Half-truths are a dangerous animal. Fortunately, Gary Paul Waters, Kraus & Paul published a thoughtful response to the article debunking some of his false statements, and prove once again that even the wildest half-truths can be tamed.
Gary is an excellent lawyer and unconditional defender of the rights of asbestos victims. For your review, it was kind enough to give me permission to share it here on our blog
Asbestos Litigation in California. A response to Mark Behrens
By Gary M. Paul
in response to Mark Behrens 18 November 09 column on the litigation of asbestos in California, it's hard to know where to start. The room is so packed with, misinterpretations of half-truths and outright lies and simple it would be comical were not so serious object. Yet like clockwork, his assertions were echoed by the Association of Civil Justice of California, who, like Mr. Behrens would never let the facts get in the way of a good yarn.
M .. Behrens first states that "lawyers who bring asbestos cases have kept the dispute through adaptation to changing conditions." It is difficult to imagine a more ruthless declaration : this "custody litigation goes," unfortunately, it is the thousands of Americans who continue to die each year from asbestos-related cancers. Mesothelioma, an extremely painful and invariably fatal cancer of the lung lining, one still kills 3,000 Americans annually. These are their widows and children, in the coarse formulation M. Behrens, have the temerity to "keep the current dispute."
M .. Behrens repeats a familiar complaint about the companies outside the office opening rule of law in California. It is interesting to note, of course, that Mr. Behrens own firm, founded and based in Kansas City, has opened two offices in California over the past decade. as for me and my office, I practiced law in Los Angeles for 35 years. Andy Waters, founding partner of the firm, lived and practiced in Long Beach there are more than 20 years.
M .. Behrens load lawyers filing numbers against cases likely in California because it will offer a "tactical advantage" rather than case files "where there is a logical and factual connection to an application or the applicant." This is . faux California asbestos litigation and was never true first, Mr. Behrens does not specify what the "tactical advantage" in California; in fact, it is a feature of the California law that works very hard on victims of asbestos: Cal. Civ. Proc. §377.34 Code, which prohibits the recovery of damages for the pain and suffering of a deceased person. Since this is a very important element of damages in asbestos cases, available in many other countries, it is difficult to see why the plaintiffs with no connection to California would file their case.
Second, it is in any case simply a myth that there are cases legions out of the state of California. Mr. Behrens says that a "sample" 06 California asbestos plaintiffs showed that 30% had addresses outside of California. But this ignores the fact that many more people living in California nevertheless maintained their exposure to asbestos here due to the large number of state industrial plants and petrochemical, shipbuilding and naval bases .
the asbestos industry lobbyists themselves have acknowledged that there is no case overabundance of other States in California, in fact, they used this fact to their own needs other states. Just this year, for example, a bill was introduced in the Legislature of Texas who has sought to improve some very restrictive features of the Texas law in cases of mesothelioma. Some applicants have argued that the Texas law was so hard that the Texans were forced to drop out of the state, including California. Peter Coleman, who defends the case of asbestos for Sedgwick firm in San Francisco, said it had analyzed all mesothelioma cases filed in California in 07 and 08 and found that 373 complaints alleging mesothelioma filed during this period of two years.
Among these 373 requests, they had exposure information 362 of them, and 342 of these 362 exhibits presumed California. Even regardless of residence, then the vast majority of all mesothelioma applications filed in California involves exposure here.
When you know the facts that industry lawyers use for their purposes elsewhere, you know that there is no problem with state -of deposits. And when the occasional case no real connection does California filed a court can easily dismiss on forum non conveniens. See, e.g., Hansen c. Owens-Corning Fiberglas Corp., 51 Cal. App. 4753 (1996). Mr. Behrens is apparently unaware of forum non conveniens (he never personally tried a toxic tort or asbestos case), that his proposal to adopt "reforms" to "send applicants outside the state more appropriate courts "Ignore the fact that California law already provides the means to do it, where a case has no real connection with the state.
M .. Behrens knows he no problem with asbestos deposits outside the state. Nor does the relatively small number of mesothelioma and other cases of asbestos-related cancer in California have something to do with " worsening financial crisis "affecting the courts of the State of Mr. Behrens refers. This financial crisis is, of course, a result of many causes, and the courts of the state of the country facing similar problems. See, eg, "State Courts at Tipping Point," New York Times, 24 November 09.
Finally, in his perhaps worst example of misleading the comment, Mr. Behrens cites an order by judge Munoz a single case of Waters & Kraus mesothelioma. Somehow, Mr. Behrens has neglected to mention that Munoz judge specifically found that nothing Waters & Kraus made in that case was inadmissible; the second appellate district court and the California Supreme Court summarily rejected both attempts of a defendant to seek appellate review of the order of Judge Munoz (the Court of Appeal is currently a second look attempt); and the case of Mr. Behrens knows that involved a blatant attempt by the defendants to delay the filing of a man dying in California. In truth, the "macabre game asbestos trial" involves much more generally unfounded defense maneuvers to delay death trial the plaintiffs dates until they pass themselves and their families, denying them day court, and avoiding an important element of exposure damage. for example, in Galassi v. AW Chesterton Company, No. C-05-02017-WHA (ND Cal. June 13, 05), an acknowledgment of the asbestos, in a familiar classic maneuver in the case of asbestos, removed the case of a mesothelioma victim dying a month before the trial. the Federal Court concluded that the withdrawal "was completely unnecessary, and obviously an attempt meritless next to delay the trial date for applicants. "the court concluded that the award of attorneys' fees and costs was justified. the removal unfounded paid, however, that the applicant died before a new date for trial a court of the State could be provided.
Like the asbestos industry hid the dangers of its product for decades, Mr. Behrens conceals the real facts behind the California asbestos deposits, and the true circumstances behind what he says is "litigation gamesmanship." it also conceals its true interests. Mr. Behrens describes itself as "a lawyer in Washington, DC. - Public Policy Group based Shook Hardy & Bacon" From this description, one could almost think that Mr. Behrens spends his time thinking about the issues of "public policy" from an academic, disinterested point of view but it is hardly disinterested. Mr. Behrens is a partner in the firm Shook Hardy, who regularly represents Lorillard and other companies in the asbestos litigation Yes, c. is Lorillard-cigarettes used to have asbestos filters in them (thus creating perhaps the most lethally defective product ever made).
M .. Behrens also deposited between 15 and 20 per amicus year for the so-called "Coalition for Justice Legal," the American Tort Reform Association, the Property & casualty insurers Association of America, the American Petroleum Institute and the American Chemistry Council. These groups, of course, consist of companies that are frequent defendants in asbestos litigation, and transporters responsible for their insurance liabilities. In addition, Mr. Behrens receives a monthly fee of $ 8,000 for the Coalition for Litigation Justice, distinct from his remuneration for the filing of amicus curiae briefs on behalf of the Coalition, mainly to write articles like this he wrote for this publication. Finally, Mr. Behrens is a lobbyist for asbestos defendants, including Crown Cork & Seal Co. and the American Legislative Exchange Council, a group that has a bland name, but that takes 95% of its funding companies. His "council of private enterprise" includes regular asbestos defendants that Koch Industries, ExxonMobil and Pfizer. From about February to early summer this year, Mr. Behrens received approximately $ 20,000 per month just from his lobbying activities on behalf of Crown Cork & Seal. Mr. Behrens apparently did not think that all this information was relevant.
In any event, the California bench and bar should be reassured that there is no overabundance of material out of the state of California. The few cases that are, of course, involve catastrophic injuries. Indeed, Mr. Behrens quotes a former judge in San Francisco Superior Court, which said: "Recently, we have seen much of mesothelioma and other cancer cases than in the past." Yet, ironically, in the last paragraph Mr. Behrens recommends that California adopt "a series of reforms, [including] ensuring that applicants are really sick ...." Each applicant asbestos in California is "really sick" and "really die," because the juries conduct industry have repeatedly found by negligence or gross negligence. These plaintiffs requested that their day in court, and the California system works to provide.
Gary Paul is a partner at Waters, Kraus & Paul in Los Angeles.
