Sixth Annual Advanced ALI-ABA Course of Study
What You Will Learn
This annual advanced course of study, comprising 12 hours of instruction, addresses the reevaluation of the litigation that is taking place in all quarters as the result of the bruising political battle over federal legislation.
There are a lot of asbestos conferences. This one has the "first chair" players covering all aspects of this complex litigation. The faculty not only speaks to ongoing developments, but also is in a position to suggest the likely future developments in the litigation as well as in filings, medicine, bankruptcy, and insurance.
Intended for practitioners, in-house counsel, insurers, investors, and others interested in asbestos litigation, this course offers up-to-the-minute information on developments in state and federal courts, bankruptcy courts, the halls of Congress, and the state legislatures.
Time is reserved throughout the program to address questions submitted by the registrants.
Planning Chairs
John D. Aldock, Goodwin Procter LLP, Washington, D.C.
Steven Kazan, Kazan, McClain, Abrams, Fernandez, Lyons, Farrise & Greenwood, P.L.C., Oakland, California
Faculty
David T. Austern, President, Claims Resolution Management Corporation, Falls Church, Virginia
Bryan O. Blevins, Jr., Provost & Umphrey, L.L.P., Beaumont, Texas
Lester Brickman, Professor of Law, Yeshiva University, Benjamin N. Cardozo School of Law, New York
Brent W. Coon, Brent Coon & Associates, Beaumont, Texas
Jeffrey S. Cooper, SimmonsCooper LLC, East Alton, Illinois
Robert Cusumano, General Counsel and Secretary, ACE Limited, Hamilton, Bermuda
Mark Davidson, 11th Civil District Court Judge and Asbestos MDL Judge, Houston
B. Thomas Florence, Ph.D., President, Analysis, Research, PLANNING Consulting, Washington, D.C.
Patrick M. Hanlon, Goodwin Procter LLP, Washington, D.C.
Deborah R. Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School, Palo Alto, California
Janis Graham Jack, U.S. District Judge, Corpus Christi, Texas
Eliot S. Jubelirer, Morgenstein & Jubelirer LLP, San Francisco
Ken M. Kawaichi, Neutral, JAMS, Walnut Creek, California; former California Superior Court Judge
Anne M. Kearse, Motley Rice LLC, Mt. Pleasant, South Carolina
Linda A. Lipsen, Senior Vice President for Public Affairs, Association of Trial Lawyers of America (American Association for Justice), Washington, D.C.
Peter Van N. Lockwood, Caplin & Drysdale, Chartered, Washington, D.C.
Elizabeth Wall Magner, U.S. Bankruptcy Judge, http://www.neworleanscvb.com/docs/AboutNewOrleans.pdf')">New Orleans
Denise Neumann Martin, Ph.D., Senior Vice President, NERA Economic Consulting, New York
John L. Mekus, Executive Director, Celotex Asbestos Settlement Trust, Wilmington, Delaware
Mark D. Plevin, Crowell & Moring LLP, Washington, D.C.
R. Thomas Radcliffe, Jr., DeHay & Elliston, L.L.P., Baltimore
Joseph F. Rice, Motley Rice LLC, Mt. Pleasant, South Carolina
David M. Schulte, Managing Partner, Chilmark Partners, L.L.C., Chicago
Charles S. Siegel, Waters & Kraus, LLP, Dallas
Reagan W. Simpson, King & Spalding LLP, Houston
Joseph R. Slights, III, Superior Court Judge, Wilmington, Delaware (invited)
Stephen M. Snyder, Snyder Miller & Orton LLP, San Francisco
David A. Speziali, Speziali, Greenwald & Hawkins, P.C., Williamstown, New Jersey
Stephen M. Tigerman, Harowitz & Tigerman, LLP, San Francisco
Walter G. Watkins, Jr., Forman Perry Watkins Krutz & Tardy LLP, Jackson, Mississippi
Charles A. Weaver, Professor of Psychology and Neuroscience, Baylor University, Waco, Texas
Now is the time to fall in love with New Orleans all over again! The most celebrated and historic core of New Orleans – including the French Quarter, Central Business District, Warehouse and Arts District, Magazine Street, Garden District, Audubon Park and Zoo, and St. Charles Avenue – not only remains intact, both physically and spiritually, but is thriving. The cultural riches, sensual indulgences, and unparalleled service that define the New Orleans experience continue to flourish, as they have for centuries. In sum, New Orleans is open, fully prepared, and eager to welcome all of its visitors again. Come see and celebrate for yourself. Your visit right now ensures you the unique, cultural travel experience only New Orleans can deliver. Even more, it means you are taking part in something important, something historic: celebrating the Rebirth of New Orleans. For more information, go to http://www.neworleanscvb.com.
Program Schedule
Thursday, November 30, 2006
- 7:30 a.m. Registration and Continental Breakfast
- 8:30 a.m. Introductory Remarks and Course Overview – Messrs. Aldock and Kazan
- 8:45 a.m. Asbestos Litigation Today and Tomorrow: Facts, Figures, Trends – Messrs. Austern and Rice
- Is the downturn in filings the temporary result of the pending federal legislation? How many filings will there be in 2007? Where? What disease mix?
- 9:15 a.m. Tort Reform: Medical Criteria and More – Professor Hensler, Mr. Hanlon, and Ms. Lipsen
- Since 2004, several states have enacted tort reform bills that have changed the landscape of asbestos litigation. In addition to establishing medical criteria, legislation (and sometimes judicial decisions) have limited or abolished joint and several liability, restricted trial consolidations while allowing pretrial consolidations, made forum shopping more difficult, and changed the standards for liability of premises defendants and distributors. What do these bills actually do? How have they worked in practice? What are plaintiffs doing to respond to these reforms? How are legal challenges faring? What is next? What are the prospects for tort reform in the next Congress?
- 9:45 a.m. Managing Asbestos Cases: Views from the Bench – Judges Davidson, Jack, and Slights (invited)
- Asbestos judges in Texas and Delaware and the federal judge who addressed the asbestos/silica scandal discuss asbestos case management.
- 10:30 a.m. Networking Break
- 10:45 a.m. The Lung Cancer Debate – Messrs. Blevins and Speziali
- In 2006, a Texas court of appeals held that expert testimony finding a causal connection between lung cancer and asbestosis exposure in the absence of underlying asbestosis should be excluded as unreliable. Does this portend a new chapter in the longstanding controversy over lung cancer causation? What is the state of the medicine?
- 11:30 a.m. The Past Recaptured: Proving Exposure after All These Years – Messrs. Coon and Jubelirer and Dr. Weaver
- Asbestos cases frequently involve long-ago exposures, which are inherently difficult to prove – or disprove. This session examines techniques for proving exposure and for challenging exposure evidence.
- 12:15 p.m. Lunch Break
- 1:30 p.m. Developments: Premises Liability … and Beyond – Messrs. Siegel and Simpson
- There have been a number of developments in the law governing the duties of premises owners or employers. The Supreme Courts of Delaware and California have both issued decisions trying to clarify state law regarding an owner’s duty to the employees of independent contractors. To what extent have they succeeded? What will the effect of those decisions be? Several courts have now addressed whether employers or premises owners have a duty to family members exposed to asbestos brought home by a worker, with New Jersey favoring the plaintiff, New York and Georgia favoring the defendant, and Texas still undecided. What is the state of the law on secondary exposure? What are the prospects of extending these rulings to product defendants?
- 2:15 p.m. Significant Developments in Friction Products and Electrical Equipment Litigation – Ms. Kearse and Messrs. Radcliffe, Speziali, and Tigerman
- Friction products and electrical equipment cases continue to be tried in significant numbers. What are the issues, which side has prevailed, and where is the litigation going? The speakers are the lawyers trying these cases.
- 3:00 p.m. Networking Break
- 3:15 p.m. Old Jurisdictions in Transition: The Sea Change in Texas – Messrs. Blevins and Watkins
- In the mid-1990s, nearly half of all asbestos cases filed in the United States were filed in Texas courts, which were generally perceived as sympathetic to plaintiffs. Since then, repeated waves of tort reform, culminating in the enactment of medical criteria legislation in 2005, have greatly changed the environment for asbestos litigation. Taken together, what effects have the various reforms had, and what are yet to be felt? To what extent have the Texas MDL, and new rules on unimpaired cases, consolidations, joint and several liability, venue, and much more led to a sea change in asbestos litigation in the state? How have plaintiffs and defendants responded to the changed environment? To what extent are cases formerly filed in Texas being filed elsewhere – and where?
- 4:00 p.m. Emerging Jurisdictions: Delaware – Messrs. Cooper and Radcliffe
- As the courthouse door has closed in some traditionally plaintiff-friendly jurisdictions such as Mississippi and Madison County, Illinois, asbestos cases have migrated to other jurisdictions. One of the most important of these emerging jurisdictions for asbestos litigation is Delaware. What is Delaware’s attractiveness as a forum for asbestos cases? How has the Delaware Superior Court responded to its new prominence in asbestos litigation? What can practitioners learn from the court’s management practices and its initial decisions on forum non conveniens rulings and general causation in friction product cases? Where is Delaware headed?
- 4:45 p.m. Screening: Dead or Just Napping? (Ethics Issues) – Professor Brickman and Messrs. Coon, Rice, and Watkins
- Since Judge Jack’s decision in In re Silica Cases, much attention has been paid to the ethics of litigation screening. Implicated doctors have taken the Fifth Amendment before Congressional committees; NIOSH has been urged to reconsider its monitoring of the B-reader program; prosecutors have been working overtime to determine whether criminal laws have been violated. How significant have unethical screening techniques been in fueling asbestos litigation? To what extent have historical screening programs violated either legal or medical ethics? Is litigation screening over, or lying low? Could screening ethically be revived, shorn of the abuses that have discredited it? Would improved NIOSH regulation of B-readings help? Does it matter whether there is a medical argument for screening in asbestos cases?
- 5:45 p.m. Adjournment for the Day
Friday, December 1, 2006
- 7:30 a.m. Continental Breakfast
- 8:00 a.m. Asbestos Bankruptcies: Past, Present, and Future – Judge Magner, Dr. Martin, and Messrs. Lockwood, Plevin, and Schulte
- 2006 has been a breakout year for asbestos bankruptcies. What companies are out, what companies are almost out, and what companies are mired? What has been the role of insurers and insurance issues? When is a prepetition settlement program for current claimants in bad faith, and how do you prove it? Can §524(g) be used to wash rich parents of moribund debtors clean of their asbestos liabilities? Under what circumstances can a non-debtor "bolt on" to the bankruptcy of another company? What bearing do changes in the tort system have on the estimation of liabilities of the debtors? What special considerations are present when a debtor in an ordinary business bankruptcy has asbestos liabilities? What are the prospects of §524(g) as a means of achieving global resolution of asbestos liabilities? What are the financial issues in putting together a bankruptcy settlement? Are there changes in section 524(g) that would make this a better process?
- 9:30 a.m. Everything You Need To Know about the New §524(g) Trusts but Never Thought To Ask – Judge Kawaichi, Dr. Florence, and Messrs. Austern, Mekus, and Snyder
- By mid-2006 there were at least 28 asbestos trusts representing cumulative assets of more than $1.7 billion. Those numbers continue to grow as more companies emerge from bankruptcy. How do these trusts get up and running? What has worked, and what hasn’t? What are the prospects for coordinated claims processing among the various trusts? What are the key issues in trust management, from the perspective of present claimants, the futures’ representatives, and other constituencies?
- 10:30 a.m. Networking Break
- 10:45 a.m. The Insurance Wars – Messrs. Cusumano and Snyder
- Historically, decisions in favor of policyholders on insurance coverage unlocked the resources that have fueled asbestos litigation. The struggle between policyholders and insurers continues into this century. Although the prevalence of arbitration has reduced the visibility of insurance issues, they continue to be important. Large sums turn on what counts as a single "occurrence" under liability policies, what the boundaries are between products/completed operations and general liability coverage, the allocation of losses to policy years, and the like. Moreover, with the explosive growth of asbestos trusts and the recent prevalence of "insurance neutrality clauses" in plans of reorganization, new issues are emerging in coverage disputes between asbestos trusts and insurance companies. This session identifies the controversies that matter today and provides a glimpse of the way in which the conflict-ridden relationship between policyholders and insurers is evolving.
- 11:45 a.m. Back to the Future – Professor Hensler, and Messrs. Aldock, Blevins, Kazan, Plevin, Siegel, and Watkins
- Is there an asbestos litigation problem? If so, for whom? Is screening over, or waiting to make a comeback? Could screening be reinvented to avoid fraud and abuse? Will there be a resurgence of trials? Will there be a resurgence of global settlements or other collective treatment? Is there a "next" asbestos?
- 12:45 p.m. Adjournment
Total 60-minute hours of instruction: 12, including one hour of ethics
Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter
Educational Objective: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments to practitioners, in-house counsel, insurers, and investors
Level of Instruction: Advanced
Here's what registrants have said about this course:
Great program! Glad to hear new developments.
The presentation of asbestos litigation issues from the plaintiff and the defense bar was very effective.
Well done course, glad I attended. Materials addressed a vast amount of information and ideas in a short period of time.
I thought that this was the best seminar I have attended in the last few years. Panel members were excellent, both sides were well represented and articulate, and the discussions were very thoughtful and intellectually stimulating.
The interaction of the various panel members was very good. It really gave me insights into the personalities and positions of both sides involved in asbestos litigation.
I have been to so many of these asbestos conferences and this faculty and speakers are by far the best I've seen in my 5+ years of litigation. Very informative!
