Delaware, California new prime targets for asbestos plaintiffs

By The Madison County Record | Apr 30, 2009

McCambridge During a recent interview with a reporter, Lester Brickman recalled an old television western from days gone by called "Have Gun-Will Travel."



During a recent interview with a reporter, Lester Brickman recalled an old television western from days gone by called "Have Gun-Will Travel."

"The main character was named Paladin and his logo was 'have gun-will travel,'" Brickman recalled. "It would start with a little ditty and the title and such. Well, that's kind of like the plaintiffs' lawyers logo now. 'Have case-Will travel. We will go wherever we have the friendliest courts, laws and juries.'"

The assessment, coming as it did from Brickman, is particularly relevant in the aftermath of the Nolan v. Weil-McLain decision by the Illinois Supreme Court earlier this month.

Brickman is a law professor at the prestigious Benjamin N. Cardozo School of Law in New York and is widely recognized as the foremost asbestos litigation scholar in the country.

Though the ripples from the splash in the Nolan case will roll across asbestos litigation for years to come, many legal professionals expect it to, at the very least, dent the reputation of plaintiff friendly jurisdictions in Illinois, such as Madison County.

Some, like Chicago defense attorney Edward McCambridge who was the prime mover on the Nolan case, believe the decision could likely have plaintiffs' lawyers in search of a other locations.

"It will definitely make Illinois not as attractive as it once was," McCambridge said of the Nolan ruling. "There is no question Illinois loses that stigma. I would suspect people might choose other venues."

Brickman said the full impact remains to be seen, but he suspects the ready-to-travel asbestos plaintiffs' lawyers will not hesitate to move if necessary. Just as tort reform legislation radically slowed many states that were once home to thousands upon thousands of asbestos cases, the latest rulings could again force a shift, he said.

"Having lost the friendly venues in Texas and Mississippi, they are already looking for other venues," Brickman said. "They have planted a flag in Delaware, where Vice President Joe Biden's son is involved in attempting to make Delaware a friendly court for asbestos cases. Another is Southern California where there is a rise in asbestos cases."

As legal landscape shifts in Illinois, Delaware and California will continue their recent growth in the number of cases filed. But just as each state has its own unique appeal, Illinois, even in the aftermath of the Nolan ruling, is not likely to lose its luster as a preferred venue for asbestos lawsuits.

Go West (or East)

The Nolan case caused a tremor through Illinois asbestos dockets because it in essence reversed the so-called Lipke Rule that prevented defendants in asbestos cases from introducing evidence of the plaintiff's other exposure related to other defendants who previously settled the case.

As David Holmes and Anthony Michael Goldner, attorneys at the Chicago firm of Wilson Elser, explained, "Illinois was the only state in the country to have had a rule with a blanket prohibition against all evidence pertaining to the negligence of non-parties."

Defense attorneys like McCambridge and Goldner say the ruling will encourage more defendants to avoid settling a case and take their chances in trial. McCambridge said the possibility of a trial alone may be enough to send plaintiffs' attorneys on the move in search of a friendlier venue.

As Brickman mentioned, Delaware has emerged in recent years as a very popular venue, particularly since Democratic Attorney General Beau Biden took office.

A USA Today story in 2008 noted that the younger Biden was a partner in a Delaware law firm "that was filing asbestos lawsuits and seeking to develop a specialty in that area," at the same time his father, then a Delaware senator worked to kill a "bipartisan bill designed to curb asbestos lawsuits," according to the report.

The Bidens' campaign accounts have benefited from large donations by trial lawyers and their related political action committees. According to the Center for Responsive Politics, employees at three law firms that specialize in asbestos litigation were among Beau Biden's top 10 all-time contributors.

In addition to Delaware's loyal Democratic Party voting base and liberal courts, the state is attractive to plaintiffs' attorneys because of attractive corporation laws. Most major companies have an office in Delaware, which makes it almost impossible for defense attorneys to challenge the convenience of the venue.

California has its own unique attractions for plaintiffs, most notably its liberal civil courts that give plaintiffs a generous home-field advantage. Civil Justice Association of California has sponsored legislation in recent years designed to balance the scales for defendants in court. Despite some victories, Executive Director John Sullivan said the courts have made the state one of the least attractive in the country for businesses.

During the state's recent budget woes in which the deficit topped $40 billion and the state controller began issuing IOUs instead of payments, Sullivan urged the governor and the Legislature to adopt tort reform in the hopes of stemming the tide of lawsuit-weary businesses fleeing the state and taking their jobs with them.

"As economic conditions improve, companies will have the opportunity to decide whether to restore jobs here or elsewhere," Sullivan said. "Legislators should stop our litigation climate from blocking the sunshine of jobs and paychecks for thousands of Californians."

In addition to the political environment, recent legal rulings have opened the door to new asbestos lawsuits. In a 2005 case, Kinsman v. Unocal, the California Supreme Court tore down the barrier for independent contractors to sue in premise liability cases. Prior to that decision, California businesses had been able to avoid liability by establishing that they did not retain control over the safety conditions of the work done by independent contractors, according to a report in Los Angeles Lawyer.

"Premise defendants now face an expanded analysis when assessing their potential liability in asbestos actions," the story reported.

The comforts of home

While plaintiffs' lawyers will surely continue to increase the number of cases filed in places like Delaware and California, Illinois still offers certain advantages that could outweigh the defeat of the Lipke Rule, specifically in premise liability cases like those now increasing in California.

Brickman called premise liability a "growth area" for plaintiffs' lawyers.

"The premises cases are a growth area -- trying to sue the premises owners for people who worked or used the premises and could attribute their illness to the exposure of the premises. That's an expanding area," he said.

As Chicago Law Professor Richard Epstein pointed out, premise liability cases have greatly widened the pool of defendants by including any building where asbestos exposure might have been possible.

With many of the prominent users of asbestos bankrupt from hundreds of thousands of lawsuits filed in the 1980s and 1990s, Epstein said plaintiff attorneys have widened the circle of those they can sue.

"Background conditions are surely being treated as though they were industrially caused," Epstein said. "Standard workers compensation law holds that occupational diseases have to be distinguished from diseases of life. Everyone has some gunk accumulated from living, and if all this is attributable to the named defendants, everyone is a plaintiff, so that the industrial connection is lost, which means that no one is ever safe."

Premise liability lawsuits that use these "background conditions" for the basis of their case, can benefit from Illinois joint-and-several liability laws, which in essence make all defendants found to be liable, wholly liable for the settlement. So in cases where several companies settle, those who go to court remain 100 percent liable even if the amount of exposure is minimal compared to others who already settled or are already bankrupt.

"As the circle goes wider, there are more people in each circle so that joinder becomes more critical, as does the rule that anyone who is responsible for one iota is responsible for the whole loss if others are insolvent," Epstein said.

Defense attorneys have argued in court that such cases have served to create a situation of "limitless liability" in some states. But therein lies the rub for scholars like Brickman, who point to the verifiable limited number of people who become ill because of asbestos exposure.

"You have somewhere around 1,800 to 2,000 people a year who contract mesothelioma," Brickman said. "Medical science indicates that at least 20 percent of the mesothelioma cases do not have a record of asbestos exposure."

Despite those limits, asbestos lawsuits show no sign of slowing anytime soon. Lawyers have their cases, and they will travel, if necessary to find a favorable venue for a settlement of a jury award. Just how much they have to travel will likely be determined in the future, according to McCambridge.

"The key to this whole thing is it changes the nature of asbestos trials," McCambridge said of the Nolan ruling. "It seems really kind of basic, but it does change the nature of the way a case is tried in Illinois. It will take a while to sort out how judges will deal with this, because they aren't used to dealing with it. But I think it will have a real impact on how cases proceed from now on."

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