- - Monday, January 9, 2017

ANALYSIS/OPINION:

Mesothelioma. For most of us, the name of this asbestos-caused lung cancer is synonymous with bad late-night TV commercials imploring those afflicted to sue for contracting the disease. And with good cause. For roughly 3,000 Americans each year, it is a death sentence.

Sadly, mesothelioma’s victims extend beyond cancer patients to the U.S. justice system itself. The size and scale of the litigation — the longest-running in U.S history — has provided a vehicle ripe for abuse by clever trial lawyers who use sick clients as courtroom pawns to capture fat fees.

While lawyers take in an average of about $2 million per case (and often much more), asbestos victims themselves often end up receiving pennies on the dollar. The New York Times reports asbestos litigation is a “bonanza” for plaintiffs’ lawyers.

Overcharging clients is the beginning of the story. A new report by the Institute for Legal Reform finds that plaintiffs’ lawyers often engage in double-dipping to maximize payouts. This means pursuing different claims often based on different stories against different defendants for the same injury.

The recent release of the latest “Judicial Hellholes” report by the American Tort Reform Foundation highlights how trial lawyers also shop their claims to the country’s most favorable jurisdictions for civil litigation. At the top of the list for asbestos litigation is Newport News, Va., where major ship repairs involved tearing out asbestos from older World War II vessels. Newport News’ special application of Maritime Law, with its low evidentiary standard, results in the nation’s highest plaintiff victory rate at 85 percent. This win rate and consistent multimillion-dollar judgments have encouraged the filing of seven in every 10 Virginia asbestos cases in Newport News.

The poster boy for abusive asbestos litigation in Newport News is the politically connected attorney Robert “Bobby” Hatten. The record in Herman v. Owens Illinois, Inc. in 2013, brought by Mr. Hatten’s firm, is Exhibit A for the difficulties faced by defendants who face multiple claims from the same claimants who are seemingly encouraged to have different stories of what and where they suffered injuries. The new documentary “Unsettled: Inside the Strange World of Asbestos Lawsuits” showcases the exploitation.

Pushback against the abusive litigation practice has begun. One judge has called out the “startling pattern” of abuse by asbestos trial lawyers. The National Law Journal reports one court’s “opinion suggests pervasive fraud on the part of asbestos claimants and their counsel.” In one recent case, a federal judge examined testimony and evidence in 15 asbestos cases and discovered ethical problems in all 15. Most of the troublesome issues involved the aforementioned double dipping where plaintiffs testified to one version of injury for bankrupt companies and a different one in trials against solvent ones.

Remember the election campaign story of the Boston law firm accused of violating several federal statutes by reimbursing its staffs’ donations to Democratic candidates? What wasn’t widely reported was that the firm’s specialty is asbestos litigation. Its $3.4 million in donations were focused on Democratic senators, including Elizabeth Warren, Jon Tester and Chuck Schumer, who oppose overhauling the asbestos litigation system.

Sometimes the payoffs are more direct. New York Assembly Speaker Sheldon Silver was convicted last year of raking in more than $5 million in a complex scheme in which he colluded with an asbestos doctor and the powerhouse asbestos law firm Weitz & Luxenberg.

And guess who then-Senate Majority Leader Harry Reid’s top contributor was from 2009 to 2014? Weitz & Luxenberg. And like Silver at the state level, Mr. Reid blocked any legislation that would threaten the trial lawyers’ (and his) gravy train. Most notably, this meant refusing to hear the Fair and Accurate Credit Transactions Act, which would crack down on asbestos-litigation fraud.

The “Unsettled” film tags trial lawyers as having the Democratic Party “on retainer.” This funding of the party has helped replace the diminishing influence of Big Labor. Until the public recognizes this “pay-to-play” relationship, mesothelioma will just remain as a bad late night commercial. We need greater awareness that the law has been hijacked to become the latest rotten tool of trial lawyers to promote self-enrichment.

• Richard Berman is the president of Berman and Company, a public affairs firm in Washington, D.C.

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