Asbestos Claimants are ‘Truly Sick’ and Deserve Day in Court
January 15, 2010 – Letters to the Editor Column
Reprinted and/or posted with the permission of Daily Journal Corp. (2010).
In responding to Mark Behrens’ Nov. 18, 2009, column, “Home of the Asbestos Litigation ‘Gold Rush’?” it is diffcult to know where to begin. The piece is so packed with mischaracterizations, half-truths and outright falsehoods that it would be comical were the subject not so serious. Yet like clockwork, its assertions have been repeated by the Civil Justice Association of California, which like Mr. Behrens would never let the facts get in the way of a good yarn.
Mr. Behrens first asserts that “lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions.” It is hard to imagine a more callous statement. What “keeps the litigation going,” sadly, is the many thousands of Americans who continue to die each year of asbestos-related cancers. It is worth noting, of course, that Mr. Behrens’ own firm, founded and headquartered in Kansas City, has opened two California offices in the last 10 years. As for me and my firm, I have been practicing law in Los Angeles for 35 years. Andy Waters, the firm’s founding partner, lived and practiced in Long Beach over 20 years ago.
In his perhaps worst example of misleading commentary, Mr. Behrens quotes from an order by Los Angels Superior Court Judge Aurelio Muñoz in a single Waters & Kraus mesothelioma case. Somehow, Mr. Behrens neglected to mention that Judge Muñoz specifically found that nothing Waters & Kraus did in that case was impermissible, that the 2nd District Court of appeals and the California Supreme Court both summarily rejected a defendant’s attempts to seek appellate review of judge Muñoz’s order (the Court of Appeals is currently considering a second attempt), and that the case – as Mr. Behrens knows full well – involved an egregious attempt by defendants to delay a dying man’s deposition in California.
Much as the asbestos industry concealed the hazards of its product for decades, Mr. Behrens conceals the true facts behind California asbestos filings, and the true circumstances behind what he asserts is “litigation gamesmanship.” He also conceals his true interests. Mr. Behrens describes himself as ” an attorney in the Washington, D.C.,-based Public Policy Group of Shook Hardy & Bacon.” From this description one might almost think that Mr. Behrens spends his time reflecting on matters of “public policy” from an academic, disinterested standpoint. But he is hardly disinterested: Mr. Behrens is a partner at the Shook Hardy firm, which regularly represents Lorillard and other companies in asbestos litigation. Yes, that Lorillard. Its cigarettes used to have asbestos filters in them (thus creating perhaps the most lethally defective product ever made). Mr. Behrens also files between 15 and 20 amicus briefs a year for the so-called “Coalition for Litigation Justice,” the American Tort Reform Association, the Property and casualty Insurers Association of America, the American Petroleum Institute and the American Chemistry Council. These groups, of course, consist of corporations that are frequent defendants in asbestos litigation, and insurance carriers responsible for their liabilities. In addition, Mr. Behrens receives an $8,000 monthly retainer from the Coalition for Litigation Justice, separate and apart from the remuneration he receives for filing amicus briefs on the coalition’s behalf, essentially to write articles like the one he wrote for this publication.
Finally, Mr. Behrens is a lobbyist for asbestos defendants including Crown Cork & Seal Co. and for the American Legislative Exchange Council – a group that has a bland name but that derives 95 percent of its funding from corporations. Its “private enterprise board” includes such regular asbestos defendants as Koch Industries, Exxon Mobil and Pfizer. From about February to the early summer of this year, Mr. Behrens received about $20,000 per month just from his lobbying activities on behalf of Crown Cork & Seal.
Mr. Behrens apparently did not think that any of this information was relevant. In any event, the California bench and bar should be reassured that there is no glut of out-of-state filings in California. The relatively few cases that are brought, of course, involve catastrophic injuries. Indeed, Mr. Behrens quotes a former San Francisco Superior Court judge who said, “Lately, we have seen a lot more mesothelioma and other cancer cases than in the past.” Yet ironically, in his last paragraph, Mr. Behrens recommends that California enact “a series of reforms, [including] assuring that claimants are truly sick…” Every asbestos claimant in California is “truly sick,” and “truly dying,” because of industry conduct juries have repeatedly found negligent and indeed grossly negligent. These claimants ask only their day in court, and California’s system works well in providing it.
GARY M. PAUL WATERS KRAUS & PAUL, LOS ANGELES