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Mesothelioma Legal Perspective - Straight Talk from David A. Shaw

Below, articles written by David A. Shaw offer first hand perspective of a mesothelioma plaintiff's attorney. Changing legislation, medical, economic, legal and current events are discussed. This information offers insight on both the climate of mesothelioma and asbestos litigation, and the character and dedication of asbestos attorney David. A Shaw. Look for updates in this site to both this page and to mesothelioma news.

• Medical Aspects of Mesothelioma
• Legal Aspects of Mesothelioma
• Economic Aspects of Asbestos Litigation & Mesothelioma
• Political Aspects of Asbestos Litigation
• What the Election Means to Mesothelioma Plaintiffs
• The Expert Game - Mesothelioma Litigation Witnesses

Medical Aspects of Mesothelioma

Strictly speaking, of course, mesothelioma is a disease. It is malignancy that occurs in the membrane lining the chest cavity (pleural mesothelioma, the most common type) or the abdomen (peritoneal mesothelioma — much less common). Malignant mesothelioma can also occur in other membranes in the body, but this is extremely rare. While there are improving mesothelioma treatment options for the youngest, healthiest patients, especially those with pleural mesothelioma of the epithelial cell type (as opposed the sarcomatous cell type, or "mixed," which as you would think, consists of both sarcomatous and epithelial malignant cells), the outlook continues to be extremely bleak for most individuals who are diagnosed with this disease. That outlook is only improved if the patient can benefit from the expertise of one of the treatment centers around the country that treat a lot of mesothelioma cases.

Mesothelioma is quite rare, as malignancies go. The number of cases diagnosed each year varies, but it has never been more than about 2500. The vast majority of mesothelioma cases are caused by occupational or "household" exposure to products containing asbestos. Mesothelioma, like many cancers caused by external carcinogens, has a long latency period from exposure to the carcinogen to the manifestation of the disease in a form that is detectable with the diagnostic tools that the medical profession currently has in its arsenal.

The rarity of the disease poses a problem for the possibility of research into treatments. It simply not economically rational for a large pharmaceutical company to pour gazillions of dollars into a finding a cure for a disease that not many people have. There are, however, organizations that are dedicated to funding research into mesothelioma treatments . The sources of funding for these efforts will be discussed further on.

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Legal Aspects of Mesothelioma

If you plug "mesothelioma" into any search engine, you will notice that the vast majority of the sites brought up are not sponsored by medical organizations. They are, like the site you are viewing now, sponsored by lawyers or law firms. If you live in a large metropolitan area (especially one that has or had a lot of heavy industry) and you listen to AM radio or watch cable TV, you may be familiar with ads from law firms that are targeting mesothelioma cases, just as you will hear ads from the big medical centers soliciting cancer patients, eye doctors soliciting LASIK patients, plastic surgeons soliciting patients for cosmetic enhancements, and so forth. It was once considered unseemly for practitioners of the "learned" professions to seek clients/patients this way, but that was a long, long time ago. As a result, those who log on to get medical mesothelioma information about the disease will only get it embedded with a large amount of legal mesothelioma information as well.

The reason that law firms want these cases is that they are extremely meritorious when there is a provable exposure to an identifiable asbestos containing product. If the manufacturer, distributor or other entity legally responsible for that product can be identified in a manner that will hold up in court, and that entity is viable (in other words, not defunct or in bankruptcy), these case often result in large amounts of compensation from what has been loosely (and rather simplistically) described as "the tort system."

Why do these cases bring such substantial verdicts and settlements (at least when there is someone to pay said verdict or settlement, which there often isn’t)? The reasons need to be looked at from the relative perspectives of both the plaintiff/victim and the defendant/company. From the victim’s perspective, mesothelioma is a terrible disease. It has generally meant a death sentence, and in many cases still does. It can be a terrible, slow and painful way in which to leave this world for the next. The effective treatments, such as they are, tend to be extremely expensive, involving radical surgery, chemotherapy and radiation (in what is known as a "tri-modal" approach). The victims are just that, victims, and juries tend to evaluate the awarding of money damages accordingly. From the perspective of the companies (there are usually more than one) being sued, there is not much room to maneuver. Smoking does not cause mesothelioma, nor does any other alleged personal vice seem to play a role, so there can be no "blaming the victim." Asbestos has been known to cause diseases of various types since the early 20 th century, so the contention that "we didn’t know anyone could get sick from it" (also known as the "state of the art" defense) doesn’t go over too well either. If the company cannot win on exposure ("it was someone else’s product" or "our product doesn’t release fibers into the air") or disease ("it isn’t really mesothelioma"), they are generally stuck. They can settle (as is done in most cases in the civil justice system—not just mesothelioma cases) or take their chances in trial (not for the faint of heart, unless there is a good defense).

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Economic Aspects of Asbestos Litigation & Mesothelioma

The economic consequences of mesothelioma litigation are extremely difficult to tease out of the economics of asbestos litigation as a whole. The complication is that the vast majority of lawsuits filed for injuries caused by asbestos exposure (at last count there were several hundred thousand of them) don’t involve mesothelioma or any other malignancy. The plaintiffs in these cases are rather claiming that they have asbestosis , a non-malignant scarring disease the lung (or pleural) tissue. There are a number of voices across the spectrum arguing that an awful lot of these cases have dubious merit, not only because there is no discernable impairment on the part of the plaintiff, but also because many of them do not have the minimum exposure and latency requirements to be screened for the disease in the first place. In the recent past, it had been the position of a number of the manufacturers that were stuck with the bulk of the remaining asbestos liability that it was these cases, rather than the mesothlioma cases, that were causing the claimed adverse economic consequences of asbestos litigation. In other words, they said that they could handle the "meritorious" cases if, somehow, the "non-meritorious" or "frivolous" cases could be gotten rid of (a word to the wise—"frivolous" as used in the phrase "frivolous lawsuit," is invariably in the eye of the beholder, who, it seems, is never the one who got hurt). Another group also became concerned with the apparent economic consequences of asbestos litigation, following a cascading string of bankruptcies that started in 1999 and that seemed to slow down only in 2002. This was a group of law firms, including the sponsor of this site, which had, for various reasons, decided to concentrate largely, if not exclusively, on mesothelioma cases. The problem was, and is, that these bankruptcies meant that a large portion of the mesothelioma victims and their families that they represented could no longer get the compensation that they had historically been entitled to, because the range of available defendants had become much narrower. If the victim was only exposed to the products of companies that were no longer available to sue, then that victim was out of luck, other than having the ability to make claims against various bankruptcy trusts. At the same time, the manufacturers and insurance companies still on the hook were clamoring for congress to do something about their escalating potential liabilities, and indisputable effect it had on their ability to raise capital, both in the equity and debt markets. Which brings us to the next chapter.

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Political Aspects of Asbestos Litigation

The political system in this country has withstood numerous attempts over the past three decades to impose a politically crafted "solution" on the "problem" of asbestos litigation as it has evolved in the various federal and state courts that constitute this country’s civil justice system. The most obvious reason for this is the natural state of stalemate deliberately engineered into our constitutional system of government at its inception. Another reason is that the political factions involved, consisting in the main of big business, the plaintiffs’ trial lawyers ("big law" for short) and big labor all have substantial, if constantly shifting, political clout. In Washington, as anyone will tell you, it is much easier to prevent change than to impose it, which, throughout our history, has been both a blessing (no change for the worse) and a curse (no change for the better) depending on the change at issue, and, of course, "better" and "worse" in this context are always in the eye of the beholder. The brief life of the Asbestos Alliance changed this, at least for a while, and, as a largely indirect result, the political system came closer than it has ever come in the past (and may come in the future) to crafting a policy response to the public health disaster caused by asbestos.

There was a temporary alliance between certain asbestos companies and a number of the law firms that primarily or only do malignancy cases (this firm was a part of it). This was in essence a rift in the community of law firms and lawyers that represent those injured by asbestos, between those that firms that do only cancer cases and those firms that have large numbers (and I mean really large, in some instances) of non-malignant cases. For more detail on this, go to Asbestos Litigation 101. The bill that was proposed by the Asbestos Alliance was sponsored by Senator Don Nickles of Oklahoma, a Republican, and became known as the "Nickles Bill." This piece of legislation followed the basic pattern of many prior legislative attempts to wrestle with asbestos, in that it was a "criteria" approach. The idea was to leave the malignancy cases in the tort system, with a few changes (like new restrictions on "forum shopping" and consolidations for trial) and to have fairly rigid diagnostic requirements for non-malignant cases before they could be filed as a lawsuit. The bill would also eliminate all statutes of limitations for non-malignant diseases. Statutes of limitation often forced people who had been diagnosed with any kind of X-ray evidence of asbestos exposure to file suit within two or three years, or be forever barred from making any claim ever. This bill was not perfect, and, needless to say, everybody with non-malignant diseases hated it, along with their attorneys. Many in the business community felt that it did not go far enough. In addition, even bigger verdicts kept coming down the pipeline in mesothelioma cases, leading many in the community of liable corporations to wonder whether the individual mesothelioma cases weren’t as much of a threat as the tens of thousands of non-malignant cases.

At the same time, there was another group, composed solely of the defendants (i.e. asbestos companies) and the insurance companies on the hook with them. The objective of this entity, known as the Asbestos Study Group, was the elimination of all asbestos claims from the courts, period. The idea was to replace the judicial system with a system of administrative claims run by a new federal bureaucracy, with the claims to be paid out of a fund created by the liable companies and their insurers paying shares into that fund over a period of years. The legislation, as written, would not only bar all new claims (including, of course, mesothelioma claims) from the court system, but would also eliminate all pending claims, even those for which a verdict had been reached, and all settled claims where the money was not yet paid.

After the 2002 mid-term elections, the Republicans got control of the Senate. Senator Orrin Hatch of Utah became Chairman of the Senate Judiciary Committee (where these proposed pieces of legislation had been circulating), and got behind the Asbestos Study Group’s bill, which became known as the "Hatch Bill." Needless to say, all of the defendant companies who had been so seemingly solicitous of mesothelioma victims also abandoned the Nickles Bill (which is, by now, about as dead as legislation can get), and got behind the Hatch Bill. Last year, the Hatch Bill was approved by the Judiciary Committee on a largely party-line vote (Republicans in favor, Democrats, save one, against, as one would predict). It has stalled coming to the Senate Floor, and it is doubtful that Senator Hatch could get it passed, even if it could be gotten to the floor for a vote (in order to get a bill to a vote in the full Senate, there must be 60 votes to cut off debate).

That is where things stand now. One factor that has not yet been mentioned is that the proposed asbestos legislation is a part of a much broader assault on the civil justice system, an assault that goes by the name "tort reform."

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What the Election Means for Mesothelioma Plaintiffs

November 4, 2004

The re-election of President Bush and the new, more muscular Republican majorities in the Senate and House of Representatives, which brings with it the power to fill the federal judiciary with pro-business and anti-plaintiff judges, will probably be a watershed. If this site is still here in six months, it will be surprising. Unfortunately, the Democratic Party has lost its ability to relate to ordinary working Americans (i.e., my client base) and will need to either change radically (which probably won’t work) or break up into constituent parts until a new, viable political party (perhaps called something else) can be presented to the voters as an alternative to the Republican Party. This could take awhile. Meanwhile, you can bet that everything from bad weather to dandruff will be blamed on "frivolous lawsuits."

You can also be certain that the asbestos "reform" legislation that had been stalled in the Senate will be promptly revived and made more draconian. The only defense would seem to be to get cases filed, in court, somewhere, before the legislation (which will, of course, be retroactive) gets passed, so as to have some basis to assert a Due Process (shortly to be redefined, I’m sure) claim to keep the case out of the new system.

More bulletins as events warrant.

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Asbestos Litigation, Mesothelioma, "Asbestosis" and the Expert Game

One of the things you discover when you are an attorney working on complex litigation like medical malpractice, asbestos disease or product liability is the omnipresence of the "expert" witness. There are two basic rules to remember about expert witnesses—first, they are essential; second, they are expensive. Another thing you find out, unfortunately, is that some of them can be bought and sold. This is true for both sides of the litigation, but naturally it is the experts who testify for victims who cause the most outcry when something smells fishy. Unfortunately, there is a new study from Johns-Hopkins medical school in Baltimore that has shed light on a huge problem in the litigation that has, in my opinion, had adverse effect on those that have contracted mesothelioma from asbestos exposure. In the study, chest X-rays from 496 individual plaintiffs that had been submitted in support of claims for asbestosis were reviewed by a panel of supposedly objective B-reader radiologists. The panel found abnormalities in just 4.5 percent of the X-rays. The problem is, the B-readers who had read those same films in support of the claims were of the opinion that abnormalities were to be found in 96 percent of them. First, some caveats—the study was paid for by defense attorneys who work for the asbestos companies, and the doctor who ran the study has testified on behalf of the asbestos industry in trials. Also, diagnosing pneumoconiosis at the minimal level (which you have to assume virtually all of these cases were) is a notoriously inexact science, which is the reason the ILO (International Labour Organization ) scale for grading pneumoconiosis was developed in the first place. For B-readers to disagree in a third of cases reviewed is to be expected, and the head of the Johns-Manville Trust has testified before congress that the B-readers who review asbestosis claims submitted to the trust typically disagree 50 per cent of the time.

The problem is, this study's findings go beyond those numbers. This is also nothing new. This sort of thing has gone on wherever there have been mass settlements of asbestosis claims, going at least as far back as the 1986 Raymark Industries global settlement and something called the " Tireworker Litigation Project." It also bears noting that of the 496 chest films reviewed, half of the positive readings on behalf of the claimants came from just seven doctors. It also should be noted that there is plenty of so-called "junk science " on behalf of the defense in asbestos litigation, mesothelioma cases included. My own personal favorite is a doctor in Boston who regularly states that, in order for mesothelioma to be attributed to asbestos exposure, there must be underlying asbestosis or asbestos-related pleural changes—which is, politely put—crap. For the mesothelioma victim, however, it remains that every dollar that goes to compensate a bogus claimant is a dollar that is not available to the claimant who has mesothelioma, lung cancer or impairment-causing asbestosis.

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