Even if it is the longest-running civil litigation arena in the United States, it’s not like asbestos litigation is exactly the stuff of prime-time TV drama. That said, it sure had a few moments in Washington last week.
There was the breaking news about federal prosecutors in Boston conducting a grand jury investigation into potentially illegal campaign contributions from lawyers at the asbestos-focused Thornton Law Firm; there was the release of the annual “Judicial Hellholes” report from the D.C.-based American Tort Reform Association (ATRA); and let’s not forget the new white paper alleging hijinks with bankruptcy trusts in Newport News, Va. (the 8th-ranked “Hellhole”). And on top of all that there was the National Press Club screening of Canadian journalist Paul Johnson’s new asbestos documentary, which touches on all those topics.
During a reception following the screening of his “UnSettled: Inside the Strange World of Asbestos Lawsuits,” director Paul Johnson said he has not looked into the Boston situation or read the Newport News report but was not surprised that it involved mostly donations to Democrats.
In fact, a significant voice in the UnSettled film states that victims’ lawyers have the Democratic Party “on retainer” while another says that the plaintiffs’ bar has stepped in to replace waning political influence of organized labor. It’s no secret that Democrats are the pro-victim, anti-tort-reform party – and Johnson was questioned about what a new Trump administration, focused on “jobs” and a manufacturing renaissance with Republicans in control of the House and Senate, means for lawsuits like the ones in his film.
As one reception-goer asked at the Press Club: Is the asbestos game by the plaintiffs’ bar part of the swamp that Trump intends to drain?
“It could change everything,” said a diplomatic Johnson, who defended “honest plaintiffs’ lawyers who do nothing wrong” both in the film and during a grilling from the audience. Dozens of people attended the screening in Washington, a group that seemed to tilt tort-reform, and the Internet-streaming service reported more than 300 online viewers.
At the film reception, much of the conversation focused on news out of Boston that the Thornton Law Firm partners are facing investigations from both election officials and the U.S. Attorney’s office in a criminal probe.
Dan Abrams’ Law Newz website backgrounded that “... the U.S. Attorney’s office is one of three agencies now looking into the Boston-based personal injury firm’s practice of reimbursing its partners for millions of dollars in political donations, according to the two people. The law firm has insisted that the donations were legal, but, soon after the Globe and the Center for Responsive Politics repealed the firm’s practice, politicians, like Senator Elizabeth Warren (D-MA), began returning hundreds of thousands of dollars in donations.
The Law Newz report also quoted Brett Kappel, a campaign finance lawyer in D.C., explaining that “... violations involving straw donations of $25,000 or more could bring a sentence of five years in prison, for each count.” Two words civil attorneys never like to hear: “jail time.”
The idea of Trump―fueled swamp-draining also added buzz to the annual, hot-off-the-presses “Hellholes” report, which is required reading in the asbestos world.
This year’s report is about what legal observers expect from tort reformers listing the “worst” of the nation’s jurisdictions: California is ranked at second; St. Louis is ranked first this year; New York makes a top-five appearance; and, of course, Cook County, Illinois is up there. Yet, there’s also Newport News, home to some 200,000 souls and Virginia’s fifth-largest city, is listed at number eight in the Hellholes report.
Newport News is also featured in the UnSettled film as Robert Hatten, the predominant asbestos lawyer in that area, emerges as the chief voice for the plaintiffs’ bar. So, coupled with the aforementioned white paper produced by the D.C.-based Institute for Legal Reform (ILR), the de facto argument is that, among other problems, Newport News lawsuits have the same sort of double-dipping problems documented in a North Carolina case called “Garlock”, which is also profiled in the movie.
The white paper’s title is more honest than subtle: “Disconnects and Double-Dipping: The Case for Asbestos Trust Reform in Virginia” and backgrounds that “... asbestos claimants have two separate avenues to obtain recoveries: (1) settlements or judgments in asbestos personal injury lawsuits against still-solvent companies; and (2) payments from asbestos trusts for exposures to the products of the historically most culpable companies. Claimants do not have to pick one or the other; they can obtain money from both systems for the exact same injury.”
BTW, this is not the first time Mr. Hatten has been in the media spotlight. He responded to similar allegations last year with a strongly worded opinion piece in the Newport News paper. (Google his name and “asbestos attorney” and you quickly find his landmark $25 million jury award against Exxon.)
Any sort of bottom line amid the news reports, the UnSettled film and rampant swamp-draining speculation might come from Paul Johnson when he says that, in some cases, you need a lawyer to protect you from your lawyers. There’s also the alarming fact that many asbestos victims getting pennies on the dollar from bankruptcy trusts are U.S. military veterans.
What’s needed, it seems to many (or at least many at the UnSettled reception), is a new sort of victims advocacy that exists independently from the plaintiff’s firms, defense firms and even traditional sickness-related groups. There’s even talk of reviving efforts to create a voluntary “client bill of rights” that would prohibit some of the practices Paul’s film outlines.
Actually, I’m helping form just such a working group for the “asbestos double-victims.” Of course, the asbestos plaintiffs’ bar will quickly claim they are working to recover maximum funds for their clients and the trust funds are simply under-finded – valid points. However, in the wake of last week’s asbestos-focused news, and after watching a film arguing that greed has become a problem in the litigation, I was reminded of the argument that some attorneys have become just as much “greedy 1 percenters” as the executives at companies they sue.
Another bottom line: asbestos litigation (including actions by at least some victims’ attorneys) is finally ready for its close-up.