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asbestos litigation

Judge Orders Monetary Sanctions Against Union Oil

Union OilFrank Rondon was exposed to asbestos in brakes supplied by Union Oil when he worked as a service station attendant at Felix Union 76 in Los Altos, California in the early 1970s. Mr. Rondon came to Kazan Law for help after tragically learning that he has mesothelioma.

On November 22, 2013, Alameda County Superior Court Judge Jo-Lynne Q. Lee granted a preferential trial date and issued an order to defendants Union Oil to provide deposition dates for their corporate representatives no later than December 20, 2013.

Union Oil attended the case management conference on December 20th with no date to offer. In response, Judge Lee issued a second order to Union Oil to provide dates for deposition of their corporate representatives no later than January 7, 2014.  Counsel for Union Oil promised she would oblige.

On January 10, 2014, despite Judge Lee’s multiple orders and the promises of their counsel, Union Oil still had not provided dates for the deposition. Judge Lee ordered monetary sanctions against Union Oil in the amount of $200.00. It may not seem like much, but we’ve learned that money is all big companies care about, and with Judge Lee’s active intervention, we hope Union Oil will finally produce a witness who can be forced to admit the facts about corporate wrongdoing. This means that Kazan Law partner Justin Bosl will have a stronger case when we go to trial.

Related post: Chevron Punished for Misconduct in Asbestos Exposure Case

 

Leading Asbestos Scientist Denies Helping Georgia-Pacific Fight Asbestos Claims

asbestos industry fraudBecause the link between malignant mesothelioma and asbestos exposure is so definitive, you would think that by now no scientist would try to prove otherwise. Especially with the loss of life, pain and suffering that malignant mesothelioma causes.

But alas, you’d be thinking incorrectly.

The bigger question to ponder here is can science – and more specifically scientists – be bought?  Can the lure of money influence their research results?  Would a scientist knowingly or unknowingly come up with conclusions that would enhance the bottom line of the business paying for the research?

According to detailed online reports in Hazards, a UK occupational health and safety magazine and the US scientific journal Nature, a leading toxicologist’s work on asbestos is suspected by US courts in California and New York of aiding fraud.

But the toxicologist, Ken Donaldson, an emeritus professor at the University of Edinburgh, UK, claims he contributed to academic studies on the effects of asbestos in good faith and was “naïve” not to disclose his separate paid consulting for the company involved, Georgia-Pacific, an Atlanta-based multinational and subsidiary of Koch Industries.

He also declares that he did not know at the time that the research was done under the direction of lawyers for Georgia-Pacific, who planned to use the results to fight asbestos claims.

New York’s Supreme Court Appellate Division in June ordered Georgia-Pacific to turn over the raw data and internal communications related to research that, judges said, were “intended to cast doubt on the capability of chrysotile [white] asbestos to cause cancer”.  The substance is a component in Georgia Pacific’s joint compound used in construction projects.

Donaldson, who was a co-author on some of the research, has been criticized by other environmental health researchers, both for failing to declare his interests on the papers, and later for claiming that he had no links or funding connections to asbestos manufacturers. Some are calling for Edinburgh University to sever ties with Donaldson, a previously well-regarded world expert on lung diseases caused by inhaled particles of various types.

Georgia-Pacific allegedly funded the research in an attempt to prove that many asbestos-exposed cancer sufferers could go uncompensated because they were exposed to the wrong kind of “shorter” chrysotile fibers, were not exposed at high enough levels or, if exposed at a high level, not exposed long enough. Global exports of chrysotile increased by 20 per cent in 2012.

Laurie Kazan Allen of the London-based International Ban Asbestos Secretariat (IBAS) – my sister – told Hazards: “The lack of transparency is what is appalling on this. Donaldson, like many of his co-authors, clearly had an undeclared relationship with Georgia-Pacific. Professor Donaldson says the conclusions of the papers are ‘indisputable’, conclusions the court determined could be part of a Georgia-Pacific bid to deny the asbestos cancer link.”

Berkshire Hathaway Subsidiary Settles Insurance Dispute With Ford

Kiewit Tower, the location of Berkshire's corporate offices in Omaha, Nebraska

Kiewit Tower, the location of Berkshire’s corporate offices in Omaha, Nebraska

Kazan Law has just learned that in a surprise twist to asbestos litigation news we recently reported, a Berkshire Hathaway subsidiary has suddenly settled a major outstanding insurance claim. The unexpected settlement follows in the wake of a wave of negative publicity and lawsuits surrounding Berkshire Hathaway-owned companies’ alleged intentional delay in paying insurance claims including those to asbestos victims.

“Even (Warren) Buffet reacts to press coverage,” J. Robert Hunter, head of the Consumer Federation of America’s insurance division and former Texas insurance commissioner, was quoted as saying in a Scripps News update of its original coverage of the famous philanthropist’s apparent profiteering at the expense of victims waiting to be compensated for corporate wrongdoing.

Famous tycoon and philanthropist Warren Buffet heads the Omaha-based Berkshire Hathaway. As the chairman, CEO and largest shareholder of Berkshire Hathaway, he is consistently ranked among the world’s wealthiest people.

Although the only settlement publicly announced at this time is with Ford Motor Co. for unpaid claims over rollover deaths, it can be hoped that resolution for mesothelioma-stricken victims of asbestos exposure will follow.

Scripps previously obtained sworn testimony from a former Berkshire claims executive who criticized Berkshire subsidiary National Indemnity and its claim-handling arm Resolute Management Inc. for reportedly delaying and denying claims to asbestos-caused cancer sufferers and others.

National Indemnity, according to Scripps’ coverage, agreed to take on tens of billions of dollars in “so-called long-tail insurance risk” from major insurers including Lloyds of London and American Insurance Group (AIG).

“The long-tail policies cover asbestos and other health hazards that might take years or decades to develop into illness or a covered claim,” the report states.

Berkshire was entitled to invest the money until it had to pay out a claim but sought, according to allegations, to extend its ‘float” of the funds to boost its bottom line instead of paying on claims, including those of asbestos victims.

Ford announced that it received two million more than it had asked for in its settlement, walking away with $22.1 million.  Representatives for National Indemnity disputed Ford’s claim but would not reveal any settlement figures. The case had been set for trial later this month in the United States District Court for the Eastern District of Virginia.

Asbestos Industry Funds Allegedly Biased Scientist’s Research

Mcgill_BuildingAsbestos regulation and legal cases often rely on testimony from expert witnesses who are supposed to provide factual impartial evidence.  Typically these expert witnesses are medical professionals and scientific researchers who can influence decisions because of their knowledge of asbestos and how it affects human health at various exposure levels.

But what if the experts who are supposed to be the ultimate authority on asbestos allow their opinions to be swayed by the business interests of whoever is funding their research?  What if the entity funding the research sees it as a business investment with an expected return instead of a philanthropic use of funds to advance scientific knowledge to help all humankind?

This is what a professor from Ivy League Brown University is alleging about a professor at Canada’s prestigious McGill University.

David S. Egilman, MD, MPH, a clinical professor of family medicine at Rhode Island’s Brown University suggests impropriety in his presentation at an asbestos industry conference held at McGill University last week.  Entitled “The Past is Prologue, Universities in Service to Corporations:  the McGill QAMA Asbestos Example.”

In his presentation, Dr. Egilman questions the accuracy of the conclusions of research on asbestos miners by McGill’s Prof. J.C. McDonald.  Prof. McDonald’s research was reportedly financed with one million dollars by the Quebec Asbestos Mining Association (QAMA).

“The available published data shows that the data reported does not support the conclusions,” Dr. Egilman says in the presentation.

The controversy was reported by Kathleen Ruff in an e-bulletin produced by the nonprofit Rideau Institute based in Ottawa.  Ruff, one of the Institute’s founders, is noted for her advocacy to end Canada’s export of asbestos.

“Prof. McDonald used his research to promote the use of chrysotile asbestos around the world. His research continues today to be used by the global asbestos industry to promote the sale and use of chrysotile asbestos. It was used, for example, by the global asbestos lobby at the May 2013 Rotterdam Convention conference to help defeat the listing of chrysotile asbestos as a hazardous substance,”  Ruff states.

Dr. Egilman and other scientists, according to Ruff, asked McGill to conduct an official investigation under the university’s research integrity regulations. McGill has refused and instead carried out an internal review which, according to Ruff, was “flawed by bias, lack of transparency and misinformation.”

Warren Buffet’s Berkshire Hathaway Companies Accused of Profiting By Denying, Delaying Asbestos Victims’ Payments

Warren BuffettAsbestos victims were in the news this week when major media sources reported that there are dozens of lawsuits claiming that subsidiaries of the company Berkshire Hathaway are further victimizing them by intentionally withholding their payments.  Why?  To boost the company’s bottom line by denying and delaying claims owed to those dying from the asbestos-caused lung cancer.

Berkshire Hathaway Inc, headquartered in Omaha, Neb., is the company owned by Warren Buffet, considered the most successful investor of the 20th century.  As the chairman, CEO and largest shareholder of Berkshire Hathaway, he is consistently ranked among the world’s wealthiest people.

An investigation by Scripps News, a syndicated media service, stated in a report carried by many media outlets including The Wall Street Journal and ABC News,  that Berkshire Hathaway has become “one of the most powerful forces in asbestos and pollution litigation in the world.” And not in a good way.

Apparently, through 25 known deals, Berkshire’s Reinsurance Division took over the insurance risk for asbestos claims from major insurance firms. American Insurance Group (AIG), CNA Financial Group and Lloyd’s of London are among those who paid Berkshire to take on tens of billions of dollars in future asbestos and pollution claims that they had been holding.

Berkshire allegedly invested the money, known as “float” for a very profitable income.  And supposedly, the company did not want the bonanza to end even if it was at the expense of the sick and dying asbestos victims who are suffering because of asbestos exposure in their workplace.

Buffett is quoted as celebrating this strategy in his well-known annual letters to shareholders. In his 2009 message he wrote, “Our float has grown from $16 million in 1967, when we entered the business, to $62 billion at the end of 2009.” By 2012, that number had grown to $73 billion.

According to media reports, major companies with outstanding asbestos claims such as Ford Motor Co. and Estee Lauder Inc. sued alongside asbestos victims to get claims paid so they can be reimbursed for fines, legal fees and payments of injury claims.

Berkshire officials refused to reveal to Scripps how many bad-faith allegations against its subsidiaries have been lodged or settled.  Berkshire executive Ajit Jain said his division pays $1.4 billion annually for asbestos claims and expenses. And “as is the case with any insurance company, the vast majority of claims are settled without trials,” he said.

Italian Asbestos Victims Ask Yale to Revoke Convicted Eternit CEO’s Honorary Degree

Casale MonferratoMention the Piedmont region of Italy and most people think of a glamorous vacation destination with picturesque villages and castles framed by the Alps.  But behind the tourist façade, it is an asbestos-infested valley of the shadow of death.

More than 2,000 people have died from mesothelioma just in Casale Monferrato, a town that has been around since the days of the ancient Roman Empire. By the dawn of the 20th century, it became known as a cement producing capital because of a factory built there in 1906 by Eternit, a company based in neighboring Switzerland.  Founded in 1903, Eternit produced asbestos-containing cement until 1997.

Headed by the Schmidheiny family since 1933, the company flourished during the post World War II rebuilding boom throughout Europe.  Besides Italy, Eternit also had factories in the Netherlands, France and Brazil. But amid a growing scandal about asbestos, Eternit’s four Italian factories closed in 1986 and the company was sold to an Austrian bank in 2003.

In 2009, following five years of investigation, billionaire former CEO Stephan Schmidheiny , 65, and major shareholder Louis de Cartier Marchienne were accused of criminal neglect . Both men were found guilty in February 2013 and sentenced to 16 years in prison.  You can learn more about this important asbestos trial in a free ebook  co-edited by my sister Laurie-Kazan Allen and her husband David Allen, asbestos victim advocates in their own right.

Marchienne died at age 91 on May 21, 2013 during the appeal of his sentence. Charges against him were dropped in June. But Schmidheiny’s sentence was increased to 18 years. He is appealing the case to Italy’s highest court.

Now, a group of mesothelioma sufferers and their families in Italy are seeking to have Yale University, an elite American college in New Haven, Connecticut, take back an honorary degree it presented to Schmidheiny in 1996.  A New Haven attorney representing the Italian group sent a petition to Yale officials this week.  Yale has never revoked an honorary degree and has expressed support for Schmidheiny .   Ironically, Schmidheiny’s Yale honors were conferred on him for his environmental activities, which cynically could be seen as an attempt to distance himself from the environmental and human disasters his company created.

Demystifying the Asbestos Litigation Deposition

taking oathAn important part of our asbestos litigation practice at Kazan, McClain, Satterley & Greenwood, is preparing for trial. On both sides of a case, preparation involves taking depositions. This often keeps our attorneys on the road traveling to wherever the deposition will be held. But we wouldn’t miss one for the world. They are just too important. Why?

You can be sure we know the law and legal precedents that apply to each case. But what we don’t always know and aim to find out is what information key witnesses in each case possess. Why? Because what they know will inevitably come to light during the trial and we don’t want any surprises. Nor does the other side.

To put it simply, a deposition is a formal interview under oath normally conducted out-of-court by an attorney. It yields oral testimony given by a witness without a judge present. The purpose is for the attorney to discover key information that may be relevant to the case. The witness can also be examined by the opposing counsel – the attorney the other side hired – who invariably is also present.

After the questioning is finished, the deposition is transcribed to written form and studied carefully by lawyers during the time leading up to the trial as each looks for information to support their arguments. That’s why a hired court reporter or stenographer is also part of the deposition process. Often the deposition is recorded on video, which can be edited so that relevant portions can be shown at trial.

Abraham Lincoln, who practiced law for 25 years in Illinois[1] before entering politics, once said that harm comes not from use of a bad thing but from misuse of a good thing.[2] So it came to be with the vital legal procedure of taking depositions.

We care about the results, and spend the time necessary to get to the important facts. Lawyers defending asbestos cases get paid by the hour, not for results, and there are usually lots of them at every deposition – so they like to drag things out as long as possible – for them, time is money!

On September 17, 2012 – almost exactly a year ago – California Governor Jerry Brown signed into law a bill that Kazan Law was instrumental in advocating. AB 1875 limited how long a deposition could take. Deposition abuse – extending depositions of victims for days on end – had become a problem not only for those suffering from asbestos-related diseases but for other ailing people as well. AB 1875 limited depositions of ill and dying victim to two days of seven hours each, for a total of 14 hours. Exceptions can be made if a judge decides that more time is absolutely necessary.

 


[1] Lincoln’s Advice to Lawyers, Abraham Lincoln Online, www.abrI ahamlincolnonline.org

[2] Temperance Address 1842, ibid

Kazan Partner David McClain Serves as Key Witness in Major Asbestos Bankruptcy Trial

David McClainBecause of Kazan, McClain, Satterley & Greenwood’s acknowledged expertise in asbestos claims, one of our principal partners David McClain recently was asked to serve as a key fact witness in a major asbestos bankruptcy case underway in Charlotte, NC.[1]  The outcome of this trial will determine how much Garlock Sealing Technologies and its parent company Enpro will have to pay into a trust fund for victims exposed to its asbestos-containing products.

According to David, “It was acknowledged by the counsel representing both present and future asbestos victims that we are among the foremost experts in this type of litigation and would be in the best position to tell the judge about Garlock’s liability.”

Garlock wants to set aside about $270 million for the trust. The claimants are asking for over a billion dollars from Garlock and its parent company Enpro.

As part of its legal strategy, Garlock filed for asbestos reorganization in federal bankruptcy court. The gasket manufacturing company’s case went to trial in early August to determine its total liability.  Although the evidence is now closed[2] a decision is not likely soon as the judge has much to consider

Garlock went to federal bankruptcy court to avoid more expensive lengthy trials for individual claims, which often resulted in big settlements. Now, to reduce the amount of the trust for claimants as part of a bankruptcy settlement, Garlock is attempting to prove that the victims’ cases are dishonest, because they may have been exposed to asbestos from sources other than their products, even though this argument has never worked for it in court when they actually tried cases.

“They (Garlock) have the money to pay up.  They just want to keep it for themselves. So they were trying to claim that the plaintiffs were being dishonest.  I countered that, and showed that it’s not true,” David commented when we discussed the case.

David pointed out to the judge how under California law, plaintiffs only need to show that the company’s gaskets increased the risk of developing mesothelioma, the fatal cancer caused by asbestos exposure. This ruling provided incentive for Garlock to avoid individual trials by paying its fair share in settlements of those cases.

When the judge hands down a decision on this asbestos bankruptcy case, I will report to you about it right here on the Kazan Law Blog.

[1]    Evolving litigation landscape led to settlements, witness testifies at Garlock trial; Legal Newsline; Aug 7, 2013

[2]  Garlock bankruptcy trial concludes in N.C.; Legal Newsline; Aug 23, 2013

History of Asbestos Litigation

asbestos litigationOne of the things that I believe sets Kazan, McClain, Satterley, Lyons, Greenwood & Oberman apart is the fact that we have been pioneers in asbestos litigation. The modern history of asbestos litigation began on December 10, 1966, when the first asbestos product lawsuit since the 1920s was filed in Beaumont, Texas by attorney Ward Stephenson. His client, Claude Tomplait, had been diagnosed with asbestosis in July of that year. The defendants were eleven manufacturers of asbestos-containing insulation products, including Johns-Manville, Fibreboard and Owens Corning Fiberglas. The case proceeded to trial on May 12, 1969 and a week later the verdict was returned in favor of defendants.

In October 1969, Mr. Stephenson filed a case for one of Mr. Tomplait’s co-workers, Clarence Borel. Again, numerous asbestos manufacturers were named. However, this time the result was different. The jury returned a verdict for Mr. Borel in the amount of $79,436.24. The verdict was appealed and on September 7, 1973, Ward Stephenson died. Four days later, the Fifth Circuit Court upheld the award.

The legal battle on behalf of asbestos victims expanded to other parts of the United States. Cases were filed in many other jurisdictions starting in late 1973.

In 1974, I filed a precedent-setting civil lawsuit on behalf of Reba Rudkin, who developed asbestosis after working for 29 years at the Johns-Manville manufacturing plant in Pittsburg, California. Even though Mr. Rudkin worked for Johns-Manville and the company would normally be protected from such a lawsuit because workers’ compensation is the exclusive remedy for an employee suing an employer, I argued that Manville and its executives should not be shielded from fraud and conspiracy charges.

In January 1978, at a deposition taken during the course of discovery in this case, Wilbur Ruff, the Pittsburg plant manager in the 1960s, was asked if there had been “a policy in the company…not to talk to the employee about chest findings, findings that suggested asbestosis, pneumoconiosis or mesothelioma.” Ruff testified, “Yes, it was policy.” [Brodeur p.167-168] It was known as the “hush hush policy.” The evidence of fraud and conspiracy started to emerge.

During this period, numerous incriminating Johns-Manville documents were discovered that proved fraud and conspiracy. These included the personal records of Sumner Simpson, president of Raybestos Manhattan, who corresponded frequently with Vandiver Brown, General Counsel of Johns-Manville. The letters disclosed that these companies conspired to suppress knowledge about the hazards of asbestos as early as the 1930s.

Fast forward and now, more than 40 years later, asbestos litigation is still a battleground that remains fraught with continued evidence of corporate and insurance company fraud and conspiracy.

 

Pfizer Sheds its Liability in Asbestos Lawsuits with $964 Million

asbestos lawsuitOne of the dangers of asbestos exposure is the fact that disease symptoms related to contact with the material can take between 20 and 50 years to develop. Patients may not know they’re sick for decades. In the meantime, the business dynamics of the unscrupulous companies responsible for asbestos exposure may shift dramatically. However, that doesn’t make them any less accountable to the victims they hurt, and it doesn’t make the situation any less appalling when these companies try to dodge their responsibility in asbestos lawsuits.

Recently, I came across a story in Bloomberg that discussed how Pfizer can now shed its asbestos-related liability after contributing $964 million to Quigley, which is one of its subsidiaries.

Drug giant passes the buck
In 1968, pharmaceutical giant Pfizer bought a smaller company known as Quigley, which manufactured asbestos-containing products between the 1940s and 1970s. One of the most popular products was Insulag, which was a form of powdered insulation that was sold in a package brandishing the Pfizer logo after the buyout.

By 1992, most of Quigley’s operations came to a halt, and in 2004, the company filed for bankruptcy. After, about 160,000 asbestos lawsuits were filed against Quigley. Pfizer was also named as a defendant in many of these asbestos lawsuits, but the drug company insisted it had never manufactured or sold products that contained asbestos.

In 2010, Pfizer proposed paying $216.2 million to cover all claims up to that point, but the presiding judge on the case rejected the proposal in part because it was estimated that these claims can reach $4.45 billion over 42 years.

The newly approved bankruptcy plan for Quigley has Pfizer paying $964 million. The case didn’t stop there, though. Pfizer tried to appeal this decision to the U.S. Supreme Court, which ultimately denied the company’s request.

The Daily Bankruptcy Review also noted that, previously, Pfizer paid more than $1 billion in asbestos compensation.

Asbestos exposure has devastating consequences
While the focus of the recent action in this case was on the bankruptcy proceeding, it shouldn’t be forgotten that behind all of these figures and legal terms are real victims and their families, who have suffered immensely because of asbestos exposure.

Many workers were exposed to the substance on the job due to its industrial uses and ignorance of the deadly consequences it can pose.

It has now been known for decades that coming into contact with asbestos can cause a range of serious illnesses. These diseases include asbestosis, lung cancer and malignant mesothelioma, a rare and deadly cancer that attacks the thin membrane that lines the chest, abdomen and many of the body’s internal organs.

These diseases often don’t manifest symptoms until decades after the exposure that caused them. This lag in time between exposure and diagnosis helps explain how a defunct company like Quigley could still be responsible for victims who only now know that they’re sick. In addition, this delay makes the effective treatment of the illnesses very difficult because, often, the disease has progressed beyond the point where a cure is possible.

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