Asbestos Litigation Industry Buzzes Over NYC's Silver Case, 'Iron Triangle'

For a civil lawsuit community often deemed the "longest running" in America, with decades of science and judicial decisions, it remains truly amazing that so very much seems to be unsettled.
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For a while it was looking like a heavyweight showdown of sorts, at least as civil litigation panel discussions go, being billed as the "Battle in the Big Apple," featuring a name attorney from the Weitz & Luxenberg firm at the apex of New York's wildest political scandal in years.

Airplane tickets were rescheduled and conference calls postponed. But, perhaps showing how genteel such panels have become, the discussion at the Beverly Hills Perrin Conference on "cutting edge" asbestos litigation issues centered on relatively arcane case management orders. To the disappointment of some, Perry Weitz was not asked a single "gotcha" question about his firm's role in the arrest and indictment of New York Assembly Speaker Sheldon Silver. Talk about lackluster cross examination!

But, that particular panel aside, the "Silver case" has ushered in plenty of discussion for the asbestos litigation community. Much of the conference's hallway speculation centered on how the case might impact other "magnet jurisdictions" around the country. Victims' attorneys discount that, noting that the Silver situation may be several things, but that it remains limited to specific facts in New York.

In particular, speculation focused on whether the Silver-case "environment" can cast a shadow onto other local jurisdictions. That argument focuses on places like the longstanding capital of asbestos litigation, Madison County, IL. But it also included others like up-and-coming Newport News, VA, which was included on a recent tort reform group's "Judicial Hellholes" watchlist.

The group says Virginia has the nation's highest plaintiff success rate, at 87 percent, mostly due to Newport News' unusual maritime status.

The "Silver situation" argument tries to underscore what some are dubbing an "iron triangle," where the three corners are powerful (usually Democratic) legislators, wealthy plaintiffs lawyers who finance campaigns, and plaintiff-friendly judges, often appointed and supported by those same lawmakers.

Forbes explained the NYC case: "Federal prosecutors unsealed a criminal complaint against New York Assembly Speaker Sheldon Silver, detailing long-rumored allegations about how a prominent asbestos law firm steered millions of dollars to the powerful politician in exchange for client referrals from a doctor, who in turn is accused of accepting favors from Silver."

The NYT also noted that "a 35-page complaint by the U.S. Attorney's Office in New York accuses Silver of accepting more than $5.3 million in payments from Weitz & Luxenberg, a New York law firm that specializes in asbestos lawsuits." (The firm has not faced any charges, and it's interesting that plenty of attorneys at the Perrin Conference, from both sides of the debate, argued that often-hefty referral fees are a routine industry practice. There were also jokes about the "no work" aspect of referrals, sort of "if that's illegal, lots of us are in trouble!")

On the judicial front, the case made headlines when Justice Sherry Klein Heitler, the asbestos-caseload judge, came under fire for connections to Silver and for making decisions that benefited his law firm. Heitler, 70, was a chief administrative judge and also headed a special section called New York City Asbestos Litigation, or NYCAL, that manages rules for asbestos cases. She has reportedly retired.

Time will tell if the defense-side's "iron triangle" analogy plays beyond the Five Boroughs, even if Speaker Silver's case highlights tort-reform advocates' talking points. Beyond an obvious link between plaintiff's firms and Democratic political donations, it's hard to see how a regionally significant plaintiff's lawyer, like Newport News' Robert Hatten, stands in for the national Weitz firm. Moreover, how appropriate is to try and paint the Hon. David F. Pugh, who often gets the Newport News asbestos cases, in the role of Judge Heitler?

One can safely assume that Hatten will not respond with a Silver-esque silence. The "watchlist" inclusion brought a blistering demand for an apology to the judiciary carried in the local daily paper.

To be fair, the Perrin Conference buzz about Silver and the "iron triangle" strategy came amid plenty of other cutting-edge (if less newsworthy) issues, like the ongoing discovery under way in a North Carolina bankruptcy case, rumors of high-profile lawyers fleeing some of the larger firms and increased connection between asbestos and lung cancers.

The cutting-edge summary judgement? For a civil lawsuit community often deemed the "longest running" in America, with decades of science and judicial decisions, it remains truly amazing that so very much seems to be unsettled.

(Courts Monitor research staff and West Coast edition editors contributed to this report.)

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