Fw: Re:Re: Fw: Defending a United Detroit on Asbestos

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Martha Murdock, DirectorNational Silicone Implant Foundation | Dallas Headquarters"Supporting Survivors of Medical Implant Devices"4416 Willow LaneDallas, TX 75244-7537

----- Original Message ----- From: ParfumGigi@...

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Sent: Friday, November 08, 2002 9:27 PM

Subject: Re:Re: Fw: Defending a United Detroit on Asbestos

MM,This is the one I posted off the NYT that torked me off so bad. How dare hiswife help mess with the jury, an if I remember correctly they decided to say nicethings about breast implants because of mastectomy patients etc. Grrr & Roar..I wondered why it wasn't sent to saline group then, It infuriated me to read the bogus slop this atty. & the NYT printed about breast implants!@ I'm still going toCC it onto, Diane Zuckerman like I told you previously. luv.gigi* Subj: Fw: Defending a United Detroit on Asbestos Date: 11/8/02 6:35:14 PM Central Standard Time From: MAM-NSIF@... BreastImplantNews-post-123456@..., ParfumGigi@... CC: Sent from the Internet (Details) FYI! Very Enlightening!Thanks to & Myrl for this article!Martha Murdock, DirectorNational Silicone Implant Foundation | Dallas Headquarters"Supporting Survivors of Medical Implant Devices"4416 Willow LaneDallas, TX 75244-7537----- Original Message -----From: "Myrl Jeffcoat" <myrlj@...><myrlj@...>Sent: Friday, November 08, 2002 9:32 AMSubject: Defending a United Detroit on Asbestos> Thank you for sending us the following. . .Myrl>>> November 3, 2002> Defending a United Detroit on Asbestos> By JONATHAN D. GLATER>>> In a trial against makers of breast implants nearly a decade ago inHouston,> M. Bernick had a moment that lawyers always savor: tripping up a> hostile witness. Defending an implant manufacturer, he was cross-examininga> doctor who had testified that he believed the implants could causedisease.>> "When," Mr. Bernick asked, "did you start telling your patients that?">> "I haven't told my patients that," the doctor said.>> "I am sorry?">> "I have not told my patients that.">> "Ever?">> "No.">> Such an exchange, which badly eroded the witness's credibility and> undermined some of Texas' most prominent lawyers, is what corporate> defendants crave from legal teams. And Mr. Bernick, an intense, thoughtful> man who has built an enviable career defending corporations, did not> disappoint. Although he continued the questioning in his usual low-key> style, he made sure to drive home the point that the doctor did not once> warn patients of his suspicions. The jury handed Mr. Bernick a partial> victory in the case; the company went bankrupt before there could be afinal> judgment.>> Now Mr. Bernick, 48, finds himself with three of the highest-profileclients> imaginable, joined in an unlikely alliance. Detroit's automakers, facing a> minor flood of asbestos litigation, have turned for help to this quiet> corporate-rescue artist.>> According to the Rand Institute for Civil Justice, more than 60 companies> have filed for bankruptcy as a result of asbestos-related claims - 22 of> them since Jan. 1, 2000.>> The steadily rising number of claims - especially involving something as> intimidating as asbestos - comes at a difficult time for the Big Three,> which are already facing slight profits, sales dependent on costly> incentives, hefty pension liabilities and falling credit ratings.>> The risk is real. If enough claims are filed against a company, their> strength does not matter - the defendant must settle because it is cheaper> to do so than to fight thousands of claims in courtrooms across thecountry.> The best defense, as Mr. Bernick recognizes, is to head off claims early,> before a company faces so many that it has no option but to pay outmillions> of dollars in settlements or jury awards, like the $53.5 million verdict> against Honeywell International and dozens of other companies in February.>> Ford Motor, DaimlerChrysler and General Motors are facing 15,000 claims> filed by auto mechanics, and those working near mechanics, who say theywere> injured by asbestos that escaped from brake pads and related products.That> is a far cry from the hundreds of thousands of claims that have forcedsome> companies in other industries into bankruptcy, but the claims cannot be> wisely ignored. Many a company has dismissed an initial trickle ofasbestos> claims as manageable, only to end up in Chapter 11.>> Mr. Bernick is not the only corporate lawyer to be drawn into asbestos> cases. Such litigation is a growth business these days, as more and more> claims are brought.>> "There's a substantial amount, and an increasing amount of asbestos> litigation, which is not what people expected," said Barry R. Ostrager, a> lawyer at Simpson Thacher & Bartlett in New York, noting how experts once> predicted that the number of claims would decline over time. "Becausethere> are dozens of pending asbestos-related bankruptcies, because there is an> increasing amount of mass tort litigation, and because there's asubstantial> volume of asbestos-related insurance coverage litigation, there are> obviously a lot of lawyers involved.">> Though the automakers play down the risks of asbestos suits, it is telling> that they have set aside their traditional rivalry and teamed up to hireMr.> Bernick to handle their defense.>> Mr. Bernick's clients have often been societal pariahs: he has represented> cigarette makers and a German concern accused of using slave labor during> the Holocaust. Current clients include W. R. Grace & Company and Armstrong> World Industries, both in bankruptcy because of asbestos claims. And his> approach is consistent: to rely on the science that supports his clients'> case.>> If it comes to a trial, he will explain that science to a jury. But the> challenge this time is different: to avoid having thousands of cases windup> before juries at all.>> This strategy has already hit a bump. A federal bankruptcy court judge in> Delaware decided not to allow a special hearing the automakers had soughton> the scientific basis of the claimants' arguments. But Mr. Bernick standsby> his approach.>> "Because of the sheer volume of claims, it is difficult for any onecompany> to deal with the scientific issues," Mr. Bernick said in an interview. To> him, the issue boils down to this: Brake repair work does not expose> mechanics, or anyone else, to harmful levels of asbestos.>> "If we're right on the science, there should be no litigation," Mr.Bernick> said. Instead, he said, a judge should find that the cases should never go> to a jury because the plaintiffs' supporting evidence lacks sufficient> scientific rigor.>> Such an approach has not been tried in asbestos cases, in part because the> research needed to make a scientific argument takes time to complete. Buta> similar strategy succeeded in breast-implant litigation: Mr. Bernickargued> in the Chapter 11 proceedings of Dow Corning that the bankruptcy court> should hold a preliminary hearing to evaluate the scientific basis of> plaintiffs' claims.>> The idea was picked up by a federal judge in Portland, Ore., E.> , who appointed an experts' panel that concluded in 1996 that therewas> no good evidence that the implants caused the diseases many plaintiffs> claimed they suffered. Other courts subsequently reached similar> conclusions, and implant-related claims soon began to decline.>> As for the automakers, they have little choice but to play down thedangers> of asbestos litigation, said Lester Brickman, a law professor at Yeshiva> University who served as a witness for a corporation in a 1989 asbestos> suit. "They have to pooh-pooh it," he said. "If there was a conversation,a> discussion at the board level that said this is a serious threat, theywould> have to disclose that conversation" to investors.>> That does not mean the automakers face a lethal threat, Mr. Brickmanadded,> but it does show the difficulty of gauging the danger.>> Asbestos liability has driven dozens of the country's largest companiesinto> bankruptcy, while dozens more have struggled with a rising number of> lawsuits. Each of those companies was hit with far more claims than theBig> Three automakers combined. Federal-Mogul Global Inc., which makes"friction> products" like brake pads, collapsed under the weight of 59,000 claims in> the first half of 2001.>> The automakers decided more than a year ago to tackle the asbestos problem> in concert. Not many companies have developed effective strategies for> coping with asbestos liability, and auto executives wanted a lawyer who> could come up with an innovative solution.>> Ford talked with Mr. Bernick first, then brought in the other companies.> "This is an industry issue, not just an individual company issue," said> Kathleen Vokes, a Ford spokeswoman, adding that the three automakers had> never before coordinated a common legal strategy because they had notfaced> precisely the same, relatively narrow problem. " Bernick is a> subject-matter expert, so it's a logical fit.">> Mr. Bernick is a partner at Kirkland & Ellis, one of the largest law firms> in Chicago, his hometown; he received his undergraduate and law degrees at> the University of Chicago. He is a highly disciplined person who can focus> on large issues or small - his clients' problems, the political impact of> the frequency of lawsuits, or art. (While a young associate at Kirkland,he> took a Saturday-morning course on painting at the School of the Art> Institute of Chicago.)>> His low-key courtroom demeanor contrasts sharply with the often flamboyant> plaintiffs' lawyers he has faced. A small man (he stands 5 feet, 5 inches)> who runs every morning, Mr. Bernick says he does not try to dominate a> courtroom physically. Opponents say his questioning of witnesses is not> oversimplified for jurors, even when the issues are complex, and he often> uses charts - timelines, in particular - to convey complex sequences of> events.>> "If I saw one of his timelines, I saw a thousand of them during thattrial,"> recalled Tommy Jacks, an Austin lawyer who represented a woman with breast> implants in the trial against Dow Corning. "There are many who are muchmore> theatrical in the courtroom than is. 's just a bit of a geek.">> But he turns that to his advantage, said O'Quinn, a Houston lawyerwho> represented the other plaintiff in the Dow Corning case.>> "He comes across very friendly, very likable," Mr. O'Quinn said. "He may> seem nerdy - I don't think he's quite like that, but he may not seem avery> imposing figure. He is nonetheless able to handle himself in a way that> people like him.">> His straightforward manner and sense of conviction make him crediblebefore> a jury, both lawyers said.>> "I don't know if at the end of the day jurors want to take out for a> beer, but if any of them wanted a lawyer, I bet he'd be on the shortlist,"> Mr. Jacks said.>> "I don't know if was born in a suit, but he had one on by the timehe> left the hospital," he added.>> MR. BERNICK has thought a good deal about how to handle multiple, complex> lawsuits. His "system," he said, lets him spend nearly every Saturday at> home with his family, a commitment he made when his son was born in 1985.>> Now that he is a partner, billing more than $600 an hour, he relies on> junior lawyers working for him to study the facts, regulations and thelaw,> he said. All of them help develop the message he will take to a jury.>> One important adviser, he said, is his wife, , a clinical> psychologist he first met at a Christmas party in a Chicago bar in 1982.She> pointed out that when interviewing potential jurors in implant cases, it> would be unwise to impanel people who thought that anyone who got implants> deserved to suffer for having unnecessary cosmetic surgery.>> "To simply have people be biased against the plaintiff for having an> elective surgery was very close to being biased against our client's> product," Mr. Bernick said. His wife helped him pose questions to jurorsto> make them see that implants might confer significant benefits on, for> example, women who had suffered breast cancer or who were depressed about> their bodies.>> Mr. Bernick, whose clients have included Brown & on, the tobacco> company, stresses the complexity of controversial issues.>> "Even though legitimate questions have been raised about certain conductof> the tobacco companies," he said, that does not mean that they are entirely> and solely liable for smokers' injuries. People choose to smoke, he said,> and smokers have known for years of the health risks.>> In his view, plaintiffs' injuries have complex causes. The Holocaust's> horrors are undeniable, for example, but that does not mean the> responsibility of a particular German company taken over by the Nazisshould> be determined by an American court, he said, rather than by existing> international treaties on wartime reparations. (Mr. Bernick, who isJewish,> defended Bayer A.G. when the company was accused of using slave labor inthe> Nazi era.)>> "When you have something controversial, there usually are two sides," Mr.> Bernick said. But he said he would not defend clients at trial if hethought> their positions were untenable. In the case of radiation experiments> conducted by well-known research institutions, he thought his clients(whom> he would not name) should settle, and they did.>> When he does go to trial, Mr. Bernick - who has never taught a class - isa> strong believer in the power of explanation. "He is extremely good on the> science and on cross-examining experts," Mr. O'Quinn said. He recalledthat> Mr. Bernick, in his opening statement, gave examples of medical uses of> silicone other than in implants, to suggest that the material was safe,and> then reinforced that argument with scientific studies.>> Every time Mr. O'Quinn introduced an expert witness to talk about harm the> implants could cause, Mr. Bernick always asked whether there was any> scientific evidence that silicone damaged the immune system.>> "When the question is put in that form, he gets the answer he wants," Mr.> O'Quinn said, which is a no. Although Mr. O'Quinn's client won a favorable> jury verdict in the Dow Corning case, he added, Mr. Bernick "had me beaton> the science.">> Mr. Bernick's strategy for the automakers is also heavy on scientific> evidence. His plan is to attack the plaintiffs' central argument: that> asbestos used in friction products causes cancer.>> Fred Baron, a plaintiffs' lawyer in Dallas, sums up that argument: "In the> repair of those brake linings, mechanics have to take them off, brush them> off and repair them," he said in an interview. "That process creates a lot> of dust," he said, and most mechanics did not wear masks to protect> themselves.>> The pool of potential claimants is limited, Mr. Baron noted. "Relative to> the exposures that people would have in a refinery or a shipyard or> something like that, the exposures are not significant," he said. Thus,> automakers will probably never face as many claims as companies like Grace> and Armstrong, for which asbestos was a much more integral part of the> business.>> Lawyers who defend companies in asbestos lawsuits say plaintiffs are just> broadening their focus to include companies with cash.>> "We're really into a third round," now that manufacturers and users have> already been swamped by lawsuits, said Mr. Brickman, the law professor."The> plaintiffs' lawyers seem able to enlarge the scope of liable defendants> virtually at will.">> The cases against the automakers, though, are not likely to be easy for> plaintiffs, said Twerski, a law professor at Brooklyn Law School.They> will have to "identify defendants, which defendants, which brakes, andwhat> their exposure levels were," said Mr. Twerski, who said he had written a> legal brief in favor of an asbestos defendant.>> "That's going to raise very difficult problems," he added.>> Mr. Bernick says he has an arsenal of studies that refute the claimsagainst> the Big Three, showing no evidence that people who work with brakes aremore> likely to develop illnesses associated with asbestos. In February, hetried> to persuade the federal bankruptcy judge in Delaware, Alfred M. Wolin, to> look at those studies. Judge Wolin presides over the Chapter 11proceedings> of Federal-Mogul, which sought bankruptcy protection just over a year ago.>> The automakers, through Mr. Bernick, asked Judge Wolin to hold a special> pretrial hearing to evaluate the scientific basis of asbestos claims filed> against them in different state courts. They argued that the same science> was an integral part of dealing with the claims against Federal-Mogul, and> that those claims needed to be evaluated to reach an agreement on how the> company could emerge from bankruptcy.>> It was a novel approach, Mr. Twerski said, taking advantage of a 1993> Supreme Court decision allowing courts to determine, before a trial,whether> plaintiffs' claims and expert testimony were valid or just "junk science.">> "Nothing gets to a jury unless a judge decides that he or she, as a> gatekeeper, is going to let the stuff come in," he said.>> Mr. Bernick was confident that if the judge reviewed scientific studies,he> would agree that there was no scientific basis for claims that asbestos in> brakes cause illness - a finding the automakers could use to try to block> all suits against them.>> Plaintiffs' lawyers mounted a broad campaign against the automakers'> efforts, filing motions in state courts to keep trials in front of> sympathetic juries.>> "What they wanted was an opportunity to come into the bankruptcy court and> ask the court to establish some new principle of law that would free them> from liability every time they have to litigate in the state courts," said> Elihu Inselbuch, a New York plaintiffs' lawyer who opposed the automakers.>> But Judge Wolin ruled that he lacked jurisdiction over the claims against> automakers. An appellate court upheld the decision, and now Mr. Bernick is> preparing an appeal to the Supreme Court. It was one of the few setbackshe> has encountered in his legal career.>> "It was a clear and correct approach," he said. "The sad fact is that it> remains correct today. Nobody's said that it's wrong. Nobody's shown how> it's wrong.">> The strategy worked, on a different subject, in the Armstrong bankruptcy> proceedings. A Delaware bankruptcy judge held a hearing in September on> whether plaintiffs' evidence on asbestos contamination from floor tileshad> scientific validity, and concluded last month that the evidence was not> admissible.>> UNLESS the lower court decisions against the Big Three are reversed, they> face the unhappy and expensive prospect of settling the claims, or ofpaying> to fight them in state courts in front of unpredictable juries.>> The automakers will choose specific cases in different states and try to> have state courts hold pretrial hearings on the science. If successful,the> companies will use the favorable rulings to head off cases in those and> other states.>> Of course, the strategy will take years, law professors said. Meanwhile,Mr.> Bernick says that when necessary, the automakers will defend themselves in> front of juries.>> "The science that's related to the auto claims is fairly discrete, andit's> the same science for all the claims," he said. "That body of science canbe> presented in any case.">>>http://www.nytimes.com/2002/11/03/business/yourmoney/03ASBE.html?ei=5062 & en=>880dfb3ecc6e268c & ex=1036990800 & partner=GOOGLE & pagewanted=print & position=bott> om>>>