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The traditional tug-of-war in asbestos litigation is developing a new angle as a huge West Virginia proceeding moves forward: a rift between some lawyers representing critically ill plaintiffs and attorneys whose clients are free from advanced asbestos-related disease. When the U.S. Supreme Court recently declined to interrupt the West Virginia trial, the decision disappointed a vocal faction of plaintiffs’ lawyers which claims that burgeoning litigation is siphoning off resources from critically ill plaintiffs or survivors of the deceased. Mass proceedings like the West Virginia case encourage “bogus claims,” said Charles S. Siegel, one of the attorneys who filed an amicus brief for the Unofficial Committee of Select Asbestos Claimants, urging the U.S. Supreme Court to halt the mass proceeding, which originally involved more than 8,000 plaintiffs and some 259 defendants. But the unofficial committee’s claim that the proceedings are too unwieldy may have suffered a setback on Oct. 24, when a jury returned a partial victory for plaintiffs in the liability portion of the case, now trimmed to lone defendant Union Carbide Corp. The jury found Union Carbide responsible for products liability claims and premises-related injuries, but the defendant defeated conspiracy claims, the third prong of the plaintiffs’ case, said co-lead plaintiff’s trial counsel, Scott Segal of Charleston, W.Va. Damages will be determined at a second trial. The other co-lead plaintiff’s counsel, Anne Kearse, a partner with Ness Motley of Charleston, S.C., said the verdict stands in sharp contrast to the arguments offered by the unofficial committee. It is “an insult to our jury that just decided our case on the merits,” she said, adding that, contrary to the group’s arguments that a fair trial for all litigants cannot be had, the verdicts prove that “the jury will weed out the bad cases from the good cases.” The unofficial committee’s Siegel, of Dallas’ Waters & Kraus, said, “I don’t think the verdict undercuts our point.” He said that the problem with the litigation — as it stood before nearly all of the defendants settled — was that it in fact “forced the settlement of bogus cases. The fact that 257 of them settled means that there was no way to get through this case without paying bogus claims.” The lead outside counsel for Union Carbide, James Stengel of San Francisco-based Orrick, Herrington & Sutcliffe, could not be reached for comment after the verdict. The split among plaintiffs’ counsel has certainly generated some heat. “They’re completely off their rockers,” declared Dallas lawyer Shepard A. Hoffman, challenging the tactics adopted by the unofficial committee. Hoffman represents critically ill asbestos claimants and their survivors. “The schism in the plaintiffs’ bar is largely an illusion which they have worked to foster,” Hoffman said, adding that few in the plaintiffs’ bar are in the same camp as the unofficial committee. The high court’s Oct. 7 ruling was also a setback for defendants Mobil Corp. and Honeywell International Inc., who failed to persuade the high court to consider their argument that West Virginia courts deprived them of due process by aggregating thousands of claims, some from plaintiffs with no connection to the state. The Supreme Court proceedings created some strange bedfellows. Arguments launched by Siegel and the unofficial committee echo points raised by The Coalition for Asbestos Justice Inc., a nonprofit organization founded by property and casualty insurers. “Claims of people who are really sick are tied with claims of people who have no impairment whatsoever,” said Victor E. Schwartz, who filed an amicus brief with the Supreme Court on behalf of the coalition. “You’re not getting individual justice.” Schwartz, a partner in the Washington, D.C., office of Kansas City, Mo.’s Shook, Hardy & Bacon, points to several factors shaping mass litigation today and concentrating it in a few states, like West Virginia. Venue rules are more lenient, he said, making it easier for out-of-state plaintiffs to file there. In addition, he explained, bankruptcies of asbestos manufacturers and like companies extend the litigation net to new groups of defendants, such as companies that may have used a product containing asbestos. “It’s just this expanding circle,” he said. If concerns about asbestos litigation escaped public scrutiny for a while, the West Virginia case is generating renewed interest, said Deborah Hensler, a professor at Stanford Law School and a co-author of a Rand Institute study on asbestos litigation. “There is a sense of this litigation rippling through the economy,” she said. TOO MUCH POWER? Walter Dellinger, Mobil’s outside counsel before the Supreme Court, questions whether West Virginia’s status as a litigation magnet puts too much power in the hands of judges there. “The courts in one state are adopting a national legislative resolution of a very complex problem and they haven’t been elected by anyone in the other 49 states to do that,” said Dellinger, partner in the Washington, D.C., office of O’Melveny & Myers. The sheer size of the litigation has an “in terrorem effect” that forces defendants to settle, added Dellinger. Of the roughly 259 original defendants in the case, only Union Carbide went to trial. One defendant secured a directed verdict at the close of the plaintiffs’ case during the liability phase of the trial and 257 others settled, according to Union Carbide’s outside counsel Stengel, who spoke before the verdict. As the sole remaining defendant, Union Carbide went to trial without having a clear idea of exactly who was on the other side. “The short answer is we don’t really know. We don’t really know about the plaintiff population,” said Stengel. He estimates that approximately 3,000 of the more than 8,000 original plaintiffs may have claims against the company, as opposed to other defendants. Kearse and Siegal estimated the number at 1,500 to 2,000 plaintiffs. Before the verdict, Stengel said that Union Carbide had confidence in its case, but he noted that the volume of claims compromised the defense. “It becomes a generic presentation as to the safety of the company’s products, the adequacy of the warnings provided and the maintenance of the Union Carbide industrial premises,” he said. The defense was not in the dark, Kearse said during a preverdict interview. “They know exactly what cases they are in. That’s just a joint defense sort of comment to derail this litigation,” she said. Kearse takes issue with points lobbed by defendants as well as with some objections raised by the unofficial committee. “We represent people during all stages of their injury,” Kearse explained. “Because there are all different grades of injury, that does not impair their right of access to the courts.” Contrary to what others say, the majority of claims filed in West Virginia concern people who had some exposure to asbestos there, even if they no longer live there, she said.

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