Jonathan Ruckdeschel The Ruckdeschel Law Firm LLC 8357 Main Street Ellicott City MD 21043 National Crisis Bankrupt companies proclaim Chapter 11 has been boon for them Fewer and fewer asbestos cases being brought ID: 367126
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Slide1
ABA Asbestos Task Force
Jonathan Ruckdeschel
The Ruckdeschel Law Firm, LLC
8357 Main Street
Ellicott City, MD 21043Slide2
National Crisis?
Bankrupt companies proclaim Chapter 11 has been boon for them.
Fewer and fewer asbestos cases being brought.
MDL-875 disbanded due to lack of interest.
One retired judge manages entire Baltimore docket of asbestos cases.
Even defense counsel testifying today agree that the cases in the tort system today involve terminally ill individuals.Slide3
Only a jury can quantify what constitutes “full value” for these cases.Slide4
Defendants Are Not The Victims HereSlide5
Who Will Be The Whipping Boy?
June 1970
We realize that someone will be the whipping boy, also product liability will be stressed. It is our opinion that the entire blame can be placed on the contractor, for not insisting on respirators and dust masks when sanding.Slide6
What’s the right policy?
When an innocent party is harmed by multiple wrongdoers, the burden of insolvency of one of the multiple wrongdoers should be borne by the other
tortfeasors
not the injured party.Slide7
What’s the right policy?
Behrens – if we knew total setoff from settlements in Illinois defendants would be more willing to go to trial and roll the dice.
Problem of being lobbyist rather than trial lawyer.
That’s precisely why the law is what it is.
Plaintiffs sitting on large settlement pot know they have hard hurdle – mitigates reasonableness
Defendants not knowing how big setoff will be cannot bank on having large cushion.Slide8
Trust Claim On Site ID Is Not Proof Of Exposure Or Admission Of Exposure
Suggestion that mandatory claim filing is necessary to identify jobsites on approved site lists is absurd.
Premise that filing a claim based on site-id is an “admission” of anything other than that plaintiff was at the site has no basis in fact or law.
The trust determines what quantum of evidence is sufficient. Trusts accept fiber drift, courts do not.Slide9
No Different Than Workman’s Comp.
Filing of a workman’s compensation claim against an employer is not an “admission” that the employer is at fault.
In subsequent tort case against third party that harmed worker on the job, the prior comp claim is not an admission of fault of the employer that relieves the defendant from its burden of proof.Slide10
Stengel – Our Handful of Examples Is Different Than Your Handful Of Examples.
Nonsense.
BASF, Sherwin Williams, OI, John Crane – hid existence of documents, products, testing results.
Georgia Pacific, Big Three Car Companies, Gasket Companies – all hiring tobacco scientists to seed the medical literature with doubt science
Michaels “Doubt Is Their Product”Slide11
Stengel Comment Re: Plaintiff Knowledge
Comment is plaintiffs don’t know who caused their disease until lawyers get involved.
Union Carbide supplied asbestos fiber that companies put into their products.
No way a sick person would ever know that UCC fiber in GP joint compound, floor tile or anything else.Slide12
Stengel Comment Re: Depositions
7 hour limits?
Not in my jurisdictions.
Depositions of bed-bound plaintiffs in hospice care last days.
No defendant gives more than lip service to trying to discovery identification of bankrupt companies in deposition.
OCF?Slide13
Stengel Comments Regarding Motivation of Plaintiffs Regarding Timing
Assertion that Plaintiffs delay filing to prevent disclosure.
Speculation.
All sorts of reasons to delay filing.
Most significant reason to delay is to avoid disproportionate setoff.
Lack of information
Concern defendants will misrepresent what “approved site” claim means to Court.Slide14
Stengel Comments Regarding Last Minute Disclosures
The handful of examples defendants constantly cite involve pre-trial disclosure – albeit belatedly.
These examples have resulted in appropriate sanctions by the trial courts.Slide15
Stengel Comments Regarding Fundamental Changes To Existing Trusts
Stengel’s comments regarding changing trusts to require exposure information equivalent to that in courts.
At least
Lohrman
That is not the policy decision that has been made.
Moreover, the trusts were formed and payments structured to reflect tort system liabilities
Bondex
bankruptcy rejected this Alice in Wonderland “we shouldn’t have had the tort liabilities we had approach.
My clients would prefer different payment structure, but it does not reflect reality.Slide16
Behrens Comments Re Silica
Judge Jack’s ruling regarding silica cases has nothing to do with the asbestos litigation.
Behrens says change in claimant mix partly results from Judge Jack.
Nonsense.
Entire theory of the defense in silica was that asbestos cases were being re-filed as silica casesSlide17
Behrens Comments Re Fraud
We don’t have evidence of “the fraud”
I don’t believe the trustees that they don’t have evidence of fraud.
I don’t know of any court now that would say that filed claim forms are not discoverable.
A lot of Case Management Orders mandate disclosure.
Entire premise is that there must be fraud.Slide18
Behrens – Unfair To Not Require Filing Of Claims Pre-Trial
State law controls.
Maryland court rejected requests of defendants to mandate filing of claims.
Contrary to 100 years of joint
tortfeasor
law.
Plaintiff chooses who to sue.
Defendants are free to join third parties plaintiffs chose not to sue.
Mandatory filing creates inequitable results and will be abused for purposes of delay by defendants.Slide19
Evidentiary Issues
Tort System Discovery Obligations Of All Parties
Exposure information
Settlement informationSlide20
Bankruptcy Claims/Mandatory Filing
Baltimore scheduling orders mandate disclosure of claim forms and exposure information.
Maryland law provides that the fact of settlement and type of release are discoverable but amounts are not before a verdict.
Baltimore Court has rejected mandatory filing based upon over 100 years of Maryland tort law.Slide21
Exposure Information
Exposure information
Plaintiffs are disclosing and are deposed extensively.
Defendants uniformly refuse to produce exposure information regarding these cases.
Case management order in Baltimore requires Defendants identify witnesses who have testified about the job sites in question.
Defendants uniformly refuse to produce this information.Slide22
Settlement Information
Confidential settlements are critical to litigation policy.
Defendants insist upon it.
Defendants don’t want to give up this information.
Case law and rules protect this information.
This promotes negotiated resolutions.Slide23
Compensation Issues
Compensating Meritorious Claims
Tort System Payments and trust system payments
“Double Dipping”
Recovery of more than jury verdictSlide24
Compensating Meritorious Claims?
Nearly all claims are cancer claims.
Mesothelioma is uniformly fatal.
Nearly all lung cancer victims die from cancer.
The JURY decides what is “meritorious”.Slide25
Tort & Trust Payments
“Double Dipping”
D
efense propaganda
T
he jury determines the plaintiff’s damages.
Until a jury quantifies the damages, there can NEVER be a “double recovery”.
How each state deals with apportionment, joint and several liability and setoffs for settlements are matters of state law.Slide26
Tort & Trust Payments
Recovery of more than jury verdict
State laws recognize and accept that in multi-
tortfeasor
cases, a plaintiff can recover through settlement more (or less) than the jury’s verdict.
This policy promotes settlement.
Once jury quantifies damages, plaintiff cannot recover
by judgment
more than their quantified damages.Slide27
Restatement (Second) Judgments §
49
Restatement (Second) of Judgments § 49 (1982)
A judgment against one person liable for a loss does not terminate a claim that the injured party may have against another person who may be liable therefor.Slide28
Settlements Of Disputed Claims Can Never Constitute “Double Recovery”
9 defendants settle for $
4.5 million
Defendant 10 goes to verdict.
V
erdict of $3,500,000.
What judgment, if any, will be entered against Defendant 10 is a matter of state law and is not a “double recovery.”Slide29
Joint and Several Liability State
Defendant 10 proves cross-claims against all 9 settled defendants – judgment of $0.00.
Defendant 10 proves cross-claims against 4 of 9 settled defendants – verdict reduced by $2,000,000, judgment of $1,500,000. Total recovery $6,000,000.
Defendant 10 fails to prove cross-claims against any settled defendants – judgment of $3,500,000. Total Recovery $8,000,000.Slide30
Joint and Several Liability
# Defendants
Settlements
Verdict
# Cross Claims Proven
Judgment
Total Recovery
10
$4,500,000
$10,000,000
9
$1,000,000
$5,500,000
10
$4,500,000
$10,000,000
1
$5,000,000
$9,500,000
10
$4,500,000
$10,000,000
0
$10,000,000
$14,500,000
4
<$4,000,000
$22,000,000
3
$5,500,000
<$10,000,000
ISlide31
Not A Double Recovery When Verdict Defendant Fails To Prove Cross-Claim
Joan Dixon settles case with GP, Honeywell and Union Carbide.
Ford goes to verdict and fails to prove cross-claim against any of them.
It is not a double recovery that Plaintiff received settlements.Slide32
Apportionment State
Defendant has burden of proving apportionment of fault to other entities.
Can include settled defendants, non-parties and, depending on jurisdiction, even immune parties.
Defendant pays only portion of verdict attributed to it by the jury.
Each State decides what the rules are.Slide33
There is simply nothing improper or inherently wrong with a Plaintiff recovering more than the total jury verdict through settlements of disputed claims.
State laws determine how these matters affect the judgment entered against the verdict defendant.Slide34
Ethical Issues In Adversarial System
Disclosure duties of plaintiff and defense counsel.
Far more examples of defendants manipulating discovery than defendants.
Sanctions against defendants are consistently required to get basic information.