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ABA Asbestos Task Force ABA Asbestos Task Force

ABA Asbestos Task Force - PowerPoint Presentation

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ABA Asbestos Task Force - PPT Presentation

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

defendants 000 information claims 000 defendants claims information verdict claim defendant 500 law filing tort jury cases state exposure plaintiff plaintiffs double

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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.