Jurors deadlock in J&J talc powder cancer case

Photo credit: Jeff Chiu/Associated Press as reported by The New York Times on 7/12/18.

Photo credit: Jeff Chiu/Associated Press as reported by The New York Times on 7/12/18.

Following a record verdict in a trial in Missouri, litigation against Johnson & Johnson over its talcum powder ended in a mistrial in California.

“A state judge in Pasadena, California, declared a mistrial Monday after jurors deadlocked on Carolyn Weirick’s request for at least $25 million in damages over her mesothelioma, a cancer linked to asbestos exposure,” Bloomberg News reports. “Weirick said she developed the disease from asbestos-laced baby powder.”

Previously, a jury in Missouri awarded a record $4.69 billion in July to more than 20 women who traced the source of their cancer to the company’s baby powder. This verdict is under appeal by Johnson & Johnson.

“The world’s largest health-care products maker faces more than 10,000 other suits claiming its baby powder caused cancer,” Bloomberg reports.

Tar Heel State on Point to Tackle Asbestos Fraud by Sara Corcoran, Courts Monitor Publisher

U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.” Photo credit: Wikipedia.

U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.” Photo credit: Wikipedia.

North Carolina, long famous for great college sports and some of the nation’s best barbecue, is fast earning recognition of another sort: Being at the forefront of America’s longest-running personal injury litigation, asbestos lawsuits. The new status is interesting in the civil justice sense not only because of recent landmarks involving talc (I’ve written about that here but over how the state overlaps with national political trends.

For example, there was another “reform” milestone this month as the Tar Heel State became, by my count, at least the 15th state to embrace increased transparency in the virtually unregulated filed of asbestos bankruptcy trusts. The trusts are part of a special process for asbestos companies to protect them from massive liability, and industry watchers say some 100 companies have gone the bankruptcy route.

Of course, asbestos litigation community members will recall that one of the more prominent bankruptcies came in 2004 in North Carolina, and has unearthed questionable practices as related to the management of asbestos trusts. “Garlock” is a gasket manufacturer that received bankruptcy protection in Charlotte, NC. In an unusual move, a retired judge presiding over the case allowed discovery into 15 cases, eventually deciding that ALL 15 had some level of evidence suppression.

For context, it is worth noting that asbestos bankruptcy is an insular environment. Faced with burgeoning asbestos liability in the early 1990s, the U.S. Congress in 1994 created a system that allowed court-approved trusts to assume those payouts. Funded by the companies, the trusts are typically managed by victims’ attorneys and have come under fire for having little or no independent oversight.

The Reuters news service explained that “… a judge who found what he called a ‘startling pattern’ of abuse by plaintiff’s lawyers may have shifted the landscape of asbestos litigation with a ruling in favor of manufacturers” and then quoted from the judges decree stating that lawyers had manipulated evidence to get bigger settlements from Garlock.

Citing his finding, the judge knocked a billion dollars off the amount victims attorneys were seeking for asbestos cancer victims. Garlock even sued some of the firms that had been suing them, claiming racketeering. That case was resolved, but other civil racketeering cases have been filed and more than a dozen state attorneys general have taken notice, The AG group issued a formal letter demanding information from trust records, but did not get that information. That effort resulted in a lawsuit in Utah, and developments are ongoing.

In discussing North Carolina, it is also worth noting that in neighboring South Carolina, another retired judge – a former state supreme court chief justice – presided over one of the nation’s high-profile asbestos/talc trials that ended in a hung jury. More than 10,000 lawsuits nationwide claim that talc was involved in giving them cancer, with some jury awards in the millions of dollars. Defendants note that none of that has been paid out and appeals have overturned some big awards.

Federally, the asbestos trust transparency has been a casualty of Congressional gridlock for years. Yet new traction is being reported for a bill with – you guessed it! – North Carolina connections. U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.”

Probably the most significant section of the bill involves allowing the U.S. Trustee Program of the Department of Justice, which has oversight of similar trusts, to investigate fraud against the asbestos trusts – a power not included when Congress created the asbestos-specific system in 1994.

“Asbestos bankruptcy trusts were created to compensate asbestos victims, not trial lawyers,” said Senator Tillis. “The PROTECT Asbestos Victims Act will reform the asbestos bankruptcy trust system by adding in layers of oversight, accountability and transparency, which in turn will help eliminate fraud and ensure that trusts are able to compensate present and future asbestos victims.”

Another sponsor of the bill, Chuck Grassley (R-IA), argued that we “… need commonsense accountability measures to ensure that the trust fund is not syphoned away from the victims it was intended to help. And we need independent oversight to protect against any waste, fraud, and abuse. This bill accomplishes these much needed reforms.”

Grassley refers to a provision of the proposed law that empowers the U.S. Trustee Program of the Department of Justice to investigate fraud against asbestos trusts, which they are excluded from doing under current law. Allegations of potential fraud has brought some to support trust transparency efforts, at least in part because asbestos cancers impact U.S. military veterans more than the non-vet population.

For example, the reforms would no doubt be welcomed news to the American Legion, one the nation’s largest veterans’ groups, which has repeatedly endorsed legislation aimed at discovering attorneys who might be pilfering the trusts.

If that turns out to be the case, keep an eye on the Carolinas, Tar Heels and Palmettos alike.

(Sara Corcoran is the publisher of the California Courts Monitor, National Courts Monitor, and a contributor to CityWatchLA and other news outlets.)

Courts Monitor publisher Sara Corcoran tells the tale of legal enigma in her recent Buzzfeed article

All Roads Lead to Baron & Budd-2 copyDebating the “nature of existence” is more the stuff of college dorms (and at least one recent documentary) than state appeals courts, so the legal team for a Texas journalist seeking to open a 20-year-old deposition transcript might have been taken aback when the debate arose not from the other side, but from the bench.

At issue is a deposition by a Texas attorney named Russell Budd, part of the politically connected Dallas-based firm Barron & Budd that rose to prominence, in large part, due to successfully representing asbestos victims. The Russell Budd deposition from 20 years ago reportedly addresses a “witness coaching memo” that was as controversial then as it is now.

Courts Monitor publisher Sara Corcoran tells the tale of this legal enigma in her recent Buzzfeed article, Texas Attorney General Paxton On Point To Open Mystery Testimony.

Maryland ruling could open door to asbestos-related death cases

Tens of thousands of cases related to illness and death from asbestos exposure could be adjudicated in Maryland based on an appeal before the state’s highest court.

“Maryland’s highest court is weighing whether to give workers who were sickened by asbestos exposure more time to sue their employers,” the Baltimore Sun reported on Dec. 1, 2017. “State law now allows 20 years for workers or their families to make claims regarding illness or death from exposure to asbestos.”

The Maryland Court of Appeals in Annapolis heard an appeal involving a steamfitter, James F. Piper, “who worked at a Maryland power plant in the 1970s and died more than four decades later from mesothelioma.”

On May 31, 2017, the Maryland Court of Special Appeals ruled against the estate of James F. Piper and in favor of CBS Corp., owner of the company previously known as Westinghouse Electric.

“Piper was diagnosed with mesothelioma on December 26, 2013,” the lower court’s ruling reads. “The primary issue in the instant case is whether Piper’s cause of action against CBS is barred by the statute of repose.”

The “statute of repose,” according to the lower court ruling, “bars Piper’s cause of action against CBS, because Piper’s cause of action accrued when his mesothelioma was diagnosed in December 2013, which was more than twenty years after the turbine generator installed by Westinghouse at Morgantown became operational in July of 1970.”

The Sun reports, “Advocates say that if Piper’s estate wins the case, it could potentially open the door to lawsuits from others in similar situations who did not get sick until after the deadline to sue had passed. A coalition of unions and trade associations says the number could be in the tens of thousands of cases. …”

“The Maryland Defense Counsel, an organization of civil defense attorneys, filed a ‘friend of the court’ brief in support of CBS. The brief states that if the rules for the deadline to file cases are changed, businesses would lose ‘vital’ protections that were put into place ‘to protect businesses from facing construction-related claims like these years after the fact.”

Sara Corcoran, Founding Publisher of the California Courts Monitor

Sara Corcoran, Founding Publisher of the California Courts Monitor

Courts Monitor Publisher and national correspondent, Sara Corcoran, provides insight on what we can expect in 2018 around the controversial asbestos litigation arena. Here’s an excerpt from her recent Huffington Post article, 2018: Trump-era Justice Asked to Turn The Tables in Asbestos Litigation:

“As 2018 gains full speed, it’s time for my annual look at trends in the nation’s longest-running personal injury litigation – asbestos. You may have peripheral awareness of it due to those “if you or a loved one has been diagnosed with mesothelioma” ads, but its reach is beyond those sound bites playing on loop.
Actually, asbestos lawsuits are the nation’s longest-running personal injury litigation and have driven nearly 100 companies into a special form of banktruptcy, where trust funds are set up to pay future liabilities. Those funds have become controversial and, in 2017, more than a dozen state attorneys general launched an investigation into whether asbestos trusts were skipping required payments to Medicaid or other agencies providing health care to asbestos victims. (When victims receive compensation for asbestos injuries, some of the money may be owed to repay agencies that provided health care, like Medicaid and veteran’s hospitals.)

Likely even more ominous for the plaintiff’s bar in 2018, the state AGs are asking President Trump’s Justice Department to join their investigations of the repayment issue. The letter making that ask was even noted during a U.S. Senate committee hearing.”

Read more: https://www. huffingtonpost.com/entry/2018- trump-era-justice-asked-to- turn-the-tables-in_us_ 5a4f819be4b0cd114bdb323b]