley & Ferraro Asbestos Cases, No.
2003-1653 (Ohio Sup. Ct.).
In a Dec. 30 decision, the Ohio Supreme
Court found that the language in the settlement indicated that the parties contemplated
the possibility that member companies
would not be able to pay their share, there-
fore precluding the option of joint and several liability.
“The structure of the agreement further fortifies our conclusion that the member companies promised to be liable only for their
respective shares,” the Supreme Court stated.
“We hold that the settlement agreement creates only several liability among the CCR
members, and, therefore, each member is
responsible only for its individual share of
liability payments. Because the appellate
court interpreted the agreement as providing
for joint and several liability, that decision is
reversed.”
In 1999, an estimated 15,000 asbestos-related claims were settled for $120 million
between plaintiffs represented by the law
firm of Kelley & Ferraro and the Center for
Claims Resolution, which acted on behalf of
19 companies.
The Supreme Court noted that in 1999,
CCR submitted a payment short nearly $1
million, claiming that asbestos defendants
GAF failed to pay its allocated share. A trial
court granted a motion filed by Kelley &
Ferraro to enforce the settlement agreement,
and the judgment was entered against all the
CCR members. In doing so, the Court
opined that because CCR entered into an
agreement that a lump sum would be delivered to Kelley & Ferraro, the apportionment
of the funds was an internal CCR dispute.
The following payment was also short, this
time by over $2 million, the Supreme Court
noted. Kelley & Ferraro again filed a motion
to enforce the settlement agreement, which
was granted. CCR continued to submit deficient payments until June 2002, as many of
the companies in the agreement had filed for
bankruptcy.
CCR then sent a letter to Kelley & Ferraro,
suggesting it pursue an option in the agreement which stipulated that “in the event that
the CCR fails to make any of the payments
… because any one of the CCR member
companies fails to make timely payments of
its individual shares of such payment when
such payment has become due … the
11
claimant may either void the settlement
agreement as to the defaulting member companies, or void the settlement agreement in
its entirety.”
An Ohio appellate court consolidated CCR’s
numerous appeals of the trial court’s settlement enforcement rulings, and then affirmed
the rulings, stating that “the agreement provided for joint and several liability among all
the CCR members.” CCR and its members
appealed the decision.
The plaintiffs argued that the settlement
agreement indicated joint and several liability, while the CCR companies contended that
the language in the settlement agreement
provides that each company is liable for only
their own share, and not for the entire
amount of the settlement, nor the shares of
other companies.
The Supreme Court determined that the language in the settlement agreement indicates
that the members intended to pay limited
amounts toward the installments.
“The claimants’ assertion regarding the
CCR’s failure to properly make a final share
allocation for each member prior to each
installment is not well taken,” the Supreme
Court stated. “The record shows they knew
of and agreed with the share allocation procedure as set forth in the Producer
Agreement and that they were aware that the
Producer Agreement expressly conferred no
rights to third parties. Further, the individual
share allocation of a member does not affect
the nature of the promises made by the
member companies in paragraph 13 of the
settlement agreement, as will be further
developed.”
“In the present case, the language can only
be interpreted as imposing several liability
upon the CCR member companies and
manifests the parties’ intent that each member be responsible for only its individual
share of the total settlement amount as calculated pursuant to the Producer
Agreement,” the state’s high court continued.
COURTROOM NEWS
The Supreme Court also opined that the
parties’ intent to create several liability is
apparent in language indicating what would
happen should the parties fail to pay their
allocated share.
“By providing these options for the situation
where a member fails to pay its individual
share, paragraph 13 demonstrates that the
parties believed that the agreement created
individual obligations among the members
and that a company’s failure to tender its
allocated share would result in a deficient
installment payment to the claimants,” the
Supreme Court stated. “As pointed out by
the CCR members, interpreting the settlement agreement to provide for joint and several liability would render these options
essentially meaningless, as there would be little or not impetus for claimants to pursue
the defaulting member individually, especially when default is due to insolvency.”
Counsel for the CCR companies are Patrick
F. McCartan, Mark Herrmann and Mary
Beth Young of Jones Day in Cleveland;
David S. Cupps and Richard D. Schuster of
Vorys, Sater, Seymour & Pease in Columbus,
Ohio; Richard S. Walinski of Cooper &
Walinski in Toledo, Ohio; Eric H. Zagrans
of The Zagrans Law Firm in Elyria, Ohio;
Frank J. Santoro, Karen M. Crowley and
John M. Ryan Jr. of Marcus, Santoro &
Kozac in Chesapeake, Va.
The plaintiffs are represented by Michael V.
Kelley and Thomas M. Wilson of Kelley &
Ferraro in Cleveland; and Robert J. Fogarty,
Andrew S. Pollis and Yuri R. Linetsky of
Hahn, Loeser & Parks in Cleveland.
Call (800) 496-4319 or
Duty to Warn
High Court Remands Miners’
Asbestos Claims, Rules State
Had Duty to Warn
HELENA, Mont. –– Montana’s highest
court has determined that the state owed a
duty to warn miners of asbestos dangers in
the workplace, and remanded the case for a
determination of whether the state breached
that duty. Orr, et al. v. State of Montana, No.
2004 MT 354 (Mont. Sup. Ct.).
On Dec. 14, the Montana Supreme Court
released a divided opinion in which the
majority found that the state had a duty to
advise both the employer and the employees
of the presence of asbestos.
In the decision, Justice Patricia O. Cotter
reversed a District Court decision dismissing
the claims, and defended the reversal by stating that the plaintiffs “still face the daunting
task of establishing that the State breached
its duty to them and in so doing, caused
their damages and injuries.” Justices Jim
Regnier, James C. Nelson and W. William
Leaphart joined the majority in the decision.
The nine plaintiffs –– including an on-site
carpenter, seven miners, and the wife of a
miner –– alleged they all developed asbestosrelated diseases as a result of working in a
Libby, Mont., vermiculite mine. The plaintiffs named W.R. Grace Co. in the initial filing.
Justice Cotter noted that W.R. Grace bought
the mine in 1963 and, since that time, a
number of industrial hygiene studies have
been conducted on the mine by the State
Board of Health. Each inspection revealed
that conditions were unsanitary and
unhealthy, Justice Cotter said, adding that
while the State reported the findings to W.R.
Grace, those working in the proximity of the
mine were never notified.
12
W.R. Grace was dismissed from the case after
filing for bankruptcy, prompting the plaintiffs to add the State of Montana to the lawsuit, specifically alleging that it owed a duty
to protect the plaintiffs by informing them
of the hazardous conditions. The State filed a
motion to dismiss, arguing that it owed no
duty to the miners. The District Court
agreed, granting the motion to dismiss, and
prompting the instant appeal.
The miners first argued that the State owed a
duty to make investigations and subsequently disseminate information regarding the
asbestos hazards. While the State made the
proper investigations, it did not convey the
results of these investigations to the miners,
the plaintiffs contended. The State countered
by arguing that Montana industrial hygiene
statutes do not impose a duty on the State to
warn and protect miners and that such protection is the responsibility of the employer.
The District Court agreed, opining that the
statutes did not apply because they did not
specifically include vermiculite mines.
However, Justice Cotter found that the
statutes need not be specific to the industry
in order to apply.
“First, it cannot be disputed that vermiculite
mining is ‘an industry,’” Justice Cotter wrote.
“If the failure of the legislature to describe
every industry to which its law applies is followed to its logical conclusion, then the law
would cover no industries whatsoever. This is
an absurd interpretation. The state had the
mandatory obligation from 1907 through
1999 to gather public health-related information and provide it to the people. The legislature wrote this law broadly and chose not
to limit it to specific industries, occupations
or workers.”
Justice Cotter also rejected the State’s contention that the protection of workers is the
employers’ responsibility. In doing so, Justice
Cotter opined that evidence instead indicated that the State knew that W.R. Grace was
not warning employees.
“The state’s argument that it owed no duty
to the Miners ignores the State’s statutory
COURTROOM NEWS
obligation to ‘make investigations, disseminate information, and make recommendations for control of diseases and improvement of public heath to persons, groups, or
the public,’” Justice Cotter wrote. “The provisions of this law bound the State to do
something to correct or prevent workplace
conditions known to be hazardous to
health.”
Justice Cotter also rejected the State’s argument that the Public Duty Doctrine precluded the plaintiffs’ claims. Justice Cotter found
that the miners fit a “special relationship”
exception to the Public Duty Doctrine.
Justice Cotter noted that the District Court
rejected the notion that a special relationship
existed between the State and the miners,
instead finding that the statutes governing
special relationships were too general to protect such a specific class of persons from a
specific type of harm. Justice Cotter disagreed.
“The numerous statutes discussed above
were intended to protect workers from occupational diseases,” Justice Cotter said. “As we
stated above, the lack of specificity in these
statues does not render them meaningless.
The statutes were designed to protect men
and women working in the various industries
in Montana from occupational disease.
Libby Miners were undeniably members of
this specific class of persons.”
Justice Cotter further opined that the Libby
Miners presented affidavits indicating that
the ambient dust was a concern. These affidavits also acknowledged that the miners
also dismissed any health concerns, Justice
Cotter stated.
“This conclusion was uniformly premised on
the fact that the State had regularly inspected
the Mine, but had never reported any danger
to the Miners,” Justice Cotter stated. “Each
miner declared that they relied on these State
inspections and the State’s lack of warning to
continue working at the Mine. In Montana,
reliance occurs when one is ‘rightfully led to
a course of conduct or action on the faith
that the act or duty will be properly per-
formed.’ The State’s inspections ‘rightfully
led’ the Miners to believe that they were
working in a safe environment.”
Justice Cotter also rejected the State’s defenses of federal preemption and sovereign
immunity, noting that although the District
Court failed to address the arguments, the
State would fail in these specific attempts
upon remand. In rejecting the arguments,
Justice Cotter first noted that no federal
statutes governed mine-related activities prior
to 1966, therefore leaving the State with no
preemption defense.
Justice Cotter also acknowledged that
Montana has no sovereign immunity defense
after 1972, when the law governing the commencement of a civil action was codified.
Since the plaintiffs could not prove damage
until after 1972, their claims are not precluded by the sovereign immunity defense,
Justice Cotter found.
In a dissenting opinion, Justice John Warner
argued that the majority redefined the doctrine of sovereign immunity.
“By focusing on when the damage occurred,
the Court forgets that at the time of the
alleged breach of duty by the State, it owed
no duty at all to the Miners,” Justice Warner
wrote. “Sovereign immunity is not a bar to
an action, it is a legal doctrine to the effect
that the government had no duty to respond
in damages to its citizens for its acts or omissions. When sovereign immunity was abolished, this changed, but by no stretch of
logic or law can it be said that an act or
omission done while the doctrine was in
effect retroactively creates such a duty.”
Justice Warner, who was joined by Justices
Karla M. Gray and Jim Rice in the dissent,
also suggested that the majority unfairly
imposed the duty of worker protection upon
the State.
“According to the Court, the State had a
duty to prevent any recurrence of an
unhealthful condition upon pain of being
liable in tort to any injured worker,” Justice
13
Warner said. “A large undertaking! Indeed,
one I conclude borders on the absurd.”
Counsel for the plaintiffs is Jon L. Heberling
of McGarvey, Heberling, Sullivan &
McGarvey in Kalispell, Mont.
The State of Montana is represented by
Dana L. Christensen of Christensen, Moore,
Cockrell, Cummings & Axelberg in
Kalispell, Mont.; and Thomas G. Bowe,
Assistant Attorney General in Helena, Mont.
Document Is Available
Call (800) 496-4319 or
Opinion Ref# ASB-0501-01
Joinder
Supreme Court Order
Severing Mississippi Asbestos
Claims Published
JACKSON, Miss. –– An order applying new
Mississippi mass tort standards to asbestos
claims was designated for publication by the
state’s high court on Jan. 6. Harold’s Auto
Parts, Inc. v. Flower Mangialardi, et al., No.
2004-IA-01308-SCT (Miss. Sup. Ct.).
The Aug. 26 order from the Mississippi
Supreme Court had called the joinder of 259
claims in the underlying case a “perversion of
the judicial system,” and has prompted several Mississippi Circuit Courts to dismiss
more than 13,000 asbestos claims since. See
“3 Mississippi Judges Order 13,000 Asbestos
Plaintiffs to Show Proof of Residency” in this
issue.
In the decision, the state’s high court took
issue not with the plaintiffs’ alleged failure to
comply with Rule 20’s joinder requirements,
but with their apparent failure to disclose
core information about the underlying
claims asserted against the nearly 150 defendants named in the case.
COURTROOM NEWS
“Complaints should not be filed in matters
where plaintiffs intend to find out in discovery whether or not, and against whom, they
have a cause of action,” the court said.
“Absent exigent circumstances, plaintiffs’
counsel should not file a complaint until sufficient information is obtained, and plaintiffs’ counsel believes in good faith that each
plaintiff has an appropriate cause of action to
assert against a defendant in a jurisdiction
where the complaint is to be filed.”
To do otherwise, the court said, is an abuse
of the system and is sanctionable.
The underlying case involved asbestos injury
claims against 137 defendants by 264 plaintiffs, 220 of which have yet to identify any
employment within the state of Mississippi,
according to the Supreme Court.
On June 23, the Bolivar County Circuit
Court denied a defense motion to sever the
claims, leading to the instant appeal, in
which the defendants argued that given the
lack of information about the underlying
exposure provided by the plaintiffs in the
case, it is impossible to argue that joinder
was improper. The plaintiffs responded that
given the defendants’ desire to have the
claims severed and tried individually, specific
information about the underlying claims
wasn’t necessary at this juncture in the case.
The Supreme Court held, however, that both
arguments missed the mark. Suspending any
further briefing on the issue and proceeding
directly to a consideration of the merits of
the defendants’ petition for permission to
appeal, the high court said that the matter
should be before the court not on a violation
of Rule 20, but for a failure to comply with
Rules 8, 9, 10 and 11.
“Rule 20 allows joinder only where the
plaintiffs make certain assertions which
demonstrate the matters set out in the rule,”
the court said. “In this regard, plaintiffs
have wholly failed. Indeed, plaintiffs have
not even attempted to provide the information. They presume that they are entitled to
proceed with their suit, as filed, and they will
demonstrate later that joinder is proper.”
The court added that it can only presume
from the record that the plaintiffs have chosen to take such a course because they aren’t
aware whether joinder is appropriate.
“This is so, apparently, because they don’t
know the claims of each plaintiff. They
don’t appear to know when they were
exposed, where they were exposed, by whom
they were exposed, or even if they were
exposed,” the court noted. “Presumably,
when they learn this information, plaintiffs’
counsel intends to dismiss those who should
not have been joined. This is a perversion of
the judicial system unknown prior to the filing of mass-tort cases.”
The justices also pointed out that not all
cases involving multiple parties which have
come before the court have been filed in
similar fashion. They noted cases where
plaintiffs’ counsel appeared to have interviewed each plaintiff, investigated their
claims and developed information necessary
to file a complaint. Such was not the case in
the instant matter, according to the court,
which added that plaintiffs’ counsel continues to resist furnishing necessary information
to the defendants and the court.
In reaching its decision to sever the claims
and remand to the circuit court for transfer
to the appropriate venue and jurisdiction,
the court noted its recent decision in Janssen
Pharmaceutica, Inc. v. Armond, 866 So. 2d
1092 (Miss. 2004), where the court appeared
to have carved out an exception for joinder
of claims in so-called mature torts, such as
asbestos.
“Even though asbestos litigation is, indeed, a
‘mature tort,’ as discussed in dicta in
Armond, this Court did not intend in that
case, and we shall not proceed here, to
exempt asbestos cases from the requirements
of Rule 20, the Mississippi Rules of Civil
Procedure,” the court wrote.
Search www.harrismartin.com or
Call (800) 496-4319
14
Bankruptcy
Halliburton Subsidiaries
Exit Bankruptcy with
$4.7 Billion Settlement
HOUSTON –– Halliburton has announced
that two of its subsidiaries, DII Industries
and Kellogg Brown & Root, have exited
bankruptcy, marking the finalization of a
$4.7 billion settlement of asbestos suits
involving a reported 400,000 claimants. In
re: Mid-Valley Inc, et al., Misc. No. 04-295
(W.D. Pa.).
In a press release issued Jan. 3, the Houstonbased petroleum and energy provider said
orders by the U.S. District Court for the
Western District of Pennsylvania and the
U.S. Bankruptcy Court for the Western
District of Pennsylvania are now final and
non-appealable. DII Industries and Kellogg
Brown & Root can now operate without
Bankruptcy Court supervision, Halliburton
said.
Halliburton’s chairman, president and CEO
Dave Lesar said in the press release that “the
asbestos chapter in Halliburton’s history is
closed.”
Halliburton’s agreement was approved last
year by Judge Judith Fitzgerald of the U.S.
Bankruptcy Court for the Western District
of Pennsylvania, and called for Halliburton
to pay $2.3 billion in cash, notes worth $55
million and 59.5 million shares of common
stock into trusts to pay victims, published
reports indicated. The order was affirmed on
July 26, 2004, by Judge Terrence F. McVerry
of the U.S. District Court for the Western
District of Pennsylvania.
Halliburton said in its press release that it
plans to fund the trusts for current and
future asbestos and silica claimants by the
end of the month.
Documents are Available
Call (800) 496-4319 or
COURTROOM NEWS
District Court Order Ref# ASB-0501-04
Bankruptcy Court Order Ref# ASB-0501-05
Bankruptcy
Asbestos Claims Prompts
A.P.I. Industries to File
For Chapter 11
MINNEAPOLIS –– Insulation contractor
A.P.I Industries has filed for Chapter 11
bankruptcy protection, claiming that it has
$63 million in liabilities. In re: A.P.I Inc.,
No. 05-30073 (Minn. Bankr. Ct.).
A.P.I Industries also filed a prepackaged
bankruptcy plan Jan. 6 in the U.S.
Bankruptcy Court for Minnesota. Published
reports indicate that the subsidiary of A.P.I.
Group has more than 700 asbestos claims
asserted against the company.
In addition to the $63 million in liabilities,
A.P.I claims to have more than $34 million
in total assets.
In the prepackaged plan, A.P.I. says that all
asbestos claims against the company shall be
assumed by a trust, to which A.P.I will make
80 quarterly payments of $325,000.
Counsel for the debtor are James L. Baillie,
Faye Knowles and Heather B. Thayer of
Fredrikson & Byron of Minneapolis, Minn.
Documents are Available
Call (800) 496-4319 or
Petition Ref# ASB-0501-16
Reorganization Plan Ref# ASB-0501-17
Premises Liability
California Court Reverses
Summary Judgment, Finds
Testimony Wrongfully Omitted
SAN FRANCISCO –– A California Court
of Appeal has reversed an award of summary
judgment to ExxonMobil Corp. in an
asbestos lawsuit, after finding that the trial
court erroneously precluded testimony from
the plaintiff ’s co-worker. Biles v. Exxon Mobil
Corp., No. A105783 (Calif. Ct. App., 1st
Dist., Div. 2)
In a Dec. 14 decision, the 1st District Court
of Appeal found that the plaintiff had
reserved the right to supplement or amend
his interrogatory answers, and that his failure
to do so immediately, did not constitute willful or purposeful behavior.
“In deciding this appeal we deconstruct a
civil discovery ‘urban legend’ –– that a
responding party has an affirmative duty to
supplement responses to interrogatories if
and when new information comes into that
party’s possession, particularly if the party
reserved the right to amend or supplement
the earlier responses,” the Court of Appeal
stated.
Plaintiff Ronald Biles claimed that he was
exposed to asbestos during subcontractor
work where he assisted in the construction of
an oil refinery for a predecessor of Exxon.
Subsequently, Biles claimed he developed
asbestosis.
During discovery, Exxon served Biles with
special interrogatories asking for the identification of any individual who had knowledge
of work specific to the oil refinery. Biles
responded that no current information was
available to satisfy the interrogatory, but he
reserved the right to supplement or amend
the response, the Court of Appeal noted.
Soon thereafter, Exxon filed a motion for
summary judgment, arguing that the plain15
tiff was not exposed to a dangerous condition controlled by Exxon. After the summary
judgment motion was filed, Biles submitted
the deposition of Roger Bellamy –– who is
represented in a separate action by the same
counsel as Biles –– in which Bellamy claimed
to have worked with Biles and witnessed air
hoses blowing asbestos dust through Biles’s
worksite.
Exxon objected to the admission of the
Bellamy deposition, arguing that Bellamy
was not identified in Biles’s response to interrogatories. A trial court agreed, and granted
Exxon’s motion for summary judgment,
prompting the instant appeal.
The Court of Appeals first found that the
trial court erred in its reliance on Thoren v.
Johnston & Washer (1972), when finding that
the Bellamy declaration was inadmissible. In
Thoren, the defendants discovered at the start
of trial that an expert had not been included
in interrogatories, the Court of Appeal
noted.
The Court of Appeal found Thoren distinguishable because no trial date has been set
in the instant proceedings. The trial court
further erred when opining that Biles’s counsel should have been aware of the possibility
that Bellamy could testify on behalf of Biles,
because no evidence indicated that Bellamy
had mentioned Biles to the counsel, the
Court of Appeals stated.
“Thoren provides authority for excluding evidence based on a willfully false discovery
response,” the Court of Appeals found. “It
does not stand for the proposition that evidence may be excluded based on the mere
failure to supplement or amend an interrogatory answer that was truthful when originally
served.”
The Court of Appeal also refrained from
imposing discovery sanctions on the plaintiffs, stating that sanctions are not justified
“based on the mere failure to supplement a
response promptly when no order compelling further answers has been sought or
entered.”
COURTROOM NEWS
The appeals court further found error with
the trial court’s declaration that Biles had a
duty to supplement his interrogatory
responses when he received the Bellamy deposition.
“A rule precluding the use of evidence not
previously disclosed in supplemental discovery responses to oppose a summary judgment motion would be inconsistent with
case law holding that ‘factually void’ discovery responses can be relied upon the shift the
burden of proof to the opposing party,” the
Court of Appeal stated.
The Court of Appeal also rejected the defendant’s contention that even if the Bellamy
deposition is admissible, it does not create a
triable issue of fact against Exxon. In doing
so, the Court stated that if an Exxon
employee worked alongside, and injured, a
contractor’s employee, Exxon may be held
liable for any injuries to the contractor’s
employee.
“Applying these principles, the Bellamy declaration clearly raises a triable issue of fact
regarding whether Exxon may be liable in
this case based on the affirmative acts of
Exxon’s own employees that contributed to
Biles’s asbestos exposure,” the Court of
Appeals stated. “The Bellamy declaration
creates a triable issue of fact as to whether
the presence of asbestos dust in the air in
Biles’s vicinity was at least to some extent the
result of the acts of Exxon’s own employees.”
The plaintiff is represented by Alan R.
Brayton, Gilbert L. Purcell, Lloyd F. LeRoy
and David Polin of Brayton Purcell in
Novato, Calif.
Counsel for Exxon is William H. Armstrong
of Armstrong & Associates in Oakland,
Calif.
Call (800) 496-4319 or
Medical Monitoring
Louisiana Court Denies Class
Certification in Medical
Monitoring Asbestos Lawsuit
GRETNA, La. –– A Louisiana State Court
has denied class certification in an asbestos
medical monitoring lawsuit, opining that the
plaintiffs failed to satisfy the majority of the
requirements governing a class action.
Bourgeois v. A.P. Green, No. 488-642 (La.
24th Jud. Dist. Ct.).
In a Jan 5 oral decision, Judge Robert J.
Burns of the Louisiana 24th Judicial District
Court ruled that class certification would not
be proper, primarily because of the plaintiffs’
vague class membership criteria, sources stated.
Sources said that three former employees of
the Avondale Shipyard filed the lawsuit seeking medical monitoring for their alleged
exposure to asbestos while working at
Avondale. The lawsuit was filed as a class
action, to be composed of all Avondale
employees who worked at the shipyard
before 1976.
The defendants named in the lawsuit argued
that Louisiana law does not recognize a medical monitoring cause of action, because
plaintiffs who do not suffer from an
asbestos-related disease are not entitled to
damages. A trial court and the Louisiana 5th
Circuit Court of Appeal agreed, but their
decisions were overturned by the Louisiana
Supreme Court, which ruled that the plaintiffs could seek a court-supervised medical
monitoring program if they could satisfied
class certification requirements.
Since the high court’s decision, the Louisiana
Legislature has passed a law that stipulates
medical monitoring does not constitute
damages unless the plaintiff currently suffers
from an injury. The Legislature applied the
law retroactively, but the Louisiana Supreme
Court found the retroactive application to be
16
unconstitutional. Currently, only cases alleging exposure prior to 1999 can seek damages
for medical monitoring, even if the plaintiff
is not currently injured.
Under the Supreme Court’s ruling, the plaintiffs in the instant action were free to seek
damages for medical monitoring, provided
class certification was proper. However, in
determining whether class certification was
proper, Judge Burns noted the plaintiffs proposed that class membership would be
premised upon significant exposure to
asbestos fibers.
Judge Burns found, however, that it would
be hard to discern exactly what significant
exposure is. Individual questions pertaining
to the plaintiffs would be more prevalent
than common questions, Judge Burns found.
Sources said that when denying the class certification, Judge Burns quoted defendant
Viacom’s brief in opposition to class certification, stating that “the case at bar is really no
different than the average asbestos personal
injury case, except that the remedy sought,
medical monitoring, is the same for each
plaintiff.”
Judge Burns further found that the plaintiffs
lacked typicality and that the representatives
proposed to represent absent class members
was not adequate. Judge Burns opined that it
would be more efficient for plaintiffs to file
individual claims, sources said.
Judge Burns did note that the one requirement the plaintiffs appeared to satisfy was
numerosity –– even so, the judge remarked
that the requirement was doubtful because
testimony was introduced indicating that
there had been a lack of response or interest
in joining the class.
Counsel for the plaintiffs are Frank J. Swarr,
Mickey P. Landry and David R. Cannella of
Landry & Swarr in New Orleans.
The defendants are represented by Leon
Gary Jr. and William L. Schuette of Jones,
Walker, Waechter, Poitevent, Carrere &
Denegre in Baton Rouge, La.; Madeleine
COURTROOM NEWS
Fischer of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre in New
Orleans; Richard M. Perles of Lee, Futrell &
Perles in New Orleans; Brian C. Bossier,
Edwin A. Ellinghausen III and Erin H. Boyd
of Blue Williams in Metairie, La.; Steven J.
Irwin of Duncan, Courignton & Rydberg of
New Orleans; Carl J. Hebert of Courtenay,
Hunter & Fontana in New Orleans; Lynn
Luker of Lynn Luker & Associates in New
Orleans; and Robert H. Wood Jr. of
Bernard, Cassisa, Elliott & Davis in
Metairie, La.
Verdict
Texas Court Affirms
$150,000 Asbestos Verdict
CORPUS CHRISTI, Texas –– A Texas
Court of Appeals has affirmed a jury verdict
of $150,000, rejecting the defendant’s contention that the plaintiff failed to prove that
its asbestos-containing product released respirable asbestos fibers. Borg-Warner Corp. v.
Flores, No. 13-03-058-CV (Texas 13th Dist.
Ct. App.).
In a Dec. 16 decision, the Texas 13th District
Court of Appeals also affirmed the jury’s
finding that the defendant acted with malice,
opining that as a manufacturer of asbestoscontaining products, the defendant should
be held to the knowledge and skill of an
asbestos expert.
Plaintiff Arturo Flores was awarded more
than $150,000 for injuries arising from
exposure to asbestos-containing brake pads
manufactured by defendant Borg-Warner
Corp. A jury found Borg-Warner liable for
negligence and strict liability, and also determined that the company acted with malice.
Borg-Warner appealed the verdict.
On appeal, Borg-Warner first argued that
there was no evidence that asbestos fibers
were released from its brake pads. Borg-
Warner specifically asserted that the evidence
was insufficient because it failed to show that
the brake pads released respirable asbestos
fibers.
the Court of Appeals stated. “This evidence
is legally sufficient to establish the objective
element of malice (i.e., likelihood of serious
injury).”
The Court of Appeals disagreed, stating that
for an asbestos-related claim, the plaintiff
needs only to provide evidence that the
defendant supplied asbestos to which exposure occurred.
In ruling that the evidence supported a finding of the subjective element of malice, the
Court of Appeals ruled that as a manufacturer of asbestos products, “Borg-Warner should
be held to the knowledge and skill of an
asbestos expert.”
“According to Borg-Warner, the plaintiff in
this case was required to prove the emission
of respirable asbestos fibers because he was
only exposed to a product containing
asbestos and not to raw asbestos,” the Court
of Appeals stated. “We find no support for
this distinction in the case law cited by BorgWarner. Furthermore, even if we were to
conclude that the emission of respirable
asbestos fibers is necessary to prove causation, the standard of review for legal sufficiency challenges would render BorgWarner’s complaint moot. We consider only
the evidence that supports the verdict and
the evidence is viewed in a light that tends to
support the disputed fact.”
Specifically, the Court of Appeals noted that
Flores inhaled dust created by a Borg-Warner
asbestos-containing product which could
have produced respirable asbestos fibers. The
Court of Appeals also noted that because it
rejected Borg-Warner’s assessment of error
associated with the jury’s finding of negligence, Borg-Warner’s contention that the
jury’s finding of strict liability was erroneous
also fails.
“Borg-Warner’s failure to invest in research
promoting health and safety would suffice to
establish the subjective component of malice,” the Court of Appeals stated.
The Court of Appeals also rejected BorgWarner’s argument that the trial court erred
in not granting motions for a directed verdict, JNOV and for a new trial. In doing so,
the Court of Appeals said that it had already
determined that there was more than a scintilla of evidence supporting the jury’s finding
of negligence and malice.
Borg-Warner also argued that the trial court
erred when admitting the testimony of Dr.
Barry Castleman because it constituted
hearsay. The Court of Appeals disagreed.
Next, Borg-Warner challenged the jury’s
finding of malice, arguing that there was
insufficient evidence to prove that the plaintiff ’s use of brake pads posed an extreme risk
of harm. The Court of Appeals, however,
found that the evidence presented at trial
was sufficient to support both the objective
and subjective elements constituting malice.
“Although Borg-Warner has argued persuasively that the trial court erred in admitting
Dr. Castleman’s book into evidence, it has
failed to demonstrate that any such ‘error
probably caused the rendition of an improper judgment,’” the Court of Appeals stated.
“In fact, our independent review of the
record shows the opposite. Dr. Castleman
testified extensively regarding the content of
his book, in particular chapter eight, and
Borg-Warner was given the opportunity to
cross-examine him. Thus, even if chapter
eight was improperly admitted into evidence,
we would be unable to conclude that such
an ‘error probably caused the rendition of an
improper judgment.’”
“Even according to Borg-Warner’s version of
the record, medical and scientific literature
dating as far back as 1898 published in the
United States, Great Britain, and Germany
documented the dangers of asbestos dust,”
Finally, the Court of Appeals rejected BorgWarner’s contention that the trial court erred
when failing to compel settlement information because it precluded Borg-Warner from
obtaining a settlement credit. In doing so,
17
COURTROOM NEWS
the Court of Appeals noted that “the settlement credit amount can be established by
the actual ‘settlement agreement or some
other evidence of the settlement amount.’”
“There is no requirement that the actual settlement agreement be submitted into evidence in order to establish the settlement
credit amount,” the Court of Appeals concluded.
Counsel for Borg-Warner is Elizabeth L.
Phifer of Smith, Underwood & Perkins in
Dallas.
Flores is represented by W. Scott Wert of
Texas.
Call (800) 496-4319 or
Workers’ Compensation
Court Finds Appeal Timely,
Claims Remanded for
Determination of Death Benefits
NEW YORK –– A New York appeals court
has determined that a Workers’
Compensation Board Panel erred when
determining an asbestos claimant did not file
a timely appeal, finding instead that the
Panel overlooked an extension the plaintiff
was granted in which to file the appeal. Seitz
v. Jacobson & Company, No. 09759 (N.Y.
App. Ct., 3rd Dept.).
In a Dec. 30 opinion, the 3rd Department of
the New York Appellate Division reversed
the Panel’s dismissal of the claims, and
remanded for a determination of whether the
right to death benefits ceased when the
exposed plaintiff ’s surviving spouse died.
Claimant John Seitz argued that as a former
sheet metal worker he was exposed to
asbestos after which he developed metastatic
small cell anaplastic lung cancer caused by
asbestosis. Seitz died, prompting his wife to
file a workers’ compensation claim. Seitz’s
wife also died and a Worker’s Compensation
Law Judge closed the case. Counsel for the
Seitzs then requested that the case be
reopened on behalf of the decedent’s estate.
The case was reopened, but a Workers’
Compensation Law Judge determined that
the surviving spouse’s claim for death benefits ceased when she died. The Seitz estate
appealed the decision.
The Board’s Office of Appeals determined
that the application for review failed to specify grounds on which the appeal was made.
The Board then held the determination of
the appeal would be held in abeyance for 30
days until the estate could produce a supplemental application.
The Seitz estate filed a supplemental application, claiming that $50,000 in death benefits
were owed to the estate. A Board Panel then
found that the supplemental application was
untimely, and refused to consider the application, prompting the instant appeal.
In reversing the decision, the Appeals Court
found that the initial petition was filed in a
timely fashion and the supplemental application was filed within the 30-day parameter
set by the Board.
“The Board … established a time frame during which the estate’s supplemental application for review could permissibly be filed …
it was an abuse of discretion for a Board
panel to thereafter deny such application
upon the ground that it was untimely and
refused to consider the grounds for review
set forth therein namely,” the Appeals Court
stated. “Accordingly, the underlying decision
is reversed and this matter is remitted to the
Board for additional proceedings.”
The Appeals Court additionally noted that
the Board’s reliance on Matter of
Dellauniversita v. Tek Precision Co., in support of the argument that the estate’s claim
18
abated upon the death of the decedent’s surviving spouse, fails.
“Moreover, counsel for decedent’s estate has
cited a number of Board panel decisions in
support of the estate’s contention that the
underlying death benefit claim did not abate
upon the death of decedent’s surviving
spouse,” the Appeals Court said. “While the
carriers are correct that such decisions are
not binding upon this Court, the Board
panel’s apparent and unexplained departure
here from prior Board precedents provides
an alternative basis for reversal.”
Counsel for the Seitz estate is Frank Gulino
of Brecher, Fishman, Pasternae, Popish,
Heller, Rubin & Reiff in New York.
The defendants are represented by Patrick
M. Conroy of Stewart, Greenblatt, Manning
& Baez of Syosset, N.Y.
Call (800) 496-4319 or
Workers’ Compensation
Court Affirms Denial of Benefits
To Smoker Alleging Asbestos
Aggravated Lung Condition
LITTLE ROCK, Ark. –– An Arkansas Court
of Appeals has affirmed the denial of benefits
in a workers’ compensation asbestos claim,
finding that there was a lack of evidence
indicating that asbestos exposure aggravated
the claimant’s smoking related lung condition. Tutt v. International Paper Co., No. CA
04-584 (Ark. Ct. App.).
In a Dec. 8 decision, the Court of Appeals
agreed with a Workers’ Compensation
Commission that the majority of the testifying experts were unable to conclude that
COURTROOM NEWS
workplace irritants accelerated plaintiff John
Tutt’s injury by smoking.
Tutt filed a workers’ compensation claim
alleging that exposure to chemicals and
asbestos while working more than 30 years at
the International Paper Co. contributed to
his chronic obstructive pulmonary disease.
Tutt died in 1983, and his wife continued
his claim.
Pulmonologist James Adamson first opined
that while Tutt’s exposure to chemicals could
have been a contributing agent to his chronic
obstructive airway disease, smoking was by
far the most common cause of the disease,
according to the Court of Appeals.
However, a second expert, Christopher John,
M.D., opined that Tutt suffered from
asbestosis and that his exposure to multiple
chemicals aggravated his smoking-induced
COPD and emphysema. The Court of
Appeals noted that John’s opinion was then
challenged by another testifying expert, who
stated that John did not identify chemicals
that would cause or contribute to emphysema and at what dose these chemicals would
be detrimental to Tutt’s ailments.
An additional expert also challenged John’s
diagnosis of asbestosis, arguing that there
was no evidence of asbestos exposure and
that Tutt did not exhibit symptoms consistent with asbestos exposure.
“We note that the evidence showed that
Adamson was unable to conclude whether
Tutt’s employment with IP added to the cigarette risk as a cause of his lung disease,” the
Court of Appeals stated. “[An additional
expert] testified that he could not give an
opinion about the aggravating effects of
Tutt’s exposure to chemicals at work without
first determining the type of chemical, duration and exposure, and concentration of the
chemical…. Because the issue of aggravation
is a fact question, and the requirement is
that the Commission’s decision be based on
any medical evidence, we affirm. Further,
because our decision is based on the
Commission’s implicit determination of
credibility and the weight given to the physician’s testimony, we affirm under both the
clear and convincing and the preponderance
of the evidence standards.”
The Court of Appeals also rejected the plaintiff ’s argument that the admission of
Adamson’s testimony violates the Arkansas
Rules of Evidence, noting that such rules of
evidence do not apply in workers’ compensation proceedings. Even so, the Court of
Appeals opined that the plaintiff did not
comply with procedure in cross-examining
Adamson, and therefore was not entitled to
challenge the expert’s testimony.
Call (800) 496-4319 or
Based on the testimony, the Workers’
Compensation Commission denied Tutt’s
claim, prompting the instant appeal.
On appeal, Tutt argued that the Commission
erred in its decision because sufficient evidence existed indicating that Tutt’s occupational environment led to the aggravation
and acceleration of his injury.
The Court of Appeals disagreed, however,
finding that expert testimony did not conclusively indicate that Tutt’s condition was
aggravated by workplace exposure to asbestos
and other chemicals.
Evidence
Asbestos Plaintiff Fails to
Provide X-Rays Read by BReader, Claims Dismissed
AKRON, Ohio –– An Ohio Appellate Court
has upheld the dismissal of asbestosis claim
of a plaintiff who did not present medical
evidence interpreted by a B-reader. Wright v.
19
Leggett & Platt, et al., No. 04CA008466
(Ohio Ct. App., 9th Dist.).
In the Dec. 15 decision, the 9th District of
the Ohio Court of Appeals agreed with the
Workers’ Compensation Board finding that
the claimant did not satisfy an Ohio resolution requiring plaintiffs to provide X-rays
interpreted by a B-reader.
Plaintiff Denzil Wright claimed that during
his employment at Leggett & Platt Inc., he
was exposed to asbestos, which eventually led
to his development of asbestosis. Wright was
denied his workers’ compensation claim,
after a district hearing officer found that
there was insufficient evidence indicating a
causal connection between Wright’s condition and his employment.
In his decision, the officer also found that
Wright did not comply with Ohio’s
Industrial Commission Resolution 96-1-01,
which requires claimants to provide X-rays
interpreted by a B-reader. Wright only supplied X-rays, the Court of Appeals noted.
The Industrial Commission denied Wright’s
appeal. Wright then filed a notice of appeal
in the Ohio County Court for Lorain
County, the defendants moved to dismiss,
arguing that Wright had failed to exhaust his
administrative remedies. The trial court
agreed, prompting the instant appeal.
The Court of Appeals noted that “fulfilling
the requirements of Resolution 96-1-01 is a
condition precedent to a determination of
whether a claimant is entitled to participate
in the fund.”
Therefore, the Court of Appeals stated, since
Wright neglected to satisfy the requirements
of the resolution, a determination of whether
Wright is entitled to benefits is unnecessary.
“As such, the trial court was correct in its
finding that the order of the Industrial
Commission was not appealable because it
did not determine Appellant’s right to participate,” the Court of Appeals stated.
Wright also challenged the validity of
Resolution 96-1-01, arguing that it adds
COURTROOM NEWS
requirements that are not contained in the
normal rules of civil procedure. The Court
of Appeals disagreed, stating that Wright’s
argument lacked merit, and that while
administrative agencies cannot add substantive requirements, procedural requirements
are allowed.
“Resolution 96-1-01 dictates the specific
quantum of evidence necessary to bring the
matter before the Industrial Commission,”
the Court of Appeals stated. “Further, it does
not enact a new law, it merely administers a
law currently in existence. Accordingly, this
Court finds that the adoption of Resolution
96-1-01 was a valid exercise of the authority
granted to the Industrial Commission.”
The Court of Appeals also rejected Wright’s
contention that Resolution 96-1-01 is
invalid because it violates the Equal
Protection Clause of the Ohio Constitution.
In doing so, the Court of Appeals found that
the Resolution was not irrelevant to achieving the state’s purpose.
“The long period between initial contact
with asbestos and its apparent effect and the
difficulty in determining that the exposure is
the cause of the disease gives rise to the need
for an examination by a medical specialist,”
the Court of Appeals stated. “In light of this
difficulty and the sheer volume of asbestosis
claims, the Commission adopted Resolution
96-1-01… Given the above, this Court cannot say that the Industrial Commission
lacked a rational basis for distinguishing
asbestosis from other compensable diseases.”
Counsel for Wright is Anthony L. Ania of
Northfield, Ohio.
The defendants are represented by Lawrence
C. Davison and Patrick J. Krebs of Taft,
Stettinius & Hollister in Cleveland; and
Timothy McGrail, Assistant Attorney
General in Cleveland.
Call (800) 496-4319 or
Testimony
effectively dismissing the complaint against
Eastern.
Summary Judgment Reversed,
Court Claims Product
Identification Triable Issue
The Appellate Division reversed the ruling,
however, finding that while Eastern had met
its burden of establishing it sold no products
to the Syracuse job sites, the plaintiff had
demonstrated there are disputed facts warranting a trial.
ROCHESTER, N.Y. –– A New York appellate court has reversed an award of summary
judgment to an asbestos defendant, finding
that the plaintiff had raised sufficient evidence in opposing the defendant’s claims
that their product was not sold at the alleged
site of exposure. Root v. Eastern Refractories
Co., et al., No. 04-01412 (N.Y. Sup. Ct.,
App. Div., 4th Dept.).
In a Dec. 30 opinion, the 4th Department of
the New York Supreme Court Appellate
Division found that the parties had each presented sufficient evidence to further their
arguments about what products were present
during the alleged asbestos exposure, warranting a trial.
Plaintiff Paul Root asserted the underlying
claims on behalf of Edward Root, who
allegedly developed mesothelioma as a result
of exposure to the asbestos-containing product ERCO-Mat while employed at Syracuse
University. ERCO-Mat was distributed by
defendant Eastern Refractories Co. Inc.
Eastern moved for summary judgment, arguing that it did not supply any asbestos-containing product to Syracuse University during the times in which Edward Root was
employed. In support of summary judgment,
Eastern presented an affidavit of David
Feinzig, who claimed that Eastern did not
supply asbestos-containing materials at any
Syracuse job sites.
In opposition, Paul Root claimed that
Feinzig had testified in a prior case that there
was a transitional period in which he admitted that Eastern sold ERCO-Mat blankets to
Syracuse. Paul Root also presented testimony
from Edward Root indicating that the blankets contained asbestos. A Supreme Court
granted the motion for summary judgment,
20
“Decedent testified that he was exposed to
asbestos while working at Syracuse
University using ERCO-Mat blankets,” the
Appellate Court said. “That testimony is sufficient to raise a triable issue of fact.”
Counsel for the plaintiff is Alani Golanski of
Weitz & Luxenberg in Brooklyn, N.Y.
The defendant is represented by Timothy D.
Gallager of McMahon, Martine & Gallagher
in New York.
Call (800) 496-4319 or
Arbitration
Court Affirms Order Compelling
Arbitration between CCR and
Maryland Asbestos Plaintiffs
ANNAPOLIS, Md. –– The Maryland Court
of Appeals has affirmed an order compelling
arbitration in an asbestos settlement dispute,
rejecting the plaintiffs’ contention that a letter altering the settlement agreement precluded arbitration. Rourke v. Amchem
Products, et al., No. 24-C-02-001240/CN
(Md. Ct. App.).
In a Dec. 14 opinion, the Court of Appeals
additionally declined to adopt the doctrine
of offensive non-mutual collateral estoppel,
ruling that it is unfair to the defendants.
COURTROOM NEWS
In April 2000, two Maryland law firms
claiming to represent nearly 900 asbestos
plaintiffs entered into a settlement agreement
estimated at $10 million with the Center for
Claims Resolution. The Court of Appeals
noted that at the time of the settlement, the
CCR had 16 members.
In compliance with the settlement agreement, CCR anticipated that the law firm of
Ashcraft & Gerel would use the first installment to pay one-third of the plaintiffs in
full. However, Ashcraft & Gerel determined
that it would pay each plaintiff a portion of
the total amount instead of paying a percentage of the plaintiffs in full. Because this was
a violation of the settlement agreement,
CCR Chief Claims Officer Michael Rooney
agreed in an Oct. 31, 2000 letter that
Ashcraft & Gerel could use the installments
towards partial payments instead of full payments.
The letter also stipulated that “should the
CCR fail to timely make any or all of the
payments required by the Master Settlement
Agreement, then in that event each settling
plaintiff who has not received full payment
may pursue a remedy in contract against the
CCR members for any deficiency…. This
remedy in contract on the release will be the
sole legal remedy of each plaintiff who has
executed a release for the full consideration
of his settlement but fails to receive timely
payment in full.”
Upon receiving a subsequent installment,
Ashcraft & Gerel determined that the payment was deficient and filed a declaratory
action, arguing that the CCR members were
jointly and severally liable for all payments.
The CCR members responded by moving to
compel arbitration and dismiss the declaratory action. The plaintiffs opposed the motion,
arguing that in Rooney’s Oct. 31 letter, he
gave the plaintiffs a judicial remedy for
breach of contract for any deficiency.
The plaintiffs additionally argued that the
Virginia Supreme Court has addressed a similar dispute arising between the CCR and
Virginia asbestos claimants, in which the
court ruled that the dispute was not subject
to arbitration. Therefore, the plaintiffs
claimed, the doctrine of collateral estoppel
applied.
The trial court’s decision granting the
motion to compel arbitration was upheld by
the Maryland Court of Special Appeals,
prompting the appeal to Maryland’s high
court.
The Court of Appeals noted that the plaintiffs in the instant proceedings sought offensive non-mutual collateral estoppel, a doctrine the Court of Appeals has not embraced.
“This Court has gone so far as to recognize
defensive non-mutual collateral estoppel, at
least where the party sought to be bound by
the existing judgment had a full and fair
opportunity to litigate the issues in question,” the Court of Appeals stated. “We have
acknowledged, however, that ‘there are many
situations where application of the doctrine
of non-mutual collateral estoppel would be
manifestly unfair,’ and we have yet to formally embrace offensive non-mutual collateral
estoppel.”
The Court of Appeals opined that while
defensive collateral estoppel may give a
plaintiff cause to join all defendants, offensive collateral estoppel allows the plaintiff to
rely on a prior judgment, but not be bound
by that judgment.
“We hold that, in applying full faith and
credit to the Virginia judgment, a Maryland
court must treat the judgment precisely the
same as it would be treated in a Virginia
court, and that requires that we apply the
preclusion rules that would be applied in
Virginia,” the Court of Appeals said. “As the
parties agree that Virginia continues to
require mutuality as part of its collateral
estoppel law and would therefore not give
preclusive effect to its judgment in a second
action by different plaintiffs, and clearly
would not, and could not, give preclusive
effect to it against defendants who are not
parties, or in privity with parties, in the
Virginia action, the Circuit Court and the
21
Court of Special Appeals were correct in not
giving preclusive effect to it in this action.”
The Court of Appeals additionally ruled that
the claims were subject to arbitration, citing
an arbitration clause in the settlement agreement that stipulates arbitration is required
when any dispute arises during the execution
of the terms and conditions of the agreement.
“That provision is certainly broad enough to
include a dispute over whether non-defaulting members of CCR are liable for the
unpaid shares of defaulting members,” the
Court of Appeals stated.
The Court of Appeals also rejected the plaintiffs’ contention that the Rooney letter
supercedes the settlement agreement by stating that a remedy would by lawsuit or otherwise.
“Permitting ‘a remedy in contract’ does not
foreclose arbitration as the remedy,” the
Court of Appeals opined. “The construction
of the Rooney letter is favored not only by
the requirement that all provisions of a contract be read together harmoniously, so that
each can be given effect, but also by the ordinary mandate that, where an arbitration
agreement exists, ambiguities as to arbitrability be resolved in favor of arbitration.”
In a dissenting opinion, Chief Justice Robert
M. Bell stated that “while I am inclined to
believe, given the office of collateral estoppel
and the fact that these appellees have once
already litigated the identical issue, that the
record in this case presents at least a good
reason to apply the doctrine of offensive
non-mutual collateral estoppel… at the very
least, I would remand the case to the Court
of Special Appeals for its review, on the merits, unobscured by full faith and credit and
other such concepts, of the trial court’s
refusal to apply the doctrine.”
Call (800) 496-4319 or
22
P U B L I S H I N G
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Recent Verdict/Settlement Report (cont.) — additional information:
VERDICT REPORT
California
Court: Calif. Super. Ct.,
San Francisco Cty.
Case Name: Kruger, et al. v.
SeaRiver Maritime, et al.
Docket No.:CGC-03427234
Alleged Injury: Mesothelioma
Verdict: Defense
Plaintiffs’ Experts: Barry Horn, M.D.; Sam
Hammar, M.D.; Arnold Brody, M.D.,
William Longo, Ph.D.; Zachary Reynolds;
William Ewing, CIH; Robert Johnson
Defense Experts: Charles Cushing, Ph.D.;
Howard Spielman, CIH; David Weiner
Reported By HM: Dec, Vol. 5, p. 8
Court: Calif. Super.. Ct., Los Angeles Cty.
Case Name: Treggett, et al. v. Alpha Inc., et al
Docket No.:BC307058
Verdict: Plaintiff, $36 Million
Plaintiffs’ Experts: Arnold Brody, Ph.D.;
Barry Horn, M.D.; Sam Hammar, M.D.;
Eric Vallieres, M.D.; John Templin, CIH;
William Longo, Ph.D.; David Fractor,
Ph.D.; and Robert Neff, CPA.
Defense Experts:Andrew Churg, M.D.;
James Delaney; Donna Ringo, CIH; Carl
Mangold, CIH; William Hughson, M.D.;
and Robert Sawyer, M.D.
Reported By HM: Nov, Vol. 5, p. 8
Court: Calif. Super.. Ct., San Francisco Cty.
Case Name: Peterson v. John Crane
Docket No.:302742
Alleged Injury:Lung Cancer
Verdict: Defense
John Templin, CIH; Barry Ben-Zion, Ph.D.;
Barry Horn, M.D.; Richard Cohen, M.D.;
Allan Smith, M.D.
Defense Experts:Robert Morgan, M.D.;
Michael Matteson, Ph.D.., Gerald Meyers,
M.D.; Peter Barrett, M.D.; William Breall,
M.D.; John Maddox, M.D.
Reported By HM: Oct, Vol. 4, p. 6
Case Name:Escamilla v. American Standard,
Inc., et al.
Docket No.:303900
Alleged Injury:Lung Cancer
Verdict: Defense
James Dahlgen, M.D.; Phillip John Templin,
CIH
Defense Experts:Charles A. Weaver, Ph.D.;
William Hughson, M.D.; Allan Feingold,
M.D.; William Dyson, Ph.D.; Paul Cherry
Reported By HM: June, Vol. 4, p. 7
Case Name: La Chapelle v. American
Standard, Inc., et al.
Docket No.: 303899
Alleged Injury:Mesothelioma
Verdict: Plaintiff, $1 million
Plaintiffs’ Experts: Barry Horn, M.D.;
Arnold Brody, M.D.; Robert Cameron,
M.D.; Phillip John Templin, CIH
Defense Experts:William Dyson, Ph.D.;
William Hughson, M.D., Ph.D.; Charles
Weaver, Ph.D.
Reported By HM: June.., Vol. 4, p. 8
Case Name: Ryan v. Asbestos Corporation
Limited
Docket No.: 419182
Verdict: Defense
Plaintiffs’ Experts: John Kemplin, Ph.D.,
Richard Cohen, mD., James Robb, M.D.,
Allan H. Smith, Ph.D., Charles Ay
Defense Experts: Khalil Sheibani, M.D.,
Edward Cadman, M.D., Bernard Gee,
M.D., Kathy Jones, CIH
Reported By HM: Apr.., Vol. 4, p. 8
Case Name: Wise v. Kelly-Moore Paint Co., et
al.
Docket No.:310164
Verdict: Defense
Plaintiffs’ Experts: Donald Breyer, M.D.,
Allan H. Smith, Ph.D., Barry Ben-Zion,
Ph.D., Gerald Abraham, M.D., Kenneth
Cohel, CIH, Barry Castleman, Ph.D.
Defense Experts: William G. Hughson,
M.D., William Dyson, Ph.D., Thomas C.
Thomas, Ph.D.
Reported By HM: Apr.., Vol. 4, p. 9
24
Case Name: Hoeffer v. Rockwell Automation,
Inc..
Docket No.: 413073
Plaintiffs’ Experts: Samuel Hammar, M.D.;
Allan Smith, Ph.D.; Frank Ganzhorn, M.D.;
Richard Cohen, M.D.; William Ewing,
CIH; Barry Ben-Zion, Ph.D.
Defense Experts: William Hughson, M.D.;
Robert Morgan, Ph.D.; Sheldon Rabinovitz,
CIH.
Reported By HM: Dec.., Vol. 3, p. 6
Court: Calif. Super. Ct., Alameda Cty.
Case Name: Soule v. Garlock, Inc., et al.
Docket No.: 2002-045881
Verdict: Plaintiff, $2.5 Million
Plaintiffs’ Experts: William Salyer, M.D.;
Barry Horn, M.D.; Allan Smith, M.D.; John
Templin, CIH; Robert Johnson, Ph. D.;
Charles Ay.
Defense Experts: James DeLaney; Victor
Roggli, M.D.; Douglas Fowler, CIH.
Reported By HM: Oct., Vol. 3, p. 6
Court: Calif. Super. Ct., San Francisco Cty.
Case Name:Andrews v. Asbestos Defendants
Docket No.: 313263
Alleged Injury: Kidney Cancer
Verdict: Defense
Plaintiffs’ Experts: Arnold R. Brody, Ph.D.;
Allan H. Smith, M.D., Ph.D.; Charles Ay;
Donald Breyer, M.D.; Barry Ben-Zion;
Richard Cohen, M.D., Ph.D
Defense Experts: William Hughson, M.D.
Reported By HM: Aug., Vol. 3, p. 9
Case Name: Jones v. Asbestos Defendants
Docket No.: 407782
Alleged Injury: Lung Cancer
Allan Smith, M.D., Ph.D.; Barry Horn,
M.D.; Richard Cohen, M.D., Ph.D.; John
Templin, CIH; Barry Ben-Zion
Defense Experts: James Crapo, M.D.;
Michael Graham, M.D.; Douglas Fowler,
CIH
VERDICT REPORT
Case Name:Medley v. American Laundry
Machinery, Inc.
Docket No.: 13920
Alleged Injury: Asbestosis
Plaintiffs’ Experts: Alvin Schonfeld, D.O.;
Donald Breyer, M.D.; Richard Cohen,
M.D.; Alan H. Smith, M.D.
Defense Experts: David Godwin, M.D.
Case Name: Lunsford v. Garlock, Inc.
Docket No.: 323071
Verdict: Defense
Plaintiffs’ Experts: Barry Horn, M.D.;
William Smith, M.D., Ph.D.; Richard
Cohen, M.D., FACPM, MPH; Barry
Castleman, Ph.D.; Ken Cohen, CIH, Ph.D.;
Charles Ay
Defense Experts: Carl Mangold, CIH;
Donna Ringo, CIH, MPH; Robert Sawyer,
M.D., FACPM
Reported By HM: March, Vol. 3, p. 11
Case Name: Sunderman v. Aqua-Chem, Inc.
Docket No.: 318031
Verdict: Plaintiff, $150,000
Plaintiffs’ Experts: Kenneth Cohen, CIH;
Charles Ay; Allan H. Smith, Ph.D.; Barry
Ben-Zion, Ph.D.; James Srebo, M.D.
Defense Experts: Gerald B. Levine, M.D.;
Norman Moscow, M.D.; William Breall,
M.D.; Robert Sawyer, M.D.; James
Rasmuson, Ph.D., CIH
Reported By HM: Dec., Vol. 3, p. 9
Case Name: Gunderson v. A.W. Chesterton
Co., et al..
Docket No.: 406207
Verdict: Plaintiff, $11.5 million
Plaintiffs’ Experts: Richard Hatfield; Barry
R. Horn, M.D.; Barry Castleman, M.D.;
Barry Ben-Zion, Ph.D.; Kenneth Cohen,
Ph.D., CIH; Allen Smith, M.D., Ph.D.
Howard Spielman, CIH
Case Name: Trinchese v. A.P. Green
Industries, Inc.
Docket No.: 400787
Plaintiffs’ Experts: Barry Castleman, Ph.D.;
Samuel Hammar, M.D.; Barry R. Horn,
M.D.; Barry Ben-Zion; Arnold Brody, M.D.;
Kenneth Cohen, CIH, Ph.D.; Allan Smith,
M.D., Ph.D.
Defense Experts: Lawrence Birkner, CIH;
John Craighead, M.D.
Court: Calif. Super. Ct., Alameda Cty.
Case Name: Peterson v. Hill Brothers
Chemical Co.
Docket No.: 2001-031817
Verdict: Plaintiff, $20 million; settlement
before punitives
Samuel Hammar, M.D.; Robert Johnson,
Ph.D.
Defense Experts: James Rasmusson, Ph.D.;
John Craighead, M.D., William Hughson,
M.D.
Reported By HM: July, Vol. 2, p. 10
Case Name: Todak v. Asbestos Defendants
Docket No.: 320621
Plaintiffs’ Experts: Allan Smith, Ph.D.,
Kenneth Cohen, CIH, Ph.D.; Charles Ay;
Samuel Hammar, M.D.; Barry Horn, M.D.;
Arnold Brody, Ph.D.; Richard Cohen, M.D.
Defense Experts: John Morykon, Robert
Sawyer, M.D.; Capt. Richard Silloway;
Lawrence Birkner; Horton Hinshaw, M.D.
Reported By HM: April, Vol. 2, p. 10
Case Name: Dressler v. Asbestos Defendants.
Docket No.: 308950
Alleged Injury: Non-Hodgkin’s Lymphoma
Verdict: Defense (Bench Trial)
25
Plaintiffs’ Experts: Elliot Kagan, M.D.;
Carolyn Ray, M.D.; Barry Ben-Zion, Ph.D.
Defense Experts: Gerald Meyers, M.D.;
Kahlil Shebani, M.D.; Eric Gershwin, M.D.;
William Hughson, M.D.; Jerald Udinsky,
Ph.D.
Case Name: Berning v. A.P. Green Industries,
Inc.
Docket No.: 319733
Plaintiffs’ Experts: Richard Hatfield; Barry
R. Horn, M.D.; Richard Cohen, M.D.;
Barry Ben-Zion, Ph.D.
Sheldon Rabinovitz, Ph.D.
Reported By HM: Feb., Vol. 2, p. 8
Case Name: Taylor v. John Crane, Inc..
Docket No.: 320278
Plaintiffs’ Experts: William Ewing C.I.H.;
Samuel Hammar, M.D.; Barry Horn, M.D.;
Robert Johnson; Richard Lemen, Ph.D.;
William Longo, Ph.D.; James Millette.
Defense Experts: Michael Mattison, Ph.D.;
Victor Roggli, M.D.; Frederick Toca, Ph.D.
Reported By HM: Feb., Vol. 2, p. 8
Case Name: Laguna v. Calaveras Asbestos,
Ltd.
Docket No.: 318078
Plaintiffs’ Experts: Allan Smith, Ph.D.;
Samuel Hammar, M.D.; Robert Fallat,
M.D.; Kenneth Cohen; Barry Ben-Zion,
Ph.D.
Defense Experts: Leroy Balzer, Ph.D
Reported By HM: Jan., Vol. 2, p. 9
Court: Calif. Super. Ct., Los Angeles Cty.
Case Name: Lane v. Flexitallic, Inc.
Docket No.: BC22481
Plaintiffs’ Experts: James R. Millette, Ph.D.;
VERDICT REPORT
Robert W. Johnson; Arnold R. Brody, M.D.,
Ph.D.
Defense Experts: John Spencer; David
Egilman, M.D.; William G. Hughson, M.D.
Reported By HM: Nov., Vol. 2, p. 9
Delaware
Court: Del. Super. Ct., New
Castle Cty.
Case Name: Bargelski v. Garlock
Inc., et al.; Kolb v. Garlock Inc., et al.;
Jernigan v. Garlock Inc., et al.,
Docket No.: C.A. No. 00C-06-260; C.A..
No. 00C-06-210; C.A. No. 00C-04-106
Verdict: Defense
Christine Oliver, M.D., Arnold Brody,
Ph.D.; Richard Lemen, Ph.D.; Samuel
Hammar, M.D.; William Longo, Ph.D.
Defense Experts: John Spencer, certified
industrial hygienist; Stanley Field, M.D.;
James Heffron; Bruce Ketcham.
Florida
Court:
Fla.Cir. Ct.,
Palm Beach Cty.
Case Name: McConnell v.
American Optical Corp., et al.
Docket No.: 502003CA008264
Verdict: Defense
Plaintiffs’ Experts: Robert Mezey, M.D.
Defense Experts: Lee Sider, M.D., William
Dyson, Ph.D.
Court: Fla.Cir. Ct., Miami-Dade Cty.
Case Name: Fernandez v. ACandS, Inc., et al.
Docket No.: 02-21136
Verdict: Defense
Plaintiffs’ Experts: Robert Mezey, M.D.;
Souglas Pohl, M.D.
Defense Experts: Allan Feingold, M.D.;
James Crapo, M.D.; Thomas Howard.
Court: Fla. Cir. Ct., Palm Beach Cty.
Case Name: Kavanaugh v. Dow Chemical
Corp.
Docket No.: 03-1065AD
Plaintiffs’ Experts: Douglas Pohl, M.D.
Defense Experts: Allen Gibbs, M.D.;
William Dyson, Ph.D.
Reported By HM: May, Vol. 3, p. 8
Court: Fla. Cir. Ct., Broward Cty.
Case Name: Lagueuz v. Union Carbide Corp.
Plaintiffs’ Experts: Alvin Shoenfeld, M.D.
Defense Experts: Allen Feingold, M.D.; Lee
Sider, M.D.; Thomas Howard, Ph.D.
Georgia
Court: Ga. Super. Ct.,
Fulton Cty.
Case Name: Flowers v.
ACandS, Inc.
Docket No.:
00VS014834
Verdict: Defense
Plaintiffs’ Experts: Steven Dikman, M.D.;
Arnold Brody, Ph.D.; Richard Lemen, M.D.,
Ph.D.; William E. Longo, Ph.D.
Defense Experts: Victor Roggli, M.D.; Billy
Ray Vaughn; Jack Walsh
Illinois
Verdict: Defense
Plaintiffs’ Experts: Samuel Hammer, M.D.,
Arnold Brody, Ph.D., Michael Ellenbecker,
CIH
Defense Experts: none
Reported By HM: Sept., Vol. 4, p. 8
Court: Ill Cir., Cook Cty.
Case Name: DeJohn v. Commonwealth
Edison, et al.
Docket No.: 98L13222
Verdict: Defense
Plaintiffs’ Experts: Victor Roggli, M.D.,
William Ewing, C.I.H., Henry Anderson,
M.D.
Defense Experts: Thomas Howard, M.D.,
Howard Ayer, C.I.H.
Reported by HM: July., Vol. 4, p. 8
Court: Ill. Cir., Vermillion Cty.
Case Name: Nolan v. Weil-McLain
Docket No.: 01-L117
Plaintiffs’ Experts: Dr. Eugene mark, Dr.
Richard Lemen, William Ewing
Defense Experts: Dr. Frederick Boelter, Dr.
Robert Sawyer
Reported by HM: Feb., Vol. 4, p. 8
Court: Ill. Cir. Ct., Madison Cty.
Case Name: Whittington v. John Crane Corp.,
et al.
Docket No.: n/a
Verdict: Plaintiff, $250 million; Defense,
John Crane
Plaintiffs’ Experts: David Egilman, M.D.,
Arthur Frank, M.D., Myles Yanta, M.D.
Defense Experts: Allan Feingold, M.D.,
Indiana
Court: Ill. Cir. Ct., Crawford
Cty.
Case Name: Yeager v. Marathon
Oil Co., et al.
Docket No.: 2002-L-17
26
Court: Ind. Super. Ct.,
Marion Cty.
Case Name: Bowers v.
AC&S, Inc., et al.
VERDICT REPORT
Docket No.: 49D02-9601-MI-0001-711
Plaintiffs’ Experts: Michael Ellenbecker,
Ph.D., CIH; Arnold Brody, Ph.D.
Defense Experts: Victor Roggli, M.D.
Louisiana
Court: La. Dist. Ct.,
Orleans Parish
Case Name: Brunell v.
A.L. Burbank Co.
Docket No.: 97-4198
Plaintiffs’ Experts: Charles Ay; Richard
Hatfield; Richard Lemen, Ph.D.; Victor
Roggli, M.D.
Defense Experts: Charles Cushing, Ph.D.
Maryland
Court: Md. Cir.
Ct., Baltimore Cty.
Case Name: Saville v. Scapa, Inc.
Docket No.: n/a
Verdict: Plaintiff; $3.5 Million
Plaintiffs Experts: Gerald Abraham, M.D.;
Richard Lemen, M.D., Ph.D.; James
Millette, Ph.D.; Steven Zimmet, M.D.
Defense Experts: Victor Roggli, M.D.;
David Mizel
Reported By HM: Oct Vol. 3, p. 6
Court: D. Md.
Case Name: Sachs, et al. v. Lorillard Tobacco
Co., et al.
Docket No.: 01-0152
Verdict: Defense
Plaintiffs Experts: Arnold Brody, Ph.D.;
John Dement, Ph.D.; Samuel Hammar,
M.D.; Jerrold Abraham, M.D.
Defense Experts: Melvin First, ScD, CIH;
Allen Gibbs, M.D.; Alexander Spears
Reported By HM: May Vol. 3, p. 8
Court: Md.Cir. Ct., Baltimore Cty.
Case Name: Hunter v. ACandS, Inc., et al.
Docket No.: n/a
Verdict: Plaintiffs, $6 million
Plaintiffs Experts: Samuel Hammar, M.D.,
Andrew Ghio, M.D., Arnold Brody, M.D.
Defense Experts: None
Court: Md.Cir. Ct., Baltimore Cty.
Case Name: Wilson/Perky v. AC&S
Docket No.: 24X00000182/91364546
Verdict: Plaintiffs, $5.5 million
Plaintiffs Experts: Arnold Brody, M.D.,
Ph.D.; Richard Lemen, M.D., Ph.D.;
Richard Hatfield; James Millette, Ph.D.;
Rudiger Breitnecker, M.D.
Defense Experts: Thomas Howard, M.D.;
Henry Buccigross; Frederick Toca, Ph.D.;
Michael Mattison, Ph.D.; Victor Roggli,
M.D.; Stanley Fiel, M.D.; John Spencer,
CIH
Minnesota
Court: Minn. Dist. Ct.,
Hennepin Cty.
Case Name: Gartner v.
API, Inc., et al.
Docket No.: PI 02-19673
Barry Castleman,Ph.D.; Richard Hatfield;
Arnold Brody, Ph.D.
Defense Experts: Jack Peterson, M.D.; Ivan
Russel; Alexander B. Levitov, M.D.
Court: Minn. Dist. Ct., Ramsey Cty.
Case Name: Gutzwiller v. Briggs & Stratton
Corp., et al.
Docket No.: CI-99-1802
27
Plaintiffs’ Experts: Steven Dikman, M.D.;
Edwin Holstein, M.D.
Defense Experts: John E. Reiter, CIH
Court: Minn. Dist. Ct., Ramsey Cty.
Case Name: Akin v. A.P.I. Inc.
Docket No.: 19-C7-00-9467
Edwin Holstein, M.D.; John Dement,
Ph.D.; Samuel Hammar, M.D.
Defense Experts: n/a
Mississippi
Court: Miss. Cir. Ct., Holmes
Cty.
Case Name: Johnson v.
ACandS, et al.
Docket No.: CV2000-181
Alleged Injury: Pleural disease/asbestosis
Plaintiffs’ Experts: David Egilman, M.D.;
Glenda Glover, Ph.D.; Henry Glendmeyer,
Ph.D.; Obie McNair, M.D.
Defense Experts: Robert N. Jones, M.D.;
Calvin Ramsey, M.D.; Alan Johnston;
Charles Blake; Ewing Cook, M.D.; Robert
Fraser, M.D.
Court: Miss. Cir. Ct., Jackson Cty.
Case Name: Scordino v. Wheeler Protective, et
al.
Docket No.: 89-5139
Verdict: Hung Jury
Plaintiffs’ Experts: n/a
Missouri
Court: Mo. Cir. Ct.,
St. Louis Cty.
Case Name: Ward v.
Allied Signal, et al.
VERDICT REPORT
Docket No.: 022-01404
Verdict: Defense
Plaintiffs’ Experts: Arthur Frank, M.D.;
Thomas Hyers, M.D.; Carroll Scroggins,
M.D.
Defense Experts: John Ritter, M.D.
Court: Mo. Cir. Ct., St. Louis Cty.
Case Name: Foster v. A.P. Green Industries,
Inc., et al.
Plaintiffs’ Experts: Edwin Holstein, M.D.,
Keith Naunheim, M.D., Patrick L. Gomez,
M.D.
Defense Experts: James Rasmusson, Ph.D.,
New York
Court: N.Y. Sup. Ct.,
Niagara Cty.
Case Name: Reynolds,
et al. v. Amchem
Products Inc., et al.
Docket No.: 117820
Verdict: Plaintiff; $3.75 Million
Plaintiffs’ Experts: Jerrold L. Abraham,
M.D.; Mark J. Utell, M.D.; Arthur Frank,
M.D., Ph.D.; and Richard L. Hatfield
Defense Experts: John Spencer, CIH, and
Stanley Fiel, M.D.
Court: N.Y. Sup. Ct., New York Cty.
Case Name: Gadaleta, et al. v. ACandS, et al
Docket No.: 110739/02
Verdict: Defense
Louis Kyriakoudes; and Stephen Markowitz,
M.D.
Defense Experts: Melvin First, Sc.D., CIH;
Carl Fuhrman, M.D.; and Dr. Alexander
Spears.
Case Name: Mayer v. A.O. Smith, et al.;
Marshall v. ACandS, Inc., et al.
Docket No.: 03/106231; 02/119369
Plaintiffs’ Experts: Jacqueline Moline, M.D;
Steven Markowitz, M.D.; Barry Castleman,
M.D.
Defense Experts: Michael Matteson, Ph.D.;
Victor Roggli, M.D., Frederick Toca, Ph.D.;
Paul Steward
Case Name: O’Reilly v. Robert A. Keasbey Co.
Docket No.: 103255/02
Verdict: Defense
Plaintiffs’ Experts: Elaine Panitz, M.D.;
David Egilman, M.D.; Jacqueline Moline,
M.D.
Defense Experts: Morton Corn, Ph.D., CSP
Case Name: Tucker v. AC&S, Inc., et al.
Docket No.: 105031/02, 120146/01 and
103082/02
Alleged Injury: Mesothelioma, Lung Cancer
Verdict: Plaintiffs $6 million/Defense
Plaintiffs’ Experts: Jacqueline Moline, M.D.;
Steven Markowitz, M.D.; Barry Castleman,
M.D.; William Longo, Ph.D.; Lori Todd,
Ph.D.
Defense Experts: Leroy Balzar, Ph.D.;
Thomas Eagar, M.D.; Allan Feingold, M.D.;
Michael Matteson, Ph.D.; Henry Buccigross;
Victor Roggli, M.D.
Case Name: Croteau v. ACandS, Inc., et al.
Docket No.: 118793/2001
Plaintiffs’ Experts: David Egilman, M.D.,
Jacqueline Moline, M.D.
Court: N.Y. Sup. Ct., Niagara Cty.
Case Name: Adamec v. Buffalo Insulation, et
al.
28
Docket No.: 105901
Plaintiffs’ Experts: Gerald Abraham, M.D.;
Mark Utell, M.D.; Mark Zaporoski; David
Michaels, Ph.D.; Richard Hatfield
Defense Experts: Allan Feingold, M.D.
Case Name: Matteson v. ACandS Inc., et al.
Docket No.: 1052402001
Alleged Injury: Mesothelioma, Lung Cancer
Verdict: 2 Plaintiff, $19.5 million; one
defense (lung cancer)
Plaintiffs’ Experts: Jacqueline Moline, M.D.;
Richard Horan; Albert Miller, M.D.; Steven
Dickman, M.D., James Strauchen, M.D.;
Barry Castleman, Ph.D.
Defense Experts: John Craighead, Ph.D.;
William Hughson, M.D.; Vitorio Argento,
M.D.; Victor Roggli, M.D.; Michael
Matteson, Ph.D.; Henry Buccigross.
Ohio
Court: Ohio Comm. Pls.,
Cuyahoga Cty.
Case Name: Blandford v.
Garlock, Inc.
Docket No.: 437948
Plaintiffs’ Experts: Richard Lemen, Ph.D.;
Eugene Mark, M.D.; William Longo, Ph.D.
Defense Experts: Larry Liukonen, CIH,
Robert Sawyer, M.D.
Reported By HM: Dec.., Vol. 3, p. 6
Court: Ohio Comm. Pls., Cuyahoga Cty.
Case Name: Jarvis, et al. v. Consolidated Rail
Corp.
Docket No.: 417083, 417084, 413085
Alleged Injury: Asbestosis/Silicosis
Verdict: Defense
Plaintiffs’ Experts: Ray Harron, M.D.; L.C.
Rao, M.D.; Paul Venizelos, M.D.; William
Longo, Ph.D.
Defense Experts: Peter Barrett, M.D.;
Gregory Fino, M.D.; David Rosenberg,
M.D.
VERDICT REPORT
Reported By HM: July., Vol. 3, p. 8
Oregon
Court: Ore. Cir.
Ct., Multnomah
Cty.
Case Name: Nagl v. Aeronica,
Inc., et al.
Docket No.: 02-04-04227
Plaintiffs’ Experts: Richard Cohen, Ph.D.,
Kenneth Cohen, C.I.H., Carl Andrew
Brodkin, M.D., M.P.H., Arnold Brody,
Ph.D., Bob Male, Ph.D.
Defense Experts: Stephen Davis, Ph.D.,
Drew Van Orden, Gustavo Delgado, Ph.D.
Court: Ore. Cir. Ct., Multnomah Cty.
Case Name: Emrick v. AC&S, Inc., et al.
Docket No.: 0002-02019
Verdict: Defense
Kenneth Cohen; Richard Hatfield; William
Longo, Ph.D.; James Milette, Ph.D.; Samuel
Hammar, M.D.; Allan Smith.
Defense Experts: James Crapo, M.D.;
Victorrio Argento, Ph.D.; John Craighead,
M.D.
Reported By HM: Jan., Vol. 1, p. 11
Pennsylvania
Court: Pa. Comm.
Pls., Philadelphia Cty.
Case Name: Yencho v.
Airco, et al.
Docket No.: n/a
Plaintiffs’ Experts: Paul Epstein, M.D
Defense Experts: William G. Hughson,
M.D.
Reported by HM: May.,Vol. 4, p.9
Court: Pa. Comm. Pls., Philadelphia Cty.
Case Name: Amento v. Certainteed, et al.
Docket No.: 030400681
Plaintiffs’ Experts: Daniel Sterman, M.D.,
Leslie Litsky, M.D., Anna Tobia, Ph.D.
Reported by HM: Feb.,Vol. 4, p.10
Court: Pa. Comm. Pls. Philadelphia Cty.
Case name: Stackhouse v. AC&S, et al.; Joyce
v. John Crane Inc.
Docket No: Oct. Term 2001 3808; Dec.
Term 2001 0985
Alleged Injury: Lung Cancer, Asbestosis
Verdict: Defendants
Plaintiffs’ Experts: Dr. Stanley Altschuler,
Dr. Irwin Stoloff
Defense Experts: Dr. Alan Pope, Dr.
Michael Warhol.
Reported by HM; Feb., Vol. 4 No. 4, p. 10
Case Name: Jackson v. Bell Asbestos Mines, et
al.
Docket No.: 0007-04475
Alleged Injury: Esphageal Cancer
Plaintiffs’ Experts: Erwin Stoloff, M.D.
Defense Experts: Paul Epstein, M.D.
Case Name: Rabold v. ACandS, et al.
Docket No.: Dec. 2001-3141
Plaintiffs’ Experts: Daniel DuPont, M.D.
Defense Experts: Bruce Case, M.D.; Allen
Gibbs, M.D.; Dittorio Argento, Ph.D.
Reported By HM: Nov.., Vol. 3, p. 8
Case Name: Guila Andrews, executrix of the
estate of Luke Andrews v. ACandS, et al. and
Paula Box, executrix of the estate of Larry Box
v. ACandS, et al.
Docket No.: July 2001-482 and August
2001-3477
Verdict: Phase I: Plaintiff, $6.6 Million and
& $5.5 Million
29
Case Name: Eck v. Congoleum Corp.
Docket No.: 9912-2841
Case Name: Marsilio v. Congoleum Corp.
Docket No.: 0012-3392
Case Name: Lonasco v. A-Best Products Co.
Docket No.: 1424 Sept. Term, 1991
Verdict: Phase I: $1,034,000; Phase II:
Defense
Plaintiffs’ Experts: Stanley Fiel, M.D.;
Donna Ringo, CIH
Defense Experts: Paul Epstein, M.D.
Reported By HM: Oct.., Vol. 2, p. 11
Case Name: Stutski v. Asbestos Corporation,
Ltd.
Docket No.: PCCP Feb. Term 2001-2700
Verdict: Phase I: $175,000; Phase II:
Defense
Plaintiffs’ Experts: Yasunosuke Suzuki,
M.D.
Defense Experts: Bruce Case, M.D.
Reported By HM: Oct.., Vol. 2, p. 10
Texas
Court: Texas 23rd Dist.
Ct., Brazoria Cty.).
Case Name: Kelly-Moore
Paint Co. v. Dow Chemical Co.,
et al.
VERDICT REPORT
Docket No.: No. 19785
Alleged Injury: Fraud
Verdict: Defense
Plaintiffs’ Experts: David Egilman, M.D.;
and Donald R. House, Ph.D.
Defense Experts: James Crapo, M.D.; Allan
Feingold, M.D.; Alan Gibbs, M.D. of
Cardiff, Wales UK; Theodore R. Marmor;
Dr. Fred Dunbar; and Thomas Howard,
M.D.
Court: Texas Dist. Ct., Cass Cty.
Case Name: Schiller v. Garlock Inc
Docket No.: No. 2-C-220
Plaintiffs’ Experts: Arnold Brody, Ph.D.,
Richard Lemen, M.D., Ph.D., William
Longo, Ph.D., Samuel Hammar, M.D.
Defense Experts: Frederick Boelter, CIH,
Ph.D., Allan Feingold, M.D. Larry
Liukonen, CIH
Reported By HM: Oct., Vol. 4, p. 6
Court: Texas Ct. at Law #5, Dallas Cty.
Case Name: Hicks, et al. v. Chrysler, et al.
Docket No.: 02-02236-E
Plaintiffs’ Experts: John C. Maddox, M.D.,
Frank Parker, CIH,
Defense Experts: Dennis Paustenbach,
Ph.D., M. Jane Teta, Ph.D.,
Reported By HM: Sept., Vol. 4, p. 8
Court: Texas Ct. at Law #2, Dallas Cty.
Case Name: Lacey v. Bondex International
Inc., et al.
Verdict: Defense
John C. Maddox, M.D.
Defense Experts: Alan Feingold, M.D.
Reported By HM: July Vol. 4, p.9
Court: Texas Dist. Ct., Brazoria Cty.
Case Name: Miller v. Ford Motor Co.
Docket No.: 15077
Jacques Legier, M.D.; Jerry Lauderdale, CIH
Defense Experts: Del Malzahn, M.S.;
Charles Yarborough, M.D., M.P.H.
Reported By HM: June Vol. 4, p. 7
Court: Texas Dist. Ct., Dallas Cty.
Case Name: Tave v. Air Liquide America
Corp., et al.
Docket No.: CC-00-10906
Alleged Injury: Silicosis/Asbestosis
Verdict: Defense
Plaintiffs’ Experts: Vernon Rose, Ph.D.;
Robert Springer, M.D.
Defense Experts: Gail Stockman, M.D.;
Robert M. Ross, M.D.; Alan Johnston, CIH;
Dennis J. Seal, Ph.D., P.E.
Reported By HM: June Vol. 4, p. 7
Court: Texas Dist. Ct., Galveston Cty.
Case Name: Altimore v. ExxonMobile, et al.
Docket No.: 03-CV-0588
Richard Lemen, Ph.D.; Jay Segarra, M.D.
Defense Experts: Gerhard Raabe, D.Ph.;
Neil Weaver, M.D.; James Hammond, Ph.D;
Bruce Larson.
Court: Texas Dist. Ct., El Paso Cty.
Case Name: Gilcrease v. Garlock, Inc., et al.
Docket No.: 2001-3623
Verdict: Plaintiff, $3.5
John Maddox, M.D.; Susan Raterman, CIH.
Defense Experts: Fred Boelter, CIH; Larry
Liukonen, CIH; Alan Feingold, M.D.
Court: Texas Dist. Ct., Tarrant Cty.
Case Name: Verret v. American Biltrite, et al.
Docket No.: 17-2000000-03, 48-200001-03
Verdict: Defense
Plaintiffs’ Experts: William Longo, Ph.D,
Edwin Holstein, M.D.
Defense Experts: James Crapo, M.D.,
Reported By HM: Apr. Vol. 4, p. 8
Court: Texas Dist. Ct., Nolan Cty.
Case Name: Dori v. Bondex International Inc.
30
Docket No.: 18422
Verdict: Defense
Barry Castleman, Ph.D., Douglas Pohl,
Ph.D., M.D.
Defense Experts: Allan Feingold, M.D.
Court: Texas Dist. Ct., Dallas Cty..
Case Name: Prather v. Borg-Warner Corp.
Docket No.: 99-05547-E
Plaintiffs’ Experts: Rebecca Trailor, M.D.,
Barry Castleman, Ph.D., Gerald Abraham,
M.D.
Defense Experts: John Craighead, m.D.,
Gail Stockman, M.D., William Krebs, Ph.D.
Court: Texas Dist. Ct., Brazoria Cty. 23rd
Dist.
Case Name: Stephens v. Ametek, Inc., et al.
Docket No.: 22045-1-BH02
Plaintiffs’ Experts: Jerry Lauderdale, CIH,
Ph.D., Samuel Hammar, M.D., Barry
Castleman, Ph.D., Alice Boylan, M.D.
Reported By HM: Mar. Vol. 4, p. 8
Court: Texas Dist. Ct., El Paso Cty.
Case Name: Ytuarte v. Quigley Co.
Docket No.: 2003-0573
Plaintiffs’ Experts: Richard Lemen, M.D.,
Ph.D., Hector Battifora, M.D., Eugene
Mark, M.D.
Reported By HM: Mar. Vol. 4, p. 8
Case Name: Keefe v. American Standard, Inc.
et al.
Docket No.: 96-195140-02
Verdict: Defendants
Edwin Holstein, M.D. and Eugene Mark,
M.D.
VERDICT REPORT
Reported by HM: Feb. Vol. 4 No. 4, p.9
Court: Texas Dist. Ct. Dallas Cty., 113th
Dist.
Case Name: Davis v. Garlock Sealing
Technologies
Docket No.: 2002-28497
Verdict: Defendant
Plaintiffs’ Experts: Gary Friedman, M.D.,
George Delclos, M.D., Arnold Brody, Ph.D.,
William Ewing, CIH.
Defense Experts: Allan Feingold, M.D., Dr.
Frederick Boelter, Carl Mangold, Larry
Liukonen.
Reported by HM: Feb., Vol. 4 No. 4, p.9
Court: Texas Dist. Ct., Brazoria Cty., 239th
Dist.
Case Name: Lonas v. Fluor Corp.
Docket No.: 17656-JG01
Plaintiffs’ Experts: William Longo, Ph.D.;
Richard Lemen, M.D., Ph.D.; Eugene Mark,
M.D.
Case Name: Clancy v. Kelly Moore Paint Co.
Docket No.: 67-187248-01
Alleged Injury: Lung/Colon Cancer
Verdict: Defense
Plaintiffs’ Experts: Mark Colella, M.D.
Defense Experts: John Craighead, M.D.;
Allan Feingold, M.D.
Court: Texas Dist. Ct., Harris Cty.
Case Name: Burnett v. AlliedSignal, et al.
Docket No.: 2001-36408
Plaintiffs’ Experts: Gary K. Friedman,
M.D.; David S. Egilman, M.D.; Samuel
Hammar, M.D.
Defense Experts: J. LeRoy Balzer, M.D.;
Michael J. Warhol; Luan Tuong, M.D.
Court: Texas Dist. Ct., Montgomery Cty.
Case Name: Roy v. Able Supply Company
Docket No.: 00-01-06613
Verdict: Defense
Plaintiffs’ Experts: Mark Collela, M.D.,
Arnold Brody, Ph.D.; Jerry Lauderdale, CIH
Defense Experts: Peter Barrett, M.D.; James
Crapo, M.D.; J. Leroy Balzer, Ph.D.
Court: Texas Cty. Ct., No. 2, Dallas Cty.
Case Name: Freeman v. Quigley Corp, et al.
Docket No.: CC-01-00742-B
Plaintiffs’ Experts: Edwin Holstein, M.D.
Defense Experts: James O. Rasmusson,
Ph.D., Louis Kilian
Virginia
Court: Va. Cir. Ct.,
Roanoke Cty.
Case Name:
McKee v.
Norfolk Southern Railway Co.
Docket No.: 770-CL-96001205
Alleged Injury: Asbestosis, Mixed Dust
Pneumoconiosis.
Verdict: Defense
Plaintiffs’ Experts: Dominic Gaziano, M.D.,
R. Leonard Vance, Ph.D.
Defense Experts: James R. Castle, M.D.;
David Rosenberger, M.D.
Reported by HM: Mar. Vol. 4, p. 8
Court: Va. Cir. Ct., Newport News Cty.
Case Name: King v. Allied Signal
Docket No.: 24242C-03
Verdict: Defense
Plaintiffs’ Experts: Douglas Pohl, M.D.;
John Maddox, M.D.; Arnold Brody, Ph.D.;
David Egilman, M.D.; Richard Hatfield.
Defense Experts: James Crapo, M.D.; John
Craighead, M.D.; Victor Roggli, M.D.;
Graham Gibbs.
Court: Va. Cir. Ct., Roanoke Cty.
Case Name: Alderman v. Norfolk Southern
Corp.
31
Docket No.: 770CL01-000466
Verdict: Defense
Plaintiffs’ Experts: Richard C. Bernstein,
M.D.; Frederick M. Dula, Ph.D.; Robert L.
Vance, CIH
Defense Experts: James Castle, M.D.; David
Rosenberger, M.D.; Francis Weir, Ph.D.
Washington
Court: Wash. Super.
Ct., King Cty.
Case Name: Sundberg v.
AC&S
Docket No.: 99-21756-0SEA
Alleged Injury: Non-Hodgkin’s Lymphoma,
Asbestosis, Colon Cancer
Plaintiffs’ Experts: Elliot Kagan, M.D.; Eric
Stern, M.D.; Kenneth Cohen; Carolyn Ray,
M.D.; Richard Cohen, M.D.; and Barry,
Ben-Zion
Defense Experts: Elliott Hinkes, M.D.;
Dorsett Smith, M.D.; James Rasmussen,
Ph.D.; David Godwin, M.D.
West Virginia
Court: W.Va. Cir. Ct.,
Kanawha Cty.
Case Name: In Re: Asbestos
Personal Injury Mass
Litigation Panel
Docket No: 01-C-9002
Alleged Injury: Multiple
Verdict: Mixed; Plaintiffs $7 million, Two
Defense
Plaintiffs’ Experts: Herbert Abrams, M.D.;
William Ewing, CIH
Defense Experts: Morton Corn, Ph.D.,
CSP; Allan Feingold, M.D.
EXPERT WITNESS BANK
Plaintiffs’ Experts
June, Vol. 3, p. 7; Aug., Vol.. 3, p. 9; Apr.
Vol. 4, p. 9
Abraham, Gerald, M.D., environmental
pathologist, Syracuse, N.Y.; July, Vol. 2, p.
12; May, Vol. 3, p. 8; Oct., Vol. 3, p. 6;
Apr. Vol. 4, p.9; Nov., Vol. 5, p. 13
Brodkin, Carl Andrew, M.D., M.P.H.
(ret.); occupational medicine, Seattle; July,
Vol. 4, p. 8
Adams, Herbert, M.D., occupational
medicine; April, Vol. 2, p. 11
Altschuler, Stanley M.D., pulmonologist.
Feb. Vol. 4, p. 10
Anderson, Henry, M.D., treating physician, Milwaukee; Sept., p. 12; July, Vol. 4,
p. 8
Ay, Charles; state of the art, Garden
Grove, Calif.; April, p. 10; June, pp. 9,
10; Aug., p. 12; April, Vol. 2, p. 10; Dec.,
Vol. 3, p. 9; March, Vol. 3, p. 11; Aug.,
Vol. 3, p. 9; Oct., Vol. 3, p. 6; Apr, Vol. 4
p. 8
Battifora, Hector, M.D., pathologist, Los
Angeles; Sept., p. 10, 11; March Vol. 4, p.
9
Ben-Zion, Barry, Ph.D.; economist, Santa
Rosa, Calif.; April, p. 9; May, p. 10; June,
p. 9; Aug., p. 12; Nov., Vol. 2, p. 10; Jan.,
Vol. 2., p. 9; Feb., Vol. 2, p. 8; April, Vol.
2, p. 12; Aug., Vol. 2, p. 10; Dec., Vol. 3,
p. 8, 9; Aug., Vol. 3, p. 8, 9; Dec., Vol. 3,
p. 6. Apr, Vol. 4, p. 9; Oct., Vol. 4, p. 6
Bernstein, Richard, M.D., pulmonologist,
Charlottesville, Va.; Nov., Vol. 3, p. 9;
Dec., Vol. 3, p. 10
Bonderevsky, Ernesto, M.D.; pulmonologist, San Antonio, Texas; March, p. 11
Brody, Arnold, Ph.D.; cellular biologist,
pathologist, Tulane University, New
Orleans; Premier, page 10, 11; Dec., p. 9;
Jan., p. 11; March, p. 11, 12; April, p. 8,
9; May, p. 8, 9.; June, p. 9; Aug., p. 11,
12, 13; Sept., p. 11, 12; Oct., p. 8; Nov.,
Vol. 2, p. 9; Dec., Vol. 2, p. 11; Jan., Vol.
2, p. 8; April Vol. 2, p. 10; May, Vol. 2, p.
10; July, Vol. 2, p. 12; Aug., Vol. 2, p. 10,
11; Dec., Vol. 3, p. 9, 10; April Vol. 3, p.
8; May, Vol. 3, p. 8; June, Vol. 3, p.6;
July, Vol. 3, p. 10; Aug., Vol. 3, p. 9, Feb.
Vol. 4, p.9, p. 10; Apr., Vol. 4 p. 9; May,
Vol. 4, p. 8; June, Vol. 4, p. 7, 8; July,
Vol. 4, p. 8, 9; Sept., Vol. 4, No. 11, p. 8;
Oct., Vol. 4, p. 6; Oct., Vol. 4, p. 6; Nov.,
Vol. 5, p. 8; Dec., Vol. 5, p. 8
Bukowsky, Donna, M.D.; pulmonologist,
Austin, Texas; July, Vol. 2, p. 22
Cameron, Robert, M.D.; oncologist, Los
Angeles; June, Vol. 4, p. 8
Castleman, Barry, Ph.D.; historical state
of the art, Baltimore; Premier, p. 10;
April, p. 8; May, pp. 8, 9; June, p. 9;
Aug., p. 13; Nov., Vol. 2, p. 10; Dec., Vol.
2, pp. 11; Jan. Vol. 2, p. 8; July, Vol. 2, p.
10, 11, 22; Aug., Vol. 2, p. 10; Dec., Vol.
3, p. 8; March, Vol. 3, p. 11; July, Vol. 3,
p. 9, 10; March, Vol. 4, p. 9; Apr. Vol 4,
p.9, p. 10; Nov. Vol. 5, p. 9
Breitenecker, Rudiger, M.D.; pathologist,
Baltimore; April, p. 8; Aug., Vol. 2, p. 10
Cohen, Kenneth; industrial hygienist, El
Cajon, Calif.; Jan., p. 11; Feb., p. 10;
April, p. 9; May, p. 10; Aug., p. 12; Oct.,
p. 8; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8;
April, Vol. 2, p. 10; Aug., Vol. 2, p. 10;
Dec., Vol. 3, p. 8; Dec., Vol. 3, p. 9;
March, Vol. 3, p. 11; Apr. Vol. 4 p. 9;
July, Vol. 4, p. 8
Breyer, Donald, M.D.; radiologist,
Highland Hospital, Oakland, Calif.;
Premier, p. 10; Feb., p. 10; June, p. 9;
Cohen, Richard, M.D.; epidemiologist,
Palo Alto, Calif.; Feb., p. 10; May, p. 10;
Aug., p. 12; Nov., Vol. 2, p. 10; April,
Boylan, Alicc, M.D.; treating
physician/mesothelioma researcher,
Charleston, S.C. March Vol. 4, p. 9
32
Vol. 2, p. 10; March, Vol. 3, p. 11; June,
Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9; Dec.,
Vol. 3, p. 6.; Apr. Vol. 4 p. 8; July, Vol. 4,
p. 8; Oct., Vol. 4, p. 6
Colella, Marc, M.D.; radiologist, Natrona
Heights, Pa.; May, Vol. 2, p. 10; May, Vol.
3, p. 8; July, Vol. 3, p. 8
Corson, Joseph, M.D.; pathologist,
Boston; Dec., Vol. 2, p. 11
Dahlgen, James, M.D.; June, Vol. 4, p. 7
Darcay, Dennis, M.D.; occupational medicine, Durham, N.C.; Nov., Vol. 2, p. 9
Davis, Earl; retired executive vice president from Tyler Pipe, Tyler, Texas;
Premier, p. 11
Delclos, George M.D., pulmonolgist,
Houston; Feb. Vol. 4, p. 10
DeLiere, Emil, M.D., pulmonologist,
Pittsburgh; Sept., p. 10
Dement, John, Ph.D.; environmental science, Duke University; April, p. 8; June,
p. 9; Aug., p. 11; May, Vol. 3, p. 8
Deutsch, David, M.D.; chest surgeon,
Long Beach, Calif.; Aug. p. 12
Dikman, Steven, M.D.; pathologist, Mt.
Sinai Hospital, New York; Premier, p. 11;
July, Vol. 2, p. 10; Dec., Vol. 3, p. 10;
July, Vol. 3, p.10
Dodson, Ronald; cellular biologist, Tyler,
Texas; May, p. 9
Dolan, Brian, M.D., internist; Berkeley,
Calif.; June, p. 9
Dula, Fred, M.D.; certified B-reader and
board certified radiologist, Georgia;
Premier, p. 11; Dec., Vol. 3, p. 10
DuPont, Daniel, M.D.; pulmonologist,
Upland, Pa.; May, p. 10; Nov., p. 8
Eggleston, Alan; environmental consultant; Premier, p. 11
EXPERT WITNESS BANK
Egilman, David, M.D.; epidemiologist,
Brown University; Providence, R.I;
Premier, p. 11; March, p. 12; Sept., p. 10;
Nov., Vol. 2, p. 9; March, Vol. 2, p. 10;
April, Vol. 3, p. 8; June, Vol. 3, p. 6;
Aug., Vol. 3, p. 8, Nov., Vol. 5, p. 8
Ellenbecker, Michael, Ph.D., CIH; industrial hygiene, Lowell, Mass.; June, Vol. 3,
p. 6; July, Vol. 3, p.8; Sept., Vol. 4, No.
11, p. 8
Epstein, Paul, M.D.; pulmonologist,
Philadelphia; Aug., p. 11; Oct., Vol. 2, p.
11
Evans, Donnie, M.D.; pulmonologist,
Houston; March, p. 11
Ewing, William, CIH; industrial hygienist, Atlanta; Sept., p. 12; Feb., Vol. 2, p.
8; April, Vol. 2, p. 11; Dec., Vol. 3, p. 6.
Vol. 4, p. 9, p. 10; July, Vol. 4, p. 8; Dec.,
Vol.5, p. 8
Fallat, Robert, M.D.; pulmonologist,
California Pacific Medical Center, San
Francisco; Premier, page 10; June, p. 9;
Jan., Vol. 2., p. 9
David Fractor, Ph.D., economist; Nov.
Vol. 5, p. 8
Frank, Arthur, M.d., occupational medicine, Drexel University, Philadelphia;
April, Vol. 3, p. 8; July, Vol. 3, p. 8; Nov.,
Vol. 5, p. 13
Friedman, Gary K., M.D., occupational
medicine, pulmonologist, Houston;
March, Vol. 2, p. 11; June, Vol. 3, p. 6,
Feb. Vol 4 p. 10
Gabrielson, M.D.; pathologist, Baltimore;
May, p. 9
Ganzhorn, Frank, M.D.; pulmonologist,
Salinas, Calif.; Dec., Vol. 3, p. 6.
Gass, David G., M.D.; plaintiff treater,
Tyler, Texas; Premier, p. 11
Ghio, Andrew, M.D.; pulmonologist,
Chapel Hill, N.C.; April, Vol. 3, p. 8
Holstein, Edwin, M.D.; occupational
medicine, Boston; Dec., p. 9; May, p. 8;
June, p. 9; Oct., p. 8; May, Vol. 2, p. 10;
Nov. Vol. 3, p. 8, 9; July, Vol. 3, p. 10,
Feb. Vol. 4, p.9, Apr. Vol. 4 p. 8
Glendmeyer, Henry, Ph.D.; 3M expert,
New Orleans; Nov., Vol. 2, p. 8
Horan, Richard; naval architect expert;
Maine; July, Vol. 2, p. 10
Glover, Glenda, Ph.D.; economist; Nov.,
Vol. 2, p. 8
Horn, Barry, M.D.; pulmonologist,
Berkeley, Calif.; Feb., p. 10; April, p. 10;
May, pp. 8, 9; Aug., p. 12; Nov., Vol. 2,
p. 10; Feb., Vol. 2, p. 8; April, Vol. 2, p.
10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8;
March, Vol. 3, p. 11; Aug., Vol. 3, p. 8;
Oct, Vol 3, p. 6; June, Vol. 4, p. 7; Oct.,
Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol.
5, p. 8
Gaziano, Dominic, M.D.; pulmonologist,
Charleston, W.Va. Mar. Vol. 4 No. 5 p. 8
Godleski, John, M.D.; pathologist,
Boston; Dec., Vol. 2, p. 11
Gomez, Patrick L., M.D.; oncologist,
Springfield, Mo.; Nov., Vol. 3, p. 9
Hammar, Samuel, M.D.; pathologist,
Bremeton, Wash.; Premier, page 10; Jan.,
p. 11; April, pp. 8, 9, 10; May, pp. 8, 9;
June, p. 9; Aug., p. 11; Oct., p. 8; Dec.,
Vol. 2, p. 11; Jan., Vol. 2., p. 9; Feb., Vol.
2, p. 8; April, Vol. 2, p. 10; July, Vol. 2, p.
10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9;
April, Vol. 3, p. 8; May, Vol. 3, p. 8; June,
Vol. 3, p. 6; July, Vol. 3, p. 10; Aug., Vol.
3, p. 8; Dec., Vol. 3, p. 6.; Mar.., Vol. 4,
p. 9; May, Vol. 4, p. 8; Sept., Vol. 4, No.
11, p. 8; Oct., Vol. 4, p. 6; Nov., Vol. 5,
p. 8; Dec., Vol. 5, p. 8
Hannah, Hamner, M.D.; thoracic surgery,
Kansas City, Mo.; April, p. 8
Donald House, Ph.D.; accountant, Bryan,
Texas; Nov., Vol. 5, p. 8
Hyers, Thomas, M.D.; pulmonologist,
Kirkwood, Minn.; July, Vol. 3, p. 8
Johnson, Robert, Ph.D.; economist, Mt.
View, Calif.; April, p. 8; May, p. 8; Nov.,
Vol. 2, p. 9; Feb., Vol. 2, p. 8; July, Vol. 2,
p. 10; Oct., Vol. 3, p. 6; Dec., Vol. 5, p. 8
Kagan, Elliot, M.D.; pathologist,
Washington, D.C.; May, p. 10; April, Vol.
2, p. 12
Harford, Paul, M.D.; plaintiff treater,
Karelenstein, Daniel, M.D.; thoracic surgeon, Mt. Sinai Medical Center, New
York; Feb., p. 10
Harper, Charles, Ph.D.; economist,
Saratoga, Calif.; May, p. 9
Katz, Richard, M.D.; pulmonologist,
Philadelphia; May, p. 10
Harron, Ray, M.D.; Bridgeport, W.Va.;
July, Vol. 3, p. 8
Kelly, Chris; certified fraud
examiner/economist, Dallas; Premier, p.
11
Hatfield, Richard; industrial hygienist,
dust sampling, materials analyst specialist,
Norcross, Ga.; Premier, page 10; Dec., p.
9; Jan., p. 11; March, p. 12; June, pp. 9,
10; Aug., p. 11; Sept., p. 10; Nov., Vol. 2,
p. 10; Feb., Vol. 2, p. 8; July, Vol. 2, p.
12; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8;
July, Vol. 3, p. 10; Nov., Vol. 5, p. 13
33
Kemplin, John, Ph.D., N/A, Apr. Vol. 4
p. 8
King, William, Ph.D.; economist,
Lansing, Mich.; Dec., Vol. 2, p. 11
EXPERT WITNESS BANK
Klepper, Mark, M.D.; pathologist, pulmonologist, Austin, Texas; Premier, p. 11;
March, p. 11
Kuenemann, Charles; safety engineer,
Kuhanjda, Francis, M.D.; pathologist,
Johns Hopkins University, Baltimore;
April, p. 8
Louis Kyriakoudes, tobacco historian;
Nov. Vol. 5, p. 9
Laman, David, M.D.; pulmonologist,
Lauderdale, Jerry, CIH; industrial hygienist, Austin, Texas; May, Vol. 2, p. 10; Mar.
Vol. 4 p. 9; June, Vol. 4, p. 7
Laufe, Marc, M.D.; pulmonologist,
Pittsburgh; Sept., p. 10; May, Vol. 3, p. 8
Legier, Jacques, M.D., pathologist,
Newport News, Va.; June, Vol. 4, p. 7
Lemen, Richard, M.D., Ph.D.; former
U.S. Assistant Surgeon General, epidemiologist and state of the art, Atlanta;
Premier, p. 11; Dec., p. 9; March, p. 11;
June, p. 10; Sept., p. 10, 11; Nov., Vol. 2,
p. 9; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 9;
Feb., Vol. 2, p. 8; March, Vol. 2, p. 11;
July, Vol. 2, p. 11, 12; Aug., Vol. 2, p. 10;
Nov., Vol. 3, p. 9, 10; Dec., Vol. 3, p.6.;
Oct., Vol. 4, p. 6
Lemen, Richard M.D., Ph.D; epidemiologist/state of the art, Atlanta; Oct., Vol. 3,
p.6; Oct., Vol. 3, p. 6, Vol. 4, p. 9; March
Vol. 4, p. 9; May, Vol. 4, p. 8
Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p.
11; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8;
July, Vol. 2, p. 11; Dec., Vol. 3, p. 9; July,
Vol. 3, p. 8, 9; Oct., Vol. 3, p. 6; Dec.,
Vol. 3, p. 6; Apr., Vol. 4, p. 8; Oct., Vol.
4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p.
8
Millette, James, Ph. D.; pathologist,
Durham, N.C.; Oct., Vol. 3, p. 6
Lunn, William, M.D.; plaintiff treater,
Mostoufi, Mahparah, M.D.; pathologist,
Maddox, John, M.D.; pathologist,
Newport News, Va.; March, p. 12; May,
Vol. 4, p. 8; July, Vol. 4, p. 9; Sept., Vol.
4 No. 11, p. 8
Murphy, Everett, M.D.; pulmonologist,
Kansas City Mo.; April, p. 8
Male, Bob, Ph.D.; economist, Clackamas,
Ore.; July, Vol. 4, p. 8
Mark, Eugene, M.D.; pathologist, Boston;
Aug., Vol. 2, p. 11; Oct., Vol. 3, p. 6, Vol.
4, p. 9; MarchVol. 4, p. 9
Moline, Jacqueline, M.D., occupational
specialist, Mt. Sinai, New York; July, Vol.
2, p. 10; April, Vol. 3, p. 8; July, Vol. 3, p.
9; Aug., Vol. 3, p. 8
Myron, Mark, M.D.; oncologist, Kansas
City, Mo.; April, p. 8
Naunheim, Keith, M.D.; thoracic surgeon, St. Louis University Hospital, St.
Louis; Nov., Vol. 3, p. 9
Robert Neff, CPA, accountant; Nov., Vol.
5, p. 8
Markowitz, Steven, M.D.; internal and
occupational medicine, Queens, N.Y.;
July, Vol. 3, p. 9; Nov., Vol. 5, p. 9
Nicholson, William, Ph.D.; risk analysis,
New York; April, p. 8, 10; May, p. 9
Marshall, Hal, M.D.; pathologist, Kansas
City, Mo.; April, p. 8
Oliver, Christine, M.D.; occupational
medicine, Boston; Dec., Vol. 2, p. 11
Mason, Gene; vice president to the
Delaware Corporation; Premier, p. 11
Paige, Jerome, Ph.D.; economist,
Washington, D.C.; April, p. 8
Mazza, Frank, M.D.; pulmonologist,
Austin, Texas; Nov., Vol. 2, p. 9
Panitz, Elaine, M.D.; occupational medicine, Mass.; Feb., p. 10; March, Vol. 2, p.
10; Aug., Vol. 3, p. 8
McNair, Obie, M.D.; pulmonologist,
Jackson, Miss.; Nov., Vol. 2, p. 8
Meseroll, William, M.D., radiologist,
Petaluma, Calif.; June, p. 9; Aug., p. 12
Liebermann, Philip, M.D.; retired pathologist, New York; April, p. 8
Mezey, Robert, M.D.; pulmonologist,
Phoenix; Oct, Vol. 3, p. 7; July, Vol. 4, p.
9
Litzky, Leslie, M.D., pathologist,
Philadelphia; February p. 8
Michaels, David, Ph.D., Washington,
D.C.; July, Vol. 2, p. 12
Longo, William E., Ph.D.; exposure
analysis, material scientist, electron microscopist, Norcross, Ga.; Premier, p. 11;
Jan., p. 11; April, p. 8; May, pp. 8, 9;
Millette, James, Ph.D.; state of the art,
Baltimore; Jan., p. 11; May, p. 9; Aug., p.
12; Nov., Vol. 2, p. 9; Feb., Vol. 2, p. 8;
Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9
34
Parker, Frank, CIH, industrial hygienist,
Magnolia, Texas; Sept., Vol. 4, No. 11, p.
8
Peters, Ed, M.D.; pulmonologist, Austin,
Texas; March, p. 11; July, Vol. 2, p. 11
Petroff, Peter, M.D.; certified pulmonologist; Premier, p. 11; March, Vol. 2, p. 11
Pohl, Douglas, Ph.D., M.D.; pathologist,
Central Maine Medical Center, Lewiston,
Maine; Feb., p. 9; March, p. 12; March,
Vol. 2, p. 10; May, Vol. 3, p. 8; Oct., Vol.
3, p. 7; Apr., Vol. 4 p. 9
EXPERT WITNESS BANK
Raffensperger, M.D.; pulmonologist,
Allegheny General Hospital, Pittsburgh;
July, p. 11
Raterman, Susan, CIH; industrial hygiene;
May, Vol. 4, p. 8
Ray, Carolyn, M.D.; pulmonologist, San
Francisco; May, p. 10; Aug., p. 12; April,
Vol. 2, p. 12
Reidbord, Howard, M.D.; pathologist,
Reynolds, Zachary; naval architect;
Petaluma, Calif.; Dec., Vol. 5, p. 8
Robb, James, M.D.; pathologist, Miami;
Aug., p. 13; July, Vol. 2, p. 11; Aug., Vol.
2, p. 11; April, Vol. 4,. p. 8
Roggli, Victor, M.D.; pathologist, Duke
University; Feb., p. 9; April, p. 9; June, p.
10; Aug., p. 10; Sept., p. 12; Dec., Vol. 2,
p. 11; Jan., Vol. 2, p. 8, 9; July, Vol. 2, p.
12; July, Vol. 4, p. 8
Rubin, Louis, M.D.; clinician, Columbia,
Md.; May, p. 9; Aug., p. 11
Shoenfeld, Alvin, M.D.; pulmonologist,
Chicago; Dec., Vol. 3, p. 8
Tobia, Anna, Ph.D., psychologist;
Philadelphia. Feb., p. 8
Sims, William, M.D., pulmonologist,
Todd, Lori, Ph.D.; industrial hygiene,
Chapel Hill, N.C.; July, Vol. 3, p. 9
Smith, Allan H., Ph.D.; epidemiologist,
University of California, Berkeley; Calif;
Premier, page 10; Jan., p. 11; April, p. 9;
June, p. 9; Aug., p. 12; Nov., Vol. 2, p.
10; Jan., Vol. 2., p. 9; April, Vol. 2, p. 10;
Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8, 9;
June, Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9;
Oct., Vol 3, p. 6; Dec., Vol. 3, p. 6.; Apr.
Vol. 4 p. 8, 9; Oct., Vol. 4, p. 6
Trailor, Rebecca, M.D., pulmonologist,
Austin, Texas. Apr. Vol. 4, p. 10
Spector, Harvey, M.D.; pathologist,
Crozer-Chester Medical Center, Upland,
Pa.; July, p. 11; Aug., p. 11
Vance, R. Leonard, Ph.D. industrial
hygienist, Richmond, Va. Mar. Vol. 4 No.
5 p. 8
Srebo, James, M.D.; cardiologist, Napa,
Calif.; Dec., Vol. 3, p. 9
Ward, John, Ph.D.; economist, Prairie
Village, Kan.; April, p. 8
Stern, Eric, M.D.; radiologist, Seattle;
May, p. 10; June, p. 9
Wilson, David, M.D., pulmonologist,
Sterman, Daniel , M.D.,pulmonologist,
Philadelphia. February p. 8
Zimmet, Stephen, M.D.; pathologist,
Arlington, Va.; April, p. 8; Oct., Vol. 3, p.
6
Mark J. Utell, M.D., an environmental
pathologist, Rochester, N.Y.; Nov., Vol. 5,
p. 13
Eric Vallieres, M.D., thoarcic surgeon;
Nov., Vol. 5, p. 8
Rusch, Valerie, M.D.; pathologist from
Sloan Kettering, New York; April, p. 8
Stoloff, Erwin L., M.D.; oncologist,
Philadelphia; May, p. 10; Dec., Vol. 3, p.
6. Feb. Vol..4, p. 10
Defense Experts
Salyer, William, M.D.; pathologist from
Berkeley, Calif.; Oct, p. 6
Strauchen, James, M.D.; pathologist, New
York; July, Vol. 2, p. 10
Abrino, Donald; NARCO corporate representative; Jan., Vol. 2, p. 9
Schonfeld, Alvin, D.O.; Los Angeles;
Sept., p. 12; June, Vol. 3, p. 7
Sullivan, Brian, Ph.D., economist,
Philadelphia; Aug., p. 11
Akers, Stephen, M.D.; pulmonologist,
Philadelphia; May, p. 10
Schwartz, David, M.D.;
pulmonologist/radiologist, Durham, N.C.;
Nov., Vol. 3, p. 9
Suzuki, Yasunosuke, M.D.; pathologist,
New York; March, Vol. 2, p. 10; Oct.,
Vol. 2, p. 10
Argento, Victorrio, Ph.D.; industrial
hygienist, Austin, Texas; Jan., p. 11; July,
Vol. 2, p. 9; Nov., p. 8
Scroggins, Carroll, M.D.; treating physician, St. Louis; July, Vol. 3, p. 8
Templin, John, CIH; industrial hygiene,
Los Angeles; Aug., Vol. 3, p. 8; Oct., Vol
3, p. 6; June, Vol. 4, p. 7, 8; Oct., Vol. 4,
p. 6; Nov., Vol. 5, p. 8
Ayer, Howard, C.I.H., industrial hygiene,
Cincinnati; July, Vol. 4, p. 8
Segarra, Jay, M.D.; pulmonologist, Ocean
Springs, Miss.; May, p. 8; Oct., p. 8; May,
Vol. 4, p. 8
Sharpe, Stuart, M.D.; oncologist,
Danville, Va.; Feb., p. 9
Tierstein, Al, Ph.D.; chief of pulmonary
medicine, Mt. Sinai, New York; Feb., p.
10
35
Balzer, J. Leroy, Ph.D.; industrial hygienist, state of the art, San Francisco; April,
p. 9; Aug., p. 12; Jan., Vol. 2., p. 9; May.
Vol. 3, p. 8; June, Vol. 3, p. 6; July, Vol.
3, p. 9
EXPERT WITNESS BANK
Barrett, Peter, M.D.; radiologist, epidemiologist; Aug. p. 11; Nov., Vol. 3, p. 9;
May, Vol. 3, p. 8; July, Vol. 3, p. 8; Oct.,
Vol. 4, p. 6
Birkner, Lawrence R.; industrial hygienist,
Thousand Oaks, Calif.; May, p. 9; April,
Vol. 2, p10; Aug., Vol. 2, p. 10
Blake, Charles; environmental consultant;
Nov., Vol. 2, p. 8; Jan., Vol. 2, p. 8
Boelter, Frederick; certified industrial
hygienist, Chicago; Dec., Vol. 2, p. 11;
May, Vol. 3, p. 8 Feb., Vol. 4. p. 9, p. 10;
May, Vol. 4, p. 8; Oct, Vol 4, p. 6
Corn, Morton, Ph.D.; industrial hygienist; Jan., Vol. 2, p. 9; April, Vol. 2, p. 11;
Aug., Vol. 3, p. 8
Craighead, John, M.D.; pathologist,
Burlington, Vt.; Jan., p. 11; March, p. 12;
Sept., p. 10; Jan., Vol. 2, p. 8, 9; July, Vol.
2, p. 10; Aug., Vol. 2, p. 10; July, Vol. 3,
p. 9; Apr. Vol. 4 p. 10
Crapo, James, M.D.; pulmonologist,
Denver; Jan., p. 11; March, p. 12; May, p.
9; Aug., p. 12; March, Vol. 2, p. 10; Nov.,
Vol. 2, p. 9; May, Vol. 3, p. 8; Aug., Vol.
3, p. 8; Oct., Vol. 3, p. 7; Apr. Vol. 4, p.
8.; Nov., Vol. 5, p. 8
Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p.
11; April, Vol. 2, p. 11; July, Vol. 2, p. 12;
Aug., Vol. 2, p. 11; Nov., Vol. 3, p. 9;
Dec., Vol. 3, p. 8; April, Vol. 3, p. 8; July,
Vol. 3, p. 8, 9; Oct., Vol. 3, p. 7 Feb, Vol.
4 p. 10; Apr. Vol. 4 p. 9; May, Vol. 4, p.
8; June, Vol. 4, p. 7; July, Vol. 4, p. 9;
Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8
Fiel, Stanley, M.D.; pulmonologist,
Philadelphia; Dec., Vol. 2, p. 11; Aug.,
Vol. 2, p. 10; Oct., Vol. 2, p. 11; Dec.,
Vol. 3, p. 9; Nov., Vol. 5, p. 13
Fino, Gregory, M.D.; pulmonologist,
Pittsburgh; Sept., p. 10; July, Vol. 3, p. 8
Breale, William, M.D.; cardiologist, San
Francisco; Aug., p. 12; Dec., Vol. 3, p.
Buccigross, Henry; engineer, Cambridge,
Mass.; July, Vol. 2, p. 10; Aug., Vol. 2, p.
10; July, Vol. 3, p. 9; Oct., Vol. 4, p. 6
Cushing, Charles, Ph.D., naval architect,
N.Y.; Dec., Vol. 5, p. 8
Melvin First, Sc.D., CIH, industrial
hygienist, Boston; Nov., Vol. 5, p. 9
Davis, Stephen, C.I.H., industrial
hygiene, Malibu, Calif.; July, Vol. 4, p. 8
Fowler, Douglas, Ph.D.; industrial hygienist, Redwood City, Calif.; Sept., p. 11;
Aug., Vol. 3, p. 8; Oct., Vol. 3, p. 6
Cadman, Edward, M.D., oncologist,
Honolulu, Hawaii; Apr. Vol. 4, p. 8
DeLaney, James; state of the art, Hawaii;
Oct., Vol. 3, p. 6; Nov., Vol. 5, p. 8
Cagle, Phillip, M.D.; pathologist,
Houston; Premier, p. 11; Sept., p. 12;
July, Vol. 2, p. 11
Delgaldo, Gustavo, Ph.D.; cellular/lab
analysis, Hayward, Calif.; July, Vol. 4, p. 8
Case, Bruce W., M.D.; pathologist,
Montreal; April, p. 8; May, p. 9; Aug., p.
12; Oct., Vol. 2, p. 10
Castle, James R., M.D.; pulmonologist,
Roanoke, Va.; Dec., Vol. 3, p. 10, Mar.
Vol. 4, p. 8
Chatfield, Eric, M.D.; materials analyst,
Ontario, Canada; May, p. 9
Churg, Andrew, M.D.; pathologist,
Vancouver, British Columbia; April, p. 8;
March, Vol. 2, p. 10; Nov., Vol.5, p. 8
Cohen, Joel, industrial hygiene, San
Mateo, Calif.; Aug., p. 12
Cook, Ewing, M.D.; pulmonologist, New
Orleans; Nov., Vol. 2, p. 8
Donaldson, Scott, M.D.; pulmonologist,
Dallas; Nov., Vol. 2, p. 9
Drucker, Marjorie, CIH; industrial
hygiene; Nov., Vol. 2, p. 10
Dyson, William, Ph.D.; industrial
hygiene, Greensboro, N.C.; April, p. 9;
May, p. 9; July, Vol. 2, p. 11; April, Vol.
3, p. 8; May, Vol. 3, p. 8; Apr. Vol. 4, p.
8; June, Vol. 4, p. 7, 8; July, Vol. 4, p. 9
Dr. Fred Dunbar, economist, N.Y.; Nov.,
Vol. 5, p. 8
Eagar, Thomas, Ph.D.; engineering,
Cambridge, Mass.; July, Vol. 3, p. 9
Epstein, Paul, M.D.; pulmonologist,
Philadelphia; May, p. 10; June p. 13;
Dec., Vol. 3, p. 6
Feingold, Allan, M.D.; pulmonologist,
Miami; Feb., p. 9; May, p. 9; Aug. p. 10;
36
Fraser, Robert, M.D.; radiologist,
Birmingham, Ala.; Nov., Vol. 2, p. 8
Carl Fuhrman, M.D., radiologist,
Pittsburgh; Nov., Vol. 5, p. 9
Gee, Bernard M.D., pulmonologist New
Haven, Conn. Apr. Vol. 4 p. 8
Gibbs, Allen, M.D.; pathologist, Cardiff,
Wales; May, Vol. 3, p. 8; Nov., Vol. 5, p.
8
Godwin, David, M.D.; radiologist,
Seattle; May, p. 10; June, p. 9; June, Vol.
3, p. 7
Goodman, Michael, M.D.; epidemiologist, Davis, Calif., Aug., p. 12
Graham, Michael, M.D.; pathologist, St.
Louis; April, p. 8; Aug., Vol. 3, p. 8
Hammond, James, Ph.D., industrial
hygiene, deceased; May, Vol. 4, p. 8
Hinshaw, H. Corwin, M.D.; state of the
art expert, San Francisco; March, p. 11;
April, Vol. 2, p. 10
EXPERT WITNESS BANK
Howard, Thomas, M.D.; pathologist,
Ocala, Fla.; Aug., Vol. 2, p. 10; Dec., Vol.
3, p. 8; Oct., Vol. 3, p. 7; July, Vol. 4, p.
8; Nov. Vol. 5, p. 8
Hughson, William G., M.D.; occupational medicine, pulmonologist, San Diego;
April, p. 10; June, p. 9; Nov., Vol. 2, pp.
9, 10; Feb., Vol. 2, p. 8; April, Vol. 2, p.
12; July, Vol. 2, p. 10; Dec., Vol. 3, p. 8;
Aug., Vol. 3, p. 9; Dec., Vol. 3, p. 6.; Apr.
Vol. 4, p. 9; June, Vol. 4, p. 7, 8; Nov.,
Vol. 5, p. 8
Jackaki, Edwin; vice president of U.S.
Gypsum, Chicago; March, p. 11
Jenkins, Doug, M.D.; pulmonologist, San
Antonio; Nov., Vol. 2, p. 9
Johnston, Alan; air sampling/industrial
hygiene; Nov., Vol. 2, p. 11; Sept., Vol. 2,
p. 13
Jones, Kathy, industrial hygienist, Los
Angeles. Apr. Vol. 4, p. 8
Jones, Robert N., M.D.; pulmonologist,
New Orleans; Nov., Vol. 2, p. 8; Sept.,
Vol. 2, p. 13
Kaplan, Peter, M.D., pulmonologist,
Killian, Louis; Quigley corporate representative; Nov, Vol. 3, p. 8
Krebs, William, Ph.D.; industrial hygienist, Grosse Pointe Park, Mich.; April, p. 8;
Apr. Vol. 4 p. 10
Larson, Bruce; industrial hygiene,
Paulsboro, N.J.; May, Vol. 4, p. 8
Levine, Gerald B., M.D.; pulmonologist,
San Francisco; Dec., Vol. 3, p. 9
Levitov, Alexander B., M.D., internal
medicine, St. Paul, Minn.; July, Vol. 3, p.
10
p. 6 Feb. Vol. 4 p. 10; May, Vol. 4, p. 8;
Oct., Vol. 4, p. 6
Peterson, Jack, Ph.D.; industrial hygiene,
Berkeley, Calif.; July, Vol. 3, p. 10
MacDonald, Charles, M.D.; San
Francisco; June, p. 9
Pope, Alan, M.D.; pulmonologist,
Philadelphia; July, p. 11; Aug., p. 11, Feb.
Vol. 4, p. 10
John Maddox, M.D.; pathologist;
Newport News, Va; Oct., Vol. 4, p. 6
Malzahn, Del, M.S.; industrial hygiene,
Detroit; June, Vol. 4, p. 7
Mangold, Carl, CIH; industrial hygiene,
Bellevue, Wash.; Dec., Vol. 3, p. 9:
March, Vol. 3, p. 11, Feb. Vol. 4, p. 10;
Nov., Vol. 5, p. 8
Theodore R. Marmor, a Professor of
Public Policy and Management and
Political Science at the Yale School of
Management in New Haven, Conn.; Nov.,
Vol. 5, p. 8
Mattison, Michael, Ph.D.; chemical engineer, Atlanta; Aug., p. 12; Feb. Vol. 2, p.
8; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10;
July, Vol. 3, p. 9; Oct., Vol. 4, p. 6
Meyers, Gerald, M.D.; pulmonologist,
Berkeley, Calif.; April, p. 10; June, p. 9;
Aug., p. 12; April, Vol. 2, p.12; Oct., Vol.
4, p. 6
Mizel, David; paper expert, Argento, Md.;
Oct., Vol. 3, p. 6
Morgan, Robert, M.D.; epidemiologist,
Fort Lauderdale, Fla.; June, p. 9; Dec., p.
6; Oct., Vol. 4, p. 6
Morykon, John; Westinghouse Materials;
April, Vol. 2, p. 10
Moscow, Norman, M.D.; radiologist,
Berkeley, Calif.; Feb., p. 10; Aug., p. 12;
Dec., Vol. 3,
p. 9
Paustenbach, David, Ph.D., epidemiologist, San Francisco; Sept., Vol. 4, No. 11,
p. 8
Liukonen, Larry, CIH; industrial hygiene,
Baltimore; Dec., Vol. 3, p. 9; Dec., Vol. 3,
37
Raabe, Gerhard, D. Ph.; epidemiologist,
New Hope, Pa.; May, Vol. 4, p. 8
Ramsey, Calvin, M.D.; general practitioner; Nov., Vol. 2, p. 8
Rabinovitz, Sheldon, Ph.D.; industrial
hygienist, Feb., Vol. 2, p. 8; Dec., Vol. 3,
p. 6.
Rasmusson, James, Ph.D.; industrial
hygienist, Wheat Ridge, Colo.; May, p.
10; June, p. 9; Aug., p. 12; July, Vol. 2, p.
10; Nov., Vol. 3, p. 8, 9; Dec., Vol. 3, p. 9
Reiter, John E., CIH, industrial hygiene,
Menomonee Falls, Minn; July, Vol. 3, p.
10
Repsher, Lawrence, M.D.; pulmonologist,
Wheat Ridge, Colo.; April, p. 8
Ringo, Donna; certified industrial hygienist, Louisville, Ky.; Dec., Vol. 2, p. 11;
Oct., Vol. 2, p. 11; March, Vol. 3, p. 11;
Nov., Vol. 5, p. 8
Ritter, John, M.D.; pathologist, St. Louis,
Mo.; July, Vol. 3, p. 8
Roggli, Victor, M.D.; pathologist, Duke
University; March, p. 12; April, p. 10;
Feb., Vol. 2, p. 8; July, Vol. 2, p. 10; Aug.,
Vol. 2, p. 11; Dec., Vol. 3, p. 10; June,
Vol. 3, p. 6; July, Vol. 3, p. 9; Oct., Vol.
3, p. 6; Oct., Vol. 3, p. 6
Rosenberger, David, M.D.; general medicine, Case Western Reserve University,
Cleveland; Dec., Vol. 3, p. 10; July, Vol.
3, p. 8; Mar. Vol. 4 p. 8
Ross, Robert, M.D.; pulmonologist,
Houston; March, p. 11; May, p. 8; March,
Vol. 2, p. 10; May, Vol. 2, p. 10
EXPERT WITNESS BANK
Rubin, Emanuel, M.D.; pathologist,
Philadelphia; Aug. p. 11
Truong, Luan, M.D.; pathologist,
Houston; June, Vol. 3, p. 6
Sawyer, Robert, M.D.; pulmonologist,
Charlottesville, Va.; April, Vol. 2, p10;
Dec., Vol. 3, p. 9; March, Vol. 3, p. 11;
Dec., Vol. 3, p. 6. Feb., Vol. 4, p. 9; Nov.,
Vol. 5, p. 8
Udinsky, Gerald, Ph.D.; economist,
Berkeley, Calif.; April, p. 8; April, Vol. 2,
p. 12
Schauble, Thomas, M.D.; pulmonologist,
Van Orden, Drew; lab analysis, Pasco,
Wash.; July, Vol. 4, p. 8
Walker, Alexander, M.D.; Ph.D., epidemiologist, Boston; March, Vol. 2, p. 10
Schwarting, Roland, M.D.; pathologist,
Jefferson Medical College, Philadelphia;
July, p. 11
Warhol, Michael J., M.D;, pathologist,
Philadelphia; June, Vol. 3, p. 6
Sheibani, Khalil, M.D.; pathologist,
Orange County, Calif.; Premier, p. 10;
April, Vol. 2, p. 12; Apr. Vol. 4, p. 8
Warren, Thomas; president and CEO of
Flexitallic, Inc., Philadelphia; March, p.
11
Sider, Lee, M.D.; radiologist, New York;
July, Vol. 4, p. 9
Weaver, Charles A., Ph.D., memory
expert, Waco, Texas; June, Vol. 4, p. 7, 8
Silloway, Capt. Richard; U.S. Navy; April,
Vol. 2, p. 12
Weaver, Neil, M.D.; occupational medicine specialist, Arlington, Va.; May, Vol.
4, p. 8
Smith, Dorsett, M.D.; pulmonologist,
Everett, Wash.; May, p. 10
Dr. Alexander Spears, expert in cigarette
filter design and testing; Nov., Vol. 5, p. 9
Spencer, John, CIH; industrial hygiene;
Nov., Vol. 2, p. 9; Dec., Vol. 2, p. 11;
Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9;
Nov., Vol. 5, p. 13
Spielman, Howard; industrial hygienist;
May, p. 8; Dec., Vol. 3, p. 8; Dec., Vol. 5,
p. 8
Stockman, Gail, M.D.; pulmonary physician, Longview, Texas; Premier, p. 11; Apr.
Vol. 4, p. 10
Thomas, Thomas C. Ph.D. economist.
Mountain View, Calif.; Apr. Vol. 4, p. 9
Weg, John, M.D.; state of the art,
University of Michigan; Dec., p. 9
Weiner, David, economist; Dec., Vol. 5, p.
8
Weir, Francis, Ph.D.; CIH, industrial
hygienist, Houston; April, p. 9; Aug., p.
12; Nov., Vol. 2, p. 9; March, Vol. 2, p.
10
Wick, Mark, M.D.; pathologist, St. Louis;
Dec., p. 9
Wong, Otto, M.D.; epidemiologist, Calif.;
April, p. 10
Yarborough, Charles, M.D., M.P.H.,
pathologist, New York; June, Vol. 4, p. 7
Toca, Frederick, Ph.D.; state of the art
and industrial hygiene, Princeton, N.J.;
March, p. 11; May, p. 9; Aug. p. 11, 12;
Feb., Vol. 2, p. 8; Aug., Vol. 2, p. 10
38
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Thursday February 10, 2005
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Continental Breakfast & Registration
David Jacoby of Anapol, Schwartz, Weiss,
Cohan, Feldman and Smalley, Philadelphia, PA
Ann Ritter of Motley Rice, Mt. Pleasant, SC
3:15 p.m. – 3:30 p.m. Refreshment Break
8:30 a.m. – 9:00 a.m.
Welcome and Introduction
Sol Weiss, Conference Chair
3:30 p.m. – 5:00 p.m.
Session: Medical Roundtable
John E. Markis, M.D., Harvard Medical
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Eric H. Weinberg of Wilentz, Goldman and
Spitzer, New Brunswick, NJ
*Garrett FitzGerald, M.D., Department of
Pharmacology, University of Pennsylvania
School of Medicine, Philadelphia, PA
*Curt Furberg, M.D., Wake Forest University
Medical School, Winston-Salem, NC
9:00 a.m. – 9:45 a.m.
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Christopher M. Placitella of Wilentz,
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9:45 a.m. – 10:00 a.m.
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Thomas R. Kline of Kline & Specter,
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Edward F. Blizzard of Blizzard,
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Barry Hill of Hill Toriseva & Williams,
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David Lenrow, M.D., Hospital of the
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5:00 p.m. – 7:00 p.m.
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Steven G. Wigrizer of Wapner, Newman,
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Troy Rafferty of Levin, Papantonio, Thomas,
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Christopher Seeger of Seeger Weiss,
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Andy D. Birchfield of Beasley, Allen, Crow,
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Carlene Rhodes Lewis of Goforth Lewis
Sanford, Houston, TX
1:30 p.m. – 3:15 p.m.
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Friday February 11, 2005
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Merck & Co. pulled Vioxx® off the market because data
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PERSPECTIVES
The Changing Face of Mass Tort Claim
Continued from Page 5
The Court addressed other Georgia cases in
which asbestos cases were permitted to
remain joined and rejected the argument
that allowing such claims to remain joined
promotes judicial economy. The Court
noted the burden placed on the Court and
the clerk’s office by such filings and quoted
Howard Motor Co. v. Swint, 448 S.E.2d 713
(Ga. App. 1994): “if joinder is not authorized by the plain language of the statute, no
amount of judicial economy can justify it.”
Accordingly, the Court severed the claims as
unrelated actions to be established by separate case numbers. The Court ordered that
plaintiffs who wished to proceed with their
claims must file a Restated Complaint
which specifically named the defendant(s)
alleged to have injured the plaintiff within
30 days. Any Restated Complaints not refiled within the 30-day period would be
dismissed with prejudice.
Sidney S. Chancellor & John L. Parker
v. Air Liquide America Corp., et al., in
the United States District Court for
the Northern District of Alabama,
Case No. CV-04-BE-2554-S.
This action originated in the Circuit Court
of Jefferson County, Alabama, with three
plaintiffs claiming products liability, negligence, and fraud for silica exposure against
approximately one hundred defendants.
The Court dismissed the case without prejudice pursuant to Alabama Rule of Civil
Procedure 41, with two requirements: (1)
that, if any of the plaintiffs were to re-file
their claims at any time, their claims were
to be filed in the Circuit Court of Jefferson
County and assigned to the same judge;
and (2) plaintiffs must provide defendants
with the social security numbers, addresses,
dates of birth, employers, and positions
held at the worksites where plaintiffs
claimed silica exposure within seven days of
entry of the Order.
Though the stricter
enforcement of pleading
and joinder requirements
may in some respects
result in an increased burden in prosecuting and
defending asbestos/silica
exposure actions, all sides
of the mass tort claim
equation may benefit.
The action took a different turn when it
was re-filed in the U.S. District Court for
the Northern District of Alabama. The
Court, sua sponte, entered an Order dismissing the case without prejudice on Oct. 8,
2004. The Court concluded that the
Complaint did not meet the requirement of
a “short and plain statement of the claim
showing that the pleader is entitled to
relief.”3 According to the Court, neither it
nor the defendants were able, from the allegations in the Complaint, to surmise what
each defendant allegedly did to injure the
plaintiffs and “when, where, and how.”
Were defendants to answer this Complaint,
said the Court, they would have to “answer
with abandon,” pleading each conceivable
affirmative defense, while taking the risk of
inadvertently omitting the one defense that
would relate to an as-yet-unknown specific
claim against them.
The Court also found that that the
Complaint contained other inadequacies,
including failure to plead fraud with particularity, failure to name spouses while bringing claims for loss of consortium, and failing to allege facts showing that, if the
spouses were named as plaintiffs, the court
would have jurisdiction on the basis of
diversity.
The Court, citing its duty to dispose of
“shotgun complaints” at the earliest oppor64
COLUMNS
tunity,4 encouraged plaintiffs to be mindful
of the Eleventh Circuit’s position when
refiling their claims: “[i]f use of an abusive
tactic is deliberate and actually impedes the
orderly litigation of the case, to-wit:
obstructs justice, the perpetrator could be
cited for criminal contempt.”5
The Common Thread
Silica or asbestos, state or federal court,
strict liability or negligence, it does not
change the fact that at least three courts
have recently rejected so-called “shotgun”
complaints in mass tort actions using analysis that has broad application. Whether by
relying or statute or rule, caselaw or code,
these decisions reflect the same basic premise: that mass-produced complaints lacking
specific factual allegations will not withstand scrutiny on joinder grounds.
Each court recognized that by: (1) multiple
plaintiffs naming multiple defendants; (2)
alleging that defendants caused plaintiffs to
be exposed to a toxic tort in their role as
premises owners, manufacturers, distributors, or installers of asbestos or silica products; and (3) contending that plaintiffs suffered some respiratory ailment, without designating which plaintiff suffered a particular
ailment, joinder requirements cannot and
will not be met.
Certainly, the state and federal rules requiring plaintiffs to adduce a “short and plain
statement of the facts” as to why the pleader
is entitled to relief, as well as pleading certain claims with particularity requirements,
factor into the courts’ decisions. However,
it is joinder that is the prevailing theme in
such decisions. In dismissing and/or severing such claims, the courts’ primary goal is
to require plaintiffs to designate which
defendants injured them, how and when
they were injured, and which plaintiffs suffered a particular ailment. Then, the courts
will be able to accurately discern whether
these multiple plaintiff complaints demonstrate the requisite commonality to remain
joined.
PERSPECTIVES
The Potential Implications
What, if anything, do these decisions mean
for mass torts? Of course, it is highly
unlikely that every jurisdiction will adopt
such an approach to these types of complaints. Still, practitioners in Mississippi,
Alabama, and Georgia may expect stricter
enforcement of procedural rules governing
pleadings when filing and defending mass
tort claims. Discovery will not always be
the viable option it once was in ascertaining
the particulars of individual plaintiff ’s
claims. Practitioners representing plaintiffs
in silica or asbestos actions will be required
to be ever-mindful of Rule 11 violations.
Defense counsel, though now potentially
armed with grounds to sever and/or dismiss
multiple plaintiff mass tort actions, will not
be able to rely upon blanket denials of allegations in plaintiffs’ complaint, assuming
that the more specific pleading requirements are enforced.
Though the stricter enforcement of pleading and joinder requirements may in some
respects result in an increased burden in
prosecuting and defending asbestos/silica
exposure actions, all sides of the mass tort
claim equation may benefit. Certainly,
courts will be faced with less administrative
burden where claims are culled in size to
more specifically allege the facts upon
which particular plaintiffs’ claims rest.
Defendants would likely be named in fewer
cases and be able to see a more realistic
count of claims pending against them.
Finally, if such claims are more specifically
pled, there may be a greater likelihood that
the parties are able to streamline some existing discovery procedures and work together
to reach an appropriate resolution of such
claims.
Conclusion
Though certainly not a universal position,
the Mississippi, Georgia, and Alabama
courts’ recent decisions present a new challenge in asbestos and silica litigation.
Pleading requirements, particularly joinder,
will need to be at the forefront for counsel
and for litigants. Whether stricter enforce-
Practitioners in
Mississippi, Alabama,
and Georgia may expect
stricter enforcement of
procedural rules
governing pleadings when
filing and defending
mass tort claims.
ment of pleading requirements will continue to be enforced and extended to other
jurisdictions remains unseen at present. If
it does, there would likely be more profound effects, yet the elastic and enduring
nature of the litigation has repeatedly
shown a remarkable ability to adapt to
every change and continue to defy all predictions of its endpoint or extent.
Endnotes
1
Miss. R. Civ. P. 20 states in pertinent part: “(a) All
persons may join in one action as plaintiffs if they
assert any right to relief jointly, severally, or in the
alternative in respect of or arising out of the same
transaction, occurrence, or series of transaction or
occurrences, and if any question of law or fact common to all these persons will arise in the action….(b)
The court may make such orders as will prevent a
party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom he
asserts no claim and who asserts no claim against him,
and may order separate trials or to make other orders
to prevent delay or prejudice.”
Continued from Page 3
teria bill would put close to 80 percent
of the asbestos docket into a holding
pattern, eliminating a huge financial
drain or financial obligation on behalf of
the defendants. For example, there are
only two to four thousand mesothelioma
cases a year in America. Not all of those
cases find their way into the court system. As a result, the largest number of
cases in the courts are asbestosis and
pleural plaque cases. Estimates indicate
that four out of five of those cases would
probably fall into the category of “unimpaired” under a medical criteria bill.
CONCLUSION
Crystal ball gazing is hazardous for most
anyone, especially when the subject matter is legislation from Washington, D.C.
The state of asbestos legislation is very
fluid and changes quite rapidly.
Between drafting this article and its publication, the landscape could be different
entirely. For that matter, between publication and the time your eyes read this
article, the landscape could change dramatically. With such warnings in mind,
this article is offered for purposes of
helping people understand what seems
to be a most likely scenario for future
asbestos legislation.
1
2
O.C.G.A. §9-11-20 is part of Georgia’s Civil Practice
Act and contains identical language to that in
Mississippi Rule of Civil Procedure 20.
Many view the use of the term “unimpaired” with this group as an unfair
misnomer. Whether one is impaired,
itself, is up to debate.
3
See Federal Rule of Civil Procedure 8(a); see also
Hoshman v. Esso Standard Oil Co., 263 F.2d 499, 501
(5th Cir. 1959).
4
Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir.
2001) (discussing dangers of shotgun complaints,
including obstruction of justice, the potential for
extortion, and watering down the ability of the parties
to litigate efficiently).
5
Id. at 1131-1132.
65
JOURNAL TOP TEN
TITLE: "Distinct DNA methylation
profiles in malignant mesothelioma,
lung adenocarcinoma, and non-tumor lung."
JOURNAL: Lung. 2004;182(4):251-64.
SUMMARY: Malignant mesothelioma
(MM), an aggressive cancer strongly associated with asbestos exposure, can be difficult to
distinguish from adenocarcinoma of the lung
when limited material is available. In an
attempt to identify molecular markers for
MM and adenocarcinoma, the authors of the
study examined the DNA methylation status
of 14 loci. The study reveals observations
that support the strong potential of methylation markers as tools for accurate diagnosis
of neoplasms in and around the lung.
WEB SITE:
http://www.sciencedirect.com/science/journal/01695002
1
1
JOURNAL: Lung Cancer. 2005
Feb;47(2):193-204.
AUTHORS: Tsou JA, Shen LY, Siegmund
KD, Long TI, Laird PW, Seneviratne CK,
Koss MN, Pass HI, Hagen JA, LairdOffringa IA.
WEB SITE:
TITLE: "Asbestos induces tissue factor in Beas-2B human lung bronchial
epithelial cells in vitro."
2
SUMMARY: Asbestos has been implicated
in the pathogenesis of interstitial lung diseases including asbestosis. Tissue factor (TF)
initiates blood coagulation in vivo contributing to inflammation and tissue remodeling
via extravascular fibrin deposition and signaling for profibrogenic mediators. The authors
of the study hypothesized that asbestos could
induce TF expression by lung epithelial cells.
The results demonstrated that asbestos
induces TF expression in lung epithelial cells
in vitro, representing a newly recognized
potential mechanism by which asbestos may
modulate epithelial cell responses germane to
lung remodeling. The mechanism involves
alterations in steady-state TF mRNA that do
not involve posttranscriptional regulation,
implicating control of TF gene expression at
the transcriptional level through Sp1 or
other transcription factors.
2
AUTHORS: Iakhiaev A, Pendurthi U, Idell S.
3 TITLE: "Assessment of autoimmune
responses associated with asbestos exposure
in libby, Montana, USA."
SUMMARY: According to the
authors, systemic autoimmune
responses are associated with certain
environmental exposures, including
crystalline particles such as silica.
Positive antinuclear antibody (ANA)
tests have been reported in small
cohorts exposed to asbestos, but
many questions remain regarding
the prevalence, pattern, and significance of autoantibodies associated
with asbestos exposures. The results
of the study support the hypothesis that
asbestos exposure is associated with autoimmune responses and suggests that a relationship exists between those responses and
asbestos-related disease processes.
JOURNAL: Environmental Health
Perspectives. 2005 Jan;113(1):25-30.
3
AUTHORS: Pfau JC, Sentissi JJ, Weller G,
Putnam EA.
WEB SITE: http://ehp.niehs.nih.gov/
4
TITLE: "Mesothelioma pathogenesis,
facts and expectations."
SUMMARY: The author of this study went
back to 1960 to find published data demonstrating a relationship between mesothelioma
occurrence and exposure to asbestos fibres in
the Cape Province, in South Africa. From
that time, epidemiological and toxicological
investigations were performed in order to
better define the occupational and environ66
COLUMNS
mental background of this pathology, to
identify the fibre parameters accounting for
the toxic effects, and to understand their
mechanisms of action. Improvements in the
knowledge in these areas benefited to health
issues, by preventing risks associated with
exposure to mineral fibres and by recognising
the disease.While mesothelioma benefited to
fibre toxicology and allowed to improve the
management health related issue, the
researcher concludes that it would be a just
return if the present advances in different
scientific areas will permit a rapid eradication
of the disease.
4
JOURNAL: PathologieBiologie (Paris). 2005
Jan;53(1):41-4.
AUTHOR:
Jaurand MC.
WEB SITE:
http://www.sciencedirect.com/
science/journal/03698114
TITLE: "Proposed criteria for mixeddust pneumoconiosis: Definition,
descriptions, and guidelines for pathologic
diagnosis and clinical correlation."
5
SUMMARY: The authors of the study
defined mixed-dust pneumoconiosis (MDP)
pathologically as a pneumoconiosis showing
dust macules or mixed-dust fibrotic nodules
(MDF), with or without silicotic nodules
(SN), in an individual with a history of
exposure to mixed dust. The definition also
including that the latter arbitrarily was a
mixture of crystalline silica and nonfibrous
silicates. Typical occupations associated with
the diagnosis of MDP include metal miners,
quarry workers, foundry workers, pottery
and ceramics workers, and stonemasons.
Irregular opacities are the major radiographic
findings in MDP (ILO 1980), in contrast to
silicosis, in which small rounded opacities
predominate. Clinical symptoms of MDP
are nonspecific. MDP must be distinguished
from a variety of nonoccupational interstitial
pulmonary disorders.
5
JOURNAL TOP TEN
JOURNAL: Human Pathology. 2004
Dec;35(12):1515-23.
Goonewardene TI, Nystrom ML, Gower
NH, Rudd RM.
AUTHORS: Honma K, Abraham JL,
Chiyotani K, De Vuyst P, Dumortier P,
Gibbs AR, Green FH, Hosoda Y, Iwai K,
Williams WJ, Kohyama N, Ostiguy G,
Roggli VL, Shida H, Taguchi O, Vallyathan V.
WEB SITE:
WEB SITE:
6
TITLE: "Primary malignant pericardial mesothelioma temporarily reduced
by radiation therapy: a case report"
8
AUTHORS: Paskal SS.
SUMMARY: In this case study, a computed
tomography, echocardiography, and magnetic resonance imaging showed a mass on the
pericardium. Exploratory surgery revealed a
solid tumor invading the pericardium over
the aortic arch and main pulmonary artery.
Histological examination indicated primary
malignant pericardial mesothelioma. After
58 Gy radiation, the size of the tumor was
temporarily reduced and the patient's symptoms disappeared. However, the tumor
enlarged and her symptoms reappeared 7
months after temporary improvement.
Eighteen months after the development of
cough, the patient died suddenly.
WEB SITE: http://www.tandf.co.uk/journals/titles/10937404.asp
JOURNAL: The American Journal of
Cardiology. 2004 Dec;44(6):255-62
TITLE:"Environmental and occupational health hazards associated with
the presence of asbestos in brake linings and
pads (1900 to present): A "state-of-the-art"
review."
6
SUMMARY: No abstract available
JOURNAL: Journal of Toxicology and
Environmental Health. Part B, Critical
Reviews. 2004 Nov-Dec;7(6):481-2
"Phase II trial of vinorelbine
7 TITLE:
and oxaliplatin as first-line therapy in
malignant pleural mesothelioma"
SUMMARY: The researchers note that the
incidence of malignant pleural mesothelioma
(MPM) is increasing. Treatment options are
limited, although recently published data
have offered cause for optimism. The quality
of life assessed by Rotterdam symptom
checklist was associated with stabilization or
improvement of psychological well-being
and lung symptoms in the majority of
patients, but deterioration in physical symptoms.
7
JOURNAL:: Lung Cancer. 2005
Feb;47(2):277-81.
AUTHORS: Fennell DA, C Steele JP,
Shamash J, Sheaff MT, Evans MT,
8
AUTHORS: Tsuda T, Nakata T, Inoue T,
Kamishirado H, Sakuma M, Tohara S,
Takayanagi K, Hayashi T, Morooka S.
WEB SITE:
with perioperative intraperitoneal
chemotherapy offers improved survival rates
at a cost of considerable morbidity and mortality as in other peritoneal surface malignancies. Because adequate cytoreduction is necessary to achieve prolonged survival, CT
scans became an accurate prognostic radiologic test for patient selection for comprehensive treatment.
9
JOURNAL: Cancer. 2005 Jan 6; [Epub
ahead of print]
AUTHORS: Yan TD, Haveric N,
Carmignani CP, Chang D, Sugarbaker PH.
WEB SITE: :
http://medicine.jbpub.com/catalog/15289117/
TITLE: "Statistical validation of the
EORTC prognostic model for malignant pleural mesothelioma based on three
consecutive phase II trials."
10
SUMMARY: Malignant pleural mesothelioma (MPM) carries a poor prognosis due
to chemoresistance. The European
Organisation for Research and Treatment of
Cancer (EORTC) prognostic model was
reported to predict survival in MPM. This
study validates the EPS system as a robust
tool for stratifying small trials into low- and
high-risk subgroups. EPS should facilitate
patient selection and analysis in randomized
clinical trials.
10
JOURNAL: American Journal of Clinical
Oncology. 2005 Jan 1;23(1):184-9.
9 TITLE: "Abdominal computed
tomography scans in the selection of patients
with malignant peritoneal mesothelioma for
comprehensive treatment with cytoreductive
surgery and perioperative intraperitoneal
chemotherapy."
SUMMARY: Until recently, the treatment
options for malignant peritoneal mesothelioma were very limited and ineffective,
according to the authors. The new comprehensive approach of cytoreductive surgery
67
AUTHORS: Fennell DA, Parmar A,
Shamash J, Evans
MT, Sheaff MT,
Sylvester R,
Dhaliwal K, Gower
N, Steele J, Rudd R.
WEB SITE:
http://www.amjclinicaloncology.com

Asbestos Legislation in 2005 A Fresh Look at Old

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