DOCSLIB.ORG

Use of Litigation Screenings in Mass Torts: a Formula for Fraud, the Lester Brickman

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Use of Litigation Screenings in Mass Torts: a Formula for Fraud, the Lester Brickman SMU Law Review Volume 61 | Issue 4 Article 1 2008 Use of Litigation Screenings in Mass Torts: A Formula for Fraud, The Lester Brickman Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Lester Brickman, Use of Litigation Screenings in Mass Torts: A Formula for Fraud, The, 61 SMU L. Rev. 1221 (2008) https://scholar.smu.edu/smulr/vol61/iss4/1 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE USE OF LITIGATION SCREENINGS IN MASS TORTS: A FORMULA FOR FRAUD? Lester Brickman* TABLE OF CONTENTS I. INTRODUCTION ........................................ 1223 II. CONDITIONS CONDUCIVE TO LITIGATION SCREENINGS .......... ....................... 1229 III. "ENTREPRENEURIAL" ASBESTOS LITIGATION SCREENIN G S ............................................ 1232 A. THE MECHANICS OF ASBESTOS LITIGATION SCREENINGS ........................................... 1232 B. A COMPARISON OF THE PREVALENCE OF FIBROSIS AND DIAGNOSES OF ASBESTOSIS FOUND BY ASBESTOS LITIGATION SCREENINGS WITH THE RESULTS OF A REVIEW OF CLINICAL STUDIES ........................ .1235 1. Prevalence As Found By Litigation Screenings ..... 1235 2. Clinical Studies of the Prevalence of Fibrosis ...... 1236 3. Clinical Re-readings of Litigation B Readers' R esults ............................................ 1237 4. The Disparity Between Clinical Diagnoses of Asbestosis and Those Generated by Screenings ..... 1239 C. THE NUMBER OF ANNUAL HOSPITALIZATIONS DUE TO A SBESTOSIS ........................................... 1240 D. PULMONARY FUNCTION TESTS ........................ 1241 IV. THE SILICA MDL ....................................... 1242 V. FEN-PHEN LITIGATION ................................ 1243 A. DIET DRUG USE AND HEART VALVE REGURGITATION ...................................... 1243 B. THE ONSET OF LITIGATION ........................... 1248 1. Medical Monitoring Class Actions ................. 1249 C. THE SETTLEMENT AGREEMENT ....................... 1250 D. THE POST-SETTLEMENT CLAIMING PROCESS ........... 1254 1. Initial Opt Outs ................................... 1254 2. Trust Claims ...................................... 1255 3. Downstream Opt Outs ............................ 1257 E. LITIGATION SCREENINGS .............................. 1258 * Professor of Law, Benjamin N. Cardozo School of Law of Yeshiva University. My research assistants, Tim Yip, Alisa Levien, and Steven Keslowitz, have made important and substantial contributions to this Article for which I am grateful. 1221 1222 SMU LAW REVIEW [Vol. 61 F. LITIGATION SCREENINGS: A COMPARISON OF FEN- PHEN AND ASBESTOS SCREENINGS ..................... 1262 G. THE COST OF THE FEN-PHEN LITIGATION ............. 1265 VI. SILICONE BREAST IMPLANT LITIGATION .......... 1266 VII. WELDING FUME LITIGATION ........................ 1278 A. THE WELDING PROCESS ............................... 1280 B. MANGANESE, WELDING, AND HEALTH ................ 1281 C. THE CREATION OF A MASS TORT ..................... 1286 D. THE WELDING FUME MDL ........................... 1293 1. Plaintiffs' Co-Lead Counsel ....................... 1296 E. WELDING FUME LITIGATION .......................... 1297 F. WELDING FUME LITIGATION SCREENINGS ............. 1301 1. The Insufficiency of the Screenings ................ 1305 VIII. THE FAILURES OF THE CIVIL AND CRIMINAL JUSTICE SYSTEMS TO DETER OR SANCTION LITIGATION SCREENING FRAUD .................... 1313 A. THE CIVIL JUSTICE SYSTEM FAILURE: A STATEMENT OF THE PROBLEM ..................................... 1315 1. The "Expert" Status of Testifying Doctors ......... 1315 2. Litigation Doctors' Immunity from Challenge to their Expert Status ................................. 1316 3. The Changing Role of Discovery In Asbestos L itigation....................... .................. 1318 4. Issues Arising From the Demand for Discovery in Asbestos Litigation ................................ 1319 5. Litigation Doctors As Percipient Witnesses ......... 1329 B. THE ROLE OF BANKRUPTCY COURTS IN LEGITIMIZING LITIGATION SCREENINGS .............................. 1335 C. THE CIVIL JUSTICE SYSTEM FAILURE: PROPOSED R EM EDIES ............................................. 1343 D. THE CRIMINAL JUSTICE SYSTEM FAILURE: A STATEMENT OF THE PROBLEM ........................ 1347 IX. CONCLUSION ........................................... 1350 APPENDIX M old Litigation ................................................ 1351 A . A LLERGY ............................................. 1352 B . INFECTION ............................................ 1353 C . TOXICITY ............................................. 1353 2008] Litigation Screenings in Mass Torts 1223 I. INTRODUCTION ASS tort litigation' has grown dramatically in the past several decades, 2 facilitated by changes in social, industrial, economic, and legal conditions, practices, and structures.3 Perhaps the most critical factor accounting for the rise of mass tort litigation is the enormity of the financial rewards in the form of contingency fees availa- ble to lawyers who successfully initiate or otherwise participate in such actions.4 Mass tort claims sharing similar factual issues and causation can be litigated individually or aggregated into class actions or large consoli- dations. 5 The paradigm mass tort personal injury litigation alleges that a widespread injury was caused by exposure to, or use of, defectively pro- duced products ingested, inhaled, or implanted into the body.6 The 1. The term "mass tort" refers to claims of injury by large numbers of persons alleg- edly caused by the ingestion, inhalation, or implantation of a particular product or sub- stance into the body which is harmful. The injuries suffered may be latent and not manifest for years or decades after the contact with the product or substance. See generally RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT (2007). 2. See, e.g., Deborah R. Hensler, Has the Fat Lady Sung? The Future of Mass Toxic Torts, 26 REV. LiG. 883 (2007) (listing of the mass toxic tort cases over the past forty years); Karen A. Geduldig, Note, Casey at the Bat: Judicial Treatment of Mass Tort Litiga- tion, 29 HOFSTRA L. REV. 309, 310 (2000) ("By 1990, [mass tort claims] encompassed sev- enty-five percent of all new federal product liability filings," and that "in some jurisdictions, mass tort claims stemming from exposure to products or toxins 'accounted for over twenty-five percent of the entire civil caseload.' In fact, mass tort litigation has evolved into the single largest category of personal injury litigation in the United States today."). See also ADVISORY COMMITTEE ON CIVIL RULES AND THE WORKING GROUP ON MASS TORTS TO THE CHIEF JUSTICE OF THE UNITED STATES AND TO THE JUDICIAL CON- FERENCE OF THE UNITED STATES, REPORT ON MASS TORT LITIGATION (Feb. 15, 1999), reprinted in 187 F.R.D. 293, at 298 (1999). 3. See Deborah R. Hensler & Mark A. Peterson, UnderstandingMass Personal Injury Litigation:A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 1013-14 (1993). Among these trends are increases in product marketing that have led to mass consumption of goods and services and therefore greater exposure to their potentially dangerous effects, advances in medical technology that enable medical experts to connect injury with exposure to prod- ucts or chemical substances, epidemiological studies, and increased mass media reporting of potentially dangerous products or circumstances, including the increased role of televi- sion journalism shows-productions that are sometimes assisted by lawyers who are finan- cially interested in sensationalizing coverage of an issue in order to affect public opinion or generate a client base. See id. at 1013. 4. I have estimated that the fees in asbestos litigation are north of twenty billion dollars. See John M. Wylie II, The $40 Billion Scam, READER'S DIGEST, Jan. 2007, at 77, available at http://www.rd.com/your-america-inspiring-people-and-stories/32514/ article32514.html. 5. "[S]imilar factual issues and legal questions will arise in all claims in a mass tort litigation, or at least in significant subsets of claims. The same injuries will involve similar causation issues. Liability issues will be similar among claims alleging similar exposures to a particular defendant's products." Hensler & Peterson, supra note 3, at 966. Mass tort litigation is often in the form of a class action, mass consolidation, or other aggregative form, but also may simply involve thousands of substantially similar individual claims. See generally Howard Erichson, Informal Aggregation: Proceduraland Ethical Implications of CoordinationAmong Counsel in Related Lawsuits, 50 DUKE L.J. 381 (2000). 6. Other personal injury mass torts may be generated by a calamity, improperly de- signed or constructed vehicles or components of vehicles, or improper design of materials or structures. Some mass tort litigations allege only economic injury. Typically, for the latter, the economic injury to each claimant is small, but in the aggregate, the loss alleged is 1224 SMU LAW REVIEW [Vol. 61 "mass" in mass torts refers to the fact that thousands-even tens and hundreds of thousands of persons-are alleged to have been injured by contact with or use of the product, causing bodily injury which can, in toto, amount to hundreds of millions, and even billions, of dollars and contingency fees of a
Load more

Recommended publications
  • LARC @ Cardozo Law 1998-1999
    Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Student Handbooks Life @ Cardozo 1998 1998-1999 Benjamin N. Cardozo School of Law Follow this and additional works at: https://larc.cardozo.yu.edu/student-handbooks Part of the Law Commons CARDOZO BENJAMIN N . CARDOZO SCHOOL OF LAW• YESHIVA UNIVERSITY Student Handbook 1998-99 This Handbook, effective September I, 1998, supersedes all previously published rules and regulations, announcements, statements, and publications with which it is inconsistent. The rules and regulations set forth in this Handbook are binding upon all students who are presently matriculated at Benjamin N. Cardozo School of Law (CSL), who are on leave of absence from CSL, or who are CSL students visiting at other law schools. Students are deemed to have read and understood both this Handbook and the CSL Bulletin (catalogue). Any questions concerning the contents of the Student Handbook or the CSL Bulletin should be addressed to the Office of the Dean. CSL reserves the right to change its rules and regulations, admissions and graduation requirements, course offerings, tuition, fees, and any other material set forth in its Bulletin or this Handbook at any time without prior notice. Changes become effective when posted on the official bulletin boards located on the second floor. Students should consult the designated bulletin boards at CSL for changes. TABLE OF CONTENTS I. INTRODUCTION . 1 II. CALENDARS .......................................... 2 A: 1998-99 ACADEMIC CALENDAR . 2 B. COURSE SCHEDULE ................................ 6 C. CALENDAR OF EVENTS .............................. 6 III. FACILITIES ........................................... 7 A. Brookdale Center -- 55 Fifth Avenue . .. 7 B. Residence Hall . 7 C. Yeshiva University .
    [Show full text]
  • Cumulative Faculty Bibliography Through 2009 Fordham Law School Library
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Bibliography Law Library September 2018 Cumulative Faculty Bibliography Through 2009 Fordham Law School Library Follow this and additional works at: https://ir.lawnet.fordham.edu/fac_bib Part of the Law Commons Recommended Citation Fordham Law School Library, "Cumulative Faculty Bibliography Through 2009" (2018). Faculty Bibliography. 13. https://ir.lawnet.fordham.edu/fac_bib/13 This Book is brought to you for free and open access by the Law Library at FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Bibliography by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Fordham Law School Cumulative Faculty Bibliography Through 2009 ABRAHAM ABRAMOVSKY Books (Editor) Criminal Law and the Corporate Counsel. New York: Harcourt Brace Jovanovich, 1981. Journal Articles “Prosecuting Judges for Ethical Violations: Are Criminal Sanctions Constitutional and Prudent, or Do They Constitute a Threat to Judicial Independence?” 33 Fordham Urban Law Journal 727-773 (2006) [with Jonathan I. Edelstein] “Criminal Law Current Comment: People V. Suarez and Depraved Indifference Murder: The Court of Appeals' Incomplete Revolution.” 56 Syracuse Law Review 707-734 (2006) [with Jonathan I. Edelstein] ADepraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification.@ 55 Syracuse Law Review 455-494 (2005) (with Jonathan I. Edelstein). "The Drug War and the American Jewish Community: 1880 to 2002 and Beyond." 6 The Journal of Gender, Race & Justice 1-38 (2002 ) (with Jonathan I.
    [Show full text]
  • (Rev. August 2005) Working Paper in Regulatory Studies
    LOGOS Defining What to Regulate: Silica & the Problem of Regulatory Categorization Andrew P. Morriss & Susan E. Dudley CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW Case Research Paper Series, No. __ (Rev. August 2005) MERCATUS CENTER AT GEORGE MASON UNIVERSITY Working Paper in Regulatory Studies ABSTRACT This article examines the history of human exposure to silica, the second most common element on earth, to explore the problem of categorizing substances for regulatory purposes and the role interest groups play in developing policy. The regulatory history of silica teaches three important lessons: First, the most compelling account of the cycle of action and inaction on the part of regulators is the one based on interest groups. Second, knowledge about hazards is endogenous – it arises in response to outside events, to regulations, and to interest groups. Accepting particular states of knowledge as definitive is thus a mistake, as is failing to consider the incentives for knowledge production created by regulatory measures. Third, the rise of the trial bar as an interest group means that the problems of silica exposure and similar occupational hazards cannot simply be left to the legal system to resolve through individual tort actions. We suggest that by understanding market forces, regulators can harness the energy of interest groups to create better solutions to addressing the problems of silica exposure, as well as other workplace health and safety issues. Defining What to Regulate: Silica & the Problem of Regulatory Categorization Andrew P. Morriss* & Susan E. Dudley** I. The Problem of Categorization................................................................................... 3 A. Characterization ...................................................................................................... 5 B. Silica Categorization and Health Effects ...............................................................
    [Show full text]
  • A Rejoinder to Lester Brickman: on the Theory Class's Theories of Asbestos Litigation
    Pepperdine Law Review Volume 32 Issue 4 Article 1 5-15-2005 A Rejoinder to Lester Brickman: On the Theory Class's Theories of Asbestos Litigation Charles Silver Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the Legal History Commons, and the Torts Commons Recommended Citation Charles Silver A Rejoinder to Lester Brickman: On the Theory Class's Theories of Asbestos Litigation, 32 Pepp. L. Rev. Iss. 4 (2005) Available at: https://digitalcommons.pepperdine.edu/plr/vol32/iss4/1 This Response is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. A Rejoinder to Lester Brickman: On the Theory Class's Theories of Asbestos Litigation Charles Silver* INTRODUCTION In 2003, the Pepperdine Law Review hosted a conference on mass tort litigation and later published a symposium issue containing the articles pre- sented there. Professor Lester Brickman and I participated in a panel de- voted to legal ethics. I listened to Professor Brickman's spoken remarks, and I am certain he said nothing about me personally. I was therefore sur- prised to discover that an entire section of Professor Brickman's published article contained a personal attack on me. I was also dismayed to read a host of misstatements and misleading statements, none of which Professor Brickman attempted to verify by checking with me.
    [Show full text]
  • Retaliatory RICO and the Puzzle of Fraudulent Claiming
    Michigan Law Review Volume 115 Issue 5 2017 Retaliatory RICO and the Puzzle of Fraudulent Claiming Nora Freeman Engstrom Stanford Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Litigation Commons, and the Torts Commons Recommended Citation Nora Freeman Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 MICH. L. REV. 639 (2017). Available at: https://repository.law.umich.edu/mlr/vol115/iss5/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. RETALIATORY RICO AND THE PUZZLE OF FRAUDULENT CLAIMING Nora Freeman Engstrom* Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individu- als’ incentives and opportunities to seek redress. Unsatisfied with these con- ventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initia- tion of certain nonmeritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows.
    [Show full text]
  • Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law
    Fordham Law Review Volume 57 Issue 2 Article 1 1988 Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law Lester Brickman Lawrence A. Cunningham Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Lester Brickman and Lawrence A. Cunningham, Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law, 57 Fordham L. Rev. 149 (1988). Available at: https://ir.lawnet.fordham.edu/flr/vol57/iss2/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law Cover Page Footnote Professor of Law, Benjamin N. Cardozo School of Law. B.S. 1961, Carnegie-Mellon University; J.D. 1964, University of Florida; LL.M. 1965, Yale University. Associate, Cravath, Swaine & Moore, New York, New York. B.A. 1985, University of Delaware; J.D. magna cum laude 1988, Benjamin N. Cardozo School of Law. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol57/iss2/1 NONREFUNDABLE RETAINERS: IMPERMISSIBLE UNDER FIDUCIARY, STATUTORY AND CONTRACT LAW LESTER BRICKMAN* LAWRENCE A. CUNNINGHAM** TABLE OF CONTENTS Introduction .............................................. 150 I. The Lawyer as Fiduciary .................................. 153 A. Client's Right to Discharge............................ 155 B. Codification of Trust ................................... 156 C. Exceptions to the Discharge Right ..................... 157 D. Historic Development ................................. 160 1. Up to Martin v.
    [Show full text]
  • Lester Brickman July 9, 2008
    Transcription of Oral History Interview with Lester Brickman July 9, 2008 (0:00) YAROSHEFSKY: …you’re currently at Cardozo Law School? BRICKMAN: Yes. YAROSHEFSKY: And in 1968 where were you teaching? BRICKMAN: 1968 well, I started teaching in 1966, which is umpteen years ago, I started teaching at the University of Toledo. I had gone to Law School at the University of Florida and then I was spirited away by the ‘L’ underground on the faculty at Florida and went to Yale for a year of finishing school. One of my professors at Florida, who had been among those that steered me into Yale and then into teaching, had left Florida to open the day law school at Toledo, so when I came on the market he was looking for professors and I was hired at the University of Toledo. I started teaching in 1966 and in 1968 I was still teaching at Toledo. I had gone through a divorce and like many in that circumstance I was looking for a (1:00) chance of circumstances, a change of scenery for a bit, and there’s a notice or something pops up about the Council on Legal Education for Professional Responsibility seeking a research professor or research fellow to spend a year in New York at this new foundation to work in the area of Clinical Legal Education. I had already started a program at Toledo, what I called the Law and Poverty Program, that I had gotten a small grant for that wasn’t really a clinical program it was more of an out-house program I had people intern in the housing agency and the various other entities, governmental entities, in downtown Toledo.
    [Show full text]
  • George Washington University Regulatory Studies Center
    Public Interest Comment1 on The Occupational Safety and Health Administration’s Proposed Standards for Occupational Exposure to Respirable Crystalline Silica Docket No. OSHA-2010-0034 RIN: 1218-AB70 December 4, 2013 Susan E. Dudley and Andrew P. Morriss2 The George Washington University Regulatory Studies Center The George Washington University Regulatory Studies Center works to improve regulatory policy through research, education, and outreach. As part of the Center’s mission, Center scholars conduct careful and independent analyses to assess rulemaking proposals from the perspective of the public interest. This comment on the Occupational Safety and Health Administration’s (OSHA) proposed standards for occupational exposure to respirable crystalline silica does not represent the views of any particular affected party or special interest, but is designed to evaluate the effect of OSHA’s proposal on overall social welfare. It builds on an article by the authors, “Defining What to Regulate: Silica & the Problem of Regulatory Categorization,”3 which we attach to this comment and respectfully submit for the record in this rulemaking. 1 This comment reflects the views of the authors, and does not represent an official position of the GW Regulatory Studies Center or the George Washington University. The Center’s policy on research integrity is available at http://research.columbian.gwu.edu/regulatorystudies/research/integrity. 2 Susan E. Dudley is director of the GW Regulatory Studies Center and research professor in the Trachtenberg School of Public Policy and Public Administration. Andrew P. Morriss is D. Paul Jones, Jr. & Charlene A. Jones Chairholder in Law and Professor of Business at the University of Alabama and a Research Scholar at the GW Regulatory Studies Center.
    [Show full text]
  • The Tobacco Litigation and Attorneys' Fees
    Fordham Law Review Volume 67 Issue 6 Article 2 1999 The Tobacco Litigation and Attorneys' Fees Daniel J. Capra Fordham University School of Law Lester Brickman Michael Ciresi Barbara S. Gillers Robert Montgomery Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Daniel J. Capra, Lester Brickman, Michael Ciresi, Barbara S. Gillers, and Robert Montgomery, The Tobacco Litigation and Attorneys' Fees, 67 Fordham L. Rev. 2827 (1999). Available at: https://ir.lawnet.fordham.edu/flr/vol67/iss6/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Tobacco Litigation and Attorneys' Fees Cover Page Footnote Philip D. Reed Professor of Law, Fordham University School of Law. * Stephen M. Gillers, Professor of Law, New York University School of Law. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol67/iss6/2 THE TOBACCO LITIGATION AND ATTORNEYS' FEES Daniel J. Capra, Lester Brickman, Michael Ciresi, BarbaraS. Gillers, and Robert Montgomery PROF. CAPRA:1 Welcome to the Philip D. Reed Chair Panel Dis- cussion on Tobacco Litigation and Attorney's Fees. I have the honor of holding the Philip Reed Chair, and part of that is a working chair to get stellar people like this up here to talk to you. As you all know, the tobacco industry has entered into multibillion- dollar judgments with the states.2 I would like to provide a short fac- tual background and then stand out of the way.
    [Show full text]
  • ALI-ABA Course of Study Asbestos Litigation in the 21St Century
    ALI-ABA Course of Study Asbestos Litigation in the 21st Century November 30 - December 1, 2006 New Orleans, Louisiana TABLE OF CONTENTS Page PROGRAM xi FACULTY PARTICIPANTS xv FACULTY BIOGRAPHIES xix STUDY MATERIAL Volume 1 1. Asbestos Litigation Today and Tomorrow: Facts, Figures, Trends 1 By David T. Austern 2. Asbestos Litigation in the United States: Triumph and Failure of the Civil 9 Justice System By Deborah R. Hensler 3. Asbestos Reform in the States 31 By Patrick M. Hanlon and Anne M. Smetak Study Outline 33 Appendix: Comparison of Key Elements of Non-Malignant Medical Criteria in Six States 58 4. Managing Asbestos Cases 63 Submitted by Joseph R. Slights, III Standing Order No. 1 -- Amended on October 13, 2006 65 Exhibit A: Standing Order No. 1 Interrogatories and Requests for Production Directed to Plaintiffs 87 Exhibit B: Standing Order No. 1 Interrogatories and Requests for Production Directed to Defendants 118 Exhibit C: Notice to Defendants Pursuant to Amended Standing Order No. 1 147 Exhibit D: HIPPA Medical Authorization for Defense Coordinating Counsel 149 Exhibit E: Authorization for the Release and Production of Employment, Payroll & Personnel Records [to Defense Coordinating Counsel] 151 Exhibit F: Request Pertaining to Military Records [for Defense Coordinating Counsel] 153 Exhibit G: Request for Social Security Earnings Information [for Defense Coordinating Counsel] 155 Exhibit H: Authorization for the Release and Production of Social Security Administration Claims records [for Defense Coordinating Counsel] 157 vii Exhibit I: Authorization for the Release and Production of Tax Records [for Defense Coordinating Counsel] 159 Exhibit J: Amended Standing Order No.
    [Show full text]
  • Litigating on a Contingency: a Monopoly of Champions Or a Market for Champerty
    Chicago-Kent Law Review Volume 71 Issue 2 Symposium on Fee Shifting Article 10 December 1995 Litigating on a Contingency: A Monopoly of Champions or a Market for Champerty Richard W. Painter Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Richard W. Painter, Litigating on a Contingency: A Monopoly of Champions or a Market for Champerty, 71 Chi.-Kent L. Rev. 625 (1995). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol71/iss2/10 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. LITIGATING ON A CONTINGENCY: A MONOPOLY OF CHAMPIONS OR A MARKET FOR CHAMPERTY? RICHARD W. PAINTER* Two of the most divisive issues in current debate over civil litiga- tion are whether there should be limitations on lawyers' contingent fees and whether losing parties should be required to pay winners' legal expenses. Proponents of litigation reform urge both measures,1 but opponents argue that some "reforms" would be unfair to plaintiffs and would make litigation unaffordable for most people. 2 However, both debates hinge on a broader issue: how and when lawyers should share the risks of litigation. This Article examines the economic and ethical implications of such risk sharing by lawyers and their clients. In particular, this Article discusses whether the market for risk sharing * Assistant Professor of Law, University of Oregon School of Law.
    [Show full text]
  • On the Theory Class's Theories of Asbestos Litigation
    On the Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality Lester Brickman* * Professor of Law, Benjamin N. Cardozo School of Law of Yeshiva University. I have benefited greatly from the efforts of several very talented research assistants. Sara Klein, my lead assistant, has done superb work and her efforts have been invaluable. My other research assistants, Kim Mamta Shah, Andrew Borteck, and Daniel Grusenmeyer have each made important contributions for which I am grateful. I am deeply indebted to the tireless efforts of the research librarians at Cardozo School of Law: Norma Feld, Beth Gordon, and Peter Lee as well as library director, Professor Lynn Wishart, whom I have inundated with hundreds of requests for obscure source materials. Like Sergeant Preston of the Royal Canadian Mounted Police, they have never failed to find a fugitive source. Finally, I also wish to acknowledge the contribution made by Roger Cramton. At the symposium on asbestos litigation held at the Pepperdine University School of Law, Cramton, one of the speakers, expressed the view that: on the basis of my published work and the paper I prepared for the symposium, I had provided “insufficient evidence” to prove ethical violations let alone to support my conclusion that asbestos litigation has become a malignant enterprise which mostly consists of a massive client recruitment effort that accounts for as much as ninety percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products.
    [Show full text]