Editorial Number Two: Why is the United States System more of a lottery than a search for fairness, justice, and the truth?

The primary purpose of a civil court system is generally to provide access to the public, with the goal of searching for fairness, justice, and the truth while at the same time providing finality. At least, that is the way that most people generally view the nature and purpose of civil courts. These courts are never perfect but, in my experience, they tend to work better in developed countries such as the United States than in developing countries. They also tend to work better with juries making the factual determinations than if left solely to a judge, but that can certainly vary based on the issues, venue, and particular judge involved.

Asbestos lawsuits arising from injuries sustained from industrial exposures, at least in the United States, when viewed from 10,000 feet, are primarily a lottery. Although each individual case may well be a search for fairness, justice, and the truth, the system is fraught with inconsistencies and wastes that draw resources away from treatments, research, and those who have suffered injuries. Further, the attorneys involved have become experts in handling the cases in ways which may serve their individual clients, but certainly makes no sense logically and that does not serve societal goals.

Let’s start off where the cases are filed. In a chart created by KCIC and used in a webinar yesterday organized by Perrin Conferences, 45% of all asbestos cases filed in 2021 and 41% of those filed to date in 2022, are venued in Illinois. (The KCIC publication on this and other asbestos lawsuit filing statistics is available at https://www.kcic.com/asbestos/ and is free to download.) Those numbers make no sense in anyone’s logic other than certain venues within Illinois are considered exceptionally Plaintiff friendly. Don’t get me wrong; defense verdicts do occur in those venues, but many involved in the defense would tell you in confidence that the deck seems stacked against them in terms of procedures, discovery, and other similar case handling issues. Which is why the injured parties and their attorneys prefer to file in those locations. Same reason why the next largest venue for filing, New York, New York, gets 7% of the cases.

Now, let’s discuss how the moneys get spent in support of the asbestos cases in the United States. We have lots of people feeding at the trough in support of the systems. The injured parties, their attorneys, the defendants (and average of 68 per case per the KCIC report), their attorneys, the court systems, the judges, and the court reporters are just the start. You also need to take into account the resources taken up by hotels, restaurants, caterers, car rental agencies, uber/lift/taxis/Limo services, parking lots, airlines, trains, copy and blow up services, medical record providers, office supplies providers, jury consultants, mock jury organizers and experts, technology experts, jurors, conventions, seminar providers, service of process agents, the referring counsel, and experts from a broad range of fields including pathologists, historians, industrial hygienists, geologists, medical and X-ray experts and testifiers, economists, military (Navy ships), day in the life film developers, and former government employees. Each of the above are essential parts of the current system in order to “help” the injured parties and those sued within the system.  Of course, each is, and within the scope of the current system, should be compensated for their work.  In addition to those helpers, there are others within the system who also provide services and get paid for those services including lobbyists, insurance and claims related employees, third party administrators, claims analysts, invoice auditors, data basing experts, in-house counsel and support staff, and other similarly situated people.  For the bankruptcy trusts, add the “helpers” including their creation, trustees, management, employees, technological needs, reserve experts, auditors, claims handlers, administrative staffs, and other employees and consultants typical for any trust or large company. 

Just imagine if the United States had a system which paid consistent fair value to those injured and all of the others, or at least many of the others, did not need to be involved. The savings available to distribute to medical treatment research and improved care options would, in my opinion, be staggering. And, of course, improvements in medical treatments and research help the world and not just those injured arising from conduct occurring in the United States.

Finally, let’s discuss the nature of verdicts. From the materials distributed during the webinar yesterday, the United States based court systems had eight jury verdicts in asbestos cases combined during February and March 2022. Of those eight cases, the defendant won twice (that is, the Plaintiff was shut out other than for settlements reached prior to trial), one was declared a mistrial, and the Plaintiffs won $2.8 million, $5 million, $18 million, $20 million, and $36.5 million. In May 2022, eight cases went to jury verdict with three cases going to the defense, and the remaining five reaching verdicts of $2 million, $7.7 million, $30 million, $36.8 million, and $43 million. Interestingly from the May 2022 numbers, the lung cancer cases were defense verdicts while the Mesothelioma cases were Plaintiff verdicts; that was not the same in the February and March cases.

My point isn’t that the values are too high or two low but, rather, the inconsistencies make no societal sense for cases that have been going to trial since the 1980s. The results are not fair to those who are shut out because they happen to hire the wrong attorney, file in the wrong venue, or happen to get a bad jury draw. It also isn’t fair to many of those being sued as they also deserve their day in court.

These are just my opinions. Let me know what you think in the comments or by emailing me at TheAsbestosBlog@gmail.com. Thank you. Marty