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PANEL DISCUSSION:MASS TORT CASES CAN BEWONModerator: TOM TARDYForman Perry Watkins Krutz & TardyJackson, MSUNCORKING LITIGATION MANAGEMENT EXPERTISE- 61 -
Mass Tort Cases Can Be Won:But You Need to BeResourceful and AggressiveApril 2009Paul SlaterGeneral Electric CompanyJohn FitzpatrickWheeler Trigg KennedyTom TardyForman Perry Watkins Krutz & Tardy LLPAsbestos Litigation &Its Impact On Judicial System First Mass Tort Largest Mass Tort Most Disastrous Mass TortAsbestos Litigation Where Are We? How (Why) Did We Get Here? What Has Changed? Does all of this have applicabilityfor other mass torts?- 63 -1
How Asbestos Litigation StartedThe First CaseTomplait vs. Combustion EngineeringOrange County, TexasDecember 1965 Insulator Claude Tomplait Rare Cancer called Mesothelioma Tomplait lost his caseThe First VerdictBorel v. Fibreboard Paper Corp.493 F.2d 1076 (5th Cir. (Tex.) 1973) Insulator Clarence Borel Same Disease-Mesothelioma He Won! Compensatory Damages 79,436.24The Fire Spreads Growth of Asbestos Litigation NationallyRichard GlasserGlasser & Glasser Filed Virginia’s first asbestos lawsuit in 1976 By 2001, he had filed over 10,000 cases and collected 267 million forclientsRon MotleyNess Motley/Motley Rice Current firm slogan “Litigating Today for a Better Tomorrow,” Filedil d hishi fifirst asbestosbcase ini 19769 6 ini ffederaldl court iin ChCharleston,lSouth Carolina-settled it within 18 months for over 100,000 By January 1993, he was working on a deal to resolve between250,000 and 2 million asbestos claimsFred BaronBaron & Budd Leading Democratic Party fund-raiser Baron & Budd, boasts of winning over 140 million for clients claimingto have mesothelioma, an asbestos-caused cancer, but doesn’tmention that its fees in that litigation were between 69 million and 92 millionReaction: Where Were We In 2003?730,000 Asbestos claims filed to date30,000 Silica claims filed to dateSince 1976 asbestos and silica liabilities have been a factor inmore thanth70 companiesi bankruptciesb kt i 70 Billion spent on asbestos litigation through 2002 130 130-- 195 Billion projected future cost for Asbestos and SilicalitigationRAND Institute for Civil Justice 2005 and The Coalition for Litigation Justice 2006- 64 -2
Overall Asbestos Filings in 00019,27613,74510,000 4,980 5,1686,212187 174731301999 2000 2001 2002 2003 2004 2005 2006 2007 2008Annual Asbestos Claims FilingsAction Rather Than Reaction Legislative Initiatives Spreading the Word Attack on Fraudulent Claims Vigorous Defense of Real Cases- 65 -3
Coalition for Litigation JusticeNon--profit organization formed to address and improveNonthe litigation environment for toxic tort claims Identify jurisdictions that pose thebiggest challenges Provides members with a forum fordiscussing current litigation trends Has filed 60 amicus briefs and has published71 articles Sponsored various symposiums throughoutthe United StatesFederal LegislationFairness in Asbestos Injury Resolution(FAIR Act)Defeated February 14, 2006More money was spent on the FAIRAct than any other bill in the historyof Congress- 66 -4
State Legislative InitiativesTort Reform(Including Medical Criteria for Asbestos Cases)Mississippi (2004)Ohio (2004)Texas (2005)Florida (2005)Georgia (2007)Kansas (2006)South Carolina (2006)2008: Asbestos Legislation Introduced in 17 States (35 bills)Action: PublicityScruggsScruggs‐‐Gate Guilty Pleas by All Judge Bobby DeLaughter Indicted Former DA Ed Peters Surrenders LawLicense P.L. Blake Promised 50 million Judge Oliver Diaz & Judge Wes TeelIndicted- 67 -5
What’s Next in Mass Torts?16What Has Changed? Legacy of Silica 1553 Congressional Investigation Medical License Revocations MDL 875The Legacy of Silica MDL 1553:Judge Janis Jack"[T]he clear motivation . . . was toinflate the number of Plaintiffs andclaims in order to overwhelm theDefendants and the judicial system.Thi iis apparentlyThisl ddone ini hopeshoffextracting mass nuisance-valuesettlements because the Defendants andthe judicial system are financiallyincapable of examining the merits ofeach individual claim in the usualmanner."Order No. 29 at 238-239- 68 -6
Silica MDL: Other Significant Testimony Dr. Ray Harron:Requested a Criminal Attorney Dr. Barry Levy:10 Seconds to Make Diagnosis1200 Patients in 72 Hours Heath Mason:3030--Year Old Junior Collegeg DropDropp-OutCollected 20,000,000“Did What Lawyers Told Him to Do” Dr. Todd Coulter:No Training to Diagnose SilicosisConducted Screening at Western SizzlinThe Legacy of Silica MDL 1553All Cases Remanded or DismissedScreening Doctors Blacklisted by Bankruptcy TrustsDrs. Ray Harron and James Ballard Assert the Fifth AmendmentN&M Ordered to Produce All Files and Materials to FPWKTBlacklist Doctors Dr.Dr.Dr.Dr.Dr.Dr.Dr.Dr.Dr.James BallardKevin CooperTodd CoulterAndrewd e Harrona oRay HarronGlynn HilbunBarry LevyGeorge MartindaleW. Allen Oaks- 69 -7
The Legacy of Silica MDL 1553:Congressional InvestigationThe Legacy of Silica MDL 1553:State Medical Board InvestigationsAmerican Medical Association AsksState Board of Medical Examiners to InvestigateScreening DoctorsJM: Top 25 Doctors- 70 -8
Screening Investigations: MDL 875In Re: Asbestos Products Liability Litigation (No. VI)MDL Docket No.: 875U.S.D.C. Eastern District of PennsylvaniaMDL 875: Motion to DismissMotion to Exclude and Dismiss Claims Diagnosed by:Dr. Ray Harron, Dr. Andrew Harron, Dr. James Ballard,Dr. George Martindale, Dr. Richard Levine, & Dr. Jeffrey BassBased on Assertion of Fifth Amendment or AffidavitsEffects Tens of Thousands of Plaintiffs in MDL 875RTS Motion to Dismiss- 71 -9
RTS Motion to DismissThe primary assumption in any diagnosis is that the test results and materialsreviewed by the expert are actually of the individual at issue. In asbestoslitigation, this translates to insuring that the x-rays and PFTs interpreted by thediagnosing doctor are of the particular plaintiff he/she believes he is diagnosing.In other words, the answers to the following basic questions must be “YES:”Was Plaintiff John Doe the pperson who actuallyy sat for this x-ray?yWas Plaintiff John Doe the person who actually performed this PFT?Was the x-ray provided to the expert actually that of Plaintiff John Doe?Was the PFT result provided to the expert actually that of Plaintiff John Doe?Segarra Daubert MotionSegarra Daubert Motion“Dr. Segarra abandoned medical methodology forexpediency, legitimacy for lawlessness, and sincerityfor prosperity.”Segarra has rendered over 40,000 positive diagnoses.Segarra does not practice what he preaches.Segarra perjured himself in prior depositions when he denied every relying on xxray interpretations of another doctor. In fact, Segarra has over 1200 “piggybacks.”Segarra’s silicosis diagnoses only became prevalent in 2001.Segarra has scores of “flip“flip--flops.”Lisa Segarra would read xx--rays and dictate reports.- 72 -10
Dr. Ray Harron: Texas Medical LicenseHIDING THE BALL:STATUTE OFLIMITATIONSORIGINAL EXPERT REPORTPLAINTIFF REQUESTS CHANGEEDITED EXPERT REPORTJKLipman wants OK to DeleteSentence ć 1985 exceedstime limitation.OK?OKEven Fraud Has Its Limits- 73 -11
MDL 875 Administrative Order No. 12New Screening Standards Set by the CourtSuspect Doctor Associations?- 74 -12
Michigan Screening InitiativeR. Michael Kelly, M.D.November 2008Wayne County, MichiganDeposition revealed extreme deviation from acceptable medical standards forPFTs, chest x-rays and diagnostic practicesMichigan Screening InitiativeR. Michael Kelly, M.D.November 2008Wayne County, MichiganJudge Colombo described the medical evidence of Dr. Kelly'sunreliability as an expert as "overwhelming"and stated on the record to plaintiff's counsel:"I don't believe that you could have found an expert tosupport Dr. Kelly's position."Nov. 19, 2008 Transcript of Judge's Opinion, Judge Robert J. Colombo, Jr., Miles v. Sure SealProducts Company, et al., Case No. 04‐434812 (unpaginated) (3d Cir. Mich.).Michigan Screening InitiativeJeffrey Parker, M.D.Daubert Hearing set for April 2009Wayne County, MichiganDeposition Revelations100 % Positive RateDiagnosis Contradict PlaintiffsPlaintiffs’ Treating Physicians- 75 -13
Thomas W. Tardy, IIIPartnerCity Centre200 South Lamar StreetSuite 100Jackson, MS 39201-4099P.O. Box 22608Jackson, MS 39225-2608Direct: (601) 960-8633Fax: (601) 960-8613Email: ttardy@fpwk.comEDUCATIONMississippi State University(B.S., Accounting, 1968)University of Mississippi School of Law(J.D., with Distinction, 1973)AREAS OF PRACTICE Mass Tort Products Liability Environmental LitigationPUBLICATIONS/LECTURES "Liability of Equipment Manufacturers for Products of Another: IsRelief in Sight?" Silica, Harris Martin Columns, April 2007 "Practical Applications of Screening Fraud Analysis"Defense Research Institute Seminar,Asbestos Medicine(Las Vegas, NV, October 26-27, 2006) "Defending Mass Tort Cases by Exposing Plaintiff Fraud"Network of Trial Law Firms Seminar,Watching Whales and Minding Minnows(Laguna Beach, CA, April 28-29, 2006)LISTINGSBest Lawyers in AmericaBAR ADMISSIONSMississippi, 1973U.S. Supreme Court, 1992Texas, 2000MEMBERSHIPS & ASSOCIATIONSHinds County Bar AssociationThe Mississippi Bar (Litigation and General Practice Sections)State Bar of TexasMississippi Defense Lawyers AssociationInternational Association of Defense CounselDefense Research Institute- 76 -
200 South Lamar Street Suite 100 Jackson, MS 39201-4099 P.O. Box 22608 Jackson, MS 39225-2608 . Direct: (601) 960-8633 Fax: (601) 960-8613 Email: ttardy@fpwk.com . EDUCATION Mississippi State University (B.S., Accounting, 1968) University of Mississippi School of Law (J.D., with Distinction, 1973) AREAS OF PRACTICE Mass Tort
