Communication’s Role in This Continuing & Complex Arena

By Tom Hagy*

Asbestos litigation is not only complex and, as people well know, big.

But I am not sure people other than those touched by the litigation or who have studied it really appreciate just how big it is.

“There literally are hundreds of thousands of people domestically and internationally affected by asbestos exposures that have take place over decades, with decades more of it to come,” said Michael J. Pietrykowski of Gordon & Rees. Pietrykowski, who represents equipment manufacturers in asbestos litigation, said that alone makes asbestos litigation unique. “There is nothing even close,” he said.

One would hope . . .

So, a lot of people seem to think there is a lot wrong with how it’s going. Others are fairly fine with the status quo. Should anything be done? If so, what?

Pietrykowski says better communication by the players in the litigation, which, he said, is a defined group of lawyers and to some extent judges, is a must.

“With a line of communication in place we can start talking about important issues like the trusts, and how to determine which cases have to be tried and which can be resolved without spending lots of money,” he said.

“We all have limited resources. Let’s use them to make the system work as efficiently as possible and everybody will benefit,” he said.

Is Pietrykowski saying that if everyone just talked things would be better? “I am not naïve,” he said. “Not every issue has an answer. But we need to spend time understanding what we – including both lawyers and judges – agree upon and what we don’t agree upon, then decide the best method to resolve what we can.”

Pietrykowski said informal conversations help, but what really is needed is a formal way for lawyers and judges across the country – because this truly is a “national litigation” – to share what’s going on and what’s ahead. He means this as a two-way communication that includes judges. “Both the plaintiff and defense lawyers could do a better job helping the courts understand what’s coming. And courts, while they deal with these cases as best they can, could do a better job helping the attorneys too.”

Helping one another? But aren’t plaintiff attorneys supposed to maximize their clients’ awards? Aren’t defense attorneys around to reduce or even eliminate what a company pays out? Aren’t we asking advocates to stop advocating and try to be more, well, agreeable?

“No one is stopping advocacy,” Pietrykowski said. He pointed to a recent California decision recognizing the sophisticated-user defense in personal injury cases. When defense attorneys started pursuing summary judgments with motion judges in San Francisco, the first judge, recognizing that in asbestos nothing stops with just one case, took the time to examine the issue thoroughly, asked for briefing, allowed input from other parties, and paused so it could write a thoughtful opinion everyone could see.

“That didn’t stop defendants from appealing. Nobody’s rights were limited,” he said. “There are reasons for a lot of what goes on in asbestos litigation beyond simple efficiencies.”

But if you really want to advocate for your client, isn’t chaos and confusion sometimes a good thing? “I understand that from an adversarial approach there are times and reasons you want uncertainty. From both sides. But, again, with asbestos litigation you have to appreciate the finite number of people involved and certainly the finite resources available to handle it.”

So that takes us back to communication, which Pietrykowski says has to take place on two levels.

First, there is the practical level. What is being done in the bankruptcy system? Each time an entity files for Chapter 11, “it is their own bankruptcy” with unique nuances depending on the company. There needs to be communication about how much is out there in each proceeding and what the timing is. Second, and something that will be addressed at our conference in September, is whether there should be a merger of the systems. “Is recovery under a bankruptcy trust really their own business and has nothing to do with the court system? Or, is the answer, ‘Yes, it does matter because the amount of money is very significant and people are collecting lots of it.’ Should there be recognition in the litigation of credits in the bankruptcy system?”

What Pietrykowski hopes to do at HB’s National Asbestos Litigation Conference next month – along with chairmen Joseph J. O’Hara Jr. of Owens-Illinois and Joseph W. Belluck of Belluck & Fox – is at least come away with possible solutions to what seems like an impossible challenge.

Here is the mission statement our chairmen prepared for the event: “We know many of the faces in this long-standing litigation very well. For better or worse, we are a family of sorts! Regardless of the side of the table, we all face similar issues and need to work together to resolve some of the recurring problems in “our” asbestos world. Therefore, as the chairs of HB’s National Asbestos Conference, we propose that part of our program be dedicated to a discussion of possible solutions to key issues. Throughout the day, we will dedicate time to this goal, in an effort to move towards improving the litigation landscape.”

For more information about HB’s National Asbestos Conference taking place Sept. 23-25 at The Four Seasons in San Francisco, as well as the list of attorneys, companies and judges who will be there, CLICK HERE. You also will find a number of free videos of judges discussing many of these same issues at HB programs held earlier this year.

* Hagy is president of HB Litigation Conferences LLC. He was once publisher and managing editor at Mealey Publications, and was a contributing editor for Mealey’s Litigation Report: Asbestos (now published by LexisNexis) and before that the Asbestos Litigation Reporter (now published by Thompson West).