By Tom Hagy*
Steven Kazan is teaming up with Lawrence Cetrulo to form one of the most experienced pairings of plaintiff and defense attorneys you will see leading an asbestos conference this year. I spoke to Kazan while he was en route from one meeting to the next last week in an effort to give our customers an early preview of insights he will share at our Third Annual Emerging Trends in Asbestos Litigation Conference in Marina del Rey, California, March 3-5. Kazan is the founding, senior and managing principal of Kazan, McClain, Lyons, Greenwood & Harley, PLC (KazanLaw.com). His co-chair, also with more than 35 years of experience in tort litigation, is founding partner of Cetrulo & Capone LLP.
Kazan says not only is asbestos litigation going strong, but mesothelioma cases – where much of the focus is these days – continue to develop in “stranger ways.”
Unquestionably one of the most experienced asbestos plaintiff attorneys out there (he filed his first asbestos case in 1974), if Kazan finds something strange, it probably is.
“Years ago, of course, the litigation was dominated by shipyard and factory exposures, then construction worker cases. Those types of cases still exist, but there are a lot of family member exposures and weirder exposures. We have a case with a man in his 40s who was a commercial airline pilot. His dad was a senior pilot. He used to do maintenance, working on planes in large hangars. We have seen asbestos plant workers whose wives or children, 20 years later, come to us with illnesses from take-home exposures. I am finishing up the case of a man in his 50s whose father died of lung cancer and was my client in 1982. The son was a client in the father’s death case, and recently died of mesothelioma.”
“There is an expansion of litigation involving talc,” Kazan said, “both when contaminated with asbestos and even when it is not. We’re seeing claims arising from exposures to asbestos in maritime equipment, something you did not see when all the insulation workers were filing claims.”
A potential for significant exposure for some companies doing business in Asia is the “ship breaking” industry, a major source of employment in India and Bangladesh, he said. Kazan points to the toxic risks associated with work that involves beaching and manually tearing apart old ships. (For more information go to www.worldasbestosreport.org.) “Potential liability surfaces for companies that make parts of the vessels, such as boilers and engines,” Kazan said. In some cases, depending on where the manufacturer is based or operates, they have to be concerned about exposure that will bring these Asian victims into U.S. courts. “We’ve seen this with Guatemalan workers exposed to U.S. pesticides and with Chevron workers in Nigeria. There is more potential for risk in Europe, where U.S. companies had joint ventures, or subsidiaries and affiliates. If I owned one of these companies I’d be nervous about what the future held.”
A Global Issue
Kazan said asbestos disease is a major global health issue given that the material continues to be exported to developing countries by developed ones, and given the massive mining operations and uses that continue in Asia today, particularly in China and India. “We will see vast numbers of cancers all throughout Asia as a result of the continued use of asbestos on the continent,” Kazan predicts. He said there are U.S. lawyers trying to generate overseas claims against the U.S. bankruptcy trusts, but most claims to date seem to be precautionary filings. Values for overseas claims can be impacted by difficulties in proof of exposure, and by the need to apply local factors in valuing injuries or lives, he said. “I have no idea what a ‘wrongful death’ case is worth in Bangladesh or India, but if you look at the 1984 Bhopal disaster, thousands of claimants waited decades and got very little.”
“Still, there are a lot of lawyers out hustling for these cases,” he said. “My advice to claimants outside the U.S. is this: ‘Do not hire American lawyers. Do it yourself with local talent.’”
“We’re about through litigation and disease based on World War II exposures,” Kazan explained. “An eighteen year old exposed in 1941 would be 85 years old now, but we’re still seeing later exposure cases. Medicare in its early years didn’t bother with asbestos because of the latency period and because the government didn’t have a claim against anybody who was injured before 1981. Now, we could have people with 1982 and later exposure who are well into the latency period, and the U.S. is entitled to reimbursement.”
Importantly, he pointed out that the bankruptcy trusts are not reporting entities under these new requirements. “There is still the claimant’s obligation,” he said, “and other defendants still have to deal with the reporting requirements.”
Kazan was disheartened by the way asbestos claimants were treated in the bankruptcy plans for GM and Chrysler, where the sale of the assets to the newly formed companies was attempted “free and clear of claims,” including asbestos claims, reportedly estimated at $627 million or more. There were no Section 524(g) trust funds set up in these cases, he said, but the courts left open the claimants’ attempt to preserve their claims. “This was a deliberate act by the U.S. Treasury Department and the auto czar to protect the auto companies from these claims,” Kazan fumed, but he expects years of litigation, especially against New GM.
About the Money?
Kazan urges litigants on all sides of the docket to take advantage of lessons learned from the litigation’s long history and predictable patterns. If a company recognizes its potential liability, it is in its interest to come in early, when it still has insurance coverage, to make a deal or create a trust so it can get the litigation off its plate and focus on business. He said companies that ignore the realities of the litigation and stubbornly elect to fight, risk substantial defense costs, as much as double or triple indemnity costs, plus exhaustion or gaps in insurance coverage. “Striking a deal early creates a win-win for everybody – the plaintiffs, the defendants, and the insurers,” he said. Certainly, not all plaintiffs’ attorneys see things Kazan’s way. “Some are zealots who say ‘it’s not about the money, it’s about vengeance.’ As the saying goes,” Kazan recalled, “when they say it’s not about the money, it’s about the money.”
“Lawyers who have been in this for a while understand, as I do, that we’re supposed to take care of the client and collect compensation. It’s not about having fun or securing vengeance. It really is all about helping patients take care of their families and medical expenses, and that’s best done by being pragmatic and efficient in a way that’s good for everybody.”
“By 1999 and 2000, defendant companies were seeing 80,000 to 100,000 new claims a year, mostly without any pulmonary impairment but based on possibly abnormal chest x-rays. That’s mostly dried up.” The focus now is on genuine and more serious claims, he said. “Today we’re seeing between 4,000 and 5,000 cancers a year and about the same for non-malignant cases. No question we’re still seeing about 10,000 asbestos deaths a year in this country.”
High profile cases will have an impact on litigation, he said, such as the suit brought by NFL Hall of Famer Merlin Olson, who is suing NBC, 20th Century Fox, Sherwin Williams, and Lennox Industries for their alleged role in his mesothelioma. “This kind of thing will generate more attention to the disease. The litigation isn’t going away,” Kazan concluded.
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Kazan is admitted in New York; California; U.S. Courts of Appeals, Third, Fifth and Ninth Circuits; California and U.S. District Courts, Northern and Eastern Districts of California; and the U.S. Supreme Court. He earned his LL.B. from Harvard University and his A.B from Brandeis University. Kazan has been a frequent speaker and chairman at HB events, starting in the 1990s when we were still operating as Mealey’s Conferences. Click here for his complete bio.
Kazan, McClain, Lyons, Greenwood & Harley and Morrison & Foerster recently launched the Bay Area Lawyers for Haiti Relief Fund to collect and pool the donations from the legal community in a show of support and concern for the people of Haiti. The Kazan McClain foundation will donate $50,000 to the fund and the Morrison and Foerster Foundation will match donations made by partners and employees of the law firm for a total donation which will exceed $50,000. Click here for more details.
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*Tom Hagy is CEO of HB which he founded at the end of 2008. Hagy is former editor and publisher of Mealey Publications Inc. As vice president at LexisNexis Hagy developed online content for litigators as well as the first wave of LexisNexis Communities.
March 3-5, 2010
Marina del Rey, California