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ALI-ABA Course of Study Asbestos Litigation in the 21St Century

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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. 1 Listing of Asbestos Actions Filed [for Defense Coordinating Counsel] 161 General Scheduling Order No. 1 - Amended October 13, 2006 173 Master Trial Scheduling Order and Table of Trial Schedule Abstracts -- Amended on October 9, 2006 186 5. The Lung Cancer Debate 225 Submitted by Bryan O. Blevins, Jr. Brief of Appellants 227 Brief of Appellees 334 Court's Opinion 391 Reply Brief of Appellants 426 Appellee's Motion for Rehearing 460 Order Overruling Appellee's Motion for Rehearing 461 Petition for Review from Ninth Court of Appeals 479 Response to Petition for Review 632 Petitioner's Reply to Mobil 671 923 S.W. 2d 549 - Robinson 675 953 S.W. 2d 706 - Havnar 679 Consensus Report 703 6. Evaluating the Reliability of Eyewitness Memory in Product Identification 709 Cases By Charles A. Weaver, III and Amanda Holmes Study Outline 711 Presentation Slides 736 7. Friction Products and Electrical Equipment Litigation 759 By Anne M. Kearse 8. Automotive Friction Products 783 By Stephen M. Tigerman Study Outline 785 Memorandum Opinion, In re Asbestos Litigation, No. 77C-ASB-2, Super. Ct., New Castle Cty., DE, May 9, 2006 794 9. Significant Developments in Friction Products and Electrical Equipment 869 Litigation Submitted by R. Thomas Radcliffe, Jr. Opinion precluding Plaintiff's experts from offering opinion testimony causally attributing the plaintiff's asbestos disease to exposure to any specific defendant's friction products, In re Toxic Substance Cases, No. A.D. 03-319, Ct. of Common Pleas, Allegheny Cty., PA, August 17, 2006 871 viii Opinion denying defendant Daimler Chrysler Corp.'s motion in limine to exclude expert testimony that friction products cause asbestos disease, In re Asbestos Litigation, No. 77C-ASB-2, Super. Ct., New Castle Cty., DE, May 9, 2006 907 OSHA Safety and Health Bulletin re Asbestos-Automotive Brake and Clutch Repair Work 982 EPA draft brochure entitled, Current Best Practices for Preventing Asbestos Exposure Among Brade and Clutch Repair Workers, F.R. Vol. 71, No. 164, Aug. 24, 2006 987 EPA brochure entitled, Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair Workers 990 Letter to EPA from Nick Voegtly with comments on Best Practices brochure 992 Letter to EPA from Arthur S. Hughes with comments on Best Practices brochure 993 Letter to EPA from Exponent Health Sciences with comments on Best Practices brochure 994 Comments of AFSCME on Best Practices brochure 998 Comments of International Union, UAW, on Best Practices brochure 1001 Letter to EPA from National Automobile Dealers Association with comments on Best Practices brochure 1003 Letter to EPA from Automotive Specialty Products Alliance with comments on Best Practices brochure 1006 Comments by Barry Castleman, ScD, on Best Practices brochure 1009 Letter to EPA from Simona A. Farrise with Comments on Best Practices brochure 1013 PLM Analysis performed for Kazan, McClain, Edises, Abrams, Fernandez, Lyons by Materials Analytical Services, Inc. on brake pads 1015 Volume 2 10. Old Jurisdictions in Transition: The Sea Change in Texas 1023 Submitted by Bryan O. Blevins, Jr. Article "If There Was No Jury" 1025 Texas HB4 Memo - 020305 1027 Texas Chapter 90 - Asbestos & Silica 1033 Final Second Amended MDL CMO 1047 Motion to Strike Expert Reports 1068 Motion to Strike Expert Reports ##B 1309 Non-Malignant Report Outline 1550 Non-Malignant Report Presentation 1552 MDL Non-Malignant Hearing 1559 Findings of Fact & Conclusions of Law 1682 ix MDL - Signed Order Brakeshoe 1684 MDL Supplemental Fiber Opinion 1685 11. Emerging Jurisdictions: Delaware 1691 Submitted by R. Thomas Radcliffe, Jr. Master Scheduling Order and Table of Trial Schedule Abstracts (Amended on May 26, 2006) 1694 Master Trial Scheduling Order and Table of Trial Schedule Abstracts (Amended on September 7, 2006) 1727 Memorandum Opinion Denying Defendants' Motions to Dismiss, March 8, 2006 1763 Chart Summarizing Theories of Liability, Defenses, and Damage Limitations in 13 States 1796 Plaintiffs' Memorandum in Opposition to Defendants' Motions for the Application of Substantive Law of Other Jurisdictions 1797 Order Affirming Summary Judgment, In re Asbestos Litigation; Colgain v. Oy Partek Ab, No. 359,201, Sup. Ct., DE, May 22, 2002 1810 12. On the Applicability of the SILICA MDL Proceeding to Asbestos 1815 Litigation By Lester Brickman 13. The Future Claims Representative in Prepackaged Asbestos 1843 Bankruptcies: Conflicts of Interest, Strange Alliances, and Unfamiliar Duties for Burdened Bankruptcy Courts By Mark D. Plevin 14. Sisyphus Had it Easy 1903 By David M. Schulte 15. What, Trustees Worry? 1911 By Ken M. Kawaichi x ALI-ABA Course of Study Asbestos Litigation in the 21st Century November 30-December 1, 2006 New Orleans, Louisiana PROGRAM Thursday, November 30, 2006 7:30 a.m. Registration and Continental Breakfast 8:30 a.m. Introductory Remarks and Course Overview — Messrs. Aldock and Kazan 8:45 a.m. Asbestos Litigation Today and Tomorrow: Facts, Figures, Trends — Messrs. Austern and Rice Is the downturn in filings the temporary result of the pending federal legislation? How many filings will there be in 2007? Where? What disease mix? 9:15 a.m. Tort Reform: Medical Criteria and More — Professor Hensler, Mr. Hanlon, and Ms. Lipsen Since 2004, several states have enacted tort reform bills that have changed the landscape of asbestos litigation. In addition to establishing medical criteria, legislation (and sometimes judicial decisions) have limited or abolished joint and several liability, restricted trial consolidations while allowing pretrial consolidations, made forum shopping more difficult, and changed the standards for liability of premises defendants and distributors. What do these bills actually do? How have they worked in practice? What are plaintiffs doing to respond to these reforms? How are legal challenges faring? What is next? What are the prospects for tort reform in the next Congress? 9:45 a.m. Managing Asbestos Cases: Views from the Bench — Judges Davidson, Jack, and Slights Asbestos judges in Texas and Delaware and the federal judge who addressed the asbestos/silica scandal discuss asbestos case management. 10:30 a.m. Networking Break 10:45 a.m. The Lung Cancer Debate — Messrs. Blevins and Speziali In 2006, a Texas court of appeals held that expert testimony finding a causal connection between lung cancer and asbestosis exposure in the absence of underlying asbestosis should be excluded as unreliable. Does this portend a new chapter in the longstanding controversy over lung cancer causation? What is the state of the medicine? 11:30 a.m. The Past Recaptured: Proving Exposure after All These Years — Messrs. Coon and Jubelirer and Dr. Weaver Asbestos cases frequently involve long-ago exposures, which are inherently difficult to prove - or disprove. This session examines techniques for proving exposure and for challenging exposure evidence. 12:15 p.m. Lunch Break 1:30 p.m. Developments: Premises Liability . and Beyond — Messrs. Siegel and xi 1:30 p.m. Developments: Premises Liability . and Beyond — Messrs. Siegel and Simpson There have been a number of developments in the law governing the duties of premises owners or employers. The Supreme Courts of Delaware and California have both issued decisions trying to clarify state law regarding an owner's duty to the employees of independent contractors. To what extent have they succeeded? What will the effect of those decisions be? Several courts have now addressed whether employers or premises owners have a duty to family members exposed to asbestos brought home by a worker, with New Jersey favoring the plaintiff, New York and Georgia favoring the defendant, and Texas still undecided. What is the state of the law on secondary exposure? What are the prospects of extending these rulings to product defendants? 2:15 p.m. Significant Developments in Friction Products and Electrical Equipment Litigation — Ms. Kearse and Messrs. Radcliffe, Speziali, and Tigerman Friction products and electrical equipment cases continue to be tried in significant numbers. What are the issues, which side has prevailed, and where is the litigation going? The speakers are the lawyers trying these cases. 3:00 p.m. Networking Break 3:15 p.m. Old Jurisdictions in Transition: The Sea Change in Texas — Messrs. Blevins and Watkins In the mid-1990s, nearly half of all asbestos cases filed in the United States were filed in Texas courts, which were generally perceived as sympathetic to plaintiffs.
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