PALS - 2013 - American Bar Association

ABA Asbestos Task Force
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.
• 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.
Only a jury can quantify what
constitutes “full value” for these cases.
Defendants Are Not The Victims
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.
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.
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
• 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.
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
• The trust determines what quantum of evidence
is sufficient. Trusts accept fiber drift, courts do
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
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
• 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”
Stengel Comment Re: Plaintiff
• 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.
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?
Stengel Comments Regarding Motivation
of Plaintiffs Regarding Timing
• Assertion that Plaintiffs delay filing to prevent
– 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.
Stengel Comments Regarding Last Minute
• The handful of examples defendants constantly
cite involve pre-trial disclosure – albeit belatedly.
• These examples have resulted in appropriate
sanctions by the trial courts.
Stengel Comments Regarding Fundamental
Changes To Existing Trusts
• Stengel’s comments regarding changing trusts to
require exposure information equivalent to that in
– 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.
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 cases
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
• Entire premise is that there must be fraud.
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
Evidentiary Issues
• Tort System Discovery Obligations Of All
– Exposure information
– Settlement information
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.
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
Settlement Information
• Confidential settlements are critical to litigation
– Defendants insist upon it.
– Defendants don’t want to give up this information.
– Case law and rules protect this information.
– This promotes negotiated resolutions.
Compensation Issues
• Compensating Meritorious Claims
• Tort System Payments and trust system
– “Double Dipping”
– Recovery of more than jury verdict
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”.
Tort & Trust Payments
– “Double Dipping”
• Defense propaganda
• The 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.
Tort & Trust Payments
– Recovery of more than jury verdict
• State laws recognize and accept that in multitortfeasor 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
Restatement (Second) Judgments § 49
• Restatement (Second) of Judgments § 49
• 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.
Settlements Of Disputed Claims Can
Never Constitute “Double Recovery”
• 9 defendants settle for $4.5 million
• Defendant 10 goes to verdict.
• Verdict 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.”
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.
Joint and Several Liability
# Cross
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.
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.
• 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
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.

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