Defending Toxic Tort Claims in the Age of COVID: Takeaways from the 2021 DRI Asbestos Seminar

Posted on November 22nd, 2021 by Nathan F. StudenyNathan F. Studeny

I recently attended the DRI’s Asbestos Medicine Seminar in New Orleans and found one predominant theme: not even a worldwide pandemic can slow down the runaway train that is asbestos litigation. From continuous advertisement on television and social media to exorbitant verdicts involving low-dose consumer products such as baby powder, there appears to be no end in sight to litigation that has now spanned over 40-years.

Here is what I took away from the conference:

  1. They blinded me with science.

For almost two years now, prospective asbestos case jurors have been inundated with scientific information and opinions from many sources, informed or not, surrounding the COVID-19 pandemic concerning its cause, symptoms, and prevention (masks, social distancing, vaccines, etc.). Companies defending asbestos claims often point to the science to establish that their low-dose or chrysotile-containing product does not cause disease. Since juror perceptions on science and fears of respiratory conditions are likely not the same as the were before the pandemic, companies defending asbestos cases must recognize these changes in juror perception and not simply rely on historical strategies to defend their product. For instance, many lawyers are predisposed to seating educated jurors, believing an educated juror would be able to better understand the complexities involved with the science and epidemiology of asbestos exposure and causation. Surprisingly, however, a recent survey of respondents with no high school diploma or equivalent were three-times more likely to report that they were not more concerned with breathing or respiratory issues because of the pandemic as those who had a degree. Now more than ever, each potential jurors’ views of and interest in science and thoughts on COVID-19 may be more predictive than using demographics and education and crucial to the defense of cases that rely heavily on scientific studies and opinions.

  1. If you don’t like what’s being said, change the conversation.

Television commercials and “infomercials” advertising legal services for those allegedly injured by products, medical devices, and/or pharmaceuticals are not new. Asbestos lawyers devote substantial money to solicit clients through television advertisements. With the advent of social media and its younger audience, these firms have a dual focus – to solicit clients, a generally mature audience, and to influence the typical jurors, who are younger and uninformed about asbestos, by flooding the airwaves and Internet with information and themes helpful to their cause. The companies affected by these cases and the defense bar have largely ignored these efforts to influence jurors, and asbestos verdicts continue to grow. A campaign to counter misinformation with facts is a potential solution to the efforts by plaintiff’s firms to anchor jurors to their themes. In the short term, however, asbestos defendants must develop a strategy to offset this anchoring of jurors through pretrial motions and effective voir dire to level the scales of justice at the start of trial. This might include the development of an expert witness to explain the effects of these advertisements to the Court, pretrial motions requesting extended voir dire on the subject of advertising, and a request that any such questioning be conducted individually in camera and outside the presence of other potential jurors to prevent the repeating and re-entrenchment of this anchored information within the jury pool.

  1. How do my genes fit?

One of the many misconceptions advertised by the plaintiffs’ bar is the notion that asbestos exposure, at any level or dose, is the only cause of mesothelioma. However, it is well-established that mesotheliomas can occur from other causes, including those with no documented history of asbestos exposure. For instance, scientific studies have established that therapeutic radiation at certain levels can cause the development of mesothelioma in the area where the treatment was targeted. Today, science is taking a more detailed look at the role of one’s genetic makeup in identifying the source or cause of human cancers, including mesotheliomas. The focus of many asbestos cases today involves claims by younger mesothelioma plaintiffs with very little direct or secondary exposure to chrysotile asbestos. The role of genetics (errors in the body’s own natural process of gene replication and mutation) may be the key to defending your case and countering the potential misconception of a juror that mesothelioma can only be caused by exposure to asbestos. Don’t ignore the importance of (1) conducting a thorough review of a plaintiff’s medical history and that of his or her immediate family for references to other malignancies or conditions that could be caused by genetic mutations, or treatments for such conditions, and (2) retaining a medical expert well-versed in the developing medical literature on the role of genetics in the development of malignancies to dispel this common misconception that might be held by your jurors at trial.

  1. Deep in the heart of [the] Texas [two-step].

Starting with Johns-Manville in 1982 – one of the largest producers of asbestos products and raw asbestos in the United States – hundreds of companies have filed for bankruptcy protection as the result of being dragged into asbestos litigation. Without the ability to recover large verdicts against the companies responsible for manufacturing traditional “asbestos products” such as pipe covering and insulation, the litigation shifted its focus to viable companies with continuing manufacturing interests that supplied “low dose” industrial and consumer products containing encapsulated or trace amounts of asbestos or other asbestiform minerals. Some of those companies with continuing manufacturing interests are now looking for a quick exit from the tort system by way of the Texas two-step – a reverse merger maneuver whereby one of the successors of the reversed merged company is given certain assets and the predecessor’s asbestos liabilities and files for bankruptcy protection, while the other successor continues the business outside of bankruptcy and generally guarantees money placed in a trust for current and further asbestos claimants. For instance, Johnson & Johnson – embroiled in litigation involving claims that its talcum powder was contaminated with asbestos and recently the victim of multi-million-dollar verdicts – recently restructured its business, whereby one of the resulting newly-formed businesses – LTL Management LLC –  filed for bankruptcy in  North Carolina in an effort ”to fully resolve talc-related claims through a Chapter 11 reorganization without subjecting the entire J&J enterprise to a bankruptcy proceeding.” Plaintiffs have vehemently objected to this maneuver, claiming that J&J is improperly attempting to escape its asbestos liabilities. The case has just recently been transferred to New Jersey, and it will likely take years to sort out whether the restructuring was proper, and if so, the amount of assets that will be set aside for talc claimants. At the same time, those defendants remaining in the litigation will need to press forward with an empty chair and continue their efforts to persuade courts and jurors that their individual products were not a substantial factor in causing the plaintiff’s disease. A greater focus on this defense, with experts, may prove to be an effective strategy, especially with jurors in the COVID-19 era.

If you were at the conference, I would be interested to hear your takeaways.