With hundreds of attorneys gathered in San Francisco this week for the annual Perrin Conference “asbestos summit,” it seems a good time to note that a new documentary featuring alleged fraud with asbestos litigation earned a heated reception in Texas last week.
For trend spotters, the raucous film debate coupled with comments from the summit may hint at a softening in victims’ lawyers’ opposition to controversial efforts to increase transparency in asbestos trust funds holding billions of dollars for people who will become sick or die.
In the state that some call Ground Zero for the start of the asbestos litigation, Canadian journalist Paul Johnson offered a work-in-progress screening of his “UnSettled: Inside the Strange World of Asbestos Lawsuits” at The University of North Texas College of Law/Dallas on September 20. The after-movie discussion panel included nationally prominent asbestos trial attorneys Jeffrey Simon and Charles Siegel.
In a startling exchange, at least by asbestos-community standards, both Simon and Siegel discounted impacts of a hotly-debated recent Texas law increasing transparency for asbestos trust funds. The issue is controversial in many states and is being debated in the U.S. Congress.
(See their comments, and the panel discussion, here: www.unsettledthemovie.com)
The American Association for Justice, the leading national trial lawyer group, has however steadfastly opposed the transparency movement, usually called “FACT Act” after the federal “furthering asbestos claims transparency” legislative proposal.
The “UnSettled” panel tension comes amid a shifting landscape for America’s longest-running toxic-substances litigation. A 2014 North Carolina case called “Garlock,” named for the gasket maker seeking bankruptcy protection, featured a federal judge finding “evidence suppression” by victims’ attorneys in all 15 cases examined.
That milestone figures prominently in Johnson’s film, which has been screened in Washington, DC, and several state capitals.
In Garlock, the federal court reduced suggested liability by about a billion dollars, and the discoveries led the gasket company to file suit against Jeffrey Simon’s firm and others, alleging violations of civil RICO, the “racketeering influenced corrupt organization” laws usually associated with gangsters. According to attorney Michael Magner, of Jones Walker who represents Simon Greenstone, Garlock and Simon Greenstone (and other parties) agreed to dismiss the RICO case and Simon Greenstone’s RICO and fraud based counterclaim against Garlock. He added, the motion to dismiss was granted purely on procedural grounds and the district court did not consider the evidence.
Similar civil RICO cases are pending and one dozen U.S. State Attorneys General are now investigating leading asbestos trusts, worried, among other things, that required reimbursements to Medicare and Medicaid have not been made.
There are other controversies: Another of the Texas post-movie panelists, Dallas-based journalist Christine Biederman, is suing in state court to pry open 20-year-old documents related to the so-called “Baron & Budd coaching memo” that was referenced in the Garlock case. In “UnSettled,” it is noted that some people think the memo teaches witnesses to lie.
One of the questions Johnson raised with his panelists/critics is whether the current system really works for the victims, and do lawyers take too much of the money? The Record noted that question went “largely unanswered.”
But trend-watchers take note: The opening panel in the Perrin summit included a new report indicating that less than 25 percent of the total money spent on asbestos litigation goes to help victims. Meanwhile, yet another nationally prominent trial attorney, Joe Rice of South Carolina, responded to a question about the effects of FACT laws by saying they would be “no big deal.”
Johnson says he’s considering whether he should incorporate the comments from the Dallas screening into his film, along with the new information about how much money the victims actually receive – which, he notes, is one of the major points of his movie.
The director said the film will be released this fall and other screenings are being planned, including a “major screening” in Pennsylvania in October.
Going forward, let’s now see if the American Association for Justice follows the lead of its two prominent attorneys supporting greater transparency for the management of asbestos trusts. Heck – maybe even Baron & Budd attorneys will now stop fighting the release of the infamous "coaching memo" deposition documents – all for the greater good of transparency.
Now, that might give Johnson’s movie a true Hollywood ending.
Sara Corcoran is publisher of the National Courts Monitor website, “Your Daily Ration of Civil Justice Rationing,” an organizer of the Asbestos Double-Victims Workgroup, and a frequent commentator on national legal policy and civil courts issues.