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Life may never be the same for lawyers who litigate silica and asbestos cases. With the passing of the World War II shipyard generation, which made up the bulk of past asbestos cases, and more than 80 asbestos defendants in bankruptcy or out of business, plaintiffs are digging deeper to find new defendants in specialized industries responsible for different kinds of asbestos illness. It won’t be easy. Defendants are looking at new ways to take on asbestos plaintiffs one by one in court. They are spurred by a judge presiding over federal multidistrict litigation in Texas who said in a recent ruling that mass diagnoses of potential silica plaintiffs “were driven by neither health nor justice: They were manufactured for money.” Former plaintiff-friendly jurisdictions such as Madison County, Ill., have raised the bar by deferring what had been an exploding number of unimpaired workers’ claims to “inactive dockets.” They also have passed laws setting strict medical criteria for filing claims and limiting claimants to state residents, prompting forum-shopping in places like California and Delaware. Medical criteria rules require that claimants show actual impairment before they bring actions for asbestos exposure. Many in the asbestos bar see a return to the asbestos litigation style of the 1980s in the move away from the “wholesale” inventories of plaintiffs of the past decade to “retail” litigation, in which each claim is considered individually on its merits. And both plaintiffs and defense lawyers agree that all bets are off if Congress passes its long-considered Fairness in Asbestos Injury Resolution Act, which would create a $140 billion fund to compensate asbestos-injured people and end asbestos litigation under state law. The bill awaits a full vote by the U.S. Senate. A ‘sea change’ “We’re definitely going to see a sea change in the litigation, and it will impact not only the face of the litigation, but also how the litigation will be handled,” said Mark A. Behrens, a partner in Kansas City, Mo.-based Shook, Hardy & Bacon’s Washington office, who represents asbestos and silica defendants and writes on related issues. “Defense firms may no longer need large teams of paralegals and document associates to deal with the paperwork of thousands and thousands of claims, but, they’ll need to be able to try cases, which is something a lot of defense firms have not been focused on doing in the litigation,” he said. Practitioners agree that there has been a move away from the now largely discredited mass screenings that brought in hundreds of unimpaired plaintiffs in the last five to 10 years, and a new emphasis on bringing fewer, higher quality cases, which is similar to the way asbestos cases were litigated in the 1980s. William P. Shelley, vice chairman of the national insurance litigation department at Cozen O’Connor in Philadelphia, said changes in asbestos litigation will bring in “new firms or mixes of different kinds of firms” to represent defendants. “I already see to some extent a change in the way people view the defense in these kinds of cases,” said Shelley, a defense attorney. “In the 1990s, late 1980s, defendants and insurers settled a large number of cases on a regular basis [without] a lot of workup on individual plaintiffs.” As a result, “an entire generation of asbestos lawyers never tried a case, they were just claims processors . . . .But when people started suing hardware stores, we had to start looking at the cases more closely,” he said, referring to defendants in the chain of distribution. “The trend will be better plaintiffs’ cases-cases with the fat trimmed off,” Shelley said. “You’re going to get more quality all around: the better plaintiffs’ lawyers in the better venues litigating claims against smarter defendants and better defense lawyers.” A sinking value Bryan O. Blevins, a partner at Provost & Umphrey, a plaintiffs’ practice based in Beaumont, Texas, agreed that changes in the law and court rules is making asbestos more like traditional torts litigation “in which cases are worked up on an individual basis, negotiated on an individual basis and tried on an individual basis.” The potential for federal legislation, medical criteria laws in key asbestos jurisdictions and alleged abuses in mass silica screenings have significantly driven down the value of mass-filed cases, Blevins said. But Joseph F. Rice of Motley Rice, a national plaintiffs’ mass tort practice in Mt. Pleasant, S.C., said the progressive nature of asbestos-related diseases means that putting cases on inactive dockets and legislating medical-criteria statutes is not “getting rid of cases, just delaying them to a large extent.” “If you assume the facts as reported, what happened in Corpus Christi-in which I’m not involved-is unacceptable to everyone: to the plaintiffs, to the defense, to the courts,” Rice said. “But this is not my experience in asbestos,” he said. “The defendants are trying to make it seem like it is when they know that it’s not, and time will show that it’s not.” New defendants Rice and others say there are still many workers injured by asbestos, which they assert still exists in work environments, still has specialized industrial uses and still has never been banned federally in the United States as in many other countries. Where in the past, big manufacturers like Owens Corning and Johns Manville Corp. might make a full line of 3,000 products, now smaller companies make or use fewer, more specialized products such as engine components, brake pads, and electric wire and cable insulation. Also, the compensation value of the “good cases”-plaintiffs with mesothelioma or other asbestos-related cancers-is increasing, such that “jury verdicts that were coming back two to three years ago in the $2.5 to $3 million range are now coming in at the $4.5 to $6 million range,” he said. “If they want to try every case, let’s just tee ‘em up and try ‘em,” Rice said. And the plaintiffs’ bar takes issue with the position of Shelley and other defense counsel that the growing number of defendants have at best attenuated connections to the manufacturers. Plaintiffs’ lawyers such as Steven Kazan of Kazan, McClain, Abrams, Fernandez, Lyons & Farrise in Oakland, Calif., a plaintiffs’ asbestos practice that handles mesothelioma and other asbestos-related cancer cases, dispute the view that they are “going after” the new defendants “because there’s nobody left. “It’s been 60 years since the end of World War II and the shipyard cases are dying off,” Kazan said. “Workers in the 1950s and 1960s had different trades and different exposures,” he added. “We’re finding significant evidence about defendants that was not known before.” Kazan noted that “[d]efendants still will be defending the cases. . . . [N]o one will be challenging plaintiffs’ right to be in court, but whether their cancer was asbestos product-related and a particular defendant’s product.” Among the defendants Kazan is suing are: General Electric Co., which allegedly used spray-on asbestos soundproofing for turbines; about 10,000 are still used in power plants and factories around the country. Sears, Roebuck and Co., which allegedly rebranded and sold asbestos-containing building supplies such as joint compound from other manufacturers such as Synkeloid and Kelly-Moore Paint Co. that also became asbestos defendants. Caterpillar Inc., whose heavy equipment allegedly contains as many as 200 asbestos-containing gaskets and asbestos brake linings, Kazan said. James P. Dugan, a Caterpillar spokesman, acknowledged that the Peoria, Ill.-based company is a defendant “in some of those cases,” but that it does not comment on pending litigation. Calls seeking comment from General Electric and Sears were not returned. Forum-shopping abounds Another feature of the changing environment, Behrens said, is forum-shopping for jurisdictions that have permissive venue laws without inactive dockets and medical-criteria legislation. As a new venue, he said, plaintiffs are looking to Delaware, where many defendants are incorporated, asbestos dockets are smaller, and mesothelioma cases may get to trial more quickly, as well as California. Susan T. Sprinkle, chief deputy clerk of New Castle County Superior Court in Wilmington, Del., where all the state’s asbestos cases are filed, said the court had seen a substantial jump in asbestos filings in the last several months. Ninety-six asbestos cases already have been filed between July 1 and Oct. 13 of this year in New Castle County, where for the last six fiscal years ending June 30, the court averaged about 95 asbestos cases per year. SimmonsCooper, a plaintiffs’ practice in East Alton, Ill., in Madison County, said that on a “Benzene and Asbestos Information Blog” it posted last week, it started taking asbestosis and mesothelioma cases to Delaware in part to save time wrangling over jurisdiction with defendants based there. Attorneys from the firm did not return phone calls seeking comment. Back to Madison County Beaumont, Texas-based lawyer Brent Coon, who recently filed 173 asbestos cases in Madison County, Ill., said he had filed many of his past out-of-state cases in Texas because his practice is there and the state court system had a streamlined case-management protocol in place. But since Texas and other states started passing legislation limiting plaintiffs to their own residents, he has had to take their claims to their home states, he said. The firm opened satellite offices outside of Texas: Coon’s Web site lists Cleveland; Jackson, Miss.; New Orleans; and San Francisco. And this, Coon said, has “made it more expensive for us.” But he said that where people once complained that he filed all his cases in Texas, they now complain that he files them in plaintiffs’ home states. Coon may be experiencing an anti-plaintiff push that has gotten impetus from an aggressive campaign by the industry, the U.S. Chamber of Commerce and others to lobby states to enact tough new tort reform and asbestos and silica litigation reform, as well as medical-criteria bills. Ohio, Georgia, Florida and Texas have enacted laws in the past year setting medical-criteria rules. Similar legislation is pending in Pennsylvania, and insurance industry sources say that Michigan and California could be next on the horizon. Blevins acknowledged that lawyers have been looking for alternatives because “the historical venues . . . have all adopted significant legislation or judicial changes that have made them undesirable as far as toxic tort litigation. But I’m not aware of anyone finding one,” he said. Before U.S. District Judge Janis Graham Jack derided allegedly abusive practices by silica plaintiffs’ doctors, lawyers and screening companies in the silica multidistrict litigation in Corpus Christi, Texas, many viewed silica as “the next asbestos.” But Behrens said a colleague once said to him that “the next asbestos is always asbestos, because the litigation always moves on.”

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