Senator Jon Kyl (R-AZ) explained that this Baron and Budd memo “instructs clients to assert particular things that will increase the value of their claim, without regard to whether those things are true. The memo even informs clients that a defense attorney will have no way of knowing whether they are lying about their exposure to particular asbestos products.”
Asbestos: A Long History of Abuse
In 2005, U.S. District Judge Janis Jack released a landmark ruling that exposed massive fraud in asbestos litigation. Nearly a decade later, U.S. Bankruptcy Court Judge George Hodges uncovered a “startling pattern of misrepresentation” and “manipulation of exposure evidence” in asbestos litigation.
Their experiences and conclusions are not isolated. Judges throughout the country have criticized asbestos trial lawyers for questionable conduct in asbestos cases, often for manipulating or suppressing evidence of their clients’ claims with asbestos trust funds.
Judge Hodges addressed several troubling cases in a January 2014 ruling, including a case where plaintiffs’ lawyers “affirmatively represented to [a] jury that there was no . . . insulation on [a] ship.” But the “same lawyers . . . had, seven months earlier, certified ‘under penalty of perjury’ that the plaintiff had been exposed to [that] insulation” and had a valid claim against a planned asbestos trust. These claims were inconsistent—and one must be untrue.
The following timeline highlights cases where plaintiffs’ lawyers allegedly made inconsistent statements about their clients’ asbestos exposure, hid evidence, or manipulated evidence.
1997: Baron and Budd Memo
2003: Dunford v. Honeywell Corp.
Presiding Judge Thomas Home described the case as the “worst deception” used in discovery that he had seen in his twenty-two years on the bench
2005: In re: Silica Products Liability Litigation
U.S. District Court Judge Janis Jack explained that “[t]he word ‘litigation’ implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money.”
2006: Brassfield v. Alcoa, Inc.
The judge presiding over the case found that the plaintiff’s lawyer had not made a good faith effort to comply with discovery. The judge went on to say, “I am frankly ashamed to be part of a process that allows [a lawyer] to collect a fee for things that somebody else does that he is not authorized to do, and then he gets a fee on the work [in the tort action].”
2007: Kananian v. Lorillard Tobacco Company
Judge Harry Hanna rebuked an asbestos lawyer who “chose to weave a seemingly endless web of deceit.” In a later newspaper interview, he explained that “In my 45 years of practicing law, I never expected to see lawyers lie like this. It was lies upon lies upon lies.”
2011: Montgomery v. American Steel & Wire Corp.
Judge Peggy Ableman questioned asbestos lawyers’ failure to disclose their client’s claims with asbestos trusts during the normal discovery process: “This is really seriously egregiously bad behavior. This is misrepresenting. This is trying to defraud. I don’t like that in this litigation. And it happens a lot.”
2012: Barnes and Crisafi v. Georgia Pacific
The presiding judge explained that asbestos lawyers’ failure to disclose their client’s trust submissions was “a major problem.” He went on to ask, “How can I try this case now?”
2014: In re: Garlock Sealing Technologies
U.S. Bankruptcy Court Judge George Hodges uncovered a “startling pattern of misrepresentation” and “manipulation of exposure evidence” in asbestos litigation. He explained that “[t]he limited discovery allowed by the court demonstrated that almost half of those cases involved misrepresentation of exposure evidence. It appears certain that more extensive discovery would show more extensive abuse.”
2015: Cummings v. General Electric
At a pre-trial hearing, Judge Judith McDonald-Burkman questioned asbestos lawyers’ failure to disclose a document filed with a trust fund. She said, “You submitted a claim or you didn’t. And that’s the problem I have. [This] shows pretty good detail on a claim, and I think an argument that it wasn’t submitted, ‘I didn’t sign anything,’ is disingenuous. I think it’s disturbing.”