anuary 2005 J l. 5, No. 3 • Vo ASBESTOS 30-Day Full Money ... · COLUMNS– ASBESTOS Vo l. 5, No. 3 • J anuary 2005 Raising the Bar in Asbestos Litigation 8 3 Miss. Judges Order

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ASBESTOS

Vol. 5, N

o. 3 • January 2005

Raising the Bar in Asbestos Litigation

83 Miss. Judges Order 13,000Asbestos Plaintiffs to Show Proof of Residency

8Ohio Court Finds Retroactivity ofNew Act Unconstitutional In 11 Lawsuits

14Halliburton Subsidiaries Exit Bankruptcy with$4.7 Billion Settlement

13Supreme Court Order Severing Mississippi Asbestos Claims Published

16Court Denies Class Certificationin Medical Monitoring Asbestos Lawsuit

19Plaintiff Fails to Provide X-Rays Read by B-Reader,Claims Dismissed

20Order Compelling Arbitrationbetween CCR and AsbestosPlaintiffs Affirmed

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Asbestos Legislation in 2005

A Fresh Look at Old Practices:The Changing Face of Mass Tort Pleadings

PAGE 4

PAGE 2

The Latest Asbestos-Related Scientific And Medical Research

PAGE 66

JANUARY 2005

Sen. Specter Holds Hearing onAsbestos Trust Fund Bill;President Bush Pushes ‘Tort Reform’

PAGE 6

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P E R S P E C T I V E SAsbestos Legislation in 2005 2by W. Mark Lanier, Esq.

A Fresh Look at Old Practices:The Changing Face of Mass Tort Claim Pleading 4by C. Paul Cavender, Esq. and Kathryn Morris Willis, Esq.

B E Y O N D T H E H E A D L I N E SSen. Specter Holds Hearing on Asbestos Trust Fund; Pres. Bush Pushes ‘Tort Reform’ 6

T A B L E O F C A S E SA Regional Listing of All the Cases Covered in This Issue 7

C O U R T R O O M N E W S3 Miss. Judges Order 13,000 Asbestos Plaintiffs to Show Proof of Residency 8Ohio Court Finds Retroactivity of New Act Unconstitutional in 11 Lawsuits 8Court Rejects Claims of Juror Misconduct; Motion for New Trial Denied 10Court Reverses Assignment of Joint and Several Liability to CCR Members 11High Court Remands Miners’ Asbestos Claims, Rules State Had Duty to Warn 12Supreme Court Order Severing Mississippi Asbestos Claims Published 13Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement 14Asbestos Claims Prompts A.P.I. Industries to File For Chapter 11 15Court Reverses Summary Judgment, Finds Testimony Wrongfully Omitted 15Court Denies Class Certification in Medical Monitoring Asbestos Lawsuit 16Texas Court Affirms $150,000 Asbestos Verdict 17Court Finds Appeal Timely, Claims Remanded for Determination of Benefits 18Benefits Denied to Smoker Alleging Asbestos Aggravated Lung Condition 18Plaintiff Fails to Provide X-Rays Read by B-Reader, Claims Dismissed 19Summary Judgment Reversed, Court Claims Product Identification Triable Issue 20Order Compelling Arbitration between CCR and Asbestos Plaintiffs Affirmed 20

V E R D I C T R E P O R TEssential Information about Recent Verdicts Reported by HarrisMartin 24

E X P E R T W I T N E S S B A N KA Listing of Plaintiff ’s and Defense Experts Who Have Testified at Recent Trials 32

D O C U M E N T SKelly-Moore v. Union Carbide;Texas 23rd Dist. Ct., Brazoria Cty.; Order/Motion 39Thornton v. A-Best Products, et al.; Ohio Ct. Comm. Pls., Cuyahoga Cty.; Order 47

J O U R N A L T O P T E NThe Latest Asbestos-Related Scientific Articles Published Around the World 66

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COLUMNSJanuary 2005 Vol. 5, No. 3

PERSPECTIVES

After the November 2004 elections, theRepublicans increased control in theSenate, maintained control in the House,and captured the White House for anoth-er four years. As expressed during theelection, part of the Republican agendawas tort reform. One of the tort reformareas prioritized in the Republican cam-paign agenda was asbestos reform. Thisarticle addresses the likelihood of asbestoslegislation on a federal level following theRepublicans’ victories in the Novemberelections.

PRE-ELECTION LEGISLATIVEEFFORTS OF 2004

During the last Congress, the U.S. Senateconsidered two basic approaches forasbestos legislation reform. These reformbills were before the Judiciary Committee.

Former Oklahoma Sen. Jonathan Nicholsproposed a “Medical Criteria Bill.” Thisbill sought to remove 80 percent as“unimpaired” plaintiffs.1 Under SenatorNichols’s bill, the 20 percent of cases thatremain would be the most serious illness-es. These illnesses, without question,affect the life expectancy, as well as theday-to-day activities of the plaintiffs.Those people with these diseases would beallowed to proceed with their cases in anappropriate court. Those plaintiffsdeemed “unimpaired” would have theircases held until their disease progressed toa point of “impairment.” Then, thosecases would be allowed into the court sys-tem to address tort-feasor responsibility.Sen. Nichols’s bill, although it had thesupport of some Democrats and evensome trial lawyers, did not make it out ofcommittee. Instead, the JudiciaryCommittee in the Senate passed the billSen. Orrin Hatch (R-Utah) proffered.

The Hatch bill was termed a “Trust Bill.”A number of companies supported thisbill and sought to establish a trust fundfor victims rather than a medical criteriadocket. The trust fund approach centeredon a massive infusion of funds (rangingfrom $100 to $140 billion) from businessand insurance companies. In return forthis money being put into trust, business-es and insurers would have complete pro-tection against any future asbestos liabili-ties. This money was to be infused underdifferent payment schedules on a slidingscale based upon how much these compa-nies had previously paid in litigation.Asbestos victims would have access to thismoney, but would have no access to thecourt system. This money would eithereliminate or severely limit any attorneys’fees that would normally be taken out of avictim’s recovery. It would also set up anew federal government organization toadminister the trust.

Ultimately, the trust effort never reached avote on the Senate floor. The bill and itsRepublican sponsors could never get the60 votes necessary for cloture. Ultimately,the bill did nothing more than find itsway into fund raising letters to helpenrich both the Republican andDemocratic efforts at the 2004 election.

The question on everyone’s mind after theelection was whether the increased num-ber of Republicans in the Senate wouldprovide enough votes for cloture so thisbill would become law in 2005.

POST-ELECTION DEVELOPMENTS

The 2005 landscape is shaping up to besomewhat different than the 2004 land-scape in more ways than the additionalRepublican Senators. Sen. Hatch is no

2COLUMNSwww.harrismartin.com

W. Mark Lanier is the founder of The Lanier LawFirm, where he serves as the firm’s lead litigationcounsel. Mr. Lanier is widely recognized as one ofthe top trial lawyers in the United States. He recent-ly was named by The American Lawyer magazineas one of the top 45 attorneys in the nation underthe age of 45. The publishers of Law & PoliticsMagazine and Texas Monthly magazine named Mr.Lanier as a “Texas Super Lawyer” in 2003 and 2004based on nominations from other attorneys whowere asked to identify the top lawyers in Texas.

In 2002, Texas Lawyer newspaper named Mr.Lanier as one of the top 5 “Go To” personal injuryplaintiff attorneys in Texas. Mr. Lanier’s success inthe courtroom has resulted in feature articles in TheWall Street Journal, The American Lawyer, TexasLawyer, The New York Times, New York Lawyer,The National Law Journal, Los Angeles Times,Houston Chronicle, and Bloomberg, among others.In 1998, The National Law Journal recognized Mr.Lanier as one of nation’s Top 10 Trial Attorneys. TheNLJ also named him among the country’s 40 topattorneys under the age of 40.

Mr. Lanier has negotiated hundreds of millions ofdollars in settlements in lawsuits filed across theUnited States. Mr. Lanier’s $115 million verdict for21 asbestos victims in February 1998 is one of thelargest asbestos verdicts in U.S. history.

Mr. Lanier earned his law degree from Texas TechUniversity School of Law in 1984. He remainsactive at the Texas Tech by serving on the LawSchool’s Foundation Board. He also is the founderof the Christian Trial Lawyers Association, a non-profit organization whose goal is to create a networkof principled attorneys to minister to others throughcivic-minded endeavors. Mr. Lanier lives in Houstonwith his wife, Becky, and their five children.

W. Mark Lanier, Esq.

Asbestos Legislation in 2005

ASBESTOS • JANUARY 20053

longer Chairman of the JudiciaryCommittee. Senate rules limited his termas Chairman, and he has stepped down.In his stead, the next senior Republicanhas taken leadership of that committee,Sen. Arlen Specter (R-Pa.). SenatorSpecter is well-versed not only in the law,but also in matters pertaining to asbestosand other litigation and tort issues.

Additional landscape changes haveoccurred because of the time spent in ana-lyzing the trust approach itself. In orderfor the trust to assist those most severelyinjured, the trust would require almost acomplete infusion of capital at the frontend. Many recognize that the currentclaims in the court system alone wouldtake up the first ten years of the trust’smoney. Therefore, someone who is diag-nosed with mesothelioma and given eightmonths to live the day after the trust wentinto effect would be given very grim news.This soon-to-die victim would be toldthat their money, assuming the trust isstill viable, would most likely come tenyears down the road. Obviously, that isnot sufficient for any type of experimentalmedical treatment or getting one’s housein order for a death eight months later.

Once these types of problems with the billbecame apparent, the only possible solu-tion included such massive upfront fund-ing that insurers determined was unfair toinsurance companies. Rather than havepayments made over a protracted period,insurance companies were going to berequired to front significant loads of cashinto the trust, depleting not only thereserves set aside, but even resourcesbeyond those reserves kept by the insur-ance companies. Therefore, as the trustapproach was analyzed more and more,insurance companies began balking at thetrust approach as a proper solution.

As 2005 has unfolded, insurance compa-nies have banded together to put intowriting and vocally oppose the trust bill asit is being proffered. In addition to theseinsurance companies, however, there are anumber of other companies that are now

standing in opposition to this trust bill.Noteworthy companies such as ExxonMobil, Federal Mogul, and others haveput into writing a strong opposition tothe trust approach as fatally flawed andunfair to most all concerned.

This leaves Sen. Specter and his commit-tee with a very difficult chore. While theWhite House apparently endorses thetrust bill and a number of corporationsstill push the trust bill, support for thisapproach is draining away at a noticeablerate. The voices are starting to rise inchorus again that the fair resolution is tobe found in a medical criteria bill.

In an effort to see if there is any life leftin the trust bill, Sen. Specter met withformer Federal Judge Edward Beckertoward the end of 2004 in an effort tosculpt a compromise trust bill that mightsatisfy enough parties to gain passage. Asthis article is being written, Sen. Specterhas not yet issued his final edited trustbill. Sen. Specter has announced a veryvigorous schedule to get the revised bill tocommittee, have hearings, and hopefullyput the bill on the Senate floor by the endof January 2005. That aggressive schedule

shows Sen. Specter’s commitment to faith-fully carry the Republican torch on thisissue. Realistically, however, it will be dif-ficult for sufficient support to pass thatbill on the expedited basis that mostRepublicans supporters would like to see.

Should Sen. Specter’s committee look to amedical criteria bill, most suspect thatSen. Nichols’s initial draft would be thestarting point. The language being dis-cussed for a medical criteria bill woulddivide cases into multiple groups. Mostagree that the most egregious injuries arethe mesothelioma victims. This incurablecancer has a quick time fuse and the mostglaring damage brought by asbestos expo-sure. In addition to the mesotheliomacancers, there are a number of other can-cers associated with asbestos exposure. Allof the cancer cases, whether mesotheliomaor otherwise, under any medical criteriaapproach would be deemed “court wor-thy” and allowed to proceed. Those casesthat might be put onto a holding docketare certain cases that involve the diseasesof asbestosis and pleural plaque.

Not all asbestosis or pleural plaque diseasewould necessarily be put on a holdingdocket. The holding docket would bereserved for those cases where the diseasedid not reach such significance in an indi-vidual as to cause that individual “impair-ment.” As noted earlier, impairment cri-teria are not well accepted. Generally, thecriteria involve an inability to breatheunder a forced vital capacity test of 80percent of what is considered “normal.”That inability or other symptoms, such asrales in the lungs, clubbing in the fingers,or significant radiological changes on anx-ray, are the criteria that would be exam-ined in determining whether asbestosis orpleural plaque cases were allowed to cometo court.

While there are no clear numbers of theexact amount of cases filed in America, itis generally recognized that a medical cri-

PERSPECTIVES


Realistically, however, itwill be difficult for

sufficient support to pass[Sen. Specter’s] bill onthe expedited basis that

most Republican supporters would

like to see.

Continued on Page 65

PERSPECTIVES

Editor’s Note: This article originally appearedin the December 2004 issue of HarrisMartinPublishing’s COLUMNS ––Silica.

Multiple plaintiff/multiple defendant com-plaints alleging mass torts in broad genericterms have become the norm in many juris-dictions over the years. Changes to thatlandscape are appearing in at least threejurisdictions where these complaints wererecently examined and found to be insuffi-cient under both state and federal rules ofcivil procedure. Consider three recent deci-sions rendered in asbestos and silica cases,their common rationale, and the potentialimplications of such decisions:

Recent Decisions Affecting theAsbestos Or Silica Plaintiff ’sComplaint

Several courts have strictly applied therequirements of state and federal rules ofcivil procedure in order to dismiss or severthe mass tort claims of plaintiffs claimingexposure to asbestos and/or silica. TheSupreme Court of Mississippi’s August2004 decision led the way for considerationof this approach to mass asbestos com-plaints, and other courts have conductedsimilar analysis and made similar rulings.Consider first the Mississippi decision andthen the subsequent rulings which haveidentified common flaws in the mass tortcomplaints that were before them:

Harold’s Auto Parts, Inc., et al. v.Flower Mangialardi, et al., in theSupreme Court of Mississippi, No.2004-IA-01308-SCT

Some 264 plaintiffs filed suit claimingasbestos exposure against 137 named defen-dants in the Circuit Court of BolivarCounty. Plaintiffs’ complaint provided thenames and social security numbers of the

plaintiffs, the fact that the plaintiffs wereresidents of Mississippi and/or other states,and alleged that these plaintiffs wereexposed to asbestos products “mined,designed, specified, evaluated, manufac-tured, packaged, furnished, supplied and/orsold” from 1930 to the present. Defendantsfiled a Motion to Sever, arguing that it wasnearly impossible to argue improper joinderbecause the complaint failed to providebasic information about each of the plain-tiffs. In response, plaintiffs asserted that aneed for the information did not exist atthat time because the cases were to be triedseparately. The trial court denied defen-dants’ Motion to Sever. The defendantsthen sought interlocutory appeal of the trialcourt’s order, claiming that the joinder ofmultiple plaintiffs in this particular asbestoscase violated Mississippi Rule of CivilProcedure 20.1

According to the Supreme Court, bothdefendants and plaintiffs missed the mark.In a five-page opinion, the Court, in granti-ng defendants’ petition for interlocutoryappeal, pointed out that the “complaintprovides virtually no helpful informationwith respect to the claims asserted by theindividual plaintiffs.” Of particular notewas that the complaint disclosed that 264plaintiffs were exposed over a 75-year spanto asbestos products associated with 137manufacturers in approximately 600 work-places.

Miss. R. Civ. P. 20, however, was not themain reason that this issue should be beforethe Court. Instead, the Court opined, thecomplaint constituted a failure to complywith Mississippi Rules of Civil Procedure 8(general rules of pleading), 9 (pleading spe-cial matters), 10 (form of pleadings), and11 (signing of pleadings and motions).Rather than disclosing the “core informa-tion” concerning the nature and particulari-ty of plaintiffs’ claims at the time the defen-

4COLUMNSwww.harrismartin.com

About the Authors

Paul Cavender is a partner in Burr & Forman’sBirmingham, Ala., office where he focuses onproducts liability, mass tort, insurance and gener-al litigation. He has tried a number of asbestoscases to verdict in various states. His undergrad-uate degree is in Natural Sciences from theUniversity of South Florida. Prior to attendinglaw school, Cavender was a chemist for one ofthe major oil companies. He graduated from theCumberland School of Law at SamfordUniversity.

Kathryn Morris Willis is an associate in Burr &Forman’s Birmingham, Ala., office where she is amember of the litigation, labor and employmentsections. She received her B.A. from theUniversity of Alabama in 1999, and also graduat-ed from the University of Georgia School of Lawin 2002.

Burr & Forman LLP is a 180-lawyer, southeast-ern-based, full service firm with offices inBirmingham, Atlanta, Jackson, Miss. andMontgomery, Ala., serving many clients on aregional and national basis.

and Kathryn Morris Willis, Esq.

By C. Paul Cavender, Esq.

A Fresh Look at Old Practices: The Changing Face of Mass Tort Claim Pleading


dants requested, the complaint should haveset forth this information when it was filed.

Rule 11 was implicated, according to theCourt, due to the fact that plaintiffs’ coun-sel should not have filed a complaint untilsufficient information was obtained con-cerning the specific defendants againstwhom each plaintiff brought a cause ofaction. The complaint at issue also failedon joinder grounds under Miss. R. Civ. P.20 because plaintiffs failed to provide infor-mation and assertions necessary to demon-strate the matters set out in the rule — thattheir claims arose out of the same transac-tion or occurrence or that their claimsinvolved some common question of law orfact.

The Court cautioned that filing suit, thendetermining whose claims should not havebeen joined is not the appropriate course ofaction and constitutes “a perversion of thejudicial system unknown prior to the filingof mass-tort cases.” What will satisfy theparties’ obligations under Miss. Rules ofCivil Procedure 8, 9, 10, 11, and 20 is acomplaint in which it appears that counselfor plaintiff has interviewed each plaintiff,investigated their claims, and developed theinformation necessary to file a complaint ontheir behalf. The Court noted that thereare some complaints that satisfy theserequirements, even where multiple plaintiffsand/or multiple defendants are present.This, however, was not one of those cases.

The Court therefore reversed the trialcourt’s order denying defendants’ Motion toSever. The Court remanded the action tothe trial court for transfer of each plaintiffto an appropriate court of venue and juris-diction. Moreover, the Court directed thetrial court to dismiss with prejudice thecomplaint of any plaintiff who failed toprovide the defendants and the court withsufficient information for determination ofvenue and jurisdiction within 45 days ofthe date of the Order.

Mildred Armstead, et al. v. GeorgiaPacific Corporation, et al., in the StateCourt of Cobb County Georgia, CivilAction NO. 03-A11943-5

The issue of joinder first arose in theGeorgia courts shortly before theMangialardi decision, when 214 plaintiffsfiled an Original Complaint naming over150 defendant, alleging strict liability andnegligence for asbestos exposure. Uponconsideration of defendants’ Motion toSever, the trial court ordered plaintiffs tofile an Amended Complaint, setting forthonly those claims sufficient to support join-der under O.C.G.A. §9-11-20(a).2 Afterfiling of the Amended Complaint, defen-dants again raised their Motion to Sever.Defendants argued that the AmendedComplaint, which also listed plaintiffs byname and social security number, failed tosatisfy the applicable joinder requirements.In response to plaintiffs’ argument thatjoinder would be proper, if just for the pur-poses of discovery, defendants pointed outthat plaintiffs’ claims could make defen-dants liable as premises owners, manufac-turers, distributors, or installers of asbestos-containing products, but that, as currentlypled, the complaint did not allow defen-dants to ascertain their potential liabilities.

Defendants further contended that, accord-ing to the manner in which the AmendedComplaint was pled, various productscaused exposure at a number of differentjob sites, making it impossible for defen-dants to know which asbestos-related dis-

ease each plaintiff alleged.

The defendants’ argument did not endthere. The defendants relied heavily uponthe Supreme Court of Mississippi’s decisionin Mangialardi, arguing that the AmendedComplaint at issue was so similar to thatfiled in Mississippi (both alleged strict lia-bility and negligence for asbestos exposureon behalf of some 100 plus plaintiffs) thatthe Court should adopt Mississippi’sapproach to such complaints. The defen-dants pointed out that Rule 20 of theGeorgia Civil Practice Act mirrors the lan-guage of the same Mississippi Rule of CivilProcedure and, because plaintiffs’ AmendedComplaint failed to allege facts sufficient tosupport any commonality, severance wasappropriate.

On Oct. 13, 2004, the State Court of CobbCounty issued its ruling on the matter. TheCourt recited the history of the case, reiter-ating its previous Order in which it stated,“[T]he Court is unwilling to allow joinderof plaintiffs among whom there is a lack ofcommonality” and that joinder is limited tothose” arising out of the same transaction,occurrence, or series of transactions oroccurrences.” The Court noted that plain-tiffs were given a brief extension of time inwhich to file their Amended Complaint.Nevertheless, the Amended Complaint was“substantially identical” to the initialComplaint and failed to show any com-monality between the plaintiffs.

PERSPECTIVES


Silica or asbestos, state or federal court,

strict liability or negligence, it does not change

the fact that at least three courts have recently

rejected so-called “shotgun” complaints

in mass tort actions.

Continued on Page 64

BEYOND THE HEADLINES

WASHINGTON –– On Jan. 11, Sen. ArlenSpecter (R-Pa.) presided over a SenateCommittee on the Judiciary hearing on the“The Fairness in Asbestos Injury ResolutionAct,” during which representatives from theNational Association of Manufacturers,Department of Occupational Safety andHealth, American Insurance Association, andthe American Trial Lawyers Association all tes-tified.

The meeting came after a week in whichPresident George W. Bush traveled to bothIllinois and Michigan to discuss his adminis-tration’s so-called tort reform agenda. Duringa speech given at the Macomb CommunityCollege in Clinton Township, Mich.,President Bush called the huge mass ofasbestos cases a national problem.

Final details for Sen. Specter’s legislation pro-posal still have yet to be finalized, with theamount of the trust fund still unclear. Last year,Congress adjourned without voting on a pro-posed trust fund measure that would have creat-ed a $140 billion trust to pay asbestos claimsoutside of the tort system.

During the hearing, John M. Engler, presidentand CEO of the National Association ofManufacturers testified that while the discussiondraft circulated by Sen. Specter does not addressfunding, the $140 billion price tag agreed on byCongress is sufficient.

“We believe that $140 billion is more thanenough to pay all qualifying claims at fair val-ues,” Engler stated.

The hearing was held just days after severalasbestos defendants sent a joint letter to Sen.Specter, calling the senator’s recent asbestos leg-islation proposal “fatally flawed” and expressingconcern that his plan for a national trust fund isa step backward for efforts aimed at curtailingasbestos litigation.

In the Jan. 3 letter, nearly 10 companies namedas defendants in pending asbestos litigation out-lined concerns with Sen. Specter’s drafted pro-posal for an asbestos trust fund, specifically withthe allocation of payment obligations on defen-dant participants, the separation of companiesfrom their insurance coverage, the possibility ofclaims returning to the tort system, the imposi-tion of joint and several liability, and the oppor-tunity for asbestos claimants to assert othermixed dust claims.

“We continue to support efforts to reform thecurrent asbestos litigation system in a mannerthat would address the needs of the truly sick,”the defendants’ letter stated. “However, in viewof the dramatic number of current asbestos-related claims by those who are not now andmany never become sick, we remain concernedthat the current discussion draft would result ina program that would set us back rather thanforward.”

The letter was signed by E.I. du Pont deNemours and Company, Exxon Mobil Corp.,Federal-Mogul Corp. and the OfficialCommittee of Unsecured Creditors of Federal

Mogul Corp., Foster Wheeler, HopemanBrothers, IU North America, National ServiceIndustries Inc. and Oglebay Norton Co.

In a press release, Federal-Mogul said it “can-not support a national trust that imposes agrossly disproportionate payment obligationon Federal-Mogul while providing a bailoutto a small number of companies that areresponsible for the lion’s share of the mostserious asbestos claims in the tort system.”

Under Sen. Specter’s current proposal, thetrust fund would impose payment obligationson companies that would exceed theirasbestos-related costs, in addition to preclud-ing those companies from insurance coverage,the letter claimed. Because of this, asbestosdefendants would benefit more from continu-ing to litigate asbestos claims within the cur-

rent judicial system, the defendants claimed.

Additionally, the defendants argued that as cur-rently written, the draft of the bill would falselystress a final resolution of all asbestos suits, asclaims could revert back to the tort systemshould funding for the trust run out.

Finally, the defendants expressed concern thatthe draft legislation would allow plaintiffs to“recast” asbestos claims as silica or other mixeddust claims, leaving certain defendants such aspremises owners subject to continuing litiga-tion.

“We encourage you to consider alternativeapproaches, specifically medical criteria legisla-tion, to resolve the issue without penalizingcompanies with minimal out-of-pocketasbestos-related costs and sufficient insurance tocover them,” the letter concluded.

Document is AvailableCall (800) 496-4319 orSearch www.harrismartin.comFederal-Mogul Letter Ref# ASB-0501-07

6COLUMNS


Sen. Specter Holds Hearing on Asbestos Trust Fund Bill; President Bush Pushes ‘Tort Reform’

TABL

E O

F CA

SES Northeast Region

(First, Second, Third & D.C. CircuitCourts)

In re: Mid-Valley Inc, et al., Misc. No. 04-295 (W.D. Pa.). Bankruptcy. Page 14

Root v. Eastern Refractories Co., et al., No. 04-01412 (N.Y. Sup. Ct., App. Div., 4th Dept.).Reversed. Page 20

Rourke v. Amchem Products, et al., No. 24-C-02-001240/CN (Md. Ct. App.). Affirmed.Page 20

Seitz v. Jacobson & Company, No. 09759(N.Y. App. Ct., 3rd Dept.). Remanded. Page18

South/Southwest Region(Fourth, Fifth & Eleventh Circuit Courts)

Borg-Warner Corp. v. Flores, No. 13-03-058-CV (Texas 13th Dist. Ct. App.). Affirmed.Page 17

Bourgeois v. A.P. Green, No. 488-642 (La.24th Jud. Dist. Ct.). Denied. Page 16

Harold’s Auto Parts, Inc. v. FlowerMangialardi, et al., No. 2004-IA-01308-SCT(Miss. Sup. Ct.). Published. Page 13

Kelly-Moore Paint Co. v. Dow Chemical Co.,et al., No. 19785 (Texas 23rd Dist. Ct.,Brazoria Cty.). Denied. Page 10*

Tutt v. International Paper Co., No. CA 04-584 (Ark. Ct. App.). Affirmed. Page 18

Midwest Region(Sixth, Seventh & Eighth Circuit Courts)

In re: All Kelley & Ferraro Asbestos Cases, No.2003-1653 (Ohio Sup. Ct.). Reversed. Page11

In re: A.P.I Inc., No. 05-30073 (Minn.Bankr. Ct.). Bankruptcy. Page 15

Orr, et al. v. State of Montana, No. 2004 MT354 (Mont. Sup. Ct.). Remanded. Page 12

Thornton, et al. v. A-Best Products, et al., No.CV-99-395724 (Ohio Ct. Comm. Pls., CuyahogaCty.). Remanded. Page 8**

Wright v. Leggett & Platt, et al., No.04CA008466 (Ohio Ct. App., 9th Dist.).Affirmed. Page 19

West Region(Ninth & Tenth Circuit Courts)

Biles v. Exxon Mobil Corp., No. A105783(Calif. Ct. App., 1st Dist., Div. 2) Reversed.Page 15

* See page 39 for Kelly Order/Motion** See page 47 for Thornton Order

7ASBESTOS • JANUARY 2005 www.harrismartin.com

COURTROOM NEWS

Legislature

Ohio Court Finds Retroactivityof New Act Unconstitutional in11 Asbestos Lawsuits

CLEVELAND –– An Ohio Court has ruledthat a medical criteria bill governing thetypes of asbestos claims that may proceed totrial does not apply retroactively to theclaims of 11 asbestos plaintiffs, ordering thatthe claims of the plaintiffs should proceed totrial under the law prior to the Act.Thornton, et al. v. A-Best Products, et al., No.CV-99-395724 (Ohio Ct. Comm. Pls.,Cuyahoga Cty.).

In a Jan. 10 opinion, the Ohio Court ofCommon Pleas for Cuyahoga County foundthat the rights of the 11 plaintiffs had beenimpaired by the Act, which went into effectin September 2004, because it imposed high-er standards for proving medical causation.

Plaintiffs in the 11 lawsuits alleged that theyhave developed various cancers as a result ofexposure to asbestos-containing products.The claims were slated for an October 2004trial.

However, on Sept. 2, 2004, AmendedSubstitute House Bill 292 took effect,prompting the defendants to move to takethe 11 lawsuits off the trial list.

House Bill 292 intended to give priority tothose asbestos claimants who exhibit actualphysical injury cased by asbestos and fitsthose plaintiffs into categories of claimantsasserting claims based on non-malignantconditions, claimants who are smokers andsuffer from lung cancer and plaintiffs assert-ing a wrongful death claim. The 11 plaintiffsin the instant action are smokers alleging thedevelopment of lung cancer as a result ofasbestos exposure.

The Common Pleas Court noted that theAct also requires a plaintiff to file a written

“Complaints should not be filed in matterswhere plaintiffs intend to find out in discov-ery whether or not, and against whom, theyhave a cause of action,” the Supreme Courtstated in its decision. “Absent exigent cir-cumstances, plaintiffs’ counsel should not filea complaint until sufficient information isobtained, and plaintiffs’ counsel believes ingood faith that each plaintiff has an appro-priate cause of action to assert against adefendant in a jurisdiction where the com-plaint is to be filed.”

In finding that the plaintiffs’ claims failed tosatisfy the requirements set forth inMangialardi, Judge Lewis ordered each plain-tiff to serve the defendants with a new plead-ing that contains “facts as to the homeaddress, social security number, job classifica-tion, and alleged disease of each plaintiff,and describes which plaintiff was exposed towhich specific product manufactured bywhich specific defendant in which workplace(by name and address) and for what specifictime periods and frequencies.”

In issuing the shortest time in which theplaintiffs have to define their claims, JudgePickard stated that if the plaintiffs fail tomeet the 20-day deadline, “the Court willenter its own Order based upon the informa-tion that the Court has available to it, totransfer or dismiss, if warranted, all those in-state Plaintiffs without original jurisdictionand venue to the appropriate court of venueand jurisdiction, and dismiss, without preju-dice, all those out-of-state Plaintiffs withoutoriginal jurisdiction and venue.”

The orders affect claims filed in Jefferson,Copiah, Claiborne, Holmes, Humphreys,Yazoo and Hinds Counties.

Documents Are AvailableCall (800) 496-4319 orSearch www.harrismartin.comPickard Order Ref# ASB-0501-02Lewis Order Ref# ASB-0501-03

Jurisdiction

3 Miss. Judges Order 13,000Asbestos Plaintiffs to Show Proof of Residency

JACKSON, Miss. –– Three MississippiCircuit Court judges have ordered thousandsof asbestos plaintiffs to show they reside orwere injured in the counties where theirclaims are filed or face dismissal.

Last week, judges in Jefferson, Holmes andHinds County circuit courts granted severalpending motions to sever and ordered thesevered plaintiffs to produce proof of resi-dency or site of injury by specific dates.Sources said that Judge Lamar Pickard ofJefferson County on Dec. 20 gave 8,000plaintiffs 20 days to respond, HolmesCounty Judge Jannie Lewis on Dec. 23 gave4,000 plaintiffs a 60-day deadline and JudgeWinston Kidd of Hinds County gave an esti-mated 1,300 plaintiffs 225 days to producethe information.

Court sources said that the orders addressedseverance issues only and that other pendingmotions in the cases will be addressed afterthe plaintiffs have complied with the order.

Sources also indicated that Judge Billy JoeLandrum of Jones County Circuit Court hasyet to issue a decision that would affect16,000 plaintiffs with claims pending beforehim. Eventually, some 30,000 plaintiffscould be affected by similar orders, sourcessaid.

The order follows the Mississippi SupremeCourt’s Aug. 26 order in Harold’s Auto PartsInc. v. Flower Mangialardi (04-IA01308-SCT), which required plaintiffs in a BolivarCounty action provide information on theresidency and place of exposure for eachclaimant. In that decision, the SupremeCourt found fault with the plaintiffs’ failureto present information about underlyingclaims against an estimated 150 defendants.

8COLUMNSHARRISMARTIN


report and supporting test results that pro-vides evidence of the impairment.

The 11 plaintiffs argued that the Act shouldnot apply retroactively to their claims. Thedefendants argued that a Savings Clause inthe Act stipulates that the Court shouldapply an individualized retroactivity analysis.

The Common Pleas Court noted thatSection 28, Article II of the OhioConstitution prohibits the passing of retroac-tive laws and “protects vested rights fromnew legislative encroachments.”

“The test for unconstitutional retroactivityrequires the court first to determine whetherthe General Assembly expressly intended thestatute to apply retroactively,” the CommonPleas Court noted. “If so, the court moveson to the question of whether the statute issubstantive, rendering it unconstitutionallyretroactive, as opposed to merely remedial.”

The Court of Common Pleas opined thatthe General Assembly did intend for the Actto apply retrotactively, but not so that itwould violate Section 28, Article II of theConstitution.

“For example, if this Court found that theAct impaired a substantive right of aclaimant who filed a claim on September 1,2004, the Act would be inapplicable, and thelaw that was in effect prior to the effectivedate of the Act would apply,” the Court stat-ed. “Therefore, the Act cannot violate theOhio Constitution on retroactivity grounds[emphasis original].”

The plaintiffs first argued that the Actimposed higher medical standards thatwould dismiss the claims of the 11 plaintiffs.The defendants contended that Ohio lawprior to the Act stipulated that a competentmedical authority is required and that theAct simply establishes minimum medicalrequirements.

The Court of Common Pleas disagreed, stat-ing that the “clearly, the Act imposes new oradditional burdens, duties, obligations, or

liabilities on the 11 claimants in the instantcase.”

The Court noted that Ohio law prior to theAct does not define a competent medicalauthority, and that the plaintiffs in theinstant action have conceded that their exist-ing medical records no not contain causationreports required by the new law.

“Such an admission is irrelevant to the issueof medical causation if the imposition ofnew, higher medical standards for asbestos-related claims is a substantive alteration ofexisting Ohio law which will have the effectof retroactively eliminating the claims ofplaintiffs whose rights to bring suit previous-ly vested,” the Common Pleas Courtclaimed.

The Court of Common Pleas, therefore,determined that because the Act imposesnew burdens on the 11 plaintiffs, it isunconstitutionally retroactive, leaving theplaintiffs to bring their claims under the lawthat existed prior to the Act.

The Common Pleas Court also found thatthe guidelines for establishing exposure toasbestos as a substantial contributing factorwere also unconstitutionally retroactive.

Under the new Act, a plaintiff must provethat exposure to asbestos was a substantialcontributing factor to lung cancer, theCommon Pleas Court noted. The newguidelines stipulate that the word “substan-tial” means both that exposure to asbestos isthe predominate cause of the impairmentand that a competent medical authoritydetermines that without asbestos exposure,the impairment would not have occurred.

Under prior law, however, the word substan-tial was “used to denote the fact that thedefendant’s conduct has such an effect inproducing the harm as to lead reasonablemen to regard it as a cause, using that wordin a popular sense, in which there alwayslurks the idea of responsibility, rather thanthe so-called ‘philosophical sense,’ whichincludes every one of the great number of

events without which any happening wouldnot have occurred.”

The Court of Common Pleas determinedthat the term “substantial contributing fac-tor” as defined by the new Act would imposenew burdens on the instant plaintiffs, there-fore rendering it unconstitutional.

Finally, the Court of Common Pleas foundthat the Act’s interpretation of “substantialoccupational exposure” imposed new bur-dens on the instant plaintiffs. Under the Act,the plaintiff must provide evidence of sub-stantial occupational exposure or evidencethat the exposure was at least 25 fiber per ccyears.

The Court of Common Pleas noted thatunder law prior to the Act, the plaintiff“need not prove that he was exposed to aspecific product on a regular basis over someextended period of time in close proximityto where the plaintiff actually worked inorder to prove that the product was a sub-stantial factor in causing his injury.”

“The Act imposes an additional burden onthese 11 plaintiffs to demonstrate that theywere exposed to asbestos-containing productson a regular basis and in close proximity towhere the Plaintiffs actually worked,” theCourt of Common Pleas opined.

The Court of Common Pleas further foundthat each of the 11 plaintiffs had sufficientlyasserted claims under the law prior to theAct and ruled that the claims were set toproceed to trial.

Document is IncludedSee Page 47 orSearch www.harrismartin.comOrder Ref# ASB-0501-15

COURTROOM NEWS

9ASBESTOS • JANUARY 2005


Juror Conduct

Court Rejects Kelly-Moore’sClaims of Juror Misconduct;Motion for New Trial Denied

ANGLETON, Texas –– A Texas court hasdenied Kelly-Moore Paint Co.’s motion for anew trial in a landmark asbestos case inwhich jurors found that Union Carbide didnot fraudulently conceal the dangers ofasbestos it sold to the paint maker. Kelly-Moore Paint Co. v. Dow Chemical Co., et al.,No. 19785 (Texas 23rd Dist. Ct., BrazoriaCty.).

Sources said that Judge J. Ray Gayle III ofthe Texas 23rd District Court for BrazoriaCounty denied the motion on Jan. 5 after anevidentiary hearing.

On Oct. 22, a jury found 11-1 that UnionCarbide did not withhold information aboutthe dangers of products it sold to Kelly-Moore. Specifically, Kelly-Moore claimed itrelied on the supplier’s representations inusing the Union Carbide asbestos in tapejoint compound products and other textureproducts.

Kelly-Moore specifically alleged that UnionCarbide had evidence that its productCalidria was linked to cancer and asbestosis,but promoted the product to Kelly-Moore asa safe alternative to deadly asbestos products.Union Carbide argued during trial that itsproduct could be used safely and that com-prehensive warnings were provided to Kelly-Moore regarding the dangers of asbestos.

On Dec. 3, Kelly-Moore moved to overturnthe landmark verdict, claiming that jurormisconduct tainted their finding that UnionCarbide did not fraudulently conceal thedangers of asbestos-containing products soldto the paint maker.

Kelly-Moore claimed in the motion thatjurors had access to a running documentaryproduced on the Internet by the defendant,

discussed the case prior to jury deliberations,and one juror in particular misrepresented apossible connection with the defendant.

Kelly-Moore first argued that juror affidavitsrevealed that a number of jurors reviewed arunning documentary of the trial from aDow Chemical-related computer, Kelly-Moore maintained. Union Carbide is a sub-sidiary of Dow Chemical.

Access to this Web site and press releases thataddressed the trial constituted improper con-tact between the jurors and the defendantsand also could have exposed to the jurors toprejudicial information, including discus-sions about the trial and its impact on DowChemical, Kelly-Moore contended.

“The jurors review of the internet and mediareports regarding the lawyers and galleryjurors in this case is also misconduct requir-ing a new trial,” Kelly-Moore contended.“Jurors should decide a case based on theevidence before them and their assessment ofthe credibility of the witnesses. Informationthey obtain about attorneys could easilyinfluence their assessment of the credibilityof the witnesses or create bias on the part ofa juror for or against a litigant based uponwhat the jury has learned about the litigant’sattorney. Such conduct interferes with jury’sability to decide the case based on the evi-dence and deprives the litigants of a trialbased on the evidence presented to a neutraljury.”

In a response filed Dec. 21, Union Carbideclaimed Kelly-Moore’s assertions that jurorsreviewed running documentary were unsup-ported and vague.

“The statements do not identify the jurorswho supposedly discussed the Web site,when they did so, with whom they discussedit, how and when they accessed the Web site,or the content of the Web site,” UnionCarbide said. “Courts regularly deny new-trial motions when a movant submits imper-missibly vague or hearsay affidavits in sup-port of a juror-misconduct claim.”

Union Carbide further claimed that Kelly-Moore failed to show that the testimonyregarding the Web site involved in outsideinfluence that affected the jury’s verdict.

“It is ironic that Kelly-Moore seeks a newtrial based primarily on its claim that jurorsgained access to outside information aboutthe trial,” Union Carbide said. “Coverage inthe local and regional media was quite favor-able to Kelly-Moore and its counsel.”

Juror affidavits also indicated that at leasttwo of the jurors discussed the case duringrides to trial, and prior to closing arguments,according to Kelly-Moore. Union Carbiderefuted this contention as well, arguing thatthe affidavits presented by the plaintiff werevague and did not show that the jury wasinfluenced by the discussions.

Additionally, Kelly-Moore questioned ajuror’s statement that he had no connectionwith Dow, when in fact, the juror’s vehicletitle reveals that the lienholder for the truckis Texas Dow Employees Credit Union.Based on this information, Kelly-Moorerequested that the court require the juror togive testimony regarding his relationshipwith Dow.

This argument is “embarrassingly weak,”Union Carbide argued.

“[Kelly-Moore] has made no attempt toestablish that [the juror] is actually anemployee of Dow,” Union Carbide stated.“Thus, it has not come close to establishingthat [the juror] lied. In fact, the undersignedcounsel has discovered that one need not bea Dow employee, or even have any connec-tion with Dow, to receive a car loan fromTDECU.”

On the day the order was issued, UnionCarbide also objected to Kelly-Moore’s filingof additional juror affidavits, arguing thatthe affidavits “constitute an untimelyattempt by Kelly-Moore to amend itsmotion for new trial.” Judge Gayle did notrule specifically on the objection.

Kelly-Moore is represented by W. MarkLanier, Kevin P. Parker, Eugene R. Egdorf


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and Dara G. Hegar of the Lanier Law Firmin Houston; and Harvey G. Brown Jr. andThomas C. Wright of Wright & Brown inHouston.

The defendants are represented by John R.Gilbert of Gilbert & Gilbert in Angleton,Texas; Scott D. Lassetter of Weil, Gotshal &Manges in Houston; Harry P. “Hap” Weitzelof Mayer, Brown, Rowe & Maw in Houston;Deborah D. Kuchler and Sarah E. Iiams ofAbbott, Simses & Kuchler in New Orleans;Randy E. Moore of the Moore Law Firm inLake Jackson, Texas; Michael G. Terry ofHartline, Dacus, Barger, Dreyer & Kern inCorpus Christi, Texas; and Peter Bicks,Siobhan Handley and Morton Dubin ofOrrick, Herrington & Sutcliffe in New York.

Document Is IncludedSee Page 39 orSearch www.harrismartin.comOrder Ref# ASB-0501-12Response Ref# ASB-0501-13Motion Ref# ASB-0412-18Objection to Affidavits Ref# ASB-0501-14

Settlement

Ohio Supreme Court ReversesAssignment of Joint and SeveralLiability to CCR Members

COLUMBUS, Ohio –– Ohio’s highest courthas reversed an appellate court decision,finding error with the assignment of jointand several liability to companies involved ina settlement agreement between the Centerfor Claims Resolution and an Ohio law firm.In re: All Kelley & Ferraro Asbestos Cases, No.2003-1653 (Ohio Sup. Ct.).

In a Dec. 30 decision, the Ohio SupremeCourt found that the language in the settle-ment indicated that the parties contemplatedthe possibility that member companieswould not be able to pay their share, there-

fore precluding the option of joint and sever-al liability.

“The structure of the agreement further for-tifies our conclusion that the member com-panies promised to be liable only for theirrespective shares,” the Supreme Court stated.“We hold that the settlement agreement cre-ates only several liability among the CCRmembers, and, therefore, each member isresponsible only for its individual share ofliability payments. Because the appellatecourt interpreted the agreement as providingfor joint and several liability, that decision isreversed.”

In 1999, an estimated 15,000 asbestos-relat-ed claims were settled for $120 millionbetween plaintiffs represented by the lawfirm of Kelley & Ferraro and the Center forClaims Resolution, which acted on behalf of19 companies.

The Supreme Court noted that in 1999,CCR submitted a payment short nearly $1million, claiming that asbestos defendantsGAF failed to pay its allocated share. A trialcourt granted a motion filed by Kelley &Ferraro to enforce the settlement agreement,and the judgment was entered against all theCCR members. In doing so, the Courtopined that because CCR entered into anagreement that a lump sum would be deliv-ered to Kelley & Ferraro, the apportionmentof the funds was an internal CCR dispute.

The following payment was also short, thistime by over $2 million, the Supreme Courtnoted. Kelley & Ferraro again filed a motionto enforce the settlement agreement, whichwas granted. CCR continued to submit defi-cient payments until June 2002, as many ofthe companies in the agreement had filed forbankruptcy.

CCR then sent a letter to Kelley & Ferraro,suggesting it pursue an option in the agree-ment which stipulated that “in the event thatthe CCR fails to make any of the payments… because any one of the CCR membercompanies fails to make timely payments ofits individual shares of such payment whensuch payment has become due … the

claimant may either void the settlementagreement as to the defaulting member com-panies, or void the settlement agreement inits entirety.”

An Ohio appellate court consolidated CCR’snumerous appeals of the trial court’s settle-ment enforcement rulings, and then affirmedthe rulings, stating that “the agreement pro-vided for joint and several liability among allthe CCR members.” CCR and its membersappealed the decision.

The plaintiffs argued that the settlementagreement indicated joint and several liabili-ty, while the CCR companies contended thatthe language in the settlement agreementprovides that each company is liable for onlytheir own share, and not for the entireamount of the settlement, nor the shares ofother companies.

The Supreme Court determined that the lan-guage in the settlement agreement indicatesthat the members intended to pay limitedamounts toward the installments.

“The claimants’ assertion regarding theCCR’s failure to properly make a final shareallocation for each member prior to eachinstallment is not well taken,” the SupremeCourt stated. “The record shows they knewof and agreed with the share allocation pro-cedure as set forth in the ProducerAgreement and that they were aware that theProducer Agreement expressly conferred norights to third parties. Further, the individualshare allocation of a member does not affectthe nature of the promises made by themember companies in paragraph 13 of thesettlement agreement, as will be furtherdeveloped.”

“In the present case, the language can onlybe interpreted as imposing several liabilityupon the CCR member companies andmanifests the parties’ intent that each mem-ber be responsible for only its individualshare of the total settlement amount as cal-culated pursuant to the ProducerAgreement,” the state’s high court continued.


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The Supreme Court also opined that theparties’ intent to create several liability isapparent in language indicating what wouldhappen should the parties fail to pay theirallocated share.

“By providing these options for the situationwhere a member fails to pay its individualshare, paragraph 13 demonstrates that theparties believed that the agreement createdindividual obligations among the membersand that a company’s failure to tender itsallocated share would result in a deficientinstallment payment to the claimants,” theSupreme Court stated. “As pointed out bythe CCR members, interpreting the settle-ment agreement to provide for joint and sev-eral liability would render these optionsessentially meaningless, as there would be lit-tle or not impetus for claimants to pursuethe defaulting member individually, especial-ly when default is due to insolvency.”

Counsel for the CCR companies are PatrickF. McCartan, Mark Herrmann and MaryBeth Young of Jones Day in Cleveland;David S. Cupps and Richard D. Schuster ofVorys, Sater, Seymour & Pease in Columbus,Ohio; Richard S. Walinski of Cooper &Walinski in Toledo, Ohio; Eric H. Zagransof The Zagrans Law Firm in Elyria, Ohio;Frank J. Santoro, Karen M. Crowley andJohn M. Ryan Jr. of Marcus, Santoro &Kozac in Chesapeake, Va.

The plaintiffs are represented by Michael V.Kelley and Thomas M. Wilson of Kelley &Ferraro in Cleveland; and Robert J. Fogarty,Andrew S. Pollis and Yuri R. Linetsky ofHahn, Loeser & Parks in Cleveland.

Document is AvailableCall (800) 496-4319 orSearch www.harrismartin.comOrder Ref# ASB-0501-20

Duty to Warn

High Court Remands Miners’Asbestos Claims, Rules State Had Duty to Warn

HELENA, Mont. –– Montana’s highestcourt has determined that the state owed aduty to warn miners of asbestos dangers inthe workplace, and remanded the case for adetermination of whether the state breachedthat duty. Orr, et al. v. State of Montana, No.2004 MT 354 (Mont. Sup. Ct.).

On Dec. 14, the Montana Supreme Courtreleased a divided opinion in which themajority found that the state had a duty toadvise both the employer and the employeesof the presence of asbestos.

In the decision, Justice Patricia O. Cotterreversed a District Court decision dismissingthe claims, and defended the reversal by stat-ing that the plaintiffs “still face the dauntingtask of establishing that the State breachedits duty to them and in so doing, causedtheir damages and injuries.” Justices JimRegnier, James C. Nelson and W. WilliamLeaphart joined the majority in the decision.

The nine plaintiffs –– including an on-sitecarpenter, seven miners, and the wife of aminer –– alleged they all developed asbestos-related diseases as a result of working in aLibby, Mont., vermiculite mine. The plain-tiffs named W.R. Grace Co. in the initial fil-ing.

Justice Cotter noted that W.R. Grace boughtthe mine in 1963 and, since that time, anumber of industrial hygiene studies havebeen conducted on the mine by the StateBoard of Health. Each inspection revealedthat conditions were unsanitary andunhealthy, Justice Cotter said, adding thatwhile the State reported the findings to W.R.Grace, those working in the proximity of themine were never notified.

W.R. Grace was dismissed from the case afterfiling for bankruptcy, prompting the plain-tiffs to add the State of Montana to the law-suit, specifically alleging that it owed a dutyto protect the plaintiffs by informing themof the hazardous conditions. The State filed amotion to dismiss, arguing that it owed noduty to the miners. The District Courtagreed, granting the motion to dismiss, andprompting the instant appeal.

The miners first argued that the State owed aduty to make investigations and subsequent-ly disseminate information regarding theasbestos hazards. While the State made theproper investigations, it did not convey theresults of these investigations to the miners,the plaintiffs contended. The State counteredby arguing that Montana industrial hygienestatutes do not impose a duty on the State towarn and protect miners and that such pro-tection is the responsibility of the employer.

The District Court agreed, opining that thestatutes did not apply because they did notspecifically include vermiculite mines.However, Justice Cotter found that thestatutes need not be specific to the industryin order to apply.

“First, it cannot be disputed that vermiculitemining is ‘an industry,’” Justice Cotter wrote.“If the failure of the legislature to describeevery industry to which its law applies is fol-lowed to its logical conclusion, then the lawwould cover no industries whatsoever. This isan absurd interpretation. The state had themandatory obligation from 1907 through1999 to gather public health-related infor-mation and provide it to the people. The leg-islature wrote this law broadly and chose notto limit it to specific industries, occupationsor workers.”

Justice Cotter also rejected the State’s con-tention that the protection of workers is theemployers’ responsibility. In doing so, JusticeCotter opined that evidence instead indicat-ed that the State knew that W.R. Grace wasnot warning employees.

“The state’s argument that it owed no dutyto the Miners ignores the State’s statutory


COURTROOM NEWS


obligation to ‘make investigations, dissemi-nate information, and make recommenda-tions for control of diseases and improve-ment of public heath to persons, groups, orthe public,’” Justice Cotter wrote. “The pro-visions of this law bound the State to dosomething to correct or prevent workplaceconditions known to be hazardous tohealth.”

Justice Cotter also rejected the State’s argu-ment that the Public Duty Doctrine preclud-ed the plaintiffs’ claims. Justice Cotter foundthat the miners fit a “special relationship”exception to the Public Duty Doctrine.

Justice Cotter noted that the District Courtrejected the notion that a special relationshipexisted between the State and the miners,instead finding that the statutes governingspecial relationships were too general to pro-tect such a specific class of persons from aspecific type of harm. Justice Cotter dis-agreed.

“The numerous statutes discussed abovewere intended to protect workers from occu-pational diseases,” Justice Cotter said. “As westated above, the lack of specificity in thesestatues does not render them meaningless.The statutes were designed to protect menand women working in the various industriesin Montana from occupational disease.Libby Miners were undeniably members ofthis specific class of persons.”

Justice Cotter further opined that the LibbyMiners presented affidavits indicating thatthe ambient dust was a concern. These affi-davits also acknowledged that the minersalso dismissed any health concerns, JusticeCotter stated.

“This conclusion was uniformly premised onthe fact that the State had regularly inspectedthe Mine, but had never reported any dangerto the Miners,” Justice Cotter stated. “Eachminer declared that they relied on these Stateinspections and the State’s lack of warning tocontinue working at the Mine. In Montana,reliance occurs when one is ‘rightfully led toa course of conduct or action on the faiththat the act or duty will be properly per-

formed.’ The State’s inspections ‘rightfullyled’ the Miners to believe that they wereworking in a safe environment.”

Justice Cotter also rejected the State’s defens-es of federal preemption and sovereignimmunity, noting that although the DistrictCourt failed to address the arguments, theState would fail in these specific attemptsupon remand. In rejecting the arguments,Justice Cotter first noted that no federalstatutes governed mine-related activities priorto 1966, therefore leaving the State with nopreemption defense.

Justice Cotter also acknowledged thatMontana has no sovereign immunity defenseafter 1972, when the law governing the com-mencement of a civil action was codified.Since the plaintiffs could not prove damageuntil after 1972, their claims are not pre-cluded by the sovereign immunity defense,Justice Cotter found.

In a dissenting opinion, Justice John Warnerargued that the majority redefined the doc-trine of sovereign immunity.

“By focusing on when the damage occurred,the Court forgets that at the time of thealleged breach of duty by the State, it owedno duty at all to the Miners,” Justice Warnerwrote. “Sovereign immunity is not a bar toan action, it is a legal doctrine to the effectthat the government had no duty to respondin damages to its citizens for its acts or omis-sions. When sovereign immunity was abol-ished, this changed, but by no stretch oflogic or law can it be said that an act oromission done while the doctrine was ineffect retroactively creates such a duty.”

Justice Warner, who was joined by JusticesKarla M. Gray and Jim Rice in the dissent,also suggested that the majority unfairlyimposed the duty of worker protection uponthe State.

“According to the Court, the State had aduty to prevent any recurrence of anunhealthful condition upon pain of beingliable in tort to any injured worker,” Justice

Warner said. “A large undertaking! Indeed,one I conclude borders on the absurd.”

Counsel for the plaintiffs is Jon L. Heberlingof McGarvey, Heberling, Sullivan &McGarvey in Kalispell, Mont.

The State of Montana is represented byDana L. Christensen of Christensen, Moore,Cockrell, Cummings & Axelberg inKalispell, Mont.; and Thomas G. Bowe,Assistant Attorney General in Helena, Mont.

Document Is AvailableCall (800) 496-4319 orSearch www.harrismartin.comOpinion Ref# ASB-0501-01

Joinder

Supreme Court Order Severing Mississippi Asbestos Claims Published

JACKSON, Miss. –– An order applying newMississippi mass tort standards to asbestosclaims was designated for publication by thestate’s high court on Jan. 6. Harold’s AutoParts, Inc. v. Flower Mangialardi, et al., No.2004-IA-01308-SCT (Miss. Sup. Ct.).

The Aug. 26 order from the MississippiSupreme Court had called the joinder of 259claims in the underlying case a “perversion ofthe judicial system,” and has prompted sev-eral Mississippi Circuit Courts to dismissmore than 13,000 asbestos claims since. See“3 Mississippi Judges Order 13,000 AsbestosPlaintiffs to Show Proof of Residency” in thisissue.

In the decision, the state’s high court tookissue not with the plaintiffs’ alleged failure tocomply with Rule 20’s joinder requirements,but with their apparent failure to disclosecore information about the underlyingclaims asserted against the nearly 150 defen-dants named in the case.


COURTROOM NEWS


“Complaints should not be filed in matterswhere plaintiffs intend to find out in discov-ery whether or not, and against whom, theyhave a cause of action,” the court said.“Absent exigent circumstances, plaintiffs’counsel should not file a complaint until suf-ficient information is obtained, and plain-tiffs’ counsel believes in good faith that eachplaintiff has an appropriate cause of action toassert against a defendant in a jurisdictionwhere the complaint is to be filed.”

To do otherwise, the court said, is an abuseof the system and is sanctionable.

The underlying case involved asbestos injuryclaims against 137 defendants by 264 plain-tiffs, 220 of which have yet to identify anyemployment within the state of Mississippi,according to the Supreme Court.

On June 23, the Bolivar County CircuitCourt denied a defense motion to sever theclaims, leading to the instant appeal, inwhich the defendants argued that given thelack of information about the underlyingexposure provided by the plaintiffs in thecase, it is impossible to argue that joinderwas improper. The plaintiffs responded thatgiven the defendants’ desire to have theclaims severed and tried individually, specificinformation about the underlying claimswasn’t necessary at this juncture in the case.

The Supreme Court held, however, that botharguments missed the mark. Suspending anyfurther briefing on the issue and proceedingdirectly to a consideration of the merits ofthe defendants’ petition for permission toappeal, the high court said that the mattershould be before the court not on a violationof Rule 20, but for a failure to comply withRules 8, 9, 10 and 11.

“Rule 20 allows joinder only where theplaintiffs make certain assertions whichdemonstrate the matters set out in the rule,”the court said. “In this regard, plaintiffshave wholly failed. Indeed, plaintiffs havenot even attempted to provide the informa-tion. They presume that they are entitled toproceed with their suit, as filed, and they willdemonstrate later that joinder is proper.”

The court added that it can only presumefrom the record that the plaintiffs have cho-sen to take such a course because they aren’taware whether joinder is appropriate.

“This is so, apparently, because they don’tknow the claims of each plaintiff. Theydon’t appear to know when they wereexposed, where they were exposed, by whomthey were exposed, or even if they wereexposed,” the court noted. “Presumably,when they learn this information, plaintiffs’counsel intends to dismiss those who shouldnot have been joined. This is a perversion ofthe judicial system unknown prior to the fil-ing of mass-tort cases.”

The justices also pointed out that not allcases involving multiple parties which havecome before the court have been filed insimilar fashion. They noted cases whereplaintiffs’ counsel appeared to have inter-viewed each plaintiff, investigated theirclaims and developed information necessaryto file a complaint. Such was not the case inthe instant matter, according to the court,which added that plaintiffs’ counsel contin-ues to resist furnishing necessary informationto the defendants and the court.

In reaching its decision to sever the claimsand remand to the circuit court for transferto the appropriate venue and jurisdiction,the court noted its recent decision in JanssenPharmaceutica, Inc. v. Armond, 866 So. 2d1092 (Miss. 2004), where the court appearedto have carved out an exception for joinderof claims in so-called mature torts, such asasbestos.

“Even though asbestos litigation is, indeed, a‘mature tort,’ as discussed in dicta inArmond, this Court did not intend in thatcase, and we shall not proceed here, toexempt asbestos cases from the requirementsof Rule 20, the Mississippi Rules of CivilProcedure,” the court wrote.

Document Is AvailableSearch www.harrismartin.com orCall (800) 496-4319Opinion Ref# ASB-0409-01

Bankruptcy

Halliburton Subsidiaries Exit Bankruptcy with $4.7 Billion Settlement

HOUSTON –– Halliburton has announcedthat two of its subsidiaries, DII Industriesand Kellogg Brown & Root, have exitedbankruptcy, marking the finalization of a$4.7 billion settlement of asbestos suitsinvolving a reported 400,000 claimants. Inre: Mid-Valley Inc, et al., Misc. No. 04-295(W.D. Pa.).

In a press release issued Jan. 3, the Houston-based petroleum and energy provider saidorders by the U.S. District Court for theWestern District of Pennsylvania and theU.S. Bankruptcy Court for the WesternDistrict of Pennsylvania are now final andnon-appealable. DII Industries and KelloggBrown & Root can now operate withoutBankruptcy Court supervision, Halliburtonsaid.

Halliburton’s chairman, president and CEODave Lesar said in the press release that “theasbestos chapter in Halliburton’s history isclosed.”

Halliburton’s agreement was approved lastyear by Judge Judith Fitzgerald of the U.S.Bankruptcy Court for the Western Districtof Pennsylvania, and called for Halliburtonto pay $2.3 billion in cash, notes worth $55million and 59.5 million shares of commonstock into trusts to pay victims, publishedreports indicated. The order was affirmed onJuly 26, 2004, by Judge Terrence F. McVerryof the U.S. District Court for the WesternDistrict of Pennsylvania.

Halliburton said in its press release that itplans to fund the trusts for current andfuture asbestos and silica claimants by theend of the month.

Documents are AvailableCall (800) 496-4319 or


COURTROOM NEWS


Search www.harrismartin.comDistrict Court Order Ref# ASB-0501-04Bankruptcy Court Order Ref# ASB-0501-05

Bankruptcy

Asbestos Claims Prompts A.P.I. Industries to File For Chapter 11

MINNEAPOLIS –– Insulation contractorA.P.I Industries has filed for Chapter 11bankruptcy protection, claiming that it has$63 million in liabilities. In re: A.P.I Inc.,No. 05-30073 (Minn. Bankr. Ct.).

A.P.I Industries also filed a prepackagedbankruptcy plan Jan. 6 in the U.S.Bankruptcy Court for Minnesota. Publishedreports indicate that the subsidiary of A.P.I.Group has more than 700 asbestos claimsasserted against the company.

In addition to the $63 million in liabilities,A.P.I claims to have more than $34 millionin total assets.

In the prepackaged plan, A.P.I. says that allasbestos claims against the company shall beassumed by a trust, to which A.P.I will make80 quarterly payments of $325,000.

Counsel for the debtor are James L. Baillie,Faye Knowles and Heather B. Thayer ofFredrikson & Byron of Minneapolis, Minn.

Documents are AvailableCall (800) 496-4319 orSearch www.harrismartin.comPetition Ref# ASB-0501-16Reorganization Plan Ref# ASB-0501-17

Premises Liability

California Court ReversesSummary Judgment, FindsTestimony Wrongfully Omitted

SAN FRANCISCO –– A California Courtof Appeal has reversed an award of summaryjudgment to ExxonMobil Corp. in anasbestos lawsuit, after finding that the trialcourt erroneously precluded testimony fromthe plaintiff ’s co-worker. Biles v. Exxon MobilCorp., No. A105783 (Calif. Ct. App., 1st

Dist., Div. 2)

In a Dec. 14 decision, the 1st District Courtof Appeal found that the plaintiff hadreserved the right to supplement or amendhis interrogatory answers, and that his failureto do so immediately, did not constitute will-ful or purposeful behavior.

“In deciding this appeal we deconstruct acivil discovery ‘urban legend’ –– that aresponding party has an affirmative duty tosupplement responses to interrogatories ifand when new information comes into thatparty’s possession, particularly if the partyreserved the right to amend or supplementthe earlier responses,” the Court of Appealstated.

Plaintiff Ronald Biles claimed that he wasexposed to asbestos during subcontractorwork where he assisted in the construction ofan oil refinery for a predecessor of Exxon.Subsequently, Biles claimed he developedasbestosis.

During discovery, Exxon served Biles withspecial interrogatories asking for the identifi-cation of any individual who had knowledgeof work specific to the oil refinery. Bilesresponded that no current information wasavailable to satisfy the interrogatory, but hereserved the right to supplement or amendthe response, the Court of Appeal noted.

Soon thereafter, Exxon filed a motion forsummary judgment, arguing that the plain-

tiff was not exposed to a dangerous condi-tion controlled by Exxon. After the summaryjudgment motion was filed, Biles submittedthe deposition of Roger Bellamy –– who isrepresented in a separate action by the samecounsel as Biles –– in which Bellamy claimedto have worked with Biles and witnessed airhoses blowing asbestos dust through Biles’sworksite.

Exxon objected to the admission of theBellamy deposition, arguing that Bellamywas not identified in Biles’s response to inter-rogatories. A trial court agreed, and grantedExxon’s motion for summary judgment,prompting the instant appeal.

The Court of Appeals first found that thetrial court erred in its reliance on Thoren v.Johnston & Washer (1972), when finding thatthe Bellamy declaration was inadmissible. InThoren, the defendants discovered at the startof trial that an expert had not been includedin interrogatories, the Court of Appealnoted.

The Court of Appeal found Thoren distin-guishable because no trial date has been setin the instant proceedings. The trial courtfurther erred when opining that Biles’s coun-sel should have been aware of the possibilitythat Bellamy could testify on behalf of Biles,because no evidence indicated that Bellamyhad mentioned Biles to the counsel, theCourt of Appeals stated.

“Thoren provides authority for excluding evi-dence based on a willfully false discoveryresponse,” the Court of Appeals found. “Itdoes not stand for the proposition that evi-dence may be excluded based on the merefailure to supplement or amend an interroga-tory answer that was truthful when originallyserved.”

The Court of Appeal also refrained fromimposing discovery sanctions on the plain-tiffs, stating that sanctions are not justified“based on the mere failure to supplement aresponse promptly when no order com-pelling further answers has been sought orentered.”


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The appeals court further found error withthe trial court’s declaration that Biles had aduty to supplement his interrogatoryresponses when he received the Bellamy dep-osition.

“A rule precluding the use of evidence notpreviously disclosed in supplemental discov-ery responses to oppose a summary judg-ment motion would be inconsistent withcase law holding that ‘factually void’ discov-ery responses can be relied upon the shift theburden of proof to the opposing party,” theCourt of Appeal stated.

The Court of Appeal also rejected the defen-dant’s contention that even if the Bellamydeposition is admissible, it does not create atriable issue of fact against Exxon. In doingso, the Court stated that if an Exxonemployee worked alongside, and injured, acontractor’s employee, Exxon may be heldliable for any injuries to the contractor’semployee.

“Applying these principles, the Bellamy dec-laration clearly raises a triable issue of factregarding whether Exxon may be liable inthis case based on the affirmative acts ofExxon’s own employees that contributed toBiles’s asbestos exposure,” the Court ofAppeals stated. “The Bellamy declarationcreates a triable issue of fact as to whetherthe presence of asbestos dust in the air inBiles’s vicinity was at least to some extent theresult of the acts of Exxon’s own employees.”

The plaintiff is represented by Alan R.Brayton, Gilbert L. Purcell, Lloyd F. LeRoyand David Polin of Brayton Purcell inNovato, Calif.

Counsel for Exxon is William H. Armstrongof Armstrong & Associates in Oakland,Calif.

Document is AvailableCall (800) 496-4319 orSearch www.harrismartin.comOpinion Ref# ASB-0501-11

Medical Monitoring

Louisiana Court Denies ClassCertification in MedicalMonitoring Asbestos Lawsuit

GRETNA, La. –– A Louisiana State Courthas denied class certification in an asbestosmedical monitoring lawsuit, opining that theplaintiffs failed to satisfy the majority of therequirements governing a class action.Bourgeois v. A.P. Green, No. 488-642 (La.24th Jud. Dist. Ct.).

In a Jan 5 oral decision, Judge Robert J.Burns of the Louisiana 24th Judicial DistrictCourt ruled that class certification would notbe proper, primarily because of the plaintiffs’vague class membership criteria, sources stat-ed.

Sources said that three former employees ofthe Avondale Shipyard filed the lawsuit seek-ing medical monitoring for their allegedexposure to asbestos while working atAvondale. The lawsuit was filed as a classaction, to be composed of all Avondaleemployees who worked at the shipyardbefore 1976.

The defendants named in the lawsuit arguedthat Louisiana law does not recognize a med-ical monitoring cause of action, becauseplaintiffs who do not suffer from anasbestos-related disease are not entitled to

damages. A trial court and the Louisiana 5th

Circuit Court of Appeal agreed, but theirdecisions were overturned by the LouisianaSupreme Court, which ruled that the plain-tiffs could seek a court-supervised medicalmonitoring program if they could satisfiedclass certification requirements.

Since the high court’s decision, the LouisianaLegislature has passed a law that stipulatesmedical monitoring does not constitutedamages unless the plaintiff currently suffersfrom an injury. The Legislature applied thelaw retroactively, but the Louisiana SupremeCourt found the retroactive application to be

unconstitutional. Currently, only cases alleg-ing exposure prior to 1999 can seek damagesfor medical monitoring, even if the plaintiffis not currently injured.

Under the Supreme Court’s ruling, the plain-tiffs in the instant action were free to seekdamages for medical monitoring, providedclass certification was proper. However, indetermining whether class certification wasproper, Judge Burns noted the plaintiffs pro-posed that class membership would bepremised upon significant exposure toasbestos fibers.

Judge Burns found, however, that it wouldbe hard to discern exactly what significantexposure is. Individual questions pertainingto the plaintiffs would be more prevalentthan common questions, Judge Burns found.

Sources said that when denying the class cer-tification, Judge Burns quoted defendantViacom’s brief in opposition to class certifica-tion, stating that “the case at bar is really nodifferent than the average asbestos personalinjury case, except that the remedy sought,medical monitoring, is the same for eachplaintiff.”

Judge Burns further found that the plaintiffslacked typicality and that the representativesproposed to represent absent class memberswas not adequate. Judge Burns opined that itwould be more efficient for plaintiffs to fileindividual claims, sources said.

Judge Burns did note that the one require-ment the plaintiffs appeared to satisfy wasnumerosity –– even so, the judge remarkedthat the requirement was doubtful becausetestimony was introduced indicating thatthere had been a lack of response or interestin joining the class.

Counsel for the plaintiffs are Frank J. Swarr,Mickey P. Landry and David R. Cannella ofLandry & Swarr in New Orleans.

The defendants are represented by LeonGary Jr. and William L. Schuette of Jones,Walker, Waechter, Poitevent, Carrere &Denegre in Baton Rouge, La.; Madeleine


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Fischer of Jones, Walker, Waechter,Poitevent, Carrere & Denegre in NewOrleans; Richard M. Perles of Lee, Futrell &Perles in New Orleans; Brian C. Bossier,Edwin A. Ellinghausen III and Erin H. Boydof Blue Williams in Metairie, La.; Steven J.Irwin of Duncan, Courignton & Rydberg ofNew Orleans; Carl J. Hebert of Courtenay,Hunter & Fontana in New Orleans; LynnLuker of Lynn Luker & Associates in NewOrleans; and Robert H. Wood Jr. ofBernard, Cassisa, Elliott & Davis inMetairie, La.

Verdict

Texas Court Affirms $150,000 Asbestos Verdict

CORPUS CHRISTI, Texas –– A TexasCourt of Appeals has affirmed a jury verdictof $150,000, rejecting the defendant’s con-tention that the plaintiff failed to prove thatits asbestos-containing product released res-pirable asbestos fibers. Borg-Warner Corp. v.Flores, No. 13-03-058-CV (Texas 13th Dist.Ct. App.).

In a Dec. 16 decision, the Texas 13th DistrictCourt of Appeals also affirmed the jury’sfinding that the defendant acted with malice,opining that as a manufacturer of asbestos-containing products, the defendant shouldbe held to the knowledge and skill of anasbestos expert.

Plaintiff Arturo Flores was awarded morethan $150,000 for injuries arising fromexposure to asbestos-containing brake padsmanufactured by defendant Borg-WarnerCorp. A jury found Borg-Warner liable fornegligence and strict liability, and also deter-mined that the company acted with malice.Borg-Warner appealed the verdict.

On appeal, Borg-Warner first argued thatthere was no evidence that asbestos fiberswere released from its brake pads. Borg-

Warner specifically asserted that the evidencewas insufficient because it failed to show thatthe brake pads released respirable asbestosfibers.

The Court of Appeals disagreed, stating thatfor an asbestos-related claim, the plaintiffneeds only to provide evidence that thedefendant supplied asbestos to which expo-sure occurred.

“According to Borg-Warner, the plaintiff inthis case was required to prove the emissionof respirable asbestos fibers because he wasonly exposed to a product containingasbestos and not to raw asbestos,” the Courtof Appeals stated. “We find no support forthis distinction in the case law cited by Borg-Warner. Furthermore, even if we were toconclude that the emission of respirableasbestos fibers is necessary to prove causa-tion, the standard of review for legal suffi-ciency challenges would render Borg-Warner’s complaint moot. We consider onlythe evidence that supports the verdict andthe evidence is viewed in a light that tends tosupport the disputed fact.”

Specifically, the Court of Appeals noted thatFlores inhaled dust created by a Borg-Warnerasbestos-containing product which couldhave produced respirable asbestos fibers. TheCourt of Appeals also noted that because itrejected Borg-Warner’s assessment of errorassociated with the jury’s finding of negli-gence, Borg-Warner’s contention that thejury’s finding of strict liability was erroneousalso fails.

Next, Borg-Warner challenged the jury’sfinding of malice, arguing that there wasinsufficient evidence to prove that the plain-tiff ’s use of brake pads posed an extreme riskof harm. The Court of Appeals, however,found that the evidence presented at trialwas sufficient to support both the objectiveand subjective elements constituting malice.

“Even according to Borg-Warner’s version ofthe record, medical and scientific literaturedating as far back as 1898 published in theUnited States, Great Britain, and Germanydocumented the dangers of asbestos dust,”

the Court of Appeals stated. “This evidenceis legally sufficient to establish the objectiveelement of malice (i.e., likelihood of seriousinjury).”

In ruling that the evidence supported a find-ing of the subjective element of malice, theCourt of Appeals ruled that as a manufactur-er of asbestos products, “Borg-Warner shouldbe held to the knowledge and skill of anasbestos expert.”

“Borg-Warner’s failure to invest in researchpromoting health and safety would suffice toestablish the subjective component of mal-ice,” the Court of Appeals stated.

The Court of Appeals also rejected Borg-Warner’s argument that the trial court erredin not granting motions for a directed ver-dict, JNOV and for a new trial. In doing so,the Court of Appeals said that it had alreadydetermined that there was more than a scin-tilla of evidence supporting the jury’s findingof negligence and malice.

Borg-Warner also argued that the trial courterred when admitting the testimony of Dr.Barry Castleman because it constitutedhearsay. The Court of Appeals disagreed.

“Although Borg-Warner has argued persua-sively that the trial court erred in admittingDr. Castleman’s book into evidence, it hasfailed to demonstrate that any such ‘errorprobably caused the rendition of an improp-er judgment,’” the Court of Appeals stated.“In fact, our independent review of therecord shows the opposite. Dr. Castlemantestified extensively regarding the content ofhis book, in particular chapter eight, andBorg-Warner was given the opportunity tocross-examine him. Thus, even if chaptereight was improperly admitted into evidence,we would be unable to conclude that suchan ‘error probably caused the rendition of animproper judgment.’”

Finally, the Court of Appeals rejected Borg-Warner’s contention that the trial court erredwhen failing to compel settlement informa-tion because it precluded Borg-Warner fromobtaining a settlement credit. In doing so,


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the Court of Appeals noted that “the settle-ment credit amount can be established bythe actual ‘settlement agreement or someother evidence of the settlement amount.’”

“There is no requirement that the actual set-tlement agreement be submitted into evi-dence in order to establish the settlementcredit amount,” the Court of Appeals con-cluded.

Counsel for Borg-Warner is Elizabeth L.Phifer of Smith, Underwood & Perkins inDallas.

Flores is represented by W. Scott Wert ofTexas.


Workers’ Compensation

Court Finds Appeal Timely,Claims Remanded forDetermination of Death Benefits

NEW YORK –– A New York appeals courthas determined that a Workers’Compensation Board Panel erred whendetermining an asbestos claimant did not filea timely appeal, finding instead that thePanel overlooked an extension the plaintiffwas granted in which to file the appeal. Seitzv. Jacobson & Company, No. 09759 (N.Y.App. Ct., 3rd Dept.).

In a Dec. 30 opinion, the 3rd Department ofthe New York Appellate Division reversedthe Panel’s dismissal of the claims, andremanded for a determination of whether theright to death benefits ceased when theexposed plaintiff ’s surviving spouse died.

Claimant John Seitz argued that as a former

sheet metal worker he was exposed toasbestos after which he developed metastaticsmall cell anaplastic lung cancer caused byasbestosis. Seitz died, prompting his wife tofile a workers’ compensation claim. Seitz’swife also died and a Worker’s CompensationLaw Judge closed the case. Counsel for theSeitzs then requested that the case bereopened on behalf of the decedent’s estate.

The case was reopened, but a Workers’Compensation Law Judge determined thatthe surviving spouse’s claim for death bene-fits ceased when she died. The Seitz estateappealed the decision.

The Board’s Office of Appeals determinedthat the application for review failed to spec-ify grounds on which the appeal was made.The Board then held the determination ofthe appeal would be held in abeyance for 30days until the estate could produce a supple-mental application.

The Seitz estate filed a supplemental applica-tion, claiming that $50,000 in death benefitswere owed to the estate. A Board Panel thenfound that the supplemental application wasuntimely, and refused to consider the appli-cation, prompting the instant appeal.

In reversing the decision, the Appeals Courtfound that the initial petition was filed in atimely fashion and the supplemental applica-tion was filed within the 30-day parameterset by the Board.

“The Board … established a time frame dur-ing which the estate’s supplemental applica-tion for review could permissibly be filed …it was an abuse of discretion for a Boardpanel to thereafter deny such applicationupon the ground that it was untimely andrefused to consider the grounds for reviewset forth therein namely,” the Appeals Courtstated. “Accordingly, the underlying decisionis reversed and this matter is remitted to theBoard for additional proceedings.”

The Appeals Court additionally noted thatthe Board’s reliance on Matter ofDellauniversita v. Tek Precision Co., in sup-port of the argument that the estate’s claim

abated upon the death of the decedent’s sur-viving spouse, fails.

“Moreover, counsel for decedent’s estate hascited a number of Board panel decisions insupport of the estate’s contention that theunderlying death benefit claim did not abateupon the death of decedent’s survivingspouse,” the Appeals Court said. “While thecarriers are correct that such decisions arenot binding upon this Court, the Boardpanel’s apparent and unexplained departurehere from prior Board precedents providesan alternative basis for reversal.”

Counsel for the Seitz estate is Frank Gulinoof Brecher, Fishman, Pasternae, Popish,Heller, Rubin & Reiff in New York.

The defendants are represented by PatrickM. Conroy of Stewart, Greenblatt, Manning& Baez of Syosset, N.Y.


Workers’ Compensation

Court Affirms Denial of BenefitsTo Smoker Alleging AsbestosAggravated Lung Condition

LITTLE ROCK, Ark. –– An Arkansas Courtof Appeals has affirmed the denial of benefitsin a workers’ compensation asbestos claim,finding that there was a lack of evidenceindicating that asbestos exposure aggravatedthe claimant’s smoking related lung condi-tion. Tutt v. International Paper Co., No. CA04-584 (Ark. Ct. App.).

In a Dec. 8 decision, the Court of Appealsagreed with a Workers’ CompensationCommission that the majority of the testify-ing experts were unable to conclude that


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workplace irritants accelerated plaintiff JohnTutt’s injury by smoking.

Tutt filed a workers’ compensation claimalleging that exposure to chemicals andasbestos while working more than 30 years atthe International Paper Co. contributed tohis chronic obstructive pulmonary disease.Tutt died in 1983, and his wife continuedhis claim.

Pulmonologist James Adamson first opinedthat while Tutt’s exposure to chemicals couldhave been a contributing agent to his chronicobstructive airway disease, smoking was byfar the most common cause of the disease,according to the Court of Appeals.

However, a second expert, Christopher John,M.D., opined that Tutt suffered fromasbestosis and that his exposure to multiplechemicals aggravated his smoking-inducedCOPD and emphysema. The Court ofAppeals noted that John’s opinion was thenchallenged by another testifying expert, whostated that John did not identify chemicalsthat would cause or contribute to emphyse-ma and at what dose these chemicals wouldbe detrimental to Tutt’s ailments.

An additional expert also challenged John’sdiagnosis of asbestosis, arguing that therewas no evidence of asbestos exposure andthat Tutt did not exhibit symptoms consis-tent with asbestos exposure.

Based on the testimony, the Workers’Compensation Commission denied Tutt’sclaim, prompting the instant appeal.

On appeal, Tutt argued that the Commissionerred in its decision because sufficient evi-dence existed indicating that Tutt’s occupa-tional environment led to the aggravationand acceleration of his injury.

The Court of Appeals disagreed, however,finding that expert testimony did not con-clusively indicate that Tutt’s condition wasaggravated by workplace exposure to asbestosand other chemicals.

“We note that the evidence showed thatAdamson was unable to conclude whetherTutt’s employment with IP added to the cig-arette risk as a cause of his lung disease,” theCourt of Appeals stated. “[An additionalexpert] testified that he could not give anopinion about the aggravating effects ofTutt’s exposure to chemicals at work withoutfirst determining the type of chemical, dura-tion and exposure, and concentration of thechemical…. Because the issue of aggravationis a fact question, and the requirement isthat the Commission’s decision be based onany medical evidence, we affirm. Further,because our decision is based on theCommission’s implicit determination ofcredibility and the weight given to the physi-cian’s testimony, we affirm under both theclear and convincing and the preponderanceof the evidence standards.”

The Court of Appeals also rejected the plain-tiff ’s argument that the admission ofAdamson’s testimony violates the ArkansasRules of Evidence, noting that such rules ofevidence do not apply in workers’ compensa-tion proceedings. Even so, the Court ofAppeals opined that the plaintiff did notcomply with procedure in cross-examiningAdamson, and therefore was not entitled tochallenge the expert’s testimony.

Document is AvailableCall (800) 496-4319 orwww.harrismartin.comOpinion Ref# ASB-0501-06

Evidence

Asbestos Plaintiff Fails toProvide X-Rays Read by B-Reader, Claims Dismissed

AKRON, Ohio –– An Ohio Appellate Courthas upheld the dismissal of asbestosis claimof a plaintiff who did not present medicalevidence interpreted by a B-reader. Wright v.

Leggett & Platt, et al., No. 04CA008466(Ohio Ct. App., 9th Dist.).

In the Dec. 15 decision, the 9th District ofthe Ohio Court of Appeals agreed with theWorkers’ Compensation Board finding thatthe claimant did not satisfy an Ohio resolu-tion requiring plaintiffs to provide X-raysinterpreted by a B-reader.

Plaintiff Denzil Wright claimed that duringhis employment at Leggett & Platt Inc., hewas exposed to asbestos, which eventually ledto his development of asbestosis. Wright wasdenied his workers’ compensation claim,after a district hearing officer found thatthere was insufficient evidence indicating acausal connection between Wright’s condi-tion and his employment.

In his decision, the officer also found thatWright did not comply with Ohio’sIndustrial Commission Resolution 96-1-01,which requires claimants to provide X-raysinterpreted by a B-reader. Wright only sup-plied X-rays, the Court of Appeals noted.The Industrial Commission denied Wright’sappeal. Wright then filed a notice of appealin the Ohio County Court for LorainCounty, the defendants moved to dismiss,arguing that Wright had failed to exhaust hisadministrative remedies. The trial courtagreed, prompting the instant appeal.

The Court of Appeals noted that “fulfillingthe requirements of Resolution 96-1-01 is acondition precedent to a determination ofwhether a claimant is entitled to participatein the fund.”

Therefore, the Court of Appeals stated, sinceWright neglected to satisfy the requirementsof the resolution, a determination of whetherWright is entitled to benefits is unnecessary.

“As such, the trial court was correct in itsfinding that the order of the IndustrialCommission was not appealable because itdid not determine Appellant’s right to partic-ipate,” the Court of Appeals stated.

Wright also challenged the validity ofResolution 96-1-01, arguing that it adds


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requirements that are not contained in thenormal rules of civil procedure. The Courtof Appeals disagreed, stating that Wright’sargument lacked merit, and that whileadministrative agencies cannot add substan-tive requirements, procedural requirementsare allowed.

“Resolution 96-1-01 dictates the specificquantum of evidence necessary to bring thematter before the Industrial Commission,”the Court of Appeals stated. “Further, it doesnot enact a new law, it merely administers alaw currently in existence. Accordingly, thisCourt finds that the adoption of Resolution96-1-01 was a valid exercise of the authoritygranted to the Industrial Commission.”

The Court of Appeals also rejected Wright’scontention that Resolution 96-1-01 isinvalid because it violates the EqualProtection Clause of the Ohio Constitution.In doing so, the Court of Appeals found thatthe Resolution was not irrelevant to achiev-ing the state’s purpose.

“The long period between initial contactwith asbestos and its apparent effect and thedifficulty in determining that the exposure isthe cause of the disease gives rise to the needfor an examination by a medical specialist,”the Court of Appeals stated. “In light of thisdifficulty and the sheer volume of asbestosisclaims, the Commission adopted Resolution96-1-01… Given the above, this Court can-not say that the Industrial Commissionlacked a rational basis for distinguishingasbestosis from other compensable diseases.”

Counsel for Wright is Anthony L. Ania ofNorthfield, Ohio.

The defendants are represented by LawrenceC. Davison and Patrick J. Krebs of Taft,Stettinius & Hollister in Cleveland; andTimothy McGrail, Assistant AttorneyGeneral in Cleveland.

Document Is AvailableCall (800) 496-4319 orSearch www.harrismartin.comOpinion Ref# ASB-0501-09

Testimony

Summary Judgment Reversed,Court Claims ProductIdentification Triable Issue

ROCHESTER, N.Y. –– A New York appel-late court has reversed an award of summaryjudgment to an asbestos defendant, findingthat the plaintiff had raised sufficient evi-dence in opposing the defendant’s claimsthat their product was not sold at the allegedsite of exposure. Root v. Eastern RefractoriesCo., et al., No. 04-01412 (N.Y. Sup. Ct.,App. Div., 4th Dept.).

In a Dec. 30 opinion, the 4th Department ofthe New York Supreme Court AppellateDivision found that the parties had each pre-sented sufficient evidence to further theirarguments about what products were presentduring the alleged asbestos exposure, war-ranting a trial.

Plaintiff Paul Root asserted the underlyingclaims on behalf of Edward Root, whoallegedly developed mesothelioma as a resultof exposure to the asbestos-containing prod-uct ERCO-Mat while employed at SyracuseUniversity. ERCO-Mat was distributed bydefendant Eastern Refractories Co. Inc.

Eastern moved for summary judgment, argu-ing that it did not supply any asbestos-con-taining product to Syracuse University dur-ing the times in which Edward Root wasemployed. In support of summary judgment,Eastern presented an affidavit of DavidFeinzig, who claimed that Eastern did notsupply asbestos-containing materials at anySyracuse job sites.

In opposition, Paul Root claimed thatFeinzig had testified in a prior case that therewas a transitional period in which he admit-ted that Eastern sold ERCO-Mat blankets toSyracuse. Paul Root also presented testimonyfrom Edward Root indicating that the blan-kets contained asbestos. A Supreme Courtgranted the motion for summary judgment,

effectively dismissing the complaint againstEastern.

The Appellate Division reversed the ruling,however, finding that while Eastern had metits burden of establishing it sold no productsto the Syracuse job sites, the plaintiff haddemonstrated there are disputed facts war-ranting a trial.

“Decedent testified that he was exposed toasbestos while working at SyracuseUniversity using ERCO-Mat blankets,” theAppellate Court said. “That testimony is suf-ficient to raise a triable issue of fact.”

Counsel for the plaintiff is Alani Golanski ofWeitz & Luxenberg in Brooklyn, N.Y.

The defendant is represented by Timothy D.Gallager of McMahon, Martine & Gallagherin New York.

Document is AvailableCall (800) 496-4319 orSearch www.harrismartin.comOrder Ref# ASB-0501-19

Arbitration

Court Affirms Order CompellingArbitration between CCR andMaryland Asbestos Plaintiffs

ANNAPOLIS, Md. –– The Maryland Courtof Appeals has affirmed an order compellingarbitration in an asbestos settlement dispute,rejecting the plaintiffs’ contention that a let-ter altering the settlement agreement pre-cluded arbitration. Rourke v. AmchemProducts, et al., No. 24-C-02-001240/CN(Md. Ct. App.).

In a Dec. 14 opinion, the Court of Appealsadditionally declined to adopt the doctrineof offensive non-mutual collateral estoppel,ruling that it is unfair to the defendants.


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In April 2000, two Maryland law firmsclaiming to represent nearly 900 asbestosplaintiffs entered into a settlement agreementestimated at $10 million with the Center forClaims Resolution. The Court of Appealsnoted that at the time of the settlement, theCCR had 16 members.

In compliance with the settlement agree-ment, CCR anticipated that the law firm ofAshcraft & Gerel would use the first install-ment to pay one-third of the plaintiffs infull. However, Ashcraft & Gerel determinedthat it would pay each plaintiff a portion ofthe total amount instead of paying a percent-age of the plaintiffs in full. Because this wasa violation of the settlement agreement,CCR Chief Claims Officer Michael Rooneyagreed in an Oct. 31, 2000 letter thatAshcraft & Gerel could use the installmentstowards partial payments instead of full pay-ments.

The letter also stipulated that “should theCCR fail to timely make any or all of thepayments required by the Master SettlementAgreement, then in that event each settlingplaintiff who has not received full paymentmay pursue a remedy in contract against theCCR members for any deficiency…. Thisremedy in contract on the release will be thesole legal remedy of each plaintiff who hasexecuted a release for the full considerationof his settlement but fails to receive timelypayment in full.”

Upon receiving a subsequent installment,Ashcraft & Gerel determined that the pay-ment was deficient and filed a declaratoryaction, arguing that the CCR members werejointly and severally liable for all payments.

The CCR members responded by moving tocompel arbitration and dismiss the declarato-ry action. The plaintiffs opposed the motion,arguing that in Rooney’s Oct. 31 letter, hegave the plaintiffs a judicial remedy forbreach of contract for any deficiency.

The plaintiffs additionally argued that theVirginia Supreme Court has addressed a sim-ilar dispute arising between the CCR andVirginia asbestos claimants, in which the

court ruled that the dispute was not subjectto arbitration. Therefore, the plaintiffsclaimed, the doctrine of collateral estoppelapplied.

The trial court’s decision granting themotion to compel arbitration was upheld bythe Maryland Court of Special Appeals,prompting the appeal to Maryland’s highcourt.

The Court of Appeals noted that the plain-tiffs in the instant proceedings sought offen-sive non-mutual collateral estoppel, a doc-trine the Court of Appeals has not embraced.

“This Court has gone so far as to recognizedefensive non-mutual collateral estoppel, atleast where the party sought to be bound bythe existing judgment had a full and fairopportunity to litigate the issues in ques-tion,” the Court of Appeals stated. “We haveacknowledged, however, that ‘there are manysituations where application of the doctrineof non-mutual collateral estoppel would bemanifestly unfair,’ and we have yet to for-mally embrace offensive non-mutual collateralestoppel.”

The Court of Appeals opined that whiledefensive collateral estoppel may give aplaintiff cause to join all defendants, offen-sive collateral estoppel allows the plaintiff torely on a prior judgment, but not be boundby that judgment.

“We hold that, in applying full faith andcredit to the Virginia judgment, a Marylandcourt must treat the judgment precisely thesame as it would be treated in a Virginiacourt, and that requires that we apply thepreclusion rules that would be applied inVirginia,” the Court of Appeals said. “As theparties agree that Virginia continues torequire mutuality as part of its collateralestoppel law and would therefore not givepreclusive effect to its judgment in a secondaction by different plaintiffs, and clearlywould not, and could not, give preclusiveeffect to it against defendants who are notparties, or in privity with parties, in theVirginia action, the Circuit Court and the

Court of Special Appeals were correct in notgiving preclusive effect to it in this action.”

The Court of Appeals additionally ruled thatthe claims were subject to arbitration, citingan arbitration clause in the settlement agree-ment that stipulates arbitration is requiredwhen any dispute arises during the executionof the terms and conditions of the agree-ment.

“That provision is certainly broad enough toinclude a dispute over whether non-default-ing members of CCR are liable for theunpaid shares of defaulting members,” theCourt of Appeals stated.

The Court of Appeals also rejected the plain-tiffs’ contention that the Rooney lettersupercedes the settlement agreement by stat-ing that a remedy would by lawsuit or other-wise.

“Permitting ‘a remedy in contract’ does notforeclose arbitration as the remedy,” theCourt of Appeals opined. “The constructionof the Rooney letter is favored not only bythe requirement that all provisions of a con-tract be read together harmoniously, so thateach can be given effect, but also by the ordi-nary mandate that, where an arbitrationagreement exists, ambiguities as to arbitrabil-ity be resolved in favor of arbitration.”

In a dissenting opinion, Chief Justice RobertM. Bell stated that “while I am inclined tobelieve, given the office of collateral estoppeland the fact that these appellees have oncealready litigated the identical issue, that therecord in this case presents at least a goodreason to apply the doctrine of offensivenon-mutual collateral estoppel… at the veryleast, I would remand the case to the Courtof Special Appeals for its review, on the mer-its, unobscured by full faith and credit andother such concepts, of the trial court’srefusal to apply the doctrine.”



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California

Court: Calif. Super. Ct.,San Francisco Cty.Case Name: Kruger, et al. v.SeaRiver Maritime, et al.Docket No.:CGC-03-427234 Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Barry Horn, M.D.; SamHammar, M.D.; Arnold Brody, M.D.,William Longo, Ph.D.; Zachary Reynolds;William Ewing, CIH; Robert JohnsonDefense Experts: Charles Cushing, Ph.D.;Howard Spielman, CIH; David WeinerReported By HM: Dec, Vol. 5, p. 8

Court: Calif. Super.. Ct., Los Angeles Cty.Case Name: Treggett, et al. v. Alpha Inc., et alDocket No.:BC307058 Alleged Injury: MesotheliomaVerdict: Plaintiff, $36 MillionPlaintiffs’ Experts: Arnold Brody, Ph.D.;Barry Horn, M.D.; Sam Hammar, M.D.;Eric Vallieres, M.D.; John Templin, CIH;William Longo, Ph.D.; David Fractor,Ph.D.; and Robert Neff, CPA.Defense Experts:Andrew Churg, M.D.;James Delaney; Donna Ringo, CIH; CarlMangold, CIH; William Hughson, M.D.;and Robert Sawyer, M.D.Reported By HM: Nov, Vol. 5, p. 8

Court: Calif. Super.. Ct., San Francisco Cty.Case Name: Peterson v. John CraneDocket No.:302742 Alleged Injury:Lung CancerVerdict: DefensePlaintiffs’ Experts: Arnold Brody, Ph.D.;John Templin, CIH; Barry Ben-Zion, Ph.D.;Barry Horn, M.D.; Richard Cohen, M.D.;Allan Smith, M.D.Defense Experts:Robert Morgan, M.D.;Michael Matteson, Ph.D.., Gerald Meyers,M.D.; Peter Barrett, M.D.; William Breall,M.D.; John Maddox, M.D.Reported By HM: Oct, Vol. 4, p. 6

Court: Calif. Super.. Ct., Los Angeles Cty.Case Name:Escamilla v. American Standard,Inc., et al.Docket No.:303900

Alleged Injury:Lung CancerVerdict: DefensePlaintiffs’ Experts: Arnold Brody, Ph.D.;James Dahlgen, M.D.; Phillip John Templin,CIHDefense Experts:Charles A. Weaver, Ph.D.;William Hughson, M.D.; Allan Feingold,M.D.; William Dyson, Ph.D.; Paul CherryReported By HM: June, Vol. 4, p. 7

Court: Calif. Super.. Ct., Los Angeles Cty.Case Name: La Chapelle v. AmericanStandard, Inc., et al.Docket No.: 303899Alleged Injury:Mesothelioma Verdict: Plaintiff, $1 millionPlaintiffs’ Experts: Barry Horn, M.D.;Arnold Brody, M.D.; Robert Cameron,M.D.; Phillip John Templin, CIHDefense Experts:William Dyson, Ph.D.;William Hughson, M.D., Ph.D.; CharlesWeaver, Ph.D. Reported By HM: June.., Vol. 4, p. 8

Court: Calif. Super.. Ct., San Francisco Cty.Case Name: Ryan v. Asbestos CorporationLimitedDocket No.: 419182Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: John Kemplin, Ph.D.,Richard Cohen, mD., James Robb, M.D.,Allan H. Smith, Ph.D., Charles AyDefense Experts: Khalil Sheibani, M.D.,Edward Cadman, M.D., Bernard Gee,M.D., Kathy Jones, CIH Reported By HM: Apr.., Vol. 4, p. 8

Court: Calif. Super.. Ct., San Francisco Cty.Case Name: Wise v. Kelly-Moore Paint Co., etal. Docket No.:310164Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Donald Breyer, M.D.,Allan H. Smith, Ph.D., Barry Ben-Zion,Ph.D., Gerald Abraham, M.D., KennethCohel, CIH, Barry Castleman, Ph.D.Defense Experts: William G. Hughson,M.D., William Dyson, Ph.D., Thomas C.Thomas, Ph.D.Reported By HM: Apr.., Vol. 4, p. 9

Court: Calif. Super.. Ct., San Francisco Cty.Case Name: Hoeffer v. Rockwell Automation,Inc..Docket No.: 413073Alleged Injury: MesotheliomaVerdict: Plaintiff, $3 MillionPlaintiffs’ Experts: Samuel Hammar, M.D.;Allan Smith, Ph.D.; Frank Ganzhorn, M.D.;Richard Cohen, M.D.; William Ewing,CIH; Barry Ben-Zion, Ph.D.Defense Experts: William Hughson, M.D.;Robert Morgan, Ph.D.; Sheldon Rabinovitz,CIH.Reported By HM: Dec.., Vol. 3, p. 6

Court: Calif. Super. Ct., Alameda Cty.Case Name: Soule v. Garlock, Inc., et al.Docket No.: 2002-045881Alleged Injury: MesotheliomaVerdict: Plaintiff, $2.5 MillionPlaintiffs’ Experts: William Salyer, M.D.;Barry Horn, M.D.; Allan Smith, M.D.; JohnTemplin, CIH; Robert Johnson, Ph. D.;Charles Ay.Defense Experts: James DeLaney; VictorRoggli, M.D.; Douglas Fowler, CIH.Reported By HM: Oct., Vol. 3, p. 6

Court: Calif. Super. Ct., San Francisco Cty.Case Name:Andrews v. Asbestos DefendantsDocket No.: 313263Alleged Injury: Kidney CancerVerdict: DefensePlaintiffs’ Experts: Arnold R. Brody, Ph.D.;Allan H. Smith, M.D., Ph.D.; Charles Ay;Donald Breyer, M.D.; Barry Ben-Zion;Richard Cohen, M.D., Ph.DDefense Experts: William Hughson, M.D.Reported By HM: Aug., Vol. 3, p. 9

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Jones v. Asbestos DefendantsDocket No.: 407782Alleged Injury: Lung CancerVerdict: Plaintiff, $5 MillionPlaintiffs’ Experts: Samuel Hammar, M.D.;Allan Smith, M.D., Ph.D.; Barry Horn,M.D.; Richard Cohen, M.D., Ph.D.; JohnTemplin, CIH; Barry Ben-ZionDefense Experts: James Crapo, M.D.;Michael Graham, M.D.; Douglas Fowler,CIHReported By HM: Aug., Vol. 3, p. 8


VERDICT REPORT

Court: Calif. Super. Ct., San Francisco Cty.Case Name:Medley v. American LaundryMachinery, Inc.Docket No.: 13920Alleged Injury: AsbestosisVerdict: Plaintiff, $1.1 MillionPlaintiffs’ Experts: Alvin Schonfeld, D.O.;Donald Breyer, M.D.; Richard Cohen,M.D.; Alan H. Smith, M.D.Defense Experts: David Godwin, M.D.Reported By HM: June, Vol. 3, p. 7

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Lunsford v. Garlock, Inc.Docket No.: 323071Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Barry Horn, M.D.;William Smith, M.D., Ph.D.; RichardCohen, M.D., FACPM, MPH; BarryCastleman, Ph.D.; Ken Cohen, CIH, Ph.D.;Charles AyDefense Experts: Carl Mangold, CIH;Donna Ringo, CIH, MPH; Robert Sawyer,M.D., FACPMReported By HM: March, Vol. 3, p. 11

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Sunderman v. Aqua-Chem, Inc.Docket No.: 318031Alleged Injury: AsbestosisVerdict: Plaintiff, $150,000Plaintiffs’ Experts: Kenneth Cohen, CIH;Charles Ay; Allan H. Smith, Ph.D.; BarryBen-Zion, Ph.D.; James Srebo, M.D. Defense Experts: Gerald B. Levine, M.D.;Norman Moscow, M.D.; William Breall,M.D.; Robert Sawyer, M.D.; JamesRasmuson, Ph.D., CIHReported By HM: Dec., Vol. 3, p. 9

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Gunderson v. A.W. ChestertonCo., et al..Docket No.: 406207Alleged Injury: MesotheliomaVerdict: Plaintiff, $11.5 millionPlaintiffs’ Experts: Richard Hatfield; BarryR. Horn, M.D.; Barry Castleman, M.D.;Barry Ben-Zion, Ph.D.; Kenneth Cohen,Ph.D., CIH; Allen Smith, M.D., Ph.D.

Defense Experts: William Hughson, M.D.;Howard Spielman, CIHReported By HM: Dec., Vol. 3, p. 8

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Trinchese v. A.P. GreenIndustries, Inc.Docket No.: 400787Alleged Injury: MesotheliomaVerdict: Plaintiff, $4.2 millionPlaintiffs’ Experts: Barry Castleman, Ph.D.;Samuel Hammar, M.D.; Barry R. Horn,M.D.; Barry Ben-Zion; Arnold Brody, M.D.;Kenneth Cohen, CIH, Ph.D.; Allan Smith,M.D., Ph.D. Defense Experts: Lawrence Birkner, CIH;John Craighead, M.D.Reported By HM: Aug., Vol. 2, p. 10

Court: Calif. Super. Ct., Alameda Cty.Case Name: Peterson v. Hill BrothersChemical Co.Docket No.: 2001-031817Alleged Injury: MesotheliomaVerdict: Plaintiff, $20 million; settlementbefore punitivesPlaintiffs’ Experts: Barry Castleman, Ph.D.;Samuel Hammar, M.D.; Robert Johnson,Ph.D.Defense Experts: James Rasmusson, Ph.D.;John Craighead, M.D., William Hughson,M.D.Reported By HM: July, Vol. 2, p. 10

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Todak v. Asbestos DefendantsDocket No.: 320621Alleged Injury: MesotheliomaVerdict: Plaintiff, $33.7 millionPlaintiffs’ Experts: Allan Smith, Ph.D.,Kenneth Cohen, CIH, Ph.D.; Charles Ay;Samuel Hammar, M.D.; Barry Horn, M.D.;Arnold Brody, Ph.D.; Richard Cohen, M.D.Defense Experts: John Morykon, RobertSawyer, M.D.; Capt. Richard Silloway;Lawrence Birkner; Horton Hinshaw, M.D.Reported By HM: April, Vol. 2, p. 10

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Dressler v. Asbestos Defendants.Docket No.: 308950Alleged Injury: Non-Hodgkin’s LymphomaVerdict: Defense (Bench Trial)

Plaintiffs’ Experts: Elliot Kagan, M.D.;Carolyn Ray, M.D.; Barry Ben-Zion, Ph.D.Defense Experts: Gerald Meyers, M.D.;Kahlil Shebani, M.D.; Eric Gershwin, M.D.;William Hughson, M.D.; Jerald Udinsky,Ph.D.Reported By HM: April, Vol. 2, p. 12

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Berning v. A.P. Green Industries,Inc.Docket No.: 319733Alleged Injury: MesotheliomaVerdict: Plaintiff, $1.125 millionPlaintiffs’ Experts: Richard Hatfield; BarryR. Horn, M.D.; Richard Cohen, M.D.;Barry Ben-Zion, Ph.D.Defense Experts: William Hughson, M.D.;Sheldon Rabinovitz, Ph.D.Reported By HM: Feb., Vol. 2, p. 8

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Taylor v. John Crane, Inc..Docket No.: 320278Alleged Injury: MesotheliomaVerdict: Plaintiff, $3 millionPlaintiffs’ Experts: William Ewing C.I.H.;Samuel Hammar, M.D.; Barry Horn, M.D.;Robert Johnson; Richard Lemen, Ph.D.;William Longo, Ph.D.; James Millette.Defense Experts: Michael Mattison, Ph.D.;Victor Roggli, M.D.; Frederick Toca, Ph.D.Reported By HM: Feb., Vol. 2, p. 8

Court: Calif. Super. Ct., San Francisco Cty.Case Name: Laguna v. Calaveras Asbestos,Ltd.Docket No.: 318078Alleged Injury: AsbestosisVerdict: Plaintiff, $2.3 millionPlaintiffs’ Experts: Allan Smith, Ph.D.;Samuel Hammar, M.D.; Robert Fallat,M.D.; Kenneth Cohen; Barry Ben-Zion,Ph.D.Defense Experts: Leroy Balzer, Ph.DReported By HM: Jan., Vol. 2, p. 9

Court: Calif. Super. Ct., Los Angeles Cty.Case Name: Lane v. Flexitallic, Inc.Docket No.: BC22481Alleged Injury: MesotheliomaVerdict: Plaintiff, $4 millionPlaintiffs’ Experts: James R. Millette, Ph.D.;


VERDICT REPORT


Robert W. Johnson; Arnold R. Brody, M.D.,Ph.D.Defense Experts: John Spencer; DavidEgilman, M.D.; William G. Hughson, M.D.Reported By HM: Nov., Vol. 2, p. 9

Delaware

Court: Del. Super. Ct., NewCastle Cty.Case Name: Bargelski v. GarlockInc., et al.; Kolb v. Garlock Inc., et al.;Jernigan v. Garlock Inc., et al.,Docket No.: C.A. No. 00C-06-260; C.A..No. 00C-06-210; C.A. No. 00C-04-106Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Barry Castleman, Ph.D.;Christine Oliver, M.D., Arnold Brody,Ph.D.; Richard Lemen, Ph.D.; SamuelHammar, M.D.; William Longo, Ph.D.Defense Experts: John Spencer, certifiedindustrial hygienist; Stanley Field, M.D.;James Heffron; Bruce Ketcham.Reported By HM: Dec., Vol. 2, p. 10

Florida

Court:Fla.Cir. Ct., Palm Beach Cty.Case Name: McConnell v.American Optical Corp., et al.Docket No.: 502003CA008264Alleged Injury: AsbestosisVerdict: DefensePlaintiffs’ Experts: Robert Mezey, M.D.Defense Experts: Lee Sider, M.D., WilliamDyson, Ph.D.Reported By HM: July, Vol. 4, p. 9

Court: Fla.Cir. Ct., Miami-Dade Cty.Case Name: Fernandez v. ACandS, Inc., et al.Docket No.: 02-21136Alleged Injury: AsbestosisVerdict: DefensePlaintiffs’ Experts: Robert Mezey, M.D.;Souglas Pohl, M.D.

Defense Experts: Allan Feingold, M.D.;James Crapo, M.D.; Thomas Howard.Reported By HM: Oct, Vol. 3, p. 7

Court: Fla. Cir. Ct., Palm Beach Cty.Case Name: Kavanaugh v. Dow ChemicalCorp.Docket No.: 03-1065ADAlleged Injury: MesotheliomaVerdict: Plaintiff, $1.2 millionPlaintiffs’ Experts: Douglas Pohl, M.D.Defense Experts: Allen Gibbs, M.D.;William Dyson, Ph.D.Reported By HM: May, Vol. 3, p. 8

Court: Fla. Cir. Ct., Broward Cty.Case Name: Lagueuz v. Union Carbide Corp.Docket No.: 01-10781Alleged Injury: AsbestosisVerdict: Plaintiff, $1.8 millionPlaintiffs’ Experts: Alvin Shoenfeld, M.D.Defense Experts: Allen Feingold, M.D.; LeeSider, M.D.; Thomas Howard, Ph.D.Reported By HM: Dec., Vol. 3, p. 8

Georgia

Court: Ga. Super. Ct.,Fulton Cty.Case Name: Flowers v.ACandS, Inc.Docket No.:00VS014834Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Steven Dikman, M.D.;Arnold Brody, Ph.D.; Richard Lemen, M.D.,Ph.D.; William E. Longo, Ph.D.Defense Experts: Victor Roggli, M.D.; BillyRay Vaughn; Jack WalshReported By HM: Dec., Vol. 3, p. 10

Illinois

Court: Ill. Cir. Ct., CrawfordCty.Case Name: Yeager v. MarathonOil Co., et al.Docket No.: 2002-L-17

Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Samuel Hammer, M.D.,Arnold Brody, Ph.D., Michael Ellenbecker,CIHDefense Experts: noneReported By HM: Sept., Vol. 4, p. 8

Court: Ill Cir., Cook Cty.Case Name: DeJohn v. CommonwealthEdison, et al.Docket No.: 98L13222Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Victor Roggli, M.D.,William Ewing, C.I.H., Henry Anderson,M.D.Defense Experts: Thomas Howard, M.D.,Howard Ayer, C.I.H.Reported by HM: July., Vol. 4, p. 8

Court: Ill. Cir., Vermillion Cty.Case Name: Nolan v. Weil-McLainDocket No.: 01-L117Alleged Injury: MesotheliomaVerdict: Plaintiff, $2.3 millionPlaintiffs’ Experts: Dr. Eugene mark, Dr.Richard Lemen, William EwingDefense Experts: Dr. Frederick Boelter, Dr.Robert SawyerReported by HM: Feb., Vol. 4, p. 8

Court: Ill. Cir. Ct., Madison Cty.Case Name: Whittington v. John Crane Corp.,et al.Docket No.: n/aAlleged Injury: MesotheliomaVerdict: Plaintiff, $250 million; Defense,John CranePlaintiffs’ Experts: David Egilman, M.D.,Arthur Frank, M.D., Myles Yanta, M.D.Defense Experts: Allan Feingold, M.D.,William Dyson, Ph.D.Reported By HM: April, Vol. 3, p. 8

Indiana

Court: Ind. Super. Ct.,Marion Cty.Case Name: Bowers v.AC&S, Inc., et al.


VERDICT REPORT


Docket No.: 49D02-9601-MI-0001-711Alleged Injury: MesotheliomaVerdict: Plaintiff, $15 millionPlaintiffs’ Experts: Michael Ellenbecker,Ph.D., CIH; Arnold Brody, Ph.D.Defense Experts: Victor Roggli, M.D.Reported By HM: June, Vol. 3, p. 7

Louisiana

Court: La. Dist. Ct.,Orleans ParishCase Name: Brunell v.A.L. Burbank Co.Docket No.: 97-4198Alleged Injury: MesotheliomaVerdict: Plaintiff, $1.3 millionPlaintiffs’ Experts: Charles Ay; RichardHatfield; Richard Lemen, Ph.D.; VictorRoggli, M.D.Defense Experts: Charles Cushing, Ph.D.Reported By HM: June, Vol. 1, p. 9

Maryland

Court: Md. Cir.Ct., Baltimore Cty.Case Name: Saville v. Scapa, Inc.Docket No.: n/aAlleged Injury: MesotheliomaVerdict: Plaintiff; $3.5 MillionPlaintiffs Experts: Gerald Abraham, M.D.;Richard Lemen, M.D., Ph.D.; JamesMillette, Ph.D.; Steven Zimmet, M.D.Defense Experts: Victor Roggli, M.D.;David MizelReported By HM: Oct Vol. 3, p. 6

Court: D. Md.Case Name: Sachs, et al. v. Lorillard TobaccoCo., et al.Docket No.: 01-0152Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs Experts: Arnold Brody, Ph.D.;John Dement, Ph.D.; Samuel Hammar,M.D.; Jerrold Abraham, M.D.

Defense Experts: Melvin First, ScD, CIH;Allen Gibbs, M.D.; Alexander SpearsReported By HM: May Vol. 3, p. 8

Court: Md.Cir. Ct., Baltimore Cty.Case Name: Hunter v. ACandS, Inc., et al.Docket No.: n/aAlleged Injury: MesotheliomaVerdict: Plaintiffs, $6 millionPlaintiffs Experts: Samuel Hammar, M.D.,Andrew Ghio, M.D., Arnold Brody, M.D.Defense Experts: NoneReported By HM: April, Vol. 3, p. 8

Court: Md.Cir. Ct., Baltimore Cty.Case Name: Wilson/Perky v. AC&SDocket No.: 24X00000182/91364546Alleged Injury: MesotheliomaVerdict: Plaintiffs, $5.5 millionPlaintiffs Experts: Arnold Brody, M.D.,Ph.D.; Richard Lemen, M.D., Ph.D.;Richard Hatfield; James Millette, Ph.D.;Rudiger Breitnecker, M.D.Defense Experts: Thomas Howard, M.D.;Henry Buccigross; Frederick Toca, Ph.D.;Michael Mattison, Ph.D.; Victor Roggli,M.D.; Stanley Fiel, M.D.; John Spencer,CIHReported By HM: Aug., Vol. 2, p. 10

Minnesota

Court: Minn. Dist. Ct.,Hennepin Cty.Case Name: Gartner v.API, Inc., et al.Docket No.: PI 02-19673Alleged Injury: MesotheliomaVerdict: Plaintiff, $1.69 MillionPlaintiffs’ Experts: Samuel Hammar, M.D.;Barry Castleman,Ph.D.; Richard Hatfield;Arnold Brody, Ph.D.Defense Experts: Jack Peterson, M.D.; IvanRussel; Alexander B. Levitov, M.D.Reported By HM: July, Vol. 3, p. 10

Court: Minn. Dist. Ct., Ramsey Cty.Case Name: Gutzwiller v. Briggs & StrattonCorp., et al.Docket No.: CI-99-1802Alleged Injury: Mesothelioma

Verdict: Plaintiff, $350,000Plaintiffs’ Experts: Steven Dikman, M.D.;Edwin Holstein, M.D.Defense Experts: John E. Reiter, CIHReported By HM: July, Vol. 3, p. 10Court: Minn. Dist. Ct., Ramsey Cty.Case Name: Akin v. A.P.I. Inc.Docket No.: 19-C7-00-9467Alleged Injury: MesotheliomaVerdict: Plaintiff, $8 millionPlaintiffs’ Experts: Arnold Brody, Ph.D.;Edwin Holstein, M.D.; John Dement,Ph.D.; Samuel Hammar, M.D.Defense Experts: n/aReported By HM: June, Vol. 1, p. 8

Mississippi

Court: Miss. Cir. Ct., HolmesCty.Case Name: Johnson v.ACandS, et al.Docket No.: CV2000-181Alleged Injury: Pleural disease/asbestosisVerdict: Plaintiff, $150 millionPlaintiffs’ Experts: David Egilman, M.D.;Glenda Glover, Ph.D.; Henry Glendmeyer,Ph.D.; Obie McNair, M.D.Defense Experts: Robert N. Jones, M.D.;Calvin Ramsey, M.D.; Alan Johnston;Charles Blake; Ewing Cook, M.D.; RobertFraser, M.D.Reported By HM: Nov., Vol. 2, p. 8

Court: Miss. Cir. Ct., Jackson Cty.Case Name: Scordino v. Wheeler Protective, etal.Docket No.: 89-5139Alleged Injury: AsbestosisVerdict: Hung JuryPlaintiffs’ Experts: n/aDefense Experts: n/aReported By HM: Nov., Vol. 2, p. 8

Missouri

Court: Mo. Cir. Ct.,St. Louis Cty.Case Name: Ward v.Allied Signal, et al.


VERDICT REPORT


Docket No.: 022-01404Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Arthur Frank, M.D.;Thomas Hyers, M.D.; Carroll Scroggins,M.D.Defense Experts: John Ritter, M.D.Reported By HM: July, Vol. 3, p. 8

Court: Mo. Cir. Ct., St. Louis Cty.Case Name: Foster v. A.P. Green Industries,Inc., et al.Docket No.: 012-9428Alleged Injury: MesotheliomaVerdict: Plaintiff, $5.1 millionPlaintiffs’ Experts: Edwin Holstein, M.D.,Keith Naunheim, M.D., Patrick L. Gomez,M.D.Defense Experts: James Rasmusson, Ph.D., Reported By HM: Nov., Vol. 3, p. 9

New York

Court: N.Y. Sup. Ct.,Niagara Cty.Case Name: Reynolds,et al. v. AmchemProducts Inc., et al.Docket No.: 117820 Alleged Injury: MesotheliomaVerdict: Plaintiff; $3.75 MillionPlaintiffs’ Experts: Jerrold L. Abraham,M.D.; Mark J. Utell, M.D.; Arthur Frank,M.D., Ph.D.; and Richard L. Hatfield Defense Experts: John Spencer, CIH, andStanley Fiel, M.D.Reported By HM: Nov., Vol. 5, p. 13

Court: N.Y. Sup. Ct., New York Cty.Case Name: Gadaleta, et al. v. ACandS, et alDocket No.: 110739/02 Alleged Injury: Lung CancerVerdict: DefensePlaintiffs’ Experts: Barry Castleman, Ph.D.;Louis Kyriakoudes; and Stephen Markowitz,M.D.Defense Experts: Melvin First, Sc.D., CIH;Carl Fuhrman, M.D.; and Dr. AlexanderSpears.Reported By HM: Nov., Vol. 5, p. 13

Court: N.Y. Sup. Ct., New York Cty.Case Name: Mayer v. A.O. Smith, et al.;Marshall v. ACandS, Inc., et al.Docket No.: 03/106231; 02/119369Alleged Injury: MesotheliomaVerdict: Plaintiff, $22 millionPlaintiffs’ Experts: Jacqueline Moline, M.D;Steven Markowitz, M.D.; Barry Castleman,M.D.Defense Experts: Michael Matteson, Ph.D.;Victor Roggli, M.D., Frederick Toca, Ph.D.;Paul StewardReported By HM: Aug., Vol. 4, p. 7

Court: N.Y. Sup. Ct., New York Cty.Case Name: O’Reilly v. Robert A. Keasbey Co.Docket No.: 103255/02Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Elaine Panitz, M.D.;David Egilman, M.D.; Jacqueline Moline,M.D.Defense Experts: Morton Corn, Ph.D., CSPReported By HM: Aug., Vol. 3, p. 8

Court: N.Y. Sup. Ct., New York Cty.Case Name: Tucker v. AC&S, Inc., et al.Docket No.: 105031/02, 120146/01 and103082/02 Alleged Injury: Mesothelioma, Lung CancerVerdict: Plaintiffs $6 million/DefensePlaintiffs’ Experts: Jacqueline Moline, M.D.;Steven Markowitz, M.D.; Barry Castleman,M.D.; William Longo, Ph.D.; Lori Todd,Ph.D.Defense Experts: Leroy Balzar, Ph.D.;Thomas Eagar, M.D.; Allan Feingold, M.D.;Michael Matteson, Ph.D.; Henry Buccigross;Victor Roggli, M.D.Reported By HM: July, Vol. 3, p. 9

Court: N.Y. Sup. Ct., New York Cty.Case Name: Croteau v. ACandS, Inc., et al.Docket No.: 118793/2001Alleged Injury: MesotheliomaVerdict: Plaintiff, $47 millionPlaintiffs’ Experts: David Egilman, M.D.,Jacqueline Moline, M.D.Defense Experts: NoneReported By HM: April, Vol. 3, p. 8

Court: N.Y. Sup. Ct., Niagara Cty.Case Name: Adamec v. Buffalo Insulation, etal.

Docket No.: 105901Alleged Injury: Lung CancerVerdict: Plaintiff, $2 millionPlaintiffs’ Experts: Gerald Abraham, M.D.;Mark Utell, M.D.; Mark Zaporoski; DavidMichaels, Ph.D.; Richard HatfieldDefense Experts: Allan Feingold, M.D.Reported By HM: July, Vol. 2, p. 12

Court: N.Y. Sup. Ct., New York Cty.Case Name: Matteson v. ACandS Inc., et al.Docket No.: 1052402001Alleged Injury: Mesothelioma, Lung CancerVerdict: 2 Plaintiff, $19.5 million; onedefense (lung cancer)Plaintiffs’ Experts: Jacqueline Moline, M.D.;Richard Horan; Albert Miller, M.D.; StevenDickman, M.D., James Strauchen, M.D.;Barry Castleman, Ph.D.Defense Experts: John Craighead, Ph.D.;William Hughson, M.D.; Vitorio Argento,M.D.; Victor Roggli, M.D.; MichaelMatteson, Ph.D.; Henry Buccigross.Reported By HM: July, Vol. 2, p. 10

Ohio

Court: Ohio Comm. Pls.,Cuyahoga Cty.Case Name: Blandford v.Garlock, Inc.Docket No.: 437948Alleged Injury: MesotheliomaVerdict: Plaintiff, $6.4 millionPlaintiffs’ Experts: Richard Lemen, Ph.D.;Eugene Mark, M.D.; William Longo, Ph.D.Defense Experts: Larry Liukonen, CIH,Robert Sawyer, M.D.Reported By HM: Dec.., Vol. 3, p. 6

Court: Ohio Comm. Pls., Cuyahoga Cty.Case Name: Jarvis, et al. v. Consolidated RailCorp.Docket No.: 417083, 417084, 413085Alleged Injury: Asbestosis/SilicosisVerdict: DefensePlaintiffs’ Experts: Ray Harron, M.D.; L.C.Rao, M.D.; Paul Venizelos, M.D.; WilliamLongo, Ph.D.Defense Experts: Peter Barrett, M.D.;Gregory Fino, M.D.; David Rosenberg,M.D.


VERDICT REPORT


Reported By HM: July., Vol. 3, p. 8

Oregon

Court: Ore. Cir.Ct., MultnomahCty.Case Name: Nagl v. Aeronica,Inc., et al.Docket No.: 02-04-04227Alleged Injury: MesotheliomaVerdict: Plaintiff, $700,000Plaintiffs’ Experts: Richard Cohen, Ph.D.,Kenneth Cohen, C.I.H., Carl AndrewBrodkin, M.D., M.P.H., Arnold Brody,Ph.D., Bob Male, Ph.D.Defense Experts: Stephen Davis, Ph.D.,Drew Van Orden, Gustavo Delgado, Ph.D.Reported By HM: July, Vol. 4, p. 8

Court: Ore. Cir. Ct., Multnomah Cty.Case Name: Emrick v. AC&S, Inc., et al.Docket No.: 0002-02019Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Arnold Brody, Ph.D.;Kenneth Cohen; Richard Hatfield; WilliamLongo, Ph.D.; James Milette, Ph.D.; SamuelHammar, M.D.; Allan Smith.Defense Experts: James Crapo, M.D.;Victorrio Argento, Ph.D.; John Craighead,M.D.Reported By HM: Jan., Vol. 1, p. 11

Pennsylvania

Court: Pa. Comm.Pls., Philadelphia Cty.Case Name: Yencho v.Airco, et al.Docket No.: n/aAlleged Injury: Lung CancerVerdict: Plaintiff, $500,000Plaintiffs’ Experts: Paul Epstein, M.DDefense Experts: William G. Hughson,M.D.Reported by HM: May.,Vol. 4, p.9

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Amento v. Certainteed, et al.Docket No.: 030400681Alleged Injury: MesotheliomaVerdict: Plaintiff, $20.5 millionPlaintiffs’ Experts: Daniel Sterman, M.D.,Leslie Litsky, M.D., Anna Tobia, Ph.D.Defense Experts: n/aReported by HM: Feb.,Vol. 4, p.10

Court: Pa. Comm. Pls. Philadelphia Cty.Case name: Stackhouse v. AC&S, et al.; Joycev. John Crane Inc.Docket No: Oct. Term 2001 3808; Dec.Term 2001 0985Alleged Injury: Lung Cancer, AsbestosisVerdict: DefendantsPlaintiffs’ Experts: Dr. Stanley Altschuler,Dr. Irwin StoloffDefense Experts: Dr. Alan Pope, Dr.Michael Warhol.Reported by HM; Feb., Vol. 4 No. 4, p. 10

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Jackson v. Bell Asbestos Mines, etal.Docket No.: 0007-04475Alleged Injury: Esphageal CancerVerdict: Plaintiff, $1.7 MillionPlaintiffs’ Experts: Erwin Stoloff, M.D.Defense Experts: Paul Epstein, M.D.Reported By HM: Dec., Vol. 3, p. 6

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Rabold v. ACandS, et al.Docket No.: Dec. 2001-3141Alleged Injury: MesotheliomaVerdict: Plaintiff, $3.5 MillionPlaintiffs’ Experts: Daniel DuPont, M.D.Defense Experts: Bruce Case, M.D.; AllenGibbs, M.D.; Dittorio Argento, Ph.D.Reported By HM: Nov.., Vol. 3, p. 8

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Guila Andrews, executrix of theestate of Luke Andrews v. ACandS, et al. andPaula Box, executrix of the estate of Larry Boxv. ACandS, et al.Docket No.: July 2001-482 and August2001-3477Alleged Injury: MesotheliomaVerdict: Phase I: Plaintiff, $6.6 Million and& $5.5 Million

Plaintiffs’ Experts: n/aDefense Experts: n/aReported By HM: Nov., Vol. 3, p. 8

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Eck v. Congoleum Corp.Docket No.: 9912-2841Alleged Injury: MesotheliomaVerdict: Plaintiff, $3.79 MillionPlaintiffs’ Experts: n/aDefense Experts: n/aReported By HM: Nov., Vol. 3, p. 8

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Marsilio v. Congoleum Corp.Docket No.: 0012-3392Alleged Injury: MesotheliomaVerdict: Plaintiff, $4.8 millionPlaintiffs’ Experts: n/aDefense Experts: n/aReported By HM: Nov., Vol. 3, p. 8

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Lonasco v. A-Best Products Co.Docket No.: 1424 Sept. Term, 1991Alleged Injury: AsbestosisVerdict: Phase I: $1,034,000; Phase II:DefensePlaintiffs’ Experts: Stanley Fiel, M.D.;Donna Ringo, CIHDefense Experts: Paul Epstein, M.D.Reported By HM: Oct.., Vol. 2, p. 11

Court: Pa. Comm. Pls., Philadelphia Cty.Case Name: Stutski v. Asbestos Corporation,Ltd.Docket No.: PCCP Feb. Term 2001-2700Alleged Injury: MesotheliomaVerdict: Phase I: $175,000; Phase II:DefensePlaintiffs’ Experts: Yasunosuke Suzuki,M.D.Defense Experts: Bruce Case, M.D.Reported By HM: Oct.., Vol. 2, p. 10

Texas

Court: Texas 23rd Dist.Ct., Brazoria Cty.).Case Name: Kelly-MoorePaint Co. v. Dow Chemical Co.,et al.29


VERDICT REPORT


Docket No.: No. 19785 Alleged Injury: FraudVerdict: DefensePlaintiffs’ Experts: David Egilman, M.D.; and Donald R. House, Ph.D. Defense Experts: James Crapo, M.D.; AllanFeingold, M.D.; Alan Gibbs, M.D. ofCardiff, Wales UK; Theodore R. Marmor;Dr. Fred Dunbar; and Thomas Howard,M.D. Reported By HM: Nov., Vol. 5, p. 8

Court: Texas Dist. Ct., Cass Cty.Case Name: Schiller v. Garlock IncDocket No.: No. 2-C-220 Alleged Injury: MesotheliomaVerdict: Plaintiff, $1.29 MillionPlaintiffs’ Experts: Arnold Brody, Ph.D.,Richard Lemen, M.D., Ph.D., WilliamLongo, Ph.D., Samuel Hammar, M.D.Defense Experts: Frederick Boelter, CIH,Ph.D., Allan Feingold, M.D. LarryLiukonen, CIHReported By HM: Oct., Vol. 4, p. 6

Court: Texas Ct. at Law #5, Dallas Cty.Case Name: Hicks, et al. v. Chrysler, et al.Docket No.: 02-02236-EAlleged Injury: MesotheliomaVerdict: Plaintiff, $1.4 MillionPlaintiffs’ Experts: John C. Maddox, M.D.,Frank Parker, CIH, Defense Experts: Dennis Paustenbach,Ph.D., M. Jane Teta, Ph.D., Reported By HM: Sept., Vol. 4, p. 8

Court: Texas Ct. at Law #2, Dallas Cty.Case Name: Lacey v. Bondex InternationalInc., et al.Docket No.: 02-12354Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Arnold Brody, Ph.D.,John C. Maddox, M.D.Defense Experts: Alan Feingold, M.D.Reported By HM: July Vol. 4, p.9

Court: Texas Dist. Ct., Brazoria Cty.Case Name: Miller v. Ford Motor Co.Docket No.: 15077Alleged Injury: MesotheliomaVerdict: Plaintiff, $10 millionPlaintiffs’ Experts: Arnold Brody, Ph.D.;Jacques Legier, M.D.; Jerry Lauderdale, CIH

Defense Experts: Del Malzahn, M.S.;Charles Yarborough, M.D., M.P.H.Reported By HM: June Vol. 4, p. 7

Court: Texas Dist. Ct., Dallas Cty.Case Name: Tave v. Air Liquide AmericaCorp., et al.Docket No.: CC-00-10906 Alleged Injury: Silicosis/AsbestosisVerdict: DefensePlaintiffs’ Experts: Vernon Rose, Ph.D.;Robert Springer, M.D.Defense Experts: Gail Stockman, M.D.;Robert M. Ross, M.D.; Alan Johnston, CIH;Dennis J. Seal, Ph.D., P.E.Reported By HM: June Vol. 4, p. 7

Court: Texas Dist. Ct., Galveston Cty.Case Name: Altimore v. ExxonMobile, et al.Docket No.: 03-CV-0588Alleged Injury: MesotheliomaVerdict: Plaintiff, $1.98 MillionPlaintiffs’ Experts: Samuel Hammar, M.D.;Richard Lemen, Ph.D.; Jay Segarra, M.D.Defense Experts: Gerhard Raabe, D.Ph.;Neil Weaver, M.D.; James Hammond, Ph.D;Bruce Larson.Reported By HM: May Vol. 4, p. 8

Court: Texas Dist. Ct., El Paso Cty.Case Name: Gilcrease v. Garlock, Inc., et al.Docket No.: 2001-3623Alleged Injury: MesotheliomaVerdict: Plaintiff, $3.5Plaintiffs’ Experts: Arnold Brody, Ph.D.;John Maddox, M.D.; Susan Raterman, CIH.Defense Experts: Fred Boelter, CIH; LarryLiukonen, CIH; Alan Feingold, M.D.Reported By HM: May Vol. 4, p. 8

Court: Texas Dist. Ct., Tarrant Cty.Case Name: Verret v. American Biltrite, et al.Docket No.: 17-2000000-03, 48-200001-03Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: William Longo, Ph.D,Edwin Holstein, M.D.Defense Experts: James Crapo, M.D.,William Dyson, Ph.D.Reported By HM: Apr. Vol. 4, p. 8

Court: Texas Dist. Ct., Nolan Cty.Case Name: Dori v. Bondex International Inc.

Docket No.: 18422Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Arnold Brody, Ph.D.,Barry Castleman, Ph.D., Douglas Pohl,Ph.D., M.D.Defense Experts: Allan Feingold, M.D.Reported By HM: Apr. Vol. 4, p. 9

Court: Texas Dist. Ct., Dallas Cty..Case Name: Prather v. Borg-Warner Corp.Docket No.: 99-05547-EAlleged Injury: Lung CancerVerdict: Plaintiff, $79,000Plaintiffs’ Experts: Rebecca Trailor, M.D.,Barry Castleman, Ph.D., Gerald Abraham,M.D.Defense Experts: John Craighead, m.D.,Gail Stockman, M.D., William Krebs, Ph.D.Reported By HM: Apr. Vol. 4, p. 9

Court: Texas Dist. Ct., Brazoria Cty. 23rdDist.Case Name: Stephens v. Ametek, Inc., et al.Docket No.: 22045-1-BH02Alleged Injury: MesotheliomaVerdict: Plaintiff, $6 millionPlaintiffs’ Experts: Jerry Lauderdale, CIH,Ph.D., Samuel Hammar, M.D., BarryCastleman, Ph.D., Alice Boylan, M.D.Defense Experts: noneReported By HM: Mar. Vol. 4, p. 8

Court: Texas Dist. Ct., El Paso Cty.Case Name: Ytuarte v. Quigley Co.Docket No.: 2003-0573Alleged Injury: MesotheliomaVerdict: Plaintiff, $5.2 millionPlaintiffs’ Experts: Richard Lemen, M.D.,Ph.D., Hector Battifora, M.D., EugeneMark, M.D.Defense Experts: noneReported By HM: Mar. Vol. 4, p. 8

Court: Texas Dist. Ct., Tarrant Cty.Case Name: Keefe v. American Standard, Inc.et al.Docket No.: 96-195140-02Alleged Injury: MesotheliomaVerdict: DefendantsPlaintiffs’ Experts: Arnold Brody, Ph.D.,Edwin Holstein, M.D. and Eugene Mark,M.D.


VERDICT REPORT

Defense Experts: noneReported by HM: Feb. Vol. 4 No. 4, p.9

Court: Texas Dist. Ct. Dallas Cty., 113thDist.Case Name: Davis v. Garlock SealingTechnologiesDocket No.: 2002-28497Alleged Injury: MesotheliomaVerdict: DefendantPlaintiffs’ Experts: Gary Friedman, M.D.,George Delclos, M.D., Arnold Brody, Ph.D.,William Ewing, CIH.Defense Experts: Allan Feingold, M.D., Dr.Frederick Boelter, Carl Mangold, LarryLiukonen.Reported by HM: Feb., Vol. 4 No. 4, p.9

Court: Texas Dist. Ct., Brazoria Cty., 239thDist.Case Name: Lonas v. Fluor Corp.Docket No.: 17656-JG01Alleged Injury: MesotheliomaVerdict: Plaintiff, $130,000Plaintiffs’ Experts: William Longo, Ph.D.;Richard Lemen, M.D., Ph.D.; Eugene Mark,M.D.Defense Experts: NoneReported By HM: Oct, Vol. 3, p. 6

Court: Texas Dist. Ct., Tarrant Cty.Case Name: Clancy v. Kelly Moore Paint Co.Docket No.: 67-187248-01Alleged Injury: Lung/Colon CancerVerdict: DefensePlaintiffs’ Experts: Mark Colella, M.D.Defense Experts: John Craighead, M.D.;Allan Feingold, M.D.Reported By HM: July, Vol. 3, p. 8

Court: Texas Dist. Ct., Harris Cty.Case Name: Burnett v. AlliedSignal, et al.Docket No.: 2001-36408Alleged Injury: MesotheliomaVerdict: Plaintiff, $9.63 MillionPlaintiffs’ Experts: Gary K. Friedman,M.D.; David S. Egilman, M.D.; SamuelHammar, M.D.Defense Experts: J. LeRoy Balzer, M.D.;Michael J. Warhol; Luan Tuong, M.D.Reported By HM: June, Vol. 3, p. 6

Court: Texas Dist. Ct., Montgomery Cty. Case Name: Roy v. Able Supply Company

Docket No.: 00-01-06613Alleged Injury: Lung CancerVerdict: DefensePlaintiffs’ Experts: Mark Collela, M.D.,Arnold Brody, Ph.D.; Jerry Lauderdale, CIHDefense Experts: Peter Barrett, M.D.; JamesCrapo, M.D.; J. Leroy Balzer, Ph.D.Reported By HM: May, Vol. 3, p. 8

Court: Texas Cty. Ct., No. 2, Dallas Cty. Case Name: Freeman v. Quigley Corp, et al.Docket No.: CC-01-00742-BAlleged Injury: MesotheliomaVerdict: Plaintiff, $2.7 MillionPlaintiffs’ Experts: Edwin Holstein, M.D.Defense Experts: James O. Rasmusson,Ph.D., Louis KilianReported By HM: Nov., Vol. 3, p. 8

Virginia

Court: Va. Cir. Ct.,Roanoke Cty.Case Name:McKee v.Norfolk Southern Railway Co.Docket No.: 770-CL-96001205Alleged Injury: Asbestosis, Mixed DustPneumoconiosis.Verdict: DefensePlaintiffs’ Experts: Dominic Gaziano, M.D.,R. Leonard Vance, Ph.D.Defense Experts: James R. Castle, M.D.;David Rosenberger, M.D.Reported by HM: Mar. Vol. 4, p. 8

Court: Va. Cir. Ct., Newport News Cty.Case Name: King v. Allied SignalDocket No.: 24242C-03Alleged Injury: MesotheliomaVerdict: DefensePlaintiffs’ Experts: Douglas Pohl, M.D.;John Maddox, M.D.; Arnold Brody, Ph.D.;David Egilman, M.D.; Richard Hatfield.Defense Experts: James Crapo, M.D.; JohnCraighead, M.D.; Victor Roggli, M.D.;Graham Gibbs.Reported By HM: Dec., Vol. 3, p. 9

Court: Va. Cir. Ct., Roanoke Cty.Case Name: Alderman v. Norfolk SouthernCorp.

Docket No.: 770CL01-000466Alleged Injury: AsbestosisVerdict: DefensePlaintiffs’ Experts: Richard C. Bernstein,M.D.; Frederick M. Dula, Ph.D.; Robert L.Vance, CIHDefense Experts: James Castle, M.D.; DavidRosenberger, M.D.; Francis Weir, Ph.D.Reported By HM: Dec., Vol. 3, p. 9

Washington

Court: Wash. Super.Ct., King Cty.Case Name: Sundberg v.AC&SDocket No.: 99-21756-0SEAAlleged Injury: Non-Hodgkin’s Lymphoma,Asbestosis, Colon CancerVerdict: Plaintiff, $1.5 millionPlaintiffs’ Experts: Elliot Kagan, M.D.; EricStern, M.D.; Kenneth Cohen; Carolyn Ray,M.D.; Richard Cohen, M.D.; and Barry,Ben-ZionDefense Experts: Elliott Hinkes, M.D.;Dorsett Smith, M.D.; James Rasmussen,Ph.D.; David Godwin, M.D.Reported By HM: May, Vol. 1, p. 10

West Virginia

Court: W.Va. Cir. Ct.,Kanawha Cty.Case Name: In Re: AsbestosPersonal Injury MassLitigation PanelDocket No: 01-C-9002Alleged Injury: MultipleVerdict: Mixed; Plaintiffs $7 million, TwoDefensePlaintiffs’ Experts: Herbert Abrams, M.D.;William Ewing, CIHDefense Experts: Morton Corn, Ph.D.,CSP; Allan Feingold, M.D.Reported By HM: April, Vol. 1, p. 11


VERDICT REPORT

EXPERT WITNESS BANK

Vol. 2, p. 10; March, Vol. 3, p. 11; June,Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9; Dec.,Vol. 3, p. 6.; Apr. Vol. 4 p. 8; July, Vol. 4,p. 8; Oct., Vol. 4, p. 6

Colella, Marc, M.D.; radiologist, NatronaHeights, Pa.; May, Vol. 2, p. 10; May, Vol.3, p. 8; July, Vol. 3, p. 8

Corson, Joseph, M.D.; pathologist,Boston; Dec., Vol. 2, p. 11Dahlgen, James, M.D.; June, Vol. 4, p. 7Darcay, Dennis, M.D.; occupational med-icine, Durham, N.C.; Nov., Vol. 2, p. 9

Davis, Earl; retired executive vice presi-dent from Tyler Pipe, Tyler, Texas;Premier, p. 11

Delclos, George M.D., pulmonolgist,Houston; Feb. Vol. 4, p. 10

DeLiere, Emil, M.D., pulmonologist,Pittsburgh; Sept., p. 10

Dement, John, Ph.D.; environmental sci-ence, Duke University; April, p. 8; June,p. 9; Aug., p. 11; May, Vol. 3, p. 8

Deutsch, David, M.D.; chest surgeon,Long Beach, Calif.; Aug. p. 12

Dikman, Steven, M.D.; pathologist, Mt.Sinai Hospital, New York; Premier, p. 11;July, Vol. 2, p. 10; Dec., Vol. 3, p. 10;July, Vol. 3, p.10

Dodson, Ronald; cellular biologist, Tyler,Texas; May, p. 9

Dolan, Brian, M.D., internist; Berkeley,Calif.; June, p. 9

Dula, Fred, M.D.; certified B-reader andboard certified radiologist, Georgia;Premier, p. 11; Dec., Vol. 3, p. 10

DuPont, Daniel, M.D.; pulmonologist,Upland, Pa.; May, p. 10; Nov., p. 8

Eggleston, Alan; environmental consult-ant; Premier, p. 11

June, Vol. 3, p. 7; Aug., Vol.. 3, p. 9; Apr.Vol. 4, p. 9

Brodkin, Carl Andrew, M.D., M.P.H.(ret.); occupational medicine, Seattle; July,Vol. 4, p. 8

Brody, Arnold, Ph.D.; cellular biologist,pathologist, Tulane University, NewOrleans; Premier, page 10, 11; Dec., p. 9;Jan., p. 11; March, p. 11, 12; April, p. 8,9; May, p. 8, 9.; June, p. 9; Aug., p. 11,12, 13; Sept., p. 11, 12; Oct., p. 8; Nov.,Vol. 2, p. 9; Dec., Vol. 2, p. 11; Jan., Vol.2, p. 8; April Vol. 2, p. 10; May, Vol. 2, p.10; July, Vol. 2, p. 12; Aug., Vol. 2, p. 10,11; Dec., Vol. 3, p. 9, 10; April Vol. 3, p.8; May, Vol. 3, p. 8; June, Vol. 3, p.6;July, Vol. 3, p. 10; Aug., Vol. 3, p. 9, Feb.Vol. 4, p.9, p. 10; Apr., Vol. 4 p. 9; May,Vol. 4, p. 8; June, Vol. 4, p. 7, 8; July,Vol. 4, p. 8, 9; Sept., Vol. 4, No. 11, p. 8;Oct., Vol. 4, p. 6; Oct., Vol. 4, p. 6; Nov.,Vol. 5, p. 8; Dec., Vol. 5, p. 8

Bukowsky, Donna, M.D.; pulmonologist,Austin, Texas; July, Vol. 2, p. 22

Cameron, Robert, M.D.; oncologist, LosAngeles; June, Vol. 4, p. 8

Castleman, Barry, Ph.D.; historical stateof the art, Baltimore; Premier, p. 10;April, p. 8; May, pp. 8, 9; June, p. 9;Aug., p. 13; Nov., Vol. 2, p. 10; Dec., Vol.2, pp. 11; Jan. Vol. 2, p. 8; July, Vol. 2, p.10, 11, 22; Aug., Vol. 2, p. 10; Dec., Vol.3, p. 8; March, Vol. 3, p. 11; July, Vol. 3,p. 9, 10; March, Vol. 4, p. 9; Apr. Vol 4,p.9, p. 10; Nov. Vol. 5, p. 9

Cohen, Kenneth; industrial hygienist, ElCajon, Calif.; Jan., p. 11; Feb., p. 10;April, p. 9; May, p. 10; Aug., p. 12; Oct.,p. 8; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8;April, Vol. 2, p. 10; Aug., Vol. 2, p. 10;Dec., Vol. 3, p. 8; Dec., Vol. 3, p. 9;March, Vol. 3, p. 11; Apr. Vol. 4 p. 9;July, Vol. 4, p. 8

Cohen, Richard, M.D.; epidemiologist,Palo Alto, Calif.; Feb., p. 10; May, p. 10;Aug., p. 12; Nov., Vol. 2, p. 10; April,

Plaintiffs’ Experts

Abraham, Gerald, M.D., environmentalpathologist, Syracuse, N.Y.; July, Vol. 2, p.12; May, Vol. 3, p. 8; Oct., Vol. 3, p. 6;Apr. Vol. 4, p.9; Nov., Vol. 5, p. 13

Adams, Herbert, M.D., occupationalmedicine; April, Vol. 2, p. 11

Altschuler, Stanley M.D., pulmonologist.Feb. Vol. 4, p. 10

Anderson, Henry, M.D., treating physi-cian, Milwaukee; Sept., p. 12; July, Vol. 4,p. 8

Ay, Charles; state of the art, GardenGrove, Calif.; April, p. 10; June, pp. 9,10; Aug., p. 12; April, Vol. 2, p. 10; Dec.,Vol. 3, p. 9; March, Vol. 3, p. 11; Aug.,Vol. 3, p. 9; Oct., Vol. 3, p. 6; Apr, Vol. 4p. 8

Battifora, Hector, M.D., pathologist, LosAngeles; Sept., p. 10, 11; March Vol. 4, p.9

Ben-Zion, Barry, Ph.D.; economist, SantaRosa, Calif.; April, p. 9; May, p. 10; June,p. 9; Aug., p. 12; Nov., Vol. 2, p. 10; Jan.,Vol. 2., p. 9; Feb., Vol. 2, p. 8; April, Vol.2, p. 12; Aug., Vol. 2, p. 10; Dec., Vol. 3,p. 8, 9; Aug., Vol. 3, p. 8, 9; Dec., Vol. 3,p. 6. Apr, Vol. 4, p. 9; Oct., Vol. 4, p. 6

Bernstein, Richard, M.D., pulmonologist,Charlottesville, Va.; Nov., Vol. 3, p. 9;Dec., Vol. 3, p. 10

Bonderevsky, Ernesto, M.D.; pulmonolo-gist, San Antonio, Texas; March, p. 11

Boylan, Alicc, M.D.; treatingphysician/mesothelioma researcher,Charleston, S.C. March Vol. 4, p. 9

Breitenecker, Rudiger, M.D.; pathologist,Baltimore; April, p. 8; Aug., Vol. 2, p. 10

Breyer, Donald, M.D.; radiologist,Highland Hospital, Oakland, Calif.;Premier, p. 10; Feb., p. 10; June, p. 9;


Egilman, David, M.D.; epidemiologist,Brown University; Providence, R.I;Premier, p. 11; March, p. 12; Sept., p. 10;Nov., Vol. 2, p. 9; March, Vol. 2, p. 10;April, Vol. 3, p. 8; June, Vol. 3, p. 6;Aug., Vol. 3, p. 8, Nov., Vol. 5, p. 8

Ellenbecker, Michael, Ph.D., CIH; indus-trial hygiene, Lowell, Mass.; June, Vol. 3,p. 6; July, Vol. 3, p.8; Sept., Vol. 4, No.11, p. 8

Epstein, Paul, M.D.; pulmonologist,Philadelphia; Aug., p. 11; Oct., Vol. 2, p.11

Evans, Donnie, M.D.; pulmonologist,Houston; March, p. 11

Ewing, William, CIH; industrial hygien-ist, Atlanta; Sept., p. 12; Feb., Vol. 2, p.8; April, Vol. 2, p. 11; Dec., Vol. 3, p. 6.Vol. 4, p. 9, p. 10; July, Vol. 4, p. 8; Dec.,Vol.5, p. 8

Fallat, Robert, M.D.; pulmonologist,California Pacific Medical Center, SanFrancisco; Premier, page 10; June, p. 9;Jan., Vol. 2., p. 9

David Fractor, Ph.D., economist; Nov.Vol. 5, p. 8

Frank, Arthur, M.d., occupational medi-cine, Drexel University, Philadelphia;April, Vol. 3, p. 8; July, Vol. 3, p. 8; Nov.,Vol. 5, p. 13

Friedman, Gary K., M.D., occupationalmedicine, pulmonologist, Houston;March, Vol. 2, p. 11; June, Vol. 3, p. 6,Feb. Vol 4 p. 10

Gabrielson, M.D.; pathologist, Baltimore;May, p. 9

Ganzhorn, Frank, M.D.; pulmonologist,Salinas, Calif.; Dec., Vol. 3, p. 6.

Gass, David G., M.D.; plaintiff treater,Tyler, Texas; Premier, p. 11

Gaziano, Dominic, M.D.; pulmonologist,Charleston, W.Va. Mar. Vol. 4 No. 5 p. 8

Ghio, Andrew, M.D.; pulmonologist,Chapel Hill, N.C.; April, Vol. 3, p. 8

Glendmeyer, Henry, Ph.D.; 3M expert,New Orleans; Nov., Vol. 2, p. 8

Glover, Glenda, Ph.D.; economist; Nov.,Vol. 2, p. 8

Godleski, John, M.D.; pathologist,Boston; Dec., Vol. 2, p. 11

Gomez, Patrick L., M.D.; oncologist,Springfield, Mo.; Nov., Vol. 3, p. 9

Hammar, Samuel, M.D.; pathologist,Bremeton, Wash.; Premier, page 10; Jan.,p. 11; April, pp. 8, 9, 10; May, pp. 8, 9;June, p. 9; Aug., p. 11; Oct., p. 8; Dec.,Vol. 2, p. 11; Jan., Vol. 2., p. 9; Feb., Vol.2, p. 8; April, Vol. 2, p. 10; July, Vol. 2, p.10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9;April, Vol. 3, p. 8; May, Vol. 3, p. 8; June,Vol. 3, p. 6; July, Vol. 3, p. 10; Aug., Vol.3, p. 8; Dec., Vol. 3, p. 6.; Mar.., Vol. 4,p. 9; May, Vol. 4, p. 8; Sept., Vol. 4, No.11, p. 8; Oct., Vol. 4, p. 6; Nov., Vol. 5,p. 8; Dec., Vol. 5, p. 8

Hannah, Hamner, M.D.; thoracic surgery,Kansas City, Mo.; April, p. 8

Harford, Paul, M.D.; plaintiff treater,Tyler, Texas; Premier, p. 11

Harper, Charles, Ph.D.; economist,Saratoga, Calif.; May, p. 9

Harron, Ray, M.D.; Bridgeport, W.Va.;July, Vol. 3, p. 8

Hatfield, Richard; industrial hygienist,dust sampling, materials analyst specialist,Norcross, Ga.; Premier, page 10; Dec., p.9; Jan., p. 11; March, p. 12; June, pp. 9,10; Aug., p. 11; Sept., p. 10; Nov., Vol. 2,p. 10; Feb., Vol. 2, p. 8; July, Vol. 2, p.12; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8;July, Vol. 3, p. 10; Nov., Vol. 5, p. 13

Holstein, Edwin, M.D.; occupationalmedicine, Boston; Dec., p. 9; May, p. 8;June, p. 9; Oct., p. 8; May, Vol. 2, p. 10;Nov. Vol. 3, p. 8, 9; July, Vol. 3, p. 10,Feb. Vol. 4, p.9, Apr. Vol. 4 p. 8

Horan, Richard; naval architect expert;Maine; July, Vol. 2, p. 10

Horn, Barry, M.D.; pulmonologist,Berkeley, Calif.; Feb., p. 10; April, p. 10;May, pp. 8, 9; Aug., p. 12; Nov., Vol. 2,p. 10; Feb., Vol. 2, p. 8; April, Vol. 2, p.10; Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8;March, Vol. 3, p. 11; Aug., Vol. 3, p. 8;Oct, Vol 3, p. 6; June, Vol. 4, p. 7; Oct.,Vol. 4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol.5, p. 8

Donald House, Ph.D.; accountant, Bryan,Texas; Nov., Vol. 5, p. 8

Hyers, Thomas, M.D.; pulmonologist,Kirkwood, Minn.; July, Vol. 3, p. 8

Johnson, Robert, Ph.D.; economist, Mt.View, Calif.; April, p. 8; May, p. 8; Nov.,Vol. 2, p. 9; Feb., Vol. 2, p. 8; July, Vol. 2,p. 10; Oct., Vol. 3, p. 6; Dec., Vol. 5, p. 8

Kagan, Elliot, M.D.; pathologist,Washington, D.C.; May, p. 10; April, Vol.2, p. 12

Karelenstein, Daniel, M.D.; thoracic sur-geon, Mt. Sinai Medical Center, NewYork; Feb., p. 10

Katz, Richard, M.D.; pulmonologist,Philadelphia; May, p. 10

Kelly, Chris; certified fraudexaminer/economist, Dallas; Premier, p.11

Kemplin, John, Ph.D., N/A, Apr. Vol. 4p. 8

King, William, Ph.D.; economist,Lansing, Mich.; Dec., Vol. 2, p. 11


EXPERT WITNESS BANK

Klepper, Mark, M.D.; pathologist, pulmo-nologist, Austin, Texas; Premier, p. 11;March, p. 11

Kuenemann, Charles; safety engineer,Tyler, Texas; Premier, p. 11

Kuhanjda, Francis, M.D.; pathologist,Johns Hopkins University, Baltimore;April, p. 8

Louis Kyriakoudes, tobacco historian;Nov. Vol. 5, p. 9

Laman, David, M.D.; pulmonologist,Pittsburgh; Sept., p. 10

Lauderdale, Jerry, CIH; industrial hygien-ist, Austin, Texas; May, Vol. 2, p. 10; Mar.Vol. 4 p. 9; June, Vol. 4, p. 7

Laufe, Marc, M.D.; pulmonologist,Pittsburgh; Sept., p. 10; May, Vol. 3, p. 8

Legier, Jacques, M.D., pathologist,Newport News, Va.; June, Vol. 4, p. 7

Lemen, Richard, M.D., Ph.D.; formerU.S. Assistant Surgeon General, epidemi-ologist and state of the art, Atlanta;Premier, p. 11; Dec., p. 9; March, p. 11;June, p. 10; Sept., p. 10, 11; Nov., Vol. 2,p. 9; Dec., Vol. 2, p. 11; Jan., Vol. 2, p. 9;Feb., Vol. 2, p. 8; March, Vol. 2, p. 11;July, Vol. 2, p. 11, 12; Aug., Vol. 2, p. 10;Nov., Vol. 3, p. 9, 10; Dec., Vol. 3, p.6.;Oct., Vol. 4, p. 6

Lemen, Richard M.D., Ph.D; epidemiolo-gist/state of the art, Atlanta; Oct., Vol. 3,p.6; Oct., Vol. 3, p. 6, Vol. 4, p. 9; MarchVol. 4, p. 9; May, Vol. 4, p. 8

Liebermann, Philip, M.D.; retired pathol-ogist, New York; April, p. 8

Litzky, Leslie, M.D., pathologist,Philadelphia; February p. 8

Longo, William E., Ph.D.; exposureanalysis, material scientist, electron micro-scopist, Norcross, Ga.; Premier, p. 11;Jan., p. 11; April, p. 8; May, pp. 8, 9;

Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p.11; Jan., Vol. 2, p. 9; Feb., Vol. 2, p. 8;July, Vol. 2, p. 11; Dec., Vol. 3, p. 9; July,Vol. 3, p. 8, 9; Oct., Vol. 3, p. 6; Dec.,Vol. 3, p. 6; Apr., Vol. 4, p. 8; Oct., Vol.4, p. 6; Nov., Vol. 5, p. 8; Dec., Vol. 5, p.8

Lunn, William, M.D.; plaintiff treater,Tyler, Texas; Premier, p. 11

Maddox, John, M.D.; pathologist,Newport News, Va.; March, p. 12; May,Vol. 4, p. 8; July, Vol. 4, p. 9; Sept., Vol.4 No. 11, p. 8

Male, Bob, Ph.D.; economist, Clackamas,Ore.; July, Vol. 4, p. 8

Mark, Eugene, M.D.; pathologist, Boston;Aug., Vol. 2, p. 11; Oct., Vol. 3, p. 6, Vol.4, p. 9; MarchVol. 4, p. 9

Markowitz, Steven, M.D.; internal andoccupational medicine, Queens, N.Y.;July, Vol. 3, p. 9; Nov., Vol. 5, p. 9

Marshall, Hal, M.D.; pathologist, KansasCity, Mo.; April, p. 8

Mason, Gene; vice president to theDelaware Corporation; Premier, p. 11

Mazza, Frank, M.D.; pulmonologist,Austin, Texas; Nov., Vol. 2, p. 9

McNair, Obie, M.D.; pulmonologist,Jackson, Miss.; Nov., Vol. 2, p. 8

Meseroll, William, M.D., radiologist,Petaluma, Calif.; June, p. 9; Aug., p. 12

Mezey, Robert, M.D.; pulmonologist,Phoenix; Oct, Vol. 3, p. 7; July, Vol. 4, p.9

Michaels, David, Ph.D., Washington,D.C.; July, Vol. 2, p. 12

Millette, James, Ph.D.; state of the art,Baltimore; Jan., p. 11; May, p. 9; Aug., p.12; Nov., Vol. 2, p. 9; Feb., Vol. 2, p. 8;Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9

Millette, James, Ph. D.; pathologist,Durham, N.C.; Oct., Vol. 3, p. 6

Moline, Jacqueline, M.D., occupationalspecialist, Mt. Sinai, New York; July, Vol.2, p. 10; April, Vol. 3, p. 8; July, Vol. 3, p.9; Aug., Vol. 3, p. 8

Mostoufi, Mahparah, M.D.; pathologist,Pittsburgh; Sept., p. 10

Murphy, Everett, M.D.; pulmonologist,Kansas City Mo.; April, p. 8

Myron, Mark, M.D.; oncologist, KansasCity, Mo.; April, p. 8

Naunheim, Keith, M.D.; thoracic sur-geon, St. Louis University Hospital, St.Louis; Nov., Vol. 3, p. 9

Robert Neff, CPA, accountant; Nov., Vol.5, p. 8

Nicholson, William, Ph.D.; risk analysis,New York; April, p. 8, 10; May, p. 9

Oliver, Christine, M.D.; occupationalmedicine, Boston; Dec., Vol. 2, p. 11

Paige, Jerome, Ph.D.; economist,Washington, D.C.; April, p. 8

Panitz, Elaine, M.D.; occupational medi-cine, Mass.; Feb., p. 10; March, Vol. 2, p.10; Aug., Vol. 3, p. 8

Parker, Frank, CIH, industrial hygienist,Magnolia, Texas; Sept., Vol. 4, No. 11, p.8

Peters, Ed, M.D.; pulmonologist, Austin,Texas; March, p. 11; July, Vol. 2, p. 11

Petroff, Peter, M.D.; certified pulmonolo-gist; Premier, p. 11; March, Vol. 2, p. 11Pohl, Douglas, Ph.D., M.D.; pathologist,Central Maine Medical Center, Lewiston,Maine; Feb., p. 9; March, p. 12; March,Vol. 2, p. 10; May, Vol. 3, p. 8; Oct., Vol.3, p. 7; Apr., Vol. 4 p. 9


EXPERT WITNESS BANK

Raffensperger, M.D.; pulmonologist,Allegheny General Hospital, Pittsburgh;July, p. 11

Raterman, Susan, CIH; industrial hygiene;May, Vol. 4, p. 8

Ray, Carolyn, M.D.; pulmonologist, SanFrancisco; May, p. 10; Aug., p. 12; April,Vol. 2, p. 12

Reidbord, Howard, M.D.; pathologist,Pittsburgh; Sept., p. 10

Reynolds, Zachary; naval architect;Petaluma, Calif.; Dec., Vol. 5, p. 8

Robb, James, M.D.; pathologist, Miami;Aug., p. 13; July, Vol. 2, p. 11; Aug., Vol.2, p. 11; April, Vol. 4,. p. 8

Roggli, Victor, M.D.; pathologist, DukeUniversity; Feb., p. 9; April, p. 9; June, p.10; Aug., p. 10; Sept., p. 12; Dec., Vol. 2,p. 11; Jan., Vol. 2, p. 8, 9; July, Vol. 2, p.12; July, Vol. 4, p. 8

Rubin, Louis, M.D.; clinician, Columbia,Md.; May, p. 9; Aug., p. 11

Rusch, Valerie, M.D.; pathologist fromSloan Kettering, New York; April, p. 8

Salyer, William, M.D.; pathologist fromBerkeley, Calif.; Oct, p. 6

Schonfeld, Alvin, D.O.; Los Angeles;Sept., p. 12; June, Vol. 3, p. 7

Schwartz, David, M.D.;pulmonologist/radiologist, Durham, N.C.;Nov., Vol. 3, p. 9

Scroggins, Carroll, M.D.; treating physi-cian, St. Louis; July, Vol. 3, p. 8

Segarra, Jay, M.D.; pulmonologist, OceanSprings, Miss.; May, p. 8; Oct., p. 8; May,Vol. 4, p. 8

Sharpe, Stuart, M.D.; oncologist,Danville, Va.; Feb., p. 9

Shoenfeld, Alvin, M.D.; pulmonologist,Chicago; Dec., Vol. 3, p. 8

Sims, William, M.D., pulmonologist,Pittsburgh; Sept., p. 10

Smith, Allan H., Ph.D.; epidemiologist,University of California, Berkeley; Calif;Premier, page 10; Jan., p. 11; April, p. 9;June, p. 9; Aug., p. 12; Nov., Vol. 2, p.10; Jan., Vol. 2., p. 9; April, Vol. 2, p. 10;Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 8, 9;June, Vol. 3, p. 7; Aug., Vol. 3, p. 8, 9;Oct., Vol 3, p. 6; Dec., Vol. 3, p. 6.; Apr.Vol. 4 p. 8, 9; Oct., Vol. 4, p. 6

Spector, Harvey, M.D.; pathologist,Crozer-Chester Medical Center, Upland,Pa.; July, p. 11; Aug., p. 11

Srebo, James, M.D.; cardiologist, Napa,Calif.; Dec., Vol. 3, p. 9

Stern, Eric, M.D.; radiologist, Seattle;May, p. 10; June, p. 9

Sterman, Daniel , M.D.,pulmonologist,Philadelphia. February p. 8

Stoloff, Erwin L., M.D.; oncologist,Philadelphia; May, p. 10; Dec., Vol. 3, p.6. Feb. Vol..4, p. 10

Strauchen, James, M.D.; pathologist, NewYork; July, Vol. 2, p. 10

Sullivan, Brian, Ph.D., economist,Philadelphia; Aug., p. 11

Suzuki, Yasunosuke, M.D.; pathologist,New York; March, Vol. 2, p. 10; Oct.,Vol. 2, p. 10

Templin, John, CIH; industrial hygiene,Los Angeles; Aug., Vol. 3, p. 8; Oct., Vol3, p. 6; June, Vol. 4, p. 7, 8; Oct., Vol. 4,p. 6; Nov., Vol. 5, p. 8

Tierstein, Al, Ph.D.; chief of pulmonarymedicine, Mt. Sinai, New York; Feb., p.10

Tobia, Anna, Ph.D., psychologist;Philadelphia. Feb., p. 8

Todd, Lori, Ph.D.; industrial hygiene,Chapel Hill, N.C.; July, Vol. 3, p. 9

Trailor, Rebecca, M.D., pulmonologist,Austin, Texas. Apr. Vol. 4, p. 10

Mark J. Utell, M.D., an environmentalpathologist, Rochester, N.Y.; Nov., Vol. 5,p. 13

Eric Vallieres, M.D., thoarcic surgeon;Nov., Vol. 5, p. 8

Vance, R. Leonard, Ph.D. industrialhygienist, Richmond, Va. Mar. Vol. 4 No.5 p. 8

Ward, John, Ph.D.; economist, PrairieVillage, Kan.; April, p. 8

Wilson, David, M.D., pulmonologist,Pittsburgh; Sept., p. 10

Zimmet, Stephen, M.D.; pathologist,Arlington, Va.; April, p. 8; Oct., Vol. 3, p.6

Defense Experts

Abrino, Donald; NARCO corporate repre-sentative; Jan., Vol. 2, p. 9

Akers, Stephen, M.D.; pulmonologist,Philadelphia; May, p. 10

Argento, Victorrio, Ph.D.; industrialhygienist, Austin, Texas; Jan., p. 11; July,Vol. 2, p. 9; Nov., p. 8

Ayer, Howard, C.I.H., industrial hygiene,Cincinnati; July, Vol. 4, p. 8

Balzer, J. Leroy, Ph.D.; industrial hygien-ist, state of the art, San Francisco; April,p. 9; Aug., p. 12; Jan., Vol. 2., p. 9; May.Vol. 3, p. 8; June, Vol. 3, p. 6; July, Vol.3, p. 9


EXPERT WITNESS BANK

Barrett, Peter, M.D.; radiologist, epidemi-ologist; Aug. p. 11; Nov., Vol. 3, p. 9;May, Vol. 3, p. 8; July, Vol. 3, p. 8; Oct.,Vol. 4, p. 6

Birkner, Lawrence R.; industrial hygienist,Thousand Oaks, Calif.; May, p. 9; April,Vol. 2, p10; Aug., Vol. 2, p. 10

Blake, Charles; environmental consultant;Nov., Vol. 2, p. 8; Jan., Vol. 2, p. 8

Boelter, Frederick; certified industrialhygienist, Chicago; Dec., Vol. 2, p. 11;May, Vol. 3, p. 8 Feb., Vol. 4. p. 9, p. 10;May, Vol. 4, p. 8; Oct, Vol 4, p. 6

Breale, William, M.D.; cardiologist, SanFrancisco; Aug., p. 12; Dec., Vol. 3, p. Buccigross, Henry; engineer, Cambridge,Mass.; July, Vol. 2, p. 10; Aug., Vol. 2, p.10; July, Vol. 3, p. 9; Oct., Vol. 4, p. 6

Cadman, Edward, M.D., oncologist,Honolulu, Hawaii; Apr. Vol. 4, p. 8

Cagle, Phillip, M.D.; pathologist,Houston; Premier, p. 11; Sept., p. 12;July, Vol. 2, p. 11

Case, Bruce W., M.D.; pathologist,Montreal; April, p. 8; May, p. 9; Aug., p.12; Oct., Vol. 2, p. 10

Castle, James R., M.D.; pulmonologist,Roanoke, Va.; Dec., Vol. 3, p. 10, Mar. Vol. 4, p. 8

Chatfield, Eric, M.D.; materials analyst,Ontario, Canada; May, p. 9

Churg, Andrew, M.D.; pathologist,Vancouver, British Columbia; April, p. 8;March, Vol. 2, p. 10; Nov., Vol.5, p. 8

Cohen, Joel, industrial hygiene, SanMateo, Calif.; Aug., p. 12

Cook, Ewing, M.D.; pulmonologist, NewOrleans; Nov., Vol. 2, p. 8

Corn, Morton, Ph.D.; industrial hygien-ist; Jan., Vol. 2, p. 9; April, Vol. 2, p. 11;Aug., Vol. 3, p. 8

Craighead, John, M.D.; pathologist,Burlington, Vt.; Jan., p. 11; March, p. 12;Sept., p. 10; Jan., Vol. 2, p. 8, 9; July, Vol.2, p. 10; Aug., Vol. 2, p. 10; July, Vol. 3,p. 9; Apr. Vol. 4 p. 10

Crapo, James, M.D.; pulmonologist,Denver; Jan., p. 11; March, p. 12; May, p.9; Aug., p. 12; March, Vol. 2, p. 10; Nov.,Vol. 2, p. 9; May, Vol. 3, p. 8; Aug., Vol.3, p. 8; Oct., Vol. 3, p. 7; Apr. Vol. 4, p.8.; Nov., Vol. 5, p. 8

Cushing, Charles, Ph.D., naval architect,N.Y.; Dec., Vol. 5, p. 8

Davis, Stephen, C.I.H., industrialhygiene, Malibu, Calif.; July, Vol. 4, p. 8

DeLaney, James; state of the art, Hawaii;Oct., Vol. 3, p. 6; Nov., Vol. 5, p. 8

Delgaldo, Gustavo, Ph.D.; cellular/labanalysis, Hayward, Calif.; July, Vol. 4, p. 8

Donaldson, Scott, M.D.; pulmonologist,Dallas; Nov., Vol. 2, p. 9

Drucker, Marjorie, CIH; industrialhygiene; Nov., Vol. 2, p. 10

Dyson, William, Ph.D.; industrialhygiene, Greensboro, N.C.; April, p. 9;May, p. 9; July, Vol. 2, p. 11; April, Vol.3, p. 8; May, Vol. 3, p. 8; Apr. Vol. 4, p.8; June, Vol. 4, p. 7, 8; July, Vol. 4, p. 9

Dr. Fred Dunbar, economist, N.Y.; Nov.,Vol. 5, p. 8

Eagar, Thomas, Ph.D.; engineering,Cambridge, Mass.; July, Vol. 3, p. 9

Epstein, Paul, M.D.; pulmonologist,Philadelphia; May, p. 10; June p. 13;Dec., Vol. 3, p. 6

Feingold, Allan, M.D.; pulmonologist,Miami; Feb., p. 9; May, p. 9; Aug. p. 10;

Sept., p. 10; Oct., p. 8; Dec., Vol. 2, p.11; April, Vol. 2, p. 11; July, Vol. 2, p. 12;Aug., Vol. 2, p. 11; Nov., Vol. 3, p. 9;Dec., Vol. 3, p. 8; April, Vol. 3, p. 8; July,Vol. 3, p. 8, 9; Oct., Vol. 3, p. 7 Feb, Vol.4 p. 10; Apr. Vol. 4 p. 9; May, Vol. 4, p.8; June, Vol. 4, p. 7; July, Vol. 4, p. 9;Oct., Vol. 4, p. 6; Nov., Vol. 5, p. 8

Fiel, Stanley, M.D.; pulmonologist,Philadelphia; Dec., Vol. 2, p. 11; Aug.,Vol. 2, p. 10; Oct., Vol. 2, p. 11; Dec.,Vol. 3, p. 9; Nov., Vol. 5, p. 13

Fino, Gregory, M.D.; pulmonologist,Pittsburgh; Sept., p. 10; July, Vol. 3, p. 8

Melvin First, Sc.D., CIH, industrialhygienist, Boston; Nov., Vol. 5, p. 9

Fowler, Douglas, Ph.D.; industrial hygien-ist, Redwood City, Calif.; Sept., p. 11;Aug., Vol. 3, p. 8; Oct., Vol. 3, p. 6

Fraser, Robert, M.D.; radiologist,Birmingham, Ala.; Nov., Vol. 2, p. 8

Carl Fuhrman, M.D., radiologist,Pittsburgh; Nov., Vol. 5, p. 9

Gee, Bernard M.D., pulmonologist NewHaven, Conn. Apr. Vol. 4 p. 8

Gibbs, Allen, M.D.; pathologist, Cardiff,Wales; May, Vol. 3, p. 8; Nov., Vol. 5, p.8

Godwin, David, M.D.; radiologist,Seattle; May, p. 10; June, p. 9; June, Vol.3, p. 7Goodman, Michael, M.D.; epidemiolo-gist, Davis, Calif., Aug., p. 12

Graham, Michael, M.D.; pathologist, St.Louis; April, p. 8; Aug., Vol. 3, p. 8

Hammond, James, Ph.D., industrialhygiene, deceased; May, Vol. 4, p. 8

Hinshaw, H. Corwin, M.D.; state of theart expert, San Francisco; March, p. 11;April, Vol. 2, p. 10


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Howard, Thomas, M.D.; pathologist,Ocala, Fla.; Aug., Vol. 2, p. 10; Dec., Vol.3, p. 8; Oct., Vol. 3, p. 7; July, Vol. 4, p.8; Nov. Vol. 5, p. 8

Hughson, William G., M.D.; occupation-al medicine, pulmonologist, San Diego;April, p. 10; June, p. 9; Nov., Vol. 2, pp.9, 10; Feb., Vol. 2, p. 8; April, Vol. 2, p.12; July, Vol. 2, p. 10; Dec., Vol. 3, p. 8;Aug., Vol. 3, p. 9; Dec., Vol. 3, p. 6.; Apr.Vol. 4, p. 9; June, Vol. 4, p. 7, 8; Nov.,Vol. 5, p. 8

Jackaki, Edwin; vice president of U.S.Gypsum, Chicago; March, p. 11

Jenkins, Doug, M.D.; pulmonologist, SanAntonio; Nov., Vol. 2, p. 9

Johnston, Alan; air sampling/industrialhygiene; Nov., Vol. 2, p. 11; Sept., Vol. 2,p. 13

Jones, Kathy, industrial hygienist, LosAngeles. Apr. Vol. 4, p. 8

Jones, Robert N., M.D.; pulmonologist,New Orleans; Nov., Vol. 2, p. 8; Sept.,Vol. 2, p. 13

Kaplan, Peter, M.D., pulmonologist,Pittsburgh; Sept., p. 10

Killian, Louis; Quigley corporate repre-sentative; Nov, Vol. 3, p. 8

Krebs, William, Ph.D.; industrial hygien-ist, Grosse Pointe Park, Mich.; April, p. 8;Apr. Vol. 4 p. 10

Larson, Bruce; industrial hygiene,Paulsboro, N.J.; May, Vol. 4, p. 8

Levine, Gerald B., M.D.; pulmonologist,San Francisco; Dec., Vol. 3, p. 9

Levitov, Alexander B., M.D., internalmedicine, St. Paul, Minn.; July, Vol. 3, p.10

Liukonen, Larry, CIH; industrial hygiene,Baltimore; Dec., Vol. 3, p. 9; Dec., Vol. 3,

p. 6 Feb. Vol. 4 p. 10; May, Vol. 4, p. 8;Oct., Vol. 4, p. 6

MacDonald, Charles, M.D.; SanFrancisco; June, p. 9

John Maddox, M.D.; pathologist;Newport News, Va; Oct., Vol. 4, p. 6

Malzahn, Del, M.S.; industrial hygiene,Detroit; June, Vol. 4, p. 7

Mangold, Carl, CIH; industrial hygiene,Bellevue, Wash.; Dec., Vol. 3, p. 9:March, Vol. 3, p. 11, Feb. Vol. 4, p. 10;Nov., Vol. 5, p. 8

Theodore R. Marmor, a Professor ofPublic Policy and Management andPolitical Science at the Yale School ofManagement in New Haven, Conn.; Nov.,Vol. 5, p. 8

Mattison, Michael, Ph.D.; chemical engi-neer, Atlanta; Aug., p. 12; Feb. Vol. 2, p.8; July, Vol. 2, p. 10; Aug., Vol. 2, p. 10;July, Vol. 3, p. 9; Oct., Vol. 4, p. 6

Meyers, Gerald, M.D.; pulmonologist,Berkeley, Calif.; April, p. 10; June, p. 9;Aug., p. 12; April, Vol. 2, p.12; Oct., Vol.4, p. 6

Mizel, David; paper expert, Argento, Md.;Oct., Vol. 3, p. 6

Morgan, Robert, M.D.; epidemiologist,Fort Lauderdale, Fla.; June, p. 9; Dec., p.6; Oct., Vol. 4, p. 6

Morykon, John; Westinghouse Materials;April, Vol. 2, p. 10

Moscow, Norman, M.D.; radiologist,Berkeley, Calif.; Feb., p. 10; Aug., p. 12;Dec., Vol. 3, p. 9

Paustenbach, David, Ph.D., epidemiolo-gist, San Francisco; Sept., Vol. 4, No. 11,p. 8

Peterson, Jack, Ph.D.; industrial hygiene,Berkeley, Calif.; July, Vol. 3, p. 10

Pope, Alan, M.D.; pulmonologist,Philadelphia; July, p. 11; Aug., p. 11, Feb.Vol. 4, p. 10

Raabe, Gerhard, D. Ph.; epidemiologist,New Hope, Pa.; May, Vol. 4, p. 8

Ramsey, Calvin, M.D.; general practition-er; Nov., Vol. 2, p. 8

Rabinovitz, Sheldon, Ph.D.; industrialhygienist, Feb., Vol. 2, p. 8; Dec., Vol. 3,p. 6.

Rasmusson, James, Ph.D.; industrialhygienist, Wheat Ridge, Colo.; May, p.10; June, p. 9; Aug., p. 12; July, Vol. 2, p.10; Nov., Vol. 3, p. 8, 9; Dec., Vol. 3, p. 9

Reiter, John E., CIH, industrial hygiene,Menomonee Falls, Minn; July, Vol. 3, p.10

Repsher, Lawrence, M.D.; pulmonologist,Wheat Ridge, Colo.; April, p. 8

Ringo, Donna; certified industrial hygien-ist, Louisville, Ky.; Dec., Vol. 2, p. 11;Oct., Vol. 2, p. 11; March, Vol. 3, p. 11;Nov., Vol. 5, p. 8

Ritter, John, M.D.; pathologist, St. Louis,Mo.; July, Vol. 3, p. 8

Roggli, Victor, M.D.; pathologist, DukeUniversity; March, p. 12; April, p. 10;Feb., Vol. 2, p. 8; July, Vol. 2, p. 10; Aug.,Vol. 2, p. 11; Dec., Vol. 3, p. 10; June,Vol. 3, p. 6; July, Vol. 3, p. 9; Oct., Vol.3, p. 6; Oct., Vol. 3, p. 6

Rosenberger, David, M.D.; general medi-cine, Case Western Reserve University,Cleveland; Dec., Vol. 3, p. 10; July, Vol.3, p. 8; Mar. Vol. 4 p. 8

Ross, Robert, M.D.; pulmonologist,Houston; March, p. 11; May, p. 8; March,Vol. 2, p. 10; May, Vol. 2, p. 10


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Rubin, Emanuel, M.D.; pathologist,Philadelphia; Aug. p. 11

Sawyer, Robert, M.D.; pulmonologist,Charlottesville, Va.; April, Vol. 2, p10;Dec., Vol. 3, p. 9; March, Vol. 3, p. 11;Dec., Vol. 3, p. 6. Feb., Vol. 4, p. 9; Nov.,Vol. 5, p. 8

Schauble, Thomas, M.D.; pulmonologist,Pittsburgh; Sept., p. 10

Schwarting, Roland, M.D.; pathologist,Jefferson Medical College, Philadelphia;July, p. 11

Sheibani, Khalil, M.D.; pathologist,Orange County, Calif.; Premier, p. 10;April, Vol. 2, p. 12; Apr. Vol. 4, p. 8

Sider, Lee, M.D.; radiologist, New York;July, Vol. 4, p. 9

Silloway, Capt. Richard; U.S. Navy; April,Vol. 2, p. 12

Smith, Dorsett, M.D.; pulmonologist,Everett, Wash.; May, p. 10

Dr. Alexander Spears, expert in cigarettefilter design and testing; Nov., Vol. 5, p. 9

Spencer, John, CIH; industrial hygiene;Nov., Vol. 2, p. 9; Dec., Vol. 2, p. 11;Aug., Vol. 2, p. 10; Dec., Vol. 3, p. 9;Nov., Vol. 5, p. 13

Spielman, Howard; industrial hygienist;May, p. 8; Dec., Vol. 3, p. 8; Dec., Vol. 5,p. 8

Stockman, Gail, M.D.; pulmonary physi-cian, Longview, Texas; Premier, p. 11; Apr.Vol. 4, p. 10

Thomas, Thomas C. Ph.D. economist.Mountain View, Calif.; Apr. Vol. 4, p. 9

Toca, Frederick, Ph.D.; state of the artand industrial hygiene, Princeton, N.J.;March, p. 11; May, p. 9; Aug. p. 11, 12;Feb., Vol. 2, p. 8; Aug., Vol. 2, p. 10

Truong, Luan, M.D.; pathologist,Houston; June, Vol. 3, p. 6

Udinsky, Gerald, Ph.D.; economist,Berkeley, Calif.; April, p. 8; April, Vol. 2, p. 12

Van Orden, Drew; lab analysis, Pasco,Wash.; July, Vol. 4, p. 8

Walker, Alexander, M.D.; Ph.D., epidemi-ologist, Boston; March, Vol. 2, p. 10

Warhol, Michael J., M.D;, pathologist,Philadelphia; June, Vol. 3, p. 6

Warren, Thomas; president and CEO ofFlexitallic, Inc., Philadelphia; March, p.11

Weaver, Charles A., Ph.D., memoryexpert, Waco, Texas; June, Vol. 4, p. 7, 8

Weaver, Neil, M.D.; occupational medi-cine specialist, Arlington, Va.; May, Vol.4, p. 8

Weg, John, M.D.; state of the art,University of Michigan; Dec., p. 9

Weiner, David, economist; Dec., Vol. 5, p.8

Weir, Francis, Ph.D.; CIH, industrialhygienist, Houston; April, p. 9; Aug., p.12; Nov., Vol. 2, p. 9; March, Vol. 2, p.10

Wick, Mark, M.D.; pathologist, St. Louis;Dec., p. 9

Wong, Otto, M.D.; epidemiologist, Calif.;April, p. 10

Yarborough, Charles, M.D., M.P.H.,pathologist, New York; June, Vol. 4, p. 7


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9:00 a.m. – 9:45 a.m.Session: Impact of Direct-to-ConsumerAdvertisingChristopher M. Placitellaof Wilentz,Goldman & Spitzer, New Brunswick, NJ

9:45 a.m. – 10:00 a.m.Refreshment Break

10:00 a.m. – 12:00 noonSession: How to Prepare and Try a Vioxx® CaseThomas R. Klineof Kline & Specter,Philadelphia, PASol Weissof Anapol, Schwartz, Weiss,Cohan, Feldman and Smalley,Philadelphia, PAEdward F. Blizzardof Blizzard,McCarthy & Nabers, Houston, TX

12:00 noonAdjourn

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7:00 a.m. – 8:30 a.m. Continental Breakfast & Registration

8:30 a.m. – 9:00 a.m.Welcome and IntroductionSol Weiss,Conference Chair

9:00 a.m. – 10:30 a.m.Session: Update on the LitigationChristopher Seegerof Seeger Weiss, New York, NYAndy D. Birchfield of Beasley, Allen, Crow,Methvin, Portis & Miles, Montgomery, ALCarlene Rhodes Lewisof Goforth LewisSanford, Houston, TX

10:30 a.m. – 10:45 a.m. Refreshment Break

10:45 a.m. – 12:15 p.m.Session: Background for History of AcuteHeart Attacks and Ischemic StrokesBarry Hill of Hill Toriseva & Williams,Wheeling, WVDavid Lenrow, M.D., Hospital of theUniversity of Pennsylvania, Philadelphia, PA

12:15 p.m. – 1:30 p.m. Lunch

1:30 p.m. – 3:15 p.m.Session: Liability TheoriesDavid R. Buchananof Seeger Weiss, New York, NY

David Jacobyof Anapol, Schwartz, Weiss,Cohan, Feldman and Smalley, Philadelphia, PAAnn Ritter of Motley Rice, Mt. Pleasant, SC

3:15 p.m. – 3:30 p.m. Refreshment Break

3:30 p.m. – 5:00 p.m.Session: Medical RoundtableJohn E. Markis, M.D., Harvard MedicalSchool, Boston, MAEric H. Weinbergof Wilentz, Goldman andSpitzer, New Brunswick, NJ*Garrett FitzGerald, M.D., Department ofPharmacology, University of PennsylvaniaSchool of Medicine, Philadelphia, PA*Curt Furberg, M.D., Wake Forest UniversityMedical School, Winston-Salem, NC

(*) Invited Speakers, to be confirmed.

5:00 p.m. – 7:00 p.m.Networking Cocktail Reception

7:00 a.m. – 8:00 a.m. Continental Breakfast

8:00 a.m. – 9:00 a.m.Session: Case Selection CriteriaSteven G. Wigrizerof Wapner, Newman,Wigrizer & Brecher, Philadelphia, PATroy Raffertyof Levin, Papantonio, Thomas,Mitchell, Echsner & Proctor, Pensacola, FL

Thursday February 10, 2005

Friday February 11, 2005

I M P O R TA N T !

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Merck & Co. pulled Vioxx® off the market because datafrom a clinical trial found an increased risk of heart attackand stroke. The increased risk of heart attack and other car-diovascular complications began 18 months after patientsstarted taking Vioxx®.

To get a handle on the legal and medical ramificationsresulting from Merck’s decision to pull Vioxx® from themarket, please join us at our Vioxx® Litigation Conferencein Philadelphia at the Four Seasons Hotel Feb. 10-11, 2005.

You’ll get an overview of the current status of Vioxx®cases.

You’ll learn the pharmacology of Vioxx®, how it causesheart attacks and strokes and if it’s different from other Cox-2 Inhibitors.

You’ll learn the impact of direct-to-consumer advertising.

You’ll be given a review of the clinical studies, hear discussions on liability theories, warnings issues and causation arguments.

And you’ll learn how to prepare and try a Vioxx® case.

Our Conference Chair is Sol Weiss, Esq., of Anapol,Schwartz, Weiss, Cohan, Feldman & Smalley inPhiladelphia. To register or for more information, callHarrisMartin’s Conference Department at 800-496-4319.

VIOXX® LITIGATION CONFERENCECOMING TO PHILADELPHIA

64COLUMNS

PERSPECTIVES

The Court addressed other Georgia cases inwhich asbestos cases were permitted toremain joined and rejected the argumentthat allowing such claims to remain joinedpromotes judicial economy. The Courtnoted the burden placed on the Court andthe clerk’s office by such filings and quotedHoward Motor Co. v. Swint, 448 S.E.2d 713(Ga. App. 1994): “if joinder is not author-ized by the plain language of the statute, noamount of judicial economy can justify it.”

Accordingly, the Court severed the claims asunrelated actions to be established by sepa-rate case numbers. The Court ordered thatplaintiffs who wished to proceed with theirclaims must file a Restated Complaintwhich specifically named the defendant(s)alleged to have injured the plaintiff within30 days. Any Restated Complaints not re-filed within the 30-day period would bedismissed with prejudice.

Sidney S. Chancellor & John L. Parkerv. Air Liquide America Corp., et al., inthe United States District Court forthe Northern District of Alabama,Case No. CV-04-BE-2554-S.

This action originated in the Circuit Courtof Jefferson County, Alabama, with threeplaintiffs claiming products liability, negli-gence, and fraud for silica exposure againstapproximately one hundred defendants.

The Court dismissed the case without prej-udice pursuant to Alabama Rule of CivilProcedure 41, with two requirements: (1)that, if any of the plaintiffs were to re-filetheir claims at any time, their claims wereto be filed in the Circuit Court of JeffersonCounty and assigned to the same judge;and (2) plaintiffs must provide defendantswith the social security numbers, addresses,dates of birth, employers, and positionsheld at the worksites where plaintiffsclaimed silica exposure within seven days ofentry of the Order.

The action took a different turn when itwas re-filed in the U.S. District Court forthe Northern District of Alabama. TheCourt, sua sponte, entered an Order dismiss-ing the case without prejudice on Oct. 8,2004. The Court concluded that theComplaint did not meet the requirement ofa “short and plain statement of the claimshowing that the pleader is entitled torelief.”3 According to the Court, neither itnor the defendants were able, from the alle-gations in the Complaint, to surmise whateach defendant allegedly did to injure theplaintiffs and “when, where, and how.”Were defendants to answer this Complaint,said the Court, they would have to “answerwith abandon,” pleading each conceivableaffirmative defense, while taking the risk ofinadvertently omitting the one defense thatwould relate to an as-yet-unknown specificclaim against them.

The Court also found that that theComplaint contained other inadequacies,including failure to plead fraud with partic-ularity, failure to name spouses while bring-ing claims for loss of consortium, and fail-ing to allege facts showing that, if thespouses were named as plaintiffs, the courtwould have jurisdiction on the basis ofdiversity.

The Court, citing its duty to dispose of“shotgun complaints” at the earliest oppor-

tunity,4 encouraged plaintiffs to be mindfulof the Eleventh Circuit’s position whenrefiling their claims: “[i]f use of an abusivetactic is deliberate and actually impedes theorderly litigation of the case, to-wit:obstructs justice, the perpetrator could becited for criminal contempt.”5

The Common Thread

Silica or asbestos, state or federal court,strict liability or negligence, it does notchange the fact that at least three courtshave recently rejected so-called “shotgun”complaints in mass tort actions using analy-sis that has broad application. Whether byrelying or statute or rule, caselaw or code,these decisions reflect the same basic prem-ise: that mass-produced complaints lackingspecific factual allegations will not with-stand scrutiny on joinder grounds. Each court recognized that by: (1) multipleplaintiffs naming multiple defendants; (2)alleging that defendants caused plaintiffs tobe exposed to a toxic tort in their role aspremises owners, manufacturers, distribu-tors, or installers of asbestos or silica prod-ucts; and (3) contending that plaintiffs suf-fered some respiratory ailment, without des-ignating which plaintiff suffered a particularailment, joinder requirements cannot andwill not be met.

Certainly, the state and federal rules requir-ing plaintiffs to adduce a “short and plainstatement of the facts” as to why the pleaderis entitled to relief, as well as pleading cer-tain claims with particularity requirements,factor into the courts’ decisions. However,it is joinder that is the prevailing theme insuch decisions. In dismissing and/or sever-ing such claims, the courts’ primary goal isto require plaintiffs to designate whichdefendants injured them, how and whenthey were injured, and which plaintiffs suf-fered a particular ailment. Then, the courtswill be able to accurately discern whetherthese multiple plaintiff complaints demon-strate the requisite commonality to remainjoined.


A Fresh Look at Old Practices:The Changing Face of Mass Tort Claim Continued from Page 5

Though the stricter

enforcement of pleading

and joinder requirements

may in some respects

result in an increased bur-

den in prosecuting and

defending asbestos/silica

exposure actions, all sides

of the mass tort claim

equation may benefit.



The Potential Implications

What, if anything, do these decisions meanfor mass torts? Of course, it is highlyunlikely that every jurisdiction will adoptsuch an approach to these types of com-plaints. Still, practitioners in Mississippi,Alabama, and Georgia may expect stricterenforcement of procedural rules governingpleadings when filing and defending masstort claims. Discovery will not always bethe viable option it once was in ascertainingthe particulars of individual plaintiff ’sclaims. Practitioners representing plaintiffsin silica or asbestos actions will be requiredto be ever-mindful of Rule 11 violations.Defense counsel, though now potentiallyarmed with grounds to sever and/or dismissmultiple plaintiff mass tort actions, will notbe able to rely upon blanket denials of alle-gations in plaintiffs’ complaint, assumingthat the more specific pleading require-ments are enforced.

Though the stricter enforcement of plead-ing and joinder requirements may in somerespects result in an increased burden inprosecuting and defending asbestos/silicaexposure actions, all sides of the mass tortclaim equation may benefit. Certainly,courts will be faced with less administrativeburden where claims are culled in size tomore specifically allege the facts uponwhich particular plaintiffs’ claims rest.Defendants would likely be named in fewercases and be able to see a more realisticcount of claims pending against them.Finally, if such claims are more specificallypled, there may be a greater likelihood thatthe parties are able to streamline some exist-ing discovery procedures and work togetherto reach an appropriate resolution of suchclaims.

Conclusion

Though certainly not a universal position,the Mississippi, Georgia, and Alabamacourts’ recent decisions present a new chal-lenge in asbestos and silica litigation.Pleading requirements, particularly joinder,will need to be at the forefront for counseland for litigants. Whether stricter enforce-

ment of pleading requirements will contin-ue to be enforced and extended to otherjurisdictions remains unseen at present. Ifit does, there would likely be more pro-found effects, yet the elastic and enduringnature of the litigation has repeatedlyshown a remarkable ability to adapt toevery change and continue to defy all pre-dictions of its endpoint or extent.

Endnotes

1Miss. R. Civ. P. 20 states in pertinent part: “(a) All

persons may join in one action as plaintiffs if theyassert any right to relief jointly, severally, or in thealternative in respect of or arising out of the sametransaction, occurrence, or series of transaction oroccurrences, and if any question of law or fact com-mon to all these persons will arise in the action….(b)The court may make such orders as will prevent aparty from being embarrassed, delayed, or put toexpense by the inclusion of a party against whom heasserts no claim and who asserts no claim against him,and may order separate trials or to make other ordersto prevent delay or prejudice.”

2O.C.G.A. §9-11-20 is part of Georgia’s Civil Practice

Act and contains identical language to that inMississippi Rule of Civil Procedure 20.

3See Federal Rule of Civil Procedure 8(a); see also

Hoshman v. Esso Standard Oil Co., 263 F.2d 499, 501(5th Cir. 1959).

4Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir.

2001) (discussing dangers of shotgun complaints,including obstruction of justice, the potential forextortion, and watering down the ability of the partiesto litigate efficiently).

5Id. at 1131-1132.

teria bill would put close to 80 percentof the asbestos docket into a holdingpattern, eliminating a huge financialdrain or financial obligation on behalf ofthe defendants. For example, there areonly two to four thousand mesotheliomacases a year in America. Not all of thosecases find their way into the court sys-tem. As a result, the largest number ofcases in the courts are asbestosis andpleural plaque cases. Estimates indicatethat four out of five of those cases wouldprobably fall into the category of “unim-paired” under a medical criteria bill.

CONCLUSION

Crystal ball gazing is hazardous for mostanyone, especially when the subject mat-ter is legislation from Washington, D.C.The state of asbestos legislation is veryfluid and changes quite rapidly.Between drafting this article and its pub-lication, the landscape could be differententirely. For that matter, between publi-cation and the time your eyes read thisarticle, the landscape could change dra-matically. With such warnings in mind,this article is offered for purposes ofhelping people understand what seemsto be a most likely scenario for futureasbestos legislation.

1 Many view the use of the term “unim-paired” with this group as an unfairmisnomer. Whether one is impaired,itself, is up to debate.

PERSPECTIVES


Practitioners in

Mississippi, Alabama,

and Georgia may expect

stricter enforcement of

procedural rules

governing pleadings when

filing and defending

mass tort claims.

Asbestos Legislation in 2005Continued from Page 3

3

3

66COLUMNS

2

1TITLE: "Distinct DNA methylationprofiles in malignant mesothelioma,

lung adenocarcinoma, and non-tumor lung."

SUMMARY: Malignant mesothelioma(MM), an aggressive cancer strongly associat-ed with asbestos exposure, can be difficult todistinguish from adenocarcinoma of the lungwhen limited material is available. In anattempt to identify molecular markers forMM and adenocarcinoma, the authors of thestudy examined the DNA methylation statusof 14 loci. The study reveals observationsthat support the strong potential of methyla-tion markers as tools for accurate diagnosisof neoplasms in and around the lung.

JOURNAL: Lung Cancer. 2005Feb;47(2):193-204.

AUTHORS: Tsou JA, Shen LY, SiegmundKD, Long TI, Laird PW, Seneviratne CK,Koss MN, Pass HI, Hagen JA, Laird-Offringa IA.

WEB SITE:http://www.sciencedirect.com/science/jour-nal/01695002

TITLE: "Asbestos induces tissue fac-tor in Beas-2B human lung bronchial

epithelial cells in vitro."

SUMMARY: Asbestos has been implicatedin the pathogenesis of interstitial lung dis-eases including asbestosis. Tissue factor (TF)initiates blood coagulation in vivo contribut-ing to inflammation and tissue remodelingvia extravascular fibrin deposition and signal-ing for profibrogenic mediators. The authorsof the study hypothesized that asbestos couldinduce TF expression by lung epithelial cells.The results demonstrated that asbestosinduces TF expression in lung epithelial cellsin vitro, representing a newly recognizedpotential mechanism by which asbestos maymodulate epithelial cell responses germane tolung remodeling. The mechanism involvesalterations in steady-state TF mRNA that donot involve posttranscriptional regulation,implicating control of TF gene expression atthe transcriptional level through Sp1 orother transcription factors.

JOURNAL: Lung. 2004;182(4):251-64.

AUTHORS: Iakhiaev A, Pendurthi U, Idell S.


TITLE: "Assessment of autoimmuneresponses associated with asbestos exposurein libby, Montana, USA."

SUMMARY: According to theauthors, systemic autoimmuneresponses are associated with certainenvironmental exposures, includingcrystalline particles such as silica.Positive antinuclear antibody (ANA)tests have been reported in smallcohorts exposed to asbestos, butmany questions remain regardingthe prevalence, pattern, and signifi-cance of autoantibodies associatedwith asbestos exposures. The resultsof the study support the hypothesis thatasbestos exposure is associated with autoim-mune responses and suggests that a relation-ship exists between those responses andasbestos-related disease processes.

JOURNAL: Environmental HealthPerspectives. 2005 Jan;113(1):25-30.

AUTHORS: Pfau JC, Sentissi JJ, Weller G,Putnam EA.

WEB SITE: http://ehp.niehs.nih.gov/

TITLE: "Mesothelioma pathogenesis,facts and expectations."

SUMMARY: The author of this study wentback to 1960 to find published data demon-strating a relationship between mesotheliomaoccurrence and exposure to asbestos fibres inthe Cape Province, in South Africa. Fromthat time, epidemiological and toxicologicalinvestigations were performed in order tobetter define the occupational and environ-

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4mental background of this pathology, toidentify the fibre parameters accounting forthe toxic effects, and to understand theirmechanisms of action. Improvements in theknowledge in these areas benefited to healthissues, by preventing risks associated withexposure to mineral fibres and by recognisingthe disease.While mesothelioma benefited tofibre toxicology and allowed to improve themanagement health related issue, theresearcher concludes that it would be a justreturn if the present advances in differentscientific areas will permit a rapid eradication

of the disease.

JOURNAL: Pathologie-Biologie (Paris). 2005Jan;53(1):41-4.

AUTHOR:Jaurand MC.

WEB SITE: http://www.sciencedirect.com/science/journal/03698114

TITLE: "Proposed criteria for mixed-dust pneumoconiosis: Definition,

descriptions, and guidelines for pathologicdiagnosis and clinical correlation."

SUMMARY: The authors of the studydefined mixed-dust pneumoconiosis (MDP)pathologically as a pneumoconiosis showingdust macules or mixed-dust fibrotic nodules(MDF), with or without silicotic nodules(SN), in an individual with a history ofexposure to mixed dust. The definition alsoincluding that the latter arbitrarily was amixture of crystalline silica and nonfibroussilicates. Typical occupations associated withthe diagnosis of MDP include metal miners,quarry workers, foundry workers, potteryand ceramics workers, and stonemasons.Irregular opacities are the major radiographicfindings in MDP (ILO 1980), in contrast tosilicosis, in which small rounded opacitiespredominate. Clinical symptoms of MDPare nonspecific. MDP must be distinguishedfrom a variety of nonoccupational interstitialpulmonary disorders.


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9with perioperative intraperitonealchemotherapy offers improved survival ratesat a cost of considerable morbidity and mor-tality as in other peritoneal surface malignan-cies. Because adequate cytoreduction is nec-essary to achieve prolonged survival, CTscans became an accurate prognostic radio-logic test for patient selection for compre-hensive treatment.

JOURNAL: Cancer. 2005 Jan 6; [Epubahead of print]

AUTHORS: Yan TD, Haveric N,Carmignani CP, Chang D, Sugarbaker PH.

WEB SITE: :http://medicine.jbpub.com/cata-log/15289117/

TITLE: "Statistical validation of theEORTC prognostic model for malig-

nant pleural mesothelioma based on threeconsecutive phase II trials."

SUMMARY: Malignant pleural mesothe-lioma (MPM) carries a poor prognosis dueto chemoresistance. The EuropeanOrganisation for Research and Treatment ofCancer (EORTC) prognostic model wasreported to predict survival in MPM. Thisstudy validates the EPS system as a robusttool for stratifying small trials into low- andhigh-risk subgroups. EPS should facilitatepatient selection and analysis in randomizedclinical trials.

JOURNAL: American Journal of ClinicalOncology. 2005 Jan 1;23(1):184-9.

AUTHORS: Fennell DA, Parmar A,Shamash J, EvansMT, Sheaff MT,Sylvester R,Dhaliwal K, GowerN, Steele J, Rudd R.

WEB SITE:http://www.amjclin-icaloncology.com7

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JOURNAL: Human Pathology. 2004Dec;35(12):1515-23.

AUTHORS: Honma K, Abraham JL,Chiyotani K, De Vuyst P, Dumortier P,Gibbs AR, Green FH, Hosoda Y, Iwai K,Williams WJ, Kohyama N, Ostiguy G,Roggli VL, Shida H, Taguchi O, Vallyathan V.


TITLE:"Environmental and occupa-tional health hazards associated with

the presence of asbestos in brake linings andpads (1900 to present): A "state-of-the-art"review."

SUMMARY: No abstract available

JOURNAL: Journal of Toxicology andEnvironmental Health. Part B, CriticalReviews. 2004 Nov-Dec;7(6):481-2

AUTHORS: Paskal SS.

WEB SITE: http://www.tandf.co.uk/jour-nals/titles/10937404.asp

TITLE: "Phase II trial of vinorelbineand oxaliplatin as first-line therapy in

malignant pleural mesothelioma"

SUMMARY: The researchers note that theincidence of malignant pleural mesothelioma(MPM) is increasing. Treatment options arelimited, although recently published datahave offered cause for optimism. The qualityof life assessed by Rotterdam symptomchecklist was associated with stabilization orimprovement of psychological well-beingand lung symptoms in the majority ofpatients, but deterioration in physical symp-toms.

JOURNAL:: Lung Cancer. 2005Feb;47(2):277-81.

AUTHORS: Fennell DA, C Steele JP,Shamash J, Sheaff MT, Evans MT,


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Goonewardene TI, Nystrom ML, GowerNH, Rudd RM.


TITLE: "Primary malignant pericar-dial mesothelioma temporarily reduced

by radiation therapy: a case report"

SUMMARY: In this case study, a computedtomography, echocardiography, and magnet-ic resonance imaging showed a mass on thepericardium. Exploratory surgery revealed asolid tumor invading the pericardium overthe aortic arch and main pulmonary artery.Histological examination indicated primarymalignant pericardial mesothelioma. After58 Gy radiation, the size of the tumor wastemporarily reduced and the patient's symp-toms disappeared. However, the tumorenlarged and her symptoms reappeared 7months after temporary improvement.Eighteen months after the development ofcough, the patient died suddenly.

JOURNAL: The American Journal ofCardiology. 2004 Dec;44(6):255-62

AUTHORS: Tsuda T, Nakata T, Inoue T,Kamishirado H, Sakuma M, Tohara S,Takayanagi K, Hayashi T, Morooka S.


TITLE: "Abdominal computedtomography scans in the selection of patientswith malignant peritoneal mesothelioma forcomprehensive treatment with cytoreductivesurgery and perioperative intraperitonealchemotherapy."

SUMMARY: Until recently, the treatmentoptions for malignant peritoneal mesothe-lioma were very limited and ineffective,according to the authors. The new compre-hensive approach of cytoreductive surgery

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