National Trends Driving Asbestos Litigation in 2013-2014 (3 of 3): Low-Dose Defendants Remain Targets

By on May 29, 2014

3.  Low-Dose Defendants Continue to Be “New” Target Defendants

A review of the defendants against whom plaintiffs’ attorneys are litigating and taking to verdict in 2013 demonstrates the ongoing trend of focusing on low-dose chrysotile defendants such as gasket friction-product and joint compound manufacturers. Most of the amphibole asbestos product defendants are no longer in the litigation, leaving an ever-creative plaintiffs’ bar to seek out additional sources of potential exposures from low-dose chrysotile products such as cosmetic talc, HVAC, and electrical products and distributors. Additionally, plaintiffs’ firms are spending millions of dollars to advertise on television and the Internet in search of individuals on whose behalf they can file mesothelioma claims. “Mesothelioma settlement,” “mesothelioma asbestos attorney,” “asbestos attorney” and “asbestos law firm” are the top four most expensive Google AdWords, commanding between $107 and $142 per click.

Given the media blitz, it is no wonder that almost all Americans diagnosed with mesothelioma will file lawsuits. Yet, it is estimated that 10-20 percent of all mesothelioma cases are caused by something other than asbestos. Causal factors under consideration include genetics, carbon nanotubes, taconite, ionizing radiation, talc, vermiculite contaminated with tremolite and erionite.

The best defense as to pursuit of “low dose” defendants remains battles over product ID and asbestos content issues. To that end, the Gordon & Rees defense team continues its efforts to carefully evaluate plaintiffs’ claims, investigate prior medical and exposure histories, retain and work closely with highly skilled experts in the medical and industrial hygiene fields, and file and win dispositive motions.

View part 1 and part 2 of this series.

Filed under Asbestos, Low Dose, Mesothelioma

National Trends Driving Asbestos Litigation in 2013-2014 (2 of 3): Decrease in Non-Impairment Filings

By on May 15, 2014

Increase in Lung Cancer Filings

As plaintiffs’ firms approach a “max out” point on potential mesothelioma lawsuits and judicial reforms limit the filing of non-impaired asbestotic cases, there is a growing national trend toward filing more lung cancer claims.

Unlike the relatively limited number of people diagnosed annually with mesothelioma (estimated at 2,500 to 9,300 cases over the next 20-plus years), about 226,160 Americans are diagnosed with lung cancer each year. According to the Centers for Disease Control and Prevention (CDC), approximately 85 percent of lung cancers are smoking-related. However, plaintiffs’ attorneys have experts willing to testify that exposure to asbestos is a substantial contributing factor to the development of lung cancer (some even suggest a “synergistic effect”).

Also, the bankruptcy trusts pay significant amounts for lung cancer claims and have a low standard for the definition  of a “non-smoker” such that a claimant with a significant, but remote smoking history is characterized as a “non-smoker” and can receive a higher payment than a current smoker. This provides an incentive to seek out and file claims for people diagnosed with lung cancer who also allegedly worked with or around asbestos or just lived with someone with a history of asbestos exposure.

“Asbestos-related” lung cancer claims can involve significant damages and settlement value especially in “plaintiff-friendly” jurisdictions with favorable jury pools. Moreover, the majority of mesothelioma cases have been captured in the marketplace by top tier plaintiffs’ firms that spend significant amounts on marketing or referral fees. This leaves many of the other plaintiffs’ firms to pursue the lung cancer cases. Accordingly, there has been a noticeable increase in lung cancer filings nationally, especially in more active jurisdictions. For example, in 2012, lung cancer claims for the first time exceeded mesothelioma claims in Madison County, Illinois.  Additionally, according to the U.S. Chamber Institute for Legal Reform, the number of pending lung cancer cases in New York City has nearly tripled over the past four years.

This trend has been noticed and criticized in the context of New York Congresswoman Carolyn McCarthy’s lung cancer lawsuit. In high-profile editorial pieces in Forbes magazine.

McCarthy’s heavy smoking history (over 40 years) is juxtaposed against her claim of take-home exposure to asbestos from her father and brothers who worked on Navy ships and in utilities. The articles detail how New York plaintiffs’ asbestos firms use “a time-honored strategy of bundling weak and strong cases together leveraging larger overall settlements than if the cases were presented separately.” It remains to be seen if this criticism will slow the wave of lung cancer filings.

Filed under Asbestos, Mesothelioma

National Trends Driving Asbestos Litigation in 2013-2014 (1 of 3): Decrease in Non-Impairment Filings

By on April 3, 2014

First in a series. Subsequent posts will cover lung cancer filings and “target” defendants.

Generally, as a result of judicial and legislative reforms, plaintiffs’ lawyers have moved away from mass screenings and filing of claims on behalf of unimpaired or non-malignancy plaintiffs in asbestos litigation. Rather, many of these unimpaired cases are being moved through the less rigorously reviewed channels of asbestos bankruptcy trusts that provide relatively little oversight and have more than $36.8 billion in assets available.

Recently, following publicity of bankruptcy trust abuses, there is a move toward tightening those procedures and requiring disclosures of the bankruptcy claims to ensure consistency with the parallel cases pending in tort actions. Still, the number of non-malignancy filings in the tort system continues to decrease.

As most of the active cases consist of more “expensive” malignancies, it is not surprising that according to a recent report from NERA Economic Consulting, 2011 saw a 75 percent increase in average dollars per resolved claims from 2010. In comparison, the rate of increase from 2009 to 2010 was only 31 percent. NERA found that despite the 75 percent increase in payment per resolved claims, there was no similar dramatic increase in claim filings. In fact, filings have stabilized over the past five years, with approximately 52,000 new cases filed yearly. Though additional data has not yet been made available for subsequent years, it is generally acknowledged that this trend appears to be continuing.

As the backlog of non-malignancy claims clear throughout the country, increases in amounts paid on claims are expected to level out over the next two or three years. However, the total amount paid to resolve future claims is expected to increase as the number of lung cancer and mesothelioma cases continue to rise.

Filed under Asbestos, Asbestos Bankruptcy Trust