Fw: Defending a United Detroit on Asbestos

November 9, 2002

FYI! Very Enlightening!

Thanks to & Myrl for this article!

Martha Murdock, Director

National Silicone Implant Foundation | Dallas Headquarters

" Supporting Survivors of Medical Implant Devices "

4416 Willow Lane

Dallas, TX 75244-7537

----- Original Message -----

From: " Myrl Jeffcoat " <myrlj@...>

<myrlj@...>

Sent: Friday, November 08, 2002 9:32 AM

Subject: 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 in

Houston,

> M. Bernick had a moment that lawyers always savor: tripping up a

> hostile witness. Defending an implant manufacturer, he was cross-examining

a

> doctor who had testified that he believed the implants could cause

disease.

>

> " 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 a

final

> judgment.

>

> Now Mr. Bernick, 48, finds himself with three of the highest-profile

clients

> 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 the

country.

> 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 out

millions

> 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 they

were

> 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 forced

some

> companies in other industries into bankruptcy, but the claims cannot be

> wisely ignored. Many a company has dismissed an initial trickle of

asbestos

> 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. " Because

there

> are dozens of pending asbestos-related bankruptcies, because there is an

> increasing amount of mass tort litigation, and because there's a

substantial

> 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 hire

Mr.

> 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 wind

up

> 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 sought

on

> the scientific basis of the claimants' arguments. But Mr. Bernick stands

by

> his approach.

>

> " Because of the sheer volume of claims, it is difficult for any one

company

> 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. But

a

> similar strategy succeeded in breast-implant litigation: Mr. Bernick

argued

> 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 there

was

> 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 the

dangers

> 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, they

would

> have to disclose that conversation " to investors.

>

> That does not mean the automakers face a lethal threat, Mr. Brickman

added,

> but it does show the difficulty of gauging the danger.

>

> Asbestos liability has driven dozens of the country's largest companies

into

> bankruptcy, while dozens more have struggled with a rising number of

> lawsuits. Each of those companies was hit with far more claims than the

Big

> 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 not

faced

> 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 that

trial, "

> recalled Tommy Jacks, an Austin lawyer who represented a woman with breast

> implants in the trial against Dow Corning. " There are many who are much

more

> 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 lawyer

who

> 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 a

very

> 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 credible

before

> 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 short

list, "

> Mr. Jacks said.

>

> " I don't know if was born in a suit, but he had one on by the time

he

> 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 the

law,

> 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 jurors

to

> 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 conduct

of

> 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 Nazis

should

> be determined by an American court, he said, rather than by existing

> international treaties on wartime reparations. (Mr. Bernick, who is

Jewish,

> defended Bayer A.G. when the company was accused of using slave labor in

the

> 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 he

thought

> 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 - is

a

> strong believer in the power of explanation. " He is extremely good on the

> science and on cross-examining experts, " Mr. O'Quinn said. He recalled

that

> 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 beat

on

> 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, and

what

> 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 claims

against

> the Big Three, showing no evidence that people who work with brakes are

more

> likely to develop illnesses associated with asbestos. In February, he

tried

> to persuade the federal bankruptcy judge in Delaware, Alfred M. Wolin, to

> look at those studies. Judge Wolin presides over the Chapter 11

proceedings

> 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 setbacks

he

> 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 tiles

had

> 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 of

paying

> 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, and

it's

> the same science for all the claims, " he said. " That body of science can

be

> presented in any case. "

>

http://www.nytimes.com/2002/11/03/business/yourmoney/03ASBE.html?ei=5062 & en=

>

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> om

>

November 10, 2002

Sent: Friday, November 08, 2002 8:32 AM