Asbestos Litigation: Where Is It Going? When Will It End?
What You Will Learn
This advanced course of study examines the reevaluation of asbestos litigation that is taking place as a result of the backlash against screenings and developments in state tort law “reform.” The course comprises 12 hours of instruction, including one hour of ethics. There are a lot of asbestos conferences, but this one has the “first chair” players covering all aspects of this complex litigation. The faculty not only talks about ongoing developments, but also is in a position to suggest 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 trial courts and bankruptcy courts.
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, Lyons, Greenwood & Harley, PLC, Oakland, California
Faculty
David T. Austern, General Counsel, Manville Trust, Falls Church, Virginia
Matthew P. Bergman, Bergman & Frockt, Vashon, Washington
Bryan O. Blevins, Jr., Provost & Umphrey, L.L.P., Beaumont, Texas
John D. Cooney, Cooney & Conway, Chicago
Robert F. Cusumano, General Counsel, ACE Group, Hamilton, Bermuda
Mark Davidson, Texas 11th District Court and Asbestos Multi District Litigation Judge, Houston
Elizabeth Runyan Geise, Goodwin Procter LLP, Washington, D.C.
Scott D. Gilbert, Gilbert Oshinsky LLP, Washington, D.C.
Gordon Greenwood, Kazan, McClain, Abrams, Lyons, Greenwood & Harley, PLC, Oakland, California
Patrick M. Hanlon, Visiting Professor, University of California School of Law, Berkeley
Deborah R. Hensler, Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies, Stanford Law School, Palo Alto, California
Eliot S. Jubelirer, Schiff Hardin LLP, San Francisco
W. Mark Lanier, The Lanier Law Firm, Houston
Ellen Smith Pryor, Associate Provost, Homer R. Mitchell Professor of Law, and University Distinguished Teaching Professor, Southern Methodist University, Dedman School of Law, Dallas
Tom Radcliffe, DeHay & Elliston, L.L.P., Baltimore
Joseph F. Rice, Motley Rice LLC, Mount Pleasant, South Carolina
Charles S. Siegel, Waters & Kraus, LLP, Dallas
Walter G. Watkins, Jr., Forman Perry Watkins Krutz & Tardy, LLP, Jackson, Mississippi
Perry Weitz, Weitz & Luxenberg P.C., New York
ALI-ABA Staff Attorney: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
THE RIVERWALK The meeting site hotel is located just a few blocks from the San Antonio River. The location gives registrants the opportunity to spend their evenings enjoying the city’s famed Riverwalk, a winding cobblestone street lined with restaurants, bars, shops, museums, theaters, and nightspots. Those looking for a slower pace can also enjoy a narrated cruise along the 2.5 mile river. History buffs can’t miss a visit to The Alamo, only two blocks from the hotel. For more information about things to see and do in San Antonio, go to www.visitsanantonio.com.
Program Schedule
Thursday, December 4, 2008
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. Where Are We Headed? Facts, Figures, Trends – Ms. Hensler and Messrs. Austern and Rice
Asbestos litigation continues to change almost every year. Total filings continue to go down, although cancer claims do not. What has been going on, and why? Will the trend continue? How has the creation of new bankruptcy trusts affected filing patterns? What is going on in foreign claims? Is the obvious down-trend in asbestos filings a reflection of trends in the entire toxic tort environment?
9:45 a.m. The Revival of the State of the Art Defense – Mr. Bergman and Ms. Geise
State of the art, which was the defendants’ primary defense when the litigation started, has come back into favor as defendants focus on state of the art for low dose product, bystander, and household exposure cases. Does the state of the art defense ever work? Should it? What are the considerations to presenting the defense effectively? Are there documents or issues that should be emphasized? What should be the plaintiffs response?
10:30 a.m. Networking Break
10:45 a.m. The Federal MDL – Messrs. Rice, Siegel, and Watkins
Long derided on the plaintiff side as “the black hole,” the Federal MDL has become much more active under Judge James T. Giles. Plaintiffs carefully sculpt their cases to stay out of the MDL, and defendants use removal to get into the MDL. It is now a focal point in the defense effort to take the offensive against unimpaired cases generated by screenings and to get discovery from plaintiffs firms and doctors who defendants believe have abused the process. What are the pros and cons of those efforts, and how are they faring? More broadly, what is the future of the Federal MDL in today’s asbestos litigation?
11:30 a.m. Asbestos Ethics – Judge Davidson and Mr. Hanlon
Asbestos litigation raises ethical issues for lawyers representing both sides. What obligations do lawyers have, and what obligations should they have, in concluding aggregate settlements of asbestos claims? Will the recent debate on this issue in the ALI lead to change in the current rules? What are the obligations of defense firms that previously represented bankrupt defendants in trying to prove that their clients were "responsible third parties" in claims brought against current clients? How has the lawyer 's obligation of candor to the court been affected by the advent of MDL proceedings? What are the ethical pitfalls in interviewing former co-workers and other witnesses? What ethical traps are set by the need to coordinate tort recoveries with compensation from asbestos trusts?
12:30 p.m. Lunch Break
1:45 p.m. The Bankruptcy Trusts – Professor Pryor and Messrs. Austern, Cooney, and Rice
What are the good and the bad aspects of filing asbestos trust claims? What kinds of decisions do trustees need to make with respect to such filings and what drives such decisions? What are the processing problems asbestos trusts encounter? How is it possible for claimants to exhaust their asbestos trust remedies while not exhausting themselves when doing so, versus the responsibility of trustees and trust administrators making sure only eligible claimants are paid, and are paid an appropriate amount?
2:45 p.m. Products and Equipment – Messrs. Radcliffe and Siegel
The litigation has moved well past thermal insulation cases into products (brakes, joint compound) and equipment (valves, boilers, pumps and compressors). Who are the defendants and the potential defendants? What are the issues being tried? What has worked and what has not?
3:45 p.m. Networking Break
4:00 p.m. The Mesothelioma Case – Messrs. Bergman, Greenwood, Jubelirer, and Radcliffe
The asbestos trial docket is essentially a cancer docket with mesos leading the way. Who are the targets? What is being tried and with what success? What drives the settlement demands of plaintiffs firms and the settlement strategies of defendants?
5:00 p.m. Communicating To a 21st Century Jury – Mr. Lanier
Demographics: Do they help or hurt? This segment also addresses communication theory in trial work, the interplay of communication theory and demographics, and the use of marketing studies in selling to juries.
6:00 p.m. Adjournment for the Day
Friday, December 5, 2008
8:00 a.m. Continental Breakfast
8:30 a.m. Active Jurisdictions: California – Messrs. Greenwood and Jubelirer
California is now the hottest jurisdiction. What is the volume? Who are the defendants and potential defendants? What are the hot trial and appellate issues?
9:15 a.m. Are the Days of Texas as a Major Asbestos Jurisdiction Over? – Judge Davidson and Messrs. Blevins, Lanier, and Watkins
Lawyers are leaving Texas and filing cases in other states. Will this trend continue? What will remain of the Texas litigation?
10:00 a.m. Networking Break
10:15 a.m. Insurance Issues – Messrs. Cusumano and Gilbert
For decades, insurance has been a major source of capital and controversy in asbestos litigation. Are the issues clearer now than they used to be, and what are the new issues to watch? Have we reached the high water mark for claims against insurers? What is happening to litigation initiatives aimed at large-scale insurer contributions to settlements, and after decades of case law development, why are the parties still litigating? How have tort developments rippled into the insurance arena, and what effect will they have on ultimate insurer liability? Are legacy liabilities for insurers more “knowable” than they used to be, particularly with more focus on non-products claims? Does an insurer 's liability necessarily end when the policyholder is defunct? The discussion looks at both the forest and the trees in an area that continues to be a fulcrum for asbestos litigation and compensation.
11:15 a.m. Other Active Jurisdictions: Arkansas, Mississippi, New York and Delaware – Messrs. Blevins, Watkins, and Weitz
Will Delaware develop into a volume asbestos jurisdiction? What is causing the new filings in Arkansas? Are changes coming in New York? What is the volume in each of these jurisdictions and who is trying what and with what success? What other fora should be watched?
12:15 p.m. What Can We Expect in 2009? – The Faculty
12:45 p.m. Questions and Answers
1:00 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:
"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!"
